A Legal Affair

Convicted murderer Charles Dean Hood has been granted a stay of execution. But the fact—confirmed at last—that the judge and the prosecutor on his case had "an intimate sexual relationship" has not been addressed

By Alan Berlow

Convicted double murderer Charles Dean Hood won a stay of execution on Tuesday, only hours after the judge who had presided at his 1990 trial acknowledged she’d been involved in a long-term intimate relationship with the district attorney who prosecuted Hood’s case. The ruling by the Texas Court of Criminal Appeals means that Hood is off the hook, at least for now. But the same can’t be said for the Texas justice system, which has seen some of its most egregious excesses exposed in the battle over whether Hood should live or die.

Also see:

Travesty in Texas (September 8, 2008)
"The case of convicted double murderer Charles Dean Hood raises deeply disturbing questions about the state's administration of justice." By Alan Berlow

In issuing the stay, the Court of Criminal Appeals, the state’s highest court, ducked the issue of the alleged affair entirely, but instead agreed to reexamine whether the instructions Hood’s jurors were given prior to sentencing him to death were constitutional. The CCA has previously ruled that there was no problem with those instructions. The decision means that Hood could get a new sentencing hearing—which could result in a sentence other than death—but not a new trial.

Lawyers for Hood, who was scheduled to be executed on September 10, have been arguing since June that their client’s 1990 trial was thoroughly compromised by the relationship of Judge Verla Sue Holland and District Attorney Thomas O’Connell, and that the death sentence was therefore invalid and that Hood should be retried. But the courts and the district attorney for Collin County, just north of Dallas, had all dismissed the allegations as nothing more than “rumor.” While the DA pressed to have Hood executed, the state’s criminal courts ruled that it was too late in the game for Hood to raise the claim about an intimate relationship.

With the allegations of an affair no longer “rumor,” the DA’s office appears to be sticking to its guns. Assistant District Attorney John Rolater told the Dallas Morning News that his office “will vigorously defend our judgment and sentence,” and suggested that the fact that the former DA had been sleeping with the judge was of no consequence because “there was no affair going on during Hood’s trial.... It’s fairly clear that this was over well before the trial.”

In fact, it is by no means clear when the affair ended. Although District Judge Greg Brewer, who ordered the depositions, placed a gag order on discussion of their contents, some details emerged in a letter sent by Hood’s lawyer, Gregory Wiercioch, to Governor Rick Perry seeking a 30-day stay of execution. In that letter Wiercioch states that O’Connell and Holland agreed that the relationship began several years before Hood’s trial, but disagreed about exactly when it ended, and remained “good, close friends” even after they stopped sleeping together.

More importantly, the letter to Perry suggests that neither Holland nor O’Connell gave a second thought to their joint participation in the Hood case or any other case brought by O’Connell’s office and tried before Holland. “Judge Holland and Mr. O’Connell admitted under oath that they had an intimate sexual relationship for many years,” the letter states. “Judge Holland and Mr. O’Connell confirmed that they kept the relationship secret. She never disclosed it to a single litigant or lawyer who appeared before her, and she never recused herself from hearing a single case because of her affair with the elected district attorney.” The letter goes on to say that O’Connell also failed to disclose the relationship to any of his adversaries.

“No reasonable person would believe that a fair trial is possible when the presiding judge has had an intimate sexual relationship with one of the lawyers in the case,” Wiercioch writes. “That neither Judge Holland nor Mr. O’Connell disclosed the existence of the affair to Mr. Hood or his counsel is a shocking and devastating indictment of the Texas criminal justice system.”

Hood was sentenced to death in August 1990 for the 1989 murder of Ronald Williamson, 46, and Williamson’s girlfriend, Tracie Wallace, 26. Hood had worked as Williamson’s bodyguard and was living with him and Wallace at the time of the murders. Both victims were shot in the back of the head and were found in Williamson’s house. Hood was picked up in Indiana where he was driving Williamson’s Cadillac. He was linked to the crime scene by fingerprint evidence. Hood continues to insist he was innocent.

Among legal ethicists there is no question that Judge Holland should have recused herself from trying Hood’s case. Lawrence J. Fox, a professor of law at the University of Pennsylvania Law School and the former chairman of the ABA Standing Committee on Ethics and Professional Responsibility, said Holland, O’Connell and the State all had an obligation to reveal the information about the affair “long ago.” “What is stunning is they were all prepared to let the defendant be executed. They stood silent.... It is stunningly disgraceful.” Fox said that if Hood “does not get a new trial, there is no justice.”

Monroe Freedman, author of Understanding Lawyers’ Ethics and one of the country’s leading authorities on professional conduct, stated in an affidavit that “Mr. O’Connell’s success or failure as the prosecutor in Mr. Hood’s case could have had considerable significance to the advancement of Mr. O’Connell’s career. Accordingly, Judge Verla Sue Holland had a personal interest on behalf of her lover, District Attorney O’Connell, in the conviction and death sentence of Mr. Hood.”

The Collin County district attorney, who has been pushing to execute Hood, clearly takes a different view. John R. Roach, the current DA, has previously dismissed questions about the role of lawyers in his office as “speculation.” One of those lawyers, John Schomburger, prosecuted the case with Hood. He has refused to comment on the case. And the DA’s office has given no indication that it is in anyway interested in raising questions about the conduct of employees past or present.

That may be because a court judgment that Hood’s due process rights were violated would raise questions about other cases that originated in the Collin County DA’s office, including cases Roach was involved with. As District Attorney, O’Connell argued at least six other cases before Judge Holland which could be affected by the latest disclosures. Richard Ellis, a lawyer for Hood, said it is possible that literally “hundreds” of cases that came through O’Connell’s office during his 29 years as DA and were argued in front of Holland might be tainted. Holland was a district court judge in Collin County for 16 years, from September, 1981 until December, 1996. She was then elected to the CCA where she served until her retirement in September, 2001. O’Connell was elected district attorney in 1971.

As suggested by Assistant DA Rolater, the current Collin County DA’s office subscribes to a fairly narrow interpretation of the U.S. Constitution and the Texas Constitution, as well as commonly accepted ethical guidelines for lawyers.

The U.S. Supreme Court has held that the Due Process Clause of the Constitution requires that a judge “not only must be unbiased but also must avoid even the appearance of bias.” The Texas Constitution bars a judge from sitting in a case “where either of the parties may be connected with the judge, either by affinity or consanguinity.” As district attorney, O’Connell represented the State of Texas, the party seeking to execute Hood. The Texas constitution further states that, “Public policy demands that the judge who sits in a case act with absolute impartiality. Beyond the demand that a judge be impartial, however, is the requirement that a judge appear to be impartial so that no doubts or suspicions exist as to the fairness or integrity of the court.”

The Texas Bar Association’s rules of conduct require “a lawyer who knows that a judge has committed a violation of applicable rules of judicial conduct that raises a substantial question as to the judge’s fitness for office shall inform the appropriate authority.”

The American Bar Association’s Model Code of Judicial Conduct provides that, “A judge shall disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned.” When there is doubt, a judge is obliged to disclose information that lawyers might consider relevant to the question of disqualification.

The Texas State Commission on Judicial Conduct is apparently looking into the case.

Matthew Goeller, a former assistant district attorney at the time of the Hood trial signed an affidavit in June stating that it was "common knowledge in the district Attorney's Office, and the Collin County Bar, in general," that O'Connell and Holland had a "romantic relationship," which was ongoing from at least 1987 until 1993. So far, Goeller is the only lawyer from the DA’s office office who has stated publicly that this raised questions about the judge’s “impartiality.”

His concerns were given an enormous boost late last week when Texas Attorney General Greg Abbott took the extraordinary step of filing an amicus brief on behalf of Hood, a convicted and condemned murderer, citing what he called "the unique and extraordinary circumstances concerning the trial of this case." Abbott called for a thorough review of the case and the alleged romance by the "appropriate trial court," while making clear that he views the allegations of an affair as "unsubstaniated." Abbott’s instincts were vindicated by the depositions in Judge Brewer’s courtroom.

Hood’s lawyers were delighted that their client’s execution was stayed, but they were frustrated that the court failed to address the affair because they believe Hood’s conviction should be overturned. David Dow, director of litigation at the Texas Defender Service who has been working on Hood’s defense said, “Our first objective is to get Mr. Hood an entirely new trial.” Dow believes the CCA decided to rule on the jury instruction issue because, “It was yet another opportunity to avoid addressing the elephant in the room,” the intimate relationship between Holland and O’Connell. Hood's lawyers had asked eight of the nine members of the CCA to recuse themselves from the case because they had all served with Judge Holland when she was on that court. That motion was denied.

Richard Ellis said Hood’s legal team plans to pursue the judicial misconduct claim to win a new trial and to argue Hood’s claim of innocence. Ellis says that DNA from the crime scene has never been properly tested and that there are other forensic issues no court has ever examined.

Hood has had six execution dates thus far. He came within hours of execution in June when the time limit on his execution warrant ran out.

This article available online at:

http://www.theatlantic.com/magazine/archive/2008/09/a-legal-affair/307024/