Texecution Hearing Set on Judge's Alleged Affair With Prosecutor

Sometimes reports of romantic affairs by public officials, if true, matter. For Charles Dean Hood, set to be executed next week, it could mean the difference between life and death. A judge has set a hearing on whether the judge and prosecutor in his capital case were having a secret affair during Hood's trial:

The hearing will address arguments that Brewer's murder trial was unfair because of an alleged unethical romantic relationship between the judge presiding over the trial and the district attorney prosecuting the case.

Brewer ordered retired judge Verla Sue Holland and former Collin County District Attorney Tom O'Connell to be ready to be interviewed by lawyers Monday – if Brewer agrees with Hood's attorney that the pair should be deposed.


Today's decision reverses another judge's ruling refusing to schedule the hearing before Dean's execution date. Background on the case is here and here.

(Despite my intro line, the topic here is the death penalty, texecutions and conflicts of interest. It is not candidates in this year's election, so please keep your comments on topic.)

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    Yes (none / 0) (#2)
    by befuddledvoter on Thu Sep 04, 2008 at 06:35:22 PM EST
    There are two kinds of conflicts of interest in legal cases.  One is actual and that means you get an automatic reversal of the conviction. The other is apparent, meaning it gives the appearance but is not per se a conflict.  With an apparent conflict of interest the reviewing court looks to see if the jury verdict was affected by the conflict.  Note the burden is on the defendant to show how the outcome was affected.  With an actual conflict, no need to show prejudice at all.  

    Not sure how this conflict is being analyzed.  If you read the links you see that in fact the appellate court has reversed the trial court ruling and sent it back to the trial judge for a hearing.  This means in this case anyway, judge and prosecutor may be subpoenaed.  

    Very interesting issue.  Wish I knew more.

    Is there any real career-ending shame... (none / 0) (#3)
    by EL seattle on Thu Sep 04, 2008 at 07:01:25 PM EST
    ...that accompanies things like this?  (If the allegations are true, of course.)

    I'd think that even in a case where there is no question about the accused's guilt or innocence, there should be zero tolerance for this sort of conflict of interest, and a lingering shame sould drive both parties out of their chosen fields.  Constant public ridicule, wherever they go.  But that's just my opinion.  

    sad to say, but this is common in that area (none / 0) (#4)
    by txpublicdefender on Thu Sep 04, 2008 at 07:31:53 PM EST
    I was a public defender in the county just south of this one, and I am sad to say that affairs between judges and the prosecutors in their courts were common and an open secret in the courthouse.  I know of one judge who had affairs with two different prosecutors assigned to his court, meaning that all the cases they prosecuted during that time were heard by him--please, trials, sentencings, probation hearings, etc.  When the DAs office would "find out" about the affair, they would just move the prosecutor to a different court.  No one was ever disciplined, no complaint ever filed against the judge, and no defense attorneys on any of the hundreds or thousands of cases involved were ever notified.  

    It was pretty disgusting.

    Don't jump to conclusions (none / 0) (#5)
    by Mitch Guthman on Thu Sep 04, 2008 at 08:42:35 PM EST
    It would appear that not all of the people who believe in sentence first, trial afterwards are Texas prosecutors or judges.   As far as I can tell from Jeralyn's comment and the article she links to, this is an allegation based upon mere courthouse gossip.  Couldn't we wait for the hearing and see what evidence exists in support of this allegation?

    I am also surprised that the state allowed a civil lawsuit to proceed while the criminal appeal (and potentially retrials, etc) is pending.  This would appear to be remarkably poor legal work by the Texas AG's office (or whoever is handling the appeal) since it would allow defendants to totally bypass the criminal discovery regime (limited discovery, with requirements of strict reciprocity such as sharing of test results, etc)  in favor of the wide open discovery favored in civil matters.  Both federal and Texas law were (when I was practicing) quite clear that once a criminal matter was pending, civil suits were required to be stayed upon application by the State.

    The other thing which is surprising is that nobody bothered to schedule the defendant's deposition (which probably could be taken immediately, since his testimony is both essential and "perishable", so to speak).  Also, I don't know where the law stands right now, but its was previously the case that a plaintiff's  invocation of his 5th Amendment rights would probably entitle the civil defendants to an immediate dismissal and maybe also suspension of plaintiff's discovery activity as a sanction.  

    Actually, it appears the Texas AG joined with (none / 0) (#6)
    by jccamp on Thu Sep 04, 2008 at 09:08:06 PM EST
    the defense in seeking a factual determination whether an affair existed at the time of trial and sentencing. While claiming there is no question as to the defendant's guilt, the AG's office supported a defense motion for deposition of judge and original prosecutor.

    Sounds like the AG just decided to put the matter to rest via whichever venue will address it.


    Maybe Boards of Bar Overseers (none / 0) (#7)
    by Redshoes on Thu Sep 04, 2008 at 11:11:40 PM EST
    should start requiring annual disclosures from lawyers regarding conflicts of interest.

    I think most jurisdictions require disclosure by judges already but I'm not sure.

    I can't imagine that, if in fact true, this doesn't qualify as an actual conflict of interest (one that may be waived by the defense) but it would have to be disclosed.  There's just no way a judge can remain impartial when he or she is in bed (literally) with the prosecution.

    Disclosure already required by ethics rules (none / 0) (#8)
    by Mitch Guthman on Fri Sep 05, 2008 at 12:13:38 AM EST
    I don't know how you'd construct a disclosure form since, I suppose, it would have to be some sort of an annual filing.  Do you file an amendment if you start dating another lawyer or a judge? Do you file with any kind of "date" or would it be limited to sex?  Besides, in criminal courts this is a very big deal and everybody already knows it-----if its going on before the case starts, most prosecutor offices have pretty strict requirements on not dating defense lawyers or judges.   You're already required to disclose under both ethics rules and case law---so if it was going on as alleged the issue is just the remedy, which is probably an automatic new trial.  

    On the other hand, I not sure that affidavit saying that this particular affair was common knowledge is really as helpful as it might appear at first glance.   If the defense knew or suspected it, they were probably obligated to raise the issue as soon as they became suspicious.  Had to say what the effect is except maybe the analysis become ineffective assistance (which means no automatic new trial).  If it goes that way, the prosecutor may not be the only one in this case having trouble with the State Bar Assn.