Posted Jul 01, 2010 07:50 am CDT
But there was a persistent whiff of rumor during the trial, something people whispered about at the Collin County courthouse but never brought into the open.
Early on, Hood’s trial lawyer heard the rumor, too—that the trial judge and the prosecutor in the case had for years been engaged in an intimate relationship—but he didn’t raise it because the judge and prosecutor never said anything to confirm the relationship, and neither did anyone else.
Evidence about the relation ship between District Judge Verla Sue Holland and District Attorney Thomas S. O’Connell Jr. finally started to spill out in 2005, when the first report about their affair appeared on Salon.com. But by that time Holland was off the bench. She left the district court in 1996 to serve on the Court of Criminal Appeals, the highest court in Texas with jurisdiction over criminal cases, until she retired in 2001. During that same year, O’Connell left the prosecutor’s office to enter private practice.
Hood’s case reached a dramatic high point in June 2008, when Matthew Goeller, a former assistant district attorney under O’Connell, signed an affidavit stating that it was “common knowledge in the district attorney’s office, and the Collin County bar in general,” that O’Connell and the judge had a “romantic relationship.”
On the eve of Hood’s scheduled execution, his appellate lawyers asked the Court of Criminal Appeals for a stay, arguing that Goeller’s affidavit provided evidence of the affair between O’Connell and Judge Holland.
The court rejected that request on grounds that the affidavit did not offer firsthand knowledge of an affair between the prosecutor and the judge. Hood avoided a June 17 execution only because prison officials said they could not carry it out before the death warrant expired.
Hood’s execution was rescheduled, giving his lawyers time to pursue another gambit: Depose both O’Connell and Judge Holland. In those depositions, O’Connell and Holland finally acknowledged their extramarital affair and their efforts to keep it secret. They both testified that they broke off the affair before Hood’s trial began—although they differed on exactly when the affair ended—but they also testified that they continued a close friendship and even traveled together during 1991.
Hood’s lawyers went back to the Court of Criminal Appeals, this time arguing that O’Connell and Holland’s efforts to keep their affair secret meant that it was not ascertainable through the exercise of reasonable diligence. But in a 6-3 vote, the court again refused Hood’s application for a writ of habeas corpus, concluding that his attorneys could have raised the affair at his original trial.
Hood then petitioned the U.S. Supreme Court to review his conviction and death sentence on grounds that the secret affair between the trial judge and prosecutor in effect deprived him of his right to due process under the U.S. Constitution. But on April 19, the justices declined, without comment, to grant a writ of certiorari in the case.
The Supreme Court’s refusal to grant cert in Hood v. Texas was a great disappointment to many of the legal ethics experts who closely followed the case.
“It would have been good for the court to discuss the due process right to a fair and impartial judge in a criminal case,” says Peter A. Joy, vice dean of Washington University School of Law in St. Louis, who also co-chairs the Ethics, Gideon and Professionalism Committee in the ABA’s Criminal Justice Section. “Here we have a judge having an affair with the prosecutor, and she doesn’t disclose it or recuse herself. Who can tell after the fact what the judge did to make the case easier for the prosecution?”
Hood sends another message, as well, says Joy: “If you’re a judge or a prosecutor and you engage in an affair that is not publicly known, and you participate in trials together, there will not be any legal repercussions.”
Some experts saw Hood as an opportunity for the Supreme Court to reinforce its 2009 decision in Caperton v. A.T. Massey Coal Co. (PDF) There, the court ruled that the due process clause was violated when West Virginia Supreme Court of Appeals Justice Brent D. Benjamin refused to recuse himself from a case involving the largest contributor to his 2004 campaign for election to the court. That happened to be Don L. Blankenship, the CEO of A.T. Massey, who gave more than $3 million to aid Benjamin’s campaign.
Writing for the 5-4 majority, Justice Anthony M. Kennedy stated that the Constitution required Justice Benjamin to recuse himself from the suit against A.T. Massey. The test, Kennedy stated, is not whether there was any actual bias, but whether there was “such a risk of actual bias or prejudgment that the practice must be forbidden if the guarantee of due process is to be adequately implemented.”
That test was met, Kennedy concluded, “when a person with a personal stake in a particular case had a significant and disproportionate influence in placing the judge on the case by raising funds or directing the judge’s election campaign when the case was pending or imminent.”
In light of the refusal to grant cert in Hood, “you have to ask yourself whether the Supreme Court is saying anything less egregious than $3 million in cash will result in no judicial action,” says Ellen C. Yaroshefsky, director of the Jacob Burns Center for Ethics in the Practice of Law at Yeshiva University’s Benjamin N. Cardozo School of Law in New York City. She co-chairs the ABA Criminal Justice Section’s ethics committee with Joy.
Some experts note that Hood illustrates the complexities that often arise when black-letter ethics standards are applied to actual cases painted in varying shades of gray.
“This represents the worst in American criminal trials: a capital murder trial where the prosecutor and the judge had a secret love affair. It is just despicable,” says Bennett L. Gershman, a law professor at Pace University in White Plains, N.Y., who chairs the Ethics Subcommittee of the ABA Section of Litigation’s Criminal Litigation Committee. But, he adds, “does the law require a new trial? Do the ethics rules impose penalties here? It is not that clear.”
There is wide consensus that two of the key standards for judicial conduct are embodied in Canons 1 and 2 of the ABA Model Code of Judicial Conduct (PDF). Under Canon 1, “A judge shall uphold and promote the independence, integrity and impartiality of the judiciary, and shall avoid impropriety and the appearance of impropriety.” Canon 2 states, “A judge shall perform the duties of judicial office impartially, competently and diligently.”
As revised in 2007, the ABA Model Code now encompasses enforceable black-letter rules along with the canons. Meanwhile, many state guidelines for judges continue to be primarily aspirational in nature.
The Texas Code of Judicial Conduct, for instance, articulates aspirational principles that are similar to those contained in the ABA Model Rules of Professional Conduct, but it does not directly address disqualification and recusal of judges from cases, according to Lillian B. Hardwick of Houston, who chairs the Disciplinary Rules of Professional Conduct Commit tee of the State Bar of Texas. She is co-author of the Handbook of Texas Lawyer and Judicial Ethics.
Those rules are contained primarily in the state constitution and rules of civil procedure, along with case law. More over, she says, Texas treats disqualification and recusal as distinct actions, while they are treated as interchange able in most other states.
For Texas, at least, Hood “was an opportunity lost to make very clear guidelines for disqualification of judges,” says Hardwick. “By the time it left the Court of Criminal Appeals, it was a lost cause” because the U.S. Supreme Court was unlikely to weigh in on the specifics of Texas law governing judicial conduct.
Another factor to consider, say Hardwick and others in the legal ethics field, is how soon proceedings in Hood started after the end of the affair. “Assuming the relationship ended several years prior to the trial,” Joy says, “then unless there appears to be some evidence that the judge did not act impartially during the trial, there may not have been anything improper.”
There also is some question about how ethics rules for lawyers should apply to someone in O’Connell’s circumstances.
It is unlikely that the ethics fallout from Hood v. Texas is over. “I would be shocked if people have not filed a complaint about this” with the Texas Commission on Judicial Conduct, Hardwick says. But even if the commission were to act on the matter, she says, it has the option to issue public or private sanctions.
Meanwhile, Hood continues to fight his conviction and death sentence. In February, the Texas Court of Criminal Appeals granted him a new hearing on his sentence—this time on procedural grounds.