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THE NATION

Judge's affair complicates death row case

A condemned man's lawyers say the Texas jurist's romance with a district attorney is an ethical breach.

September 10, 2008|Steve Mills | Chicago Tribune

A former judge and a former district attorney in Texas broke a lengthy silence and admitted under oath that they had engaged in a years-long sexual relationship but still participated in the trial of a man who was convicted of a 1989 double murder and sentenced to death, according to documents filed Tuesday.

Charles Dean Hood had been scheduled to die June 17, but the death warrant ran out while defense attorneys and prosecutors wrangled over the controversial allegations. At that point, the judge, Verla Sue Holland, and the district attorney, Thomas O'Connell, refused to confirm their affair.

A new execution date had been set for today, and a hearing on Hood's claims that the alleged affair amounted to a conflict of interest was set for Friday -- two days after his scheduled death.

But under a court order that Hood's attorneys won Monday, O'Connell was questioned under oath late Monday and Holland on Tuesday morning. According to a request for a reprieve that Hood's attorneys filed with Texas Gov. Rick Perry, the pair admitted "they had an intimate sexual relationship for many years" and kept it secret.

Holland and O'Connell, according to the letter sent to Perry, have different recollections about when the affair ended. But "even after their romance ended," the letter says, "Judge Holland and Mr. O'Connell remained good, close friends."

Late Tuesday, the Texas Court of Criminal Appeals granted Hood a stay -- but not because of the alleged affair. The court said it would reconsider its previous dismissal of Hood's appeal challenging jury instructions. At the same time, the court dismissed claims that Hood had been denied a fair trial because of the alleged affair, the Associated Press reported.

Hood was convicted in the 1989 slayings of two people in Plano, Texas, in 1990. He maintains his innocence, but his fingerprints were found at the scene and he was driving one of the victim's cars. He contends that he lived at the home and that he had permission to drive the car.

Hood's attorneys made the allegation about the affair for the first time this year after a former prosecutor said in an affidavit that Holland and O'Connell's relationship was "common knowledge" in legal circles.

Prosecutors could not be reached for comment Tuesday. A judge has issued a gag order on all parties.

Holland's lawyer, Bill Boyd, told the Associated Press that Hood's lawyers should not have mentioned the testimony in their letter to Perry.

"The depositions have not even been finalized and signed," Boyd said. "So whatever they said to the governor is premature in my opinion."

O'Connell's attorney, Richard A. Sayles, declined to confirm what Hood's attorneys said about the relationship in the letter to Perry.

"If I confirmed or denied it, I would be going contrary to the judge's order not to comment," Sayles said.

Hood's attorneys said in their letter to the governor that the affair and the failure to inform Hood's lawyers was "a shocking and devastating indictment of the Texas criminal justice system."

Legal ethicists agreed, saying that Holland and O'Connell had a duty to acknowledge the affair before trial, and especially as Hood faced death in June.

"A relationship between a judge and a prosecutor, when a man's life is at stake? I can't understand how anyone could reach the conclusion that there's no bias," said David Zarfes, associate dean of the University of Chicago Law School and a scholar of legal ethics. "It's a no-brainer."

Lawrence Fox, a professor at the University of Pennsylvania Law School and a former chairman of the American Bar Assn.'s ethics panel, said the date that the affair ended was unimportant.

"I don't care when it ended. Because the very nature of a personal relationship like that has such a dramatic effect on people -- positive, negative -- that no litigant should be in a position where they have to worry if the judge will be biased," said Fox, one of 36 legal ethicists who signed a letter to the Texas courts and to Perry saying that such a relationship would be a conflict of interest.

Fox said it was outrageous that Holland and O'Connell had refused to confirm the affair in June, when Hood was facing execution and survived only because of legal fighting.

"This man would be dead," he said. "And these people stood silent."

Supporters of the judge and prosecutor have said that their privacy was an issue.

Fox said too that acknowledgment of the affair likely would lead to challenges by other inmates who were prosecuted by O'Connell in Holland's courtroom.

"They must have handled many cases. And every one of them will be subject to a new trial," Fox said. "Any objective observer would say, 'Oh my God, you can't have that relationship going on.' "

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