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Death Penalty

Appeal Over Judge-Prosecutor Affair Should Be Heard, Texas Court Finds

Posted May 1, 2009 6:26 PM CDT
By Martha Neil

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Not quite a year ago, Charles Dean Hood was on the verge of being put to death in Texas when an execution order expired. A few months later, a last-minute appeal was granted within hours of another scheduled execution.

Now he seemingly has some likelihood of overturning his conviction, based on an admitted long-ago affair between the judge and the prosecutor who tried his first-degree murder case. In findings of fact and conclusions of law filed today, a Collin County judge asked by the Texas Court of Criminal Appeals to consider whether Hood waited too long to pursue a habeas petition has found in his favor, both on this question and on the issue of whether Hood has a proper basis for a habeas appeal.

It was not the fault of Hood and his counsel that the affair between former Collin County District Judge Verla Sue Holland and former Collin County District Attorney Thomas S. O'Connell Jr. didn't come to light earlier, writes Judge Greg Brewer in his filing today. Both kept the affair secret, he writes, and Hood's defense team tried without success to substantiate rumors of the affair in 1995, 1996, 2005 and 2008.

Contacted by Hood's then-defense counsel, A. Richard Ellis, shortly before a 2005 execution date for Hood, Holland refused to comment about the alleged affair, and O'Connell denied it, Brewer writes.

"Judge Holland and Mr. O'Connell wrongfully withheld relevant information from defense counsel prior to and during the trial, the direct appeal, the state habeas proceedings, the federal habeas proceedings, and the successive state habeas proceedings," Brewer finds. "Indeed, Mr. O'Connell misled habeas counsel during the successive state habeas proceedings, and Judge Holland resisted counsel's investigative efforts."

After serving on the Collin County bench, Holland sat as a judge on the Texas Court of Criminal Appeals until 2001, Brewer notes.

Holland and O'Connell had a "duty to disclose the fundamental conflict caused by their relationship," he concludes. And, "in the face of rumors of an affair, Hood was entitled to presume that Judge Holland's and Mr. O'Connell's behavior—refusing to recuse themselves from cases Mr. O'Connell personally prosecuted in Judge Holland's courtroom—indicated that the rumors were false."

Brewer recommends that Hood's habeas now be reviewed by the Court of Criminal Appeals on its merits.

Earlier related coverage:

ABAJournal.com (June 2008): "Texas Judge Halts Planned 6 PM Execution, Appeals Court Overrules, Clock Ticks"

ABAJournal.com (Sept. 9, 2008): "Hood Execution Halted; Defense Alleged Judge-Prosecutor Affair"

ABAJournal.com (Sept. 10, 2008): "Prosecutor and Judge in Capital Case Admitted Affair, Lawyers Say"

ABAJournal.com (Nov. 2008): "Expert Slams Court’s ‘Blame the Victim’ Response to Judge-Prosecutor Affair"

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