Texecutions: "Skewed Justice"

Here's a trick question. Is there anything wrong with a death penalty jury trial in which the prosecutor trying the case is having an affair while the case is going on with the judge who is trying the case? I know. It looks pretty unfair. It looks pretty sleazy. There really should be something the matter with this, right? Shouldn't the judge recuse herself? Shouldn't the case be assigned to a different prosecutor, all for the sake of the appearance of fairness?

But in Texas, ground zero for state killing, there's no answer to these questions. At least not today Why? Because the majority of the Court of Criminal Appeals, Texas's highest court that considers criminal appeals, is wagging its finger at the defendant's lawyers saying that the affair isn't something that the Court will look at because the defense lawyers waited too long to raise the issue. According to the Court, it's OK to execute Charles D. Hood whether there was an affair or not because the defense waited too long to raise the question. You cannot make this stuff up.

The New York Times reports:

The highest criminal court in Texas ruled Wednesday that a man facing the death penalty for murder could not have a new trial despite a love affair between the prosecutor and the judge who tried his case.

In a 6-to-3 decision, the Texas Court of Criminal Appeals said the convicted man, Charles D. Hood, should have raised in earlier appeals the argument that the love affair had tainted his trial.

The affair had been rumored for years in Collin County, just north of Dallas, but was confirmed only a year ago when Mr. Hood’s lawyers compelled the judge, Verla Sue Holland, and the prosecutor, Thomas S. O’Connell Jr., to give depositions under oath. Both officials had since retired.

The case has stirred controversy across the country. Several former judges, prosecutors and experts on legal ethics have said that the affair makes it impossible to know if Mr. Hood received a fair trial and that it should be cause for a new proceeding.

In other words, according to 6 of the judges of the highest criminal appeals court in Texas, the accused should have told an appeals court more than a decade ago, "I can't prove that there was an affair between the judge and the prosecutor during my trial, there's no proof of that yet, but there's a really big rumor that they were having an affair and so this Court should vacate my conviction." That's not a likely sentence in any brief I've ever seen. Prudent counsel just don't write unsubstantiated allegations to appeals courts accusing judges and prosecutors of having affairs.

Wednesday’s decision overturned the findings of a district court judge who had found that Mr. Hood should be allowed a hearing on a new trial. The decision did not discuss whether the affair had prejudiced his first trial; instead, the court rejected Mr. Hood’s claim on the ground that he should have raised it when he first appealed his 1990 conviction.

Mr. Hood’s lawyers responded to that finding by saying they had long tried to substantiate rumors of the affair. They also accused the majority of ignoring confirmation of it in the testimony of Ms. Holland and Mr. O’Connell.

But there's more to the story than just the questionable outcome of this appeal. The stench of unfairness permeates more than the just the trial. It taints the appeal as well. The Times puts it this way:

[The trial judge in the case] went on to serve on the Court of Criminal Appeals with all but one of the current members. “This decision by a court where eight of the nine judges once shared the bench with Judge Holland will only add to the perception that justice is skewed in Texas,” said Andrea Keilen, executive director of the Texas Defender Service, which represents Mr. Hood.

To recap, the judge has an affair with the prosecutor, but that's a secret, leading only to numerous rumors. The judge is then promoted to the top appeals court. And she and the prosecutor then retire. When the appeal about the alleged affair finally reaches the appeals court, the appeals judges, all of whom were on the bench with the former trial judge, decide 6-3 that the defense waited too long to raise the issue even though it couldn't be raised sooner.

According to the Times, the defendant in the case, Charles D. Hood was convicted of the 1989 murder and robbery of a couple with whom he had been living in Plano, a Dallas suburb. Though he maintained his innocence, his bloody fingerprints were found at the scene, and he was arrested the next day in Indiana driving the murdered man’s car. It goes without saying that Hood has been on death row in Texas for 20 years and that the unfavorable decision will in all likelihood not be the last in his case.

Meanwhile, the DA's office has this comment on the case: “We look at it as a significant procedural victory.”

As long as state killing is permitted, and as long as the legislatures and courts try to truncate the appeals process, we're going to see decisions like this one. In fact, this kind of procedural decision is by now typical. It's what one should expect. There was virtually nothing the defense in this case could do to raise the issue before the affair was admitted by the judge and the prosecutor. But that doesn't matter to these appellate judges. They are just cutting off Hood's appeals, they are moving him one step closer to the injection gurney.