CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

Tuesday, September 9, 2008

Executing Justice in the Texas Courts

By Lawrence J. Fox

Word count: 668

They did not execute Charles Hood on June 17.  On that night, the State of Texas did the right thing for the wrong reason.  The execution was postponed not to cure a grave injustice, simply because the State of Texas ran out of time.  But the aroma of injustice remains just as strong as it did on that date.  Mr. Hood now faces execution on September 10, and if allowed to go forward, that execution will place a black mark on the ethics of the judiciary and the rule of law, one that can never be erased.

How could this be?  Because until a lawyer in the office that prosecuted Charles Hood came forward just days before the original execution date, there was no proof of what had been long rumored and this lawyer now confirmed: Thomas O'Connell, the chief prosecutor of Mr. Hood was – at that time – engaged in a personal relationship with Verla Sue Holland, the judge who presided at the trial.

Our canons of judicial ethics say that judges must avoid even the appearance of impropriety.  But this conduct is judicial impropriety itself.  Judges who are no more than close social friends with lawyers will recuse themselves from their friends' cases.  The relationship that occurred here, of course, was so much more serious and objectivity-destroying than that example.  No one can look at a case in which a judge is involved romantically with one of the lawyers and conclude that the judge is not biased.  And that universal principle – echoed by dozens of ethics scholars who have looked into the Hood case – applies to every matter, from a garden variety civil suit involving mere money to a defendant who stands trial for a capital crime.

Then how, once this serious ethics violation was revealed, can the state of Texas proceed to execute Mr. Hood?  Because the prosecution argues this issue should have been raised sooner.

Talk about placing the blame on the wrong party! The judge had a duty to disclose this juicy fact to Mr. Hood.  If the judge failed, then the duty fell to the prosecutor, no matter how embarrassed he might be.  But the two of them apparently were in an 18-year conspiracy of silence that permitted the judge to preside over who knows how many of O'Connell's cases.  Yet these two public officials pay no price for their transgressions while Mr. Hood faces execution next month based on a hopelessly flawed trial.

Holland and O'Connell's silence remains deafening.  To date, they have refused to discuss their relationship.  And no one has heard their sworn testimony or conducted any discovery on the topic, steps that cry out to be accomplished before any execution can proceed. 

Mr. Hood's attorneys filed a petition in August to compel the alleged lovers to testify under oath.  After months of inaction, a district court judge finally ordered Holland and O'Connell to appear in court this Monday prepared to give testimony should the court grant Mr. Hood's petition. This presents the first real opportunity to bring down the wall of silence surrounding Holland and O'Connell's relationship. They must be compelled to disclose the truth. Were there any gifts?  Any intimate dinners?  Any faraway vacations on sandy beaches?  We do not know.

We are obviously going to continue to have the death penalty in the United States.  But if we are, we must do everything in our power to assure that every defendant who faces death (indeed, every litigant who appears in court) receives a fair trial before an impartial judge.  Having Mr. Hood facing execution following a trial in which we are now told the judge was sleeping with the prosecutor makes a mockery of that standard and cries out for granting Mr. Hood a new trial.

There is a lot more at stake here than justice for one man.  Our entire system of justice and our byzantine death penalty jurisprudence is put to the test by these revelations.  Let us hope we pass. [Mark Godsey]

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