Texas Appeals Court Vacates Death Sentence: But What About the Affair?

In 2008, the Texas Court of Criminal Appeals stayed the execution of Charles Hood. Curiously, they didn't do so because it came to light that the prosecutor and judge were having an affair. It was because of a jury instruction.

In September, the Texas Court of Appeals ruled Hood had waited to long to raise the issue of the affair. The Texecution again loomed.

Today, the Texas Court of Criminal Appeals threw out the death sentence, ordering a new sentencing hearing (but not a new trial.) Once again, no mention of the affair.


[T]he decision from the State Court of Criminal Appeals did not mention the affair, focusing instead on whether jurors had been blocked from getting information that might have helped them deliver a less severe sentence.

...The new opinion, on a separate writ, focused on whether the jurors should have been able to fully consider issues like Mr. Hood’s learning disabilities, and the fact that he had been gravely injured at 3 years old when a truck backed over him, crushing his legs.

A petition to the U.S. Supreme Court asking to address the conflict issue raised by the affair is pending. Last week, 21 former judges and prosecutors filed a brief supporting him-- as did 30 experts in legal ethics.

Hood's lawyers and other legal experts say today's ruling is only a partial victory:

The legal director of the Criminal Justice Legal Foundation, Kent S. Scheidegger, said he expected the case to lose momentum now that the death penalty was, at least temporarily, off the table.

“That will probably cause it to drop on the radar screen of newsworthiness,” Mr. Scheidegger said, and he suggested that the Supreme Court might now disregard the petitions before it on the bias issue.

If there was a conflict of that magnitude, Hood should get a new trial on guilt -- not just a new sentencing hearing.

Yesterday, The Independent took a long look at the case. The headline says it all: "The death row prisoner, the judge who sentenced him, and the prosecutor who was having sex with her."

It is the stuff if not of a television soap, then certainly a bad romance novel. Both were married and both kept their affair a secret before, during and for many years after the trial.

There is keen interest also because it is Texas that once more finds itself under scrutiny for the alleged mishandling of a capital case. It risks becoming as infamous as the "sleeping lawyer" trial of Calvin Burdine whose death penalty was overturned 10 years ago because of the failure of his court-appointed lawyer to stay awake during the proceedings. But here "sleeping lawyer" has a different connotation.

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    I guess sleeping with (none / 0) (#1)
    by JamesTX on Thu Feb 25, 2010 at 01:39:58 AM EST
    the judge is one of those harmless errors if you're a prosecutor. There are big signs everywhere in the courthouse in Dallas terrorizing the low end victims of the criminal justice system over how they can get in major beaucoups of trouble for trying to talk to a judge. Maybe they should just forget the talk and go straight to bed? I bet it wouldn't be so harmless if it were one of those poor people trying to stay out of jail to feed their family.

    errors can be rectified (none / 0) (#12)
    by diogenes on Thu Feb 25, 2010 at 02:05:56 PM EST
    If the judge made an error of law, then it can be rectified on appeal, affair or no.  If this guy had been acquitted and it turned out that the judge had had an affair with the DEFENSE lawyer, how many of you would be demanding a new trial then?

    You are correct, (5.00 / 1) (#13)
    by JamesTX on Fri Feb 26, 2010 at 12:29:28 AM EST
    diogenes, I wouldn't be. The reason is my view of the n quantity. I sort of like and agree with the traditional American interpretation that the greater danger, and the more egregious outcome to be avoided, is conviction of the innocent. I expressly place more value on avoidance of innocents being punished than on avoidance of the guilty going free. I have no shame about my opinion changing when you reverse the roles. That does not make me inconsistent or illogical or unreasonably biased. The scales ought to be be weighted in favor of exoneration, and that seems to be what the framers intended. Unfortunately, even though it is an historically American tradition, the sentiment has been seriously assaulted over the term of the conservative revolution. It is now probably to the point that many people, if not most, actually do believe the weights should be equal. They shouldn't be -- for good reason.

    No, the reason I feel that way is not some knee-jerk reaction to sympathize with wrongdoers. It is the result of a reasoned conviction based on what I think the legal system should do for us, and prediction of the results of the policy. It is the policy that defines the kind of society we will live in.

    Life is dangerous, and there are dangerous people out there. Sometimes guilty people -- and even dangerous guilty people -- go free. And yes -- as I am typically queried by ugly wrinkled brows lamenting what the small minds behind them see as unequivocal evidence of total lack of capacity for moral reasoning -- those unjustly freed guilty people may hurt my daughter. Yes, I love her, but I don't lose sleep over it. Not because I like people to do bad things, nor because I don't care about my daughter. It is because of the consequences of making certain that all guilty people are punished -- or even just the consequences of making certain that the probability of exoneration of the guilty is equal to the probability of conviction of the innocent. In the end, prosecutorial discretion unchecked will hurt my daughter just as surely and quickly and severely. And that type of harm has the added terror of being something from which I cannot defend her.

    Society exacts a price for protecting my daughter and I. That price is not only what I pay for the government employees who do the work, but also the risks my daughter and I incur of being punished for something we didn't do. I can do things to protect myself from a criminal who has erroneously gone free, and I can do things to protect my daughter. But I can't protect myself from a prosecutor who decides to jail me. The risk the prosecutor presents is already greater than the risk the exonerated criminal presents, simply because of the differences in my ability to protect myself from one or the other. Thus, even though the probabilities of conviction of innocents and exoneration of the guilty are not equal to begin with, they become less different when they are weighted for the risks presented by prosecutorial discretion.

    Avoidance of harm is an important overarching ethical principle which I value deeply. We should be more concerned about convicting innocents than we are about exonerating the guilty. Those are not equal errors in any way.

    You are right. I would think differently if the roles were reversed. And I ought to. So should you, in my opinion, because I think mine is a moral conclusion -- not just an opinion. I suspect you disagree, and I certainly respect your right to do so, but I deeply and seriously believe you are wrong, and I can't give equal weight to your opinion. I base that conclusion on the fact that I wouldn't want you to devalue my life for your freedom, or your sense of the efficiency of the criminal justice system, or your convenience. I feel that is what you are doing when you tell your representatives that I am equally expendable -- to the point that it is six of one or half dozen of the other as to whether they erroneously hang me or erroneously exonerate a murderer. I care more about your life than that, because I would want you to care more about mine. I would rather they would let Charlie Manson out than for you to spend any significant time in jail, because I place the highest value on your dignity and worth. I can throw a microwave or a frying pan at Charlie Manson if he comes in my house. I can't throw anything at the DA. If I respect your dignity long enough, maybe some day you will care the same about mine -- and that of others -- especially the wrongly accused. I may be wrong, but I don't know any other way to go about achieving the goal of justice and making the world better place.


    But this is not about the guilty verdict ... (none / 0) (#15)
    by nyrias on Fri Feb 26, 2010 at 10:21:45 AM EST
    but the sentencing.

    "place more value on avoidance of innocents being punished than on avoidance of the guilty going free."

    That is your preference. However, it is irrelevant in this case. There is no issue of the GUILT of the convicted. I heard that lots of PHYSICAL evidence is involved.


    You are probably (none / 0) (#16)
    by JamesTX on Fri Feb 26, 2010 at 01:20:36 PM EST
    entirely correct. I am not a legal expert, and would certainly be a fool to argue the validity of such technical rationalizations. But from a layman's perspective, I would question the evaluation of evidence in a corrupt trial. You "heard" there is strong evidence. My limited understanding of our legal system informs me we generally don't evaluate evidence that way. Evaluation of evidence is what the trial itself is for. If the trial is not valid, then we don't know what the evidence means. It is a theory-of-types problem.  There also may be no issue of guilt, but there is an issue of the death penalty. I think I would draw the line at allowing a corrupt trial to result in a death sentence that stands. If we say that is acceptable, then we open the floodgates for abuse. There is sufficient public concern with the justice of the death penalty that we shouldn't allow it to be administered haphazardly in trials full of errors.

    First of all, I live in Texas, and this is all practically moot because the entire criminal justice system and the CCA are corrupt in general. The primary charge of all authorities in the state is to maintain a strictly authoritarian society which is maximally profitable for corporations (interwoven into the social fabric is the principle that the moral duty of people below the income of a surgeon is to make sure corporations get the fruits of their labor -- without demand -- they are seen to owe it).

    It's a hangin' state, and for them the propensity for hangin' is more about the image of bravado and rejection of authorities beyond their borders than it is about guilt and justice. It is a macabre show that is designed to maintain the applause of their base -- those baby boomers who watched hangin' on TeeVee movies in their childhood and thought it was sort'a cool. The quintessential form of this delinquent attitude was expressed in George W. Bush's hangin' of Saddam Hussein. All this tuff cowboy acting really doesn't have anything to do with Texas, historically. My family have been Texans since near the time of statehood. It is more about the movie persona of the Texan which Bush capitalized on politically. It's about the cowboy movies baby boomers watched growing up and their projective identifications with some hard-nosed Wyatt Earp fantasy -- taken on more for the excitement and aesthetics than the underlying purpose. It is a very effective political strategy to tap into people's childhood fantasies.

    The dynamics of that attitude lead to some real comedy. Some transplant got road rage at me the other day because I wouldn't do 90 on a residential street. He decided to hang around and express his outrage at the next stoplight. He got out of the car and told me that I didn't "know how to drive in Texas!" He was baby boom age and apparently has some fantasy about where he is living that deeply effects his day-to-day behavior. As usual, from the way he pronounced "drive" I could tell he wasn't born here. He was surprised to learn that I was (presumably because I didn't have a Stetson on my dash and I wasn't running my mouth). Most of the flamboyant promoters of the Wyatt Earp fantasy in Texas are either first generation or immigrants altogether who moved here for corporate power jobs, or their parents did so in the 70s, 80s or 90s.

    For the CCA, it is about not faltering in their charge to keep the courts closed to those who can't afford legal services, and finding creative ways to make that consistent with Federal laws. That is their corporate job. In this case it shows in that they refuse to drop their bravado about the right of law enforcement in Texas to hang whichever poor person they want, while backing off on the basis of some other technicality in order to maintain face and attempt to ward off the impending national scrutiny of another major screw-up. Their charge is to keep all those claims and leaks securely plugged while making sure those in power have access to a comfortable forum for argument.


    Correction (none / 0) (#2)
    by jbindc on Thu Feb 25, 2010 at 07:36:20 AM EST
    They had an affair.  It was over 3 years before the trial started - it was not going on during the trial. Yes, the judge should have recused herself.  

    (The judge has repeatedly said that the prosecutor wasn't a good lover and was basically a jerk the whole time.)

    that pillow talk is strong stuff (none / 0) (#3)
    by athyrio on Thu Feb 25, 2010 at 08:24:00 AM EST
    A new trial should be in the future IMO...

    There was no pillow talk (none / 0) (#4)
    by jbindc on Thu Feb 25, 2010 at 08:35:01 AM EST
    The affair was over before years before the trial began.

    The Judge also said (none / 0) (#5)
    by jondee on Thu Feb 25, 2010 at 09:57:21 AM EST
    "Yes, I loved him"

    Sounds like there was a little more there than just two ships passing in the night.


    Sounds fanciful with hindsight (none / 0) (#6)
    by jbindc on Thu Feb 25, 2010 at 10:11:48 AM EST

    The affair itself, as described in the depositions of the two former lovers, sounded tawdry and sad.

    Judge Verla Sue Holland, who presided over Mr. Hood's case in a district court in Collin County, Tex., testified that she and the prosecutor, Thomas S. O'Connell Jr., had had sex at each other's homes when their spouses were away. This happened, she said, seven or eight times.

    Mr. O'Connell did not seem especially romantic. Judge Holland testified that he once gave her a picture of a polar bear with a matching cup. Another time he gave her a chafing dish.

    He never stayed the night. "I had a truck that everybody recognized," Mr. O'Connell explained.

    And he might have been more sympathetic when Judge Holland's mother died.

    "Tom didn't send a card," the judge testified. "He didn't send flowers. He didn't come by. He didn't call. You know, I think that's pretty callous."

    Asked if they had professed their love to each other, Judge Holland sounded wistful. "Yeah," she said. "Yes. I loved him."


    Whatever the precise contours and intensity of the affair, Judge Holland did testify that she would have disqualified herself from Mr. Hood's case had his lawyers asked. But she also said she and Mr. O'Connell had kept their extramarital affair secret. She said it ended in 1987, three years before Mr. Hood's trial.

    In her deposition, Judge Holland said she had lately become angry with Mr. Hood's lawyers for "annihilating my reputation." She said she had asked the attorney general's office to represent her in Mr. Hood's challenge to her conduct because she thought she needed to fight back. She was "tired of laying over," she said, and "getting licked without any input."

    Mr. Hood was convicted of murdering a couple he had been living with, Ronald Williamson and Tracie Lynn Wallace, in Plano, Tex., in 1989.

    The district attorney in Collin County, John R. Roach, has said that the case should not be reopened in light of the gravity of those crimes and Mr. Hood's delay in pursuing rumors of the affair. Mr. Roach added that there was no need for a categorical rule against a little romance.

    "The existence of a prior sexual relationship between a judge and a prosecutor is not cause to absolutely disqualify a judge," Mr. Roach told the appeals court last year. "At some point, the past romantic relationships, of even public figures, become a matter that is entitled to some privacy."

    "Laying over and getting licked (none / 0) (#7)
    by jondee on Thu Feb 25, 2010 at 10:47:16 AM EST
    without any input." Sounds like the judge had       already had her fill of that, long before Hood's lawyers started in on her.

    If this case had occurred in any other part of the country, other than one with such a longstanding record of skipping over certain niceties that insure all defendants get a fair trial, (for starters Adams vs Texas makes for enlightening reading), this case probably wouldnt garner anywhere near the amount of attention that it is; but the railroads have been running on time for quite awhile down there.  


    We'll see if the Supreme Court takes it up (none / 0) (#8)
    by jbindc on Thu Feb 25, 2010 at 10:56:42 AM EST
    Maybe he will get a new trial. Or maybe they will agree that he just needs to be resentenced.

    But the fact that the judge and prosecutor had an affair 3 years prior doesn't change the fact that this man murdered people.


    So everyone convicted (none / 0) (#9)
    by jondee on Thu Feb 25, 2010 at 11:02:15 AM EST
    of murdering people in Texas, did it? I wish I had that much confidence in the system down there..

    Have you ever seen The Thin Blue Line?


    No (none / 0) (#10)
    by jbindc on Thu Feb 25, 2010 at 11:15:20 AM EST
    Retry him - let another jury see his bloody fingerprints at the scene and the fact that he was arrested in one of the victims' car in Indiana - the day after the murders.  Let another jury hear the evidence. Erase the taint of the first trial - and he should still be found guilty.

    But now you're branching out into a conspiracy with the police - tinfoil hat territory.


    From what I've seen (none / 0) (#11)
    by jondee on Thu Feb 25, 2010 at 12:31:39 PM EST
    of the way that "Law west 'a the Pecos" system operates down there in the last few decades, I dont consider the idea of taking some second - and maybe third - close looks at the way police and prosecutorial procedure is carried out down there "tinfoil territory".

    For my money (none / 0) (#14)
    by Rojas on Fri Feb 26, 2010 at 08:34:41 AM EST
    it's the Texas thang that puts you in the tin foil hat territory. Don't get me wrong, with respect to the scales of justice, Texas has been showing it's ass early and often. But make no mistake, ol' Judge Roy's ideas have infected the nation. His methods and madness have become entrenched in our national psyche.

    Agreed (none / 0) (#17)
    by jondee on Fri Feb 26, 2010 at 01:34:56 PM EST
    And I know there's good and bad everywhere..I just think a certain regional mythologies can over-emphasize traits that are prevalent everywhere.

    Plus, I like to pick on Texas. I makes me feel good for about as long as executions make people in Texas feel good.