The Collin County Observer

Questions Of an Affair Tainting A Trial


By ADAM LIPTAK / Columnist, The New York Times Sidebar
The New York Times / Published: February 22, 2010

WASHINGTON - Charles Dean Hood was sentenced to death in 1990 by a Texas judge who had been sleeping with the prosecutor in his case. It took Mr. Hood almost 20 years to establish that fact.

But he finally managed to force the two officials to testify about their rumored affair in the fall of 2008. They admitted it.

Texas’s highest court for criminal matters, its Court of Criminal Appeals, considered all of this and concluded that Mr. Hood should be executed anyway. In a 6-to-3 decision in September, the court told Mr. Hood that he had taken too long to raise the issue of whether a love affair between a judge and a prosecutor amounted to a conflict of interest.

Mr. Hood has asked the United States Supreme Court to hear his case. On Thursday, 21 former judges and prosecutors filed a brief supporting him. So did 30 experts in legal ethics.

“A judge who has engaged in an intimate, extramarital, sexual relationship with the prosecutor trying a capital murder case before her has a conflict of interest and must recuse herself,” the brief from the ethics experts said. “Of all the courts to have considered the issue, only the Texas Court of Criminal Appeals in this case failed to recognize this imperative.”

The affair itself, as described in the depositions of the two former lovers, sounded tawdry and sad.

Judge Verla Sue Holland, who presided over Mr. Hood’s case in a district court in Collin County, Tex., testified that she and the prosecutor, Thomas S. O’Connell Jr., had had sex at each other's homes when their spouses were away. This happened, she said, seven or eight times.

Mr. O’Connell did not seem especially romantic. Judge Holland testified that he once gave her a picture of a polar bear with a matching cup. Another time he gave her a chafing dish.

He never stayed the night. “I had a truck that everybody recognized,” Mr. O’Connell explained.

And he might have been more sympathetic when Judge Holland’s mother died.

“Tom didn’t send a card,” the judge testified. “He didn’t send flowers. He didn’t come by. He didn’t call. You know, I think that’s pretty callous.”

Asked if they had professed their love to each other, Judge Holland sounded wistful. “Yeah,” she said. “Yes. I loved him.”

Judge Holland was elected to the Court of Criminal Appeals in 1996, served for five years and sat with eight of the nine judges who considered her conduct last September. The exception was Judge Cathy Cochran, one of four women on the court and the author of the dissenting opinion.

Judge Cochran took a stab at characterizing the relationship in a footnote. It was misleading, Judge Cochran wrote, to say that Judge Holland and Mr. O’Connell had “an intimate sexual relationship,” though she conceded that the phrase was “literally true.”

“Theirs was hardly the torrid relationship of romance novels,” Judge Cochran clarified. It was, rather, “a close personal relationship that, on a few rare occasions, dipped into intimacy.”

Whatever the precise contours and intensity of the affair, Judge Holland did testify that she would have disqualified herself from Mr. Hood’s case had his lawyers asked. But she also said she and Mr. O’Connell had kept their extramarital affair secret. She said it ended in 1987, three years before Mr. Hood’s trial.

In her deposition, Judge Holland said she had lately become angry with Mr. Hood’s lawyers for “annihilating my reputation.” She said she had asked the attorney general’s office to represent her in Mr. Hood’s challenge to her conduct because she thought she needed to fight back. She was “tired of laying over,” she said, and “getting licked without any input.”

Mr. Hood was convicted of murdering a couple he had been living with, Ronald Williamson and Tracie Lynn Wallace, in Plano, Tex., in 1989.

The district attorney in Collin County, John R. Roach, has said that the case should not be reopened in light of the gravity of those crimes and Mr. Hood’s delay in pursuing rumors of the affair. Mr. Roach added that there was no need for a categorical rule against a little romance.

“The existence of a prior sexual relationship between a judge and a prosecutor is not cause to absolutely disqualify a judge,” Mr. Roach told the appeals court last year. “At some point, the past romantic relationships, of even public figures, become a matter that is entitled to some privacy.”

John R. Rolater Jr., a lawyer in Mr. Roach’s office, declined to elaborate. “We have no comment at this time because of the pending litigation,” Mr. Rolater said Friday in an e-mail message.

The Supreme Court has lately taken some interest in the integrity of the judicial system.

Last year, it ruled that millions of dollars in campaign spending on behalf of a West Virginia judge was reason enough to require his disqualification from a case involving his supporter.

“The probability of actual bias on the part of the judge,” Justice Anthony M. Kennedy wrote for the majority, was “too high to be constitutionally tolerable.”

And last month, the Supreme Court ordered the federal appeals court in Atlanta to have another look at a case in which jurors in a capital trial gave a trial judge an odd gift — a penis made of chocolate.

“From beginning to end,” the unsigned majority decision said, “judicial proceedings conducted for the purpose of deciding whether a defendant shall be put to death must be conducted with dignity and respect.”

To review the bidding: Campaign spending may undermine the integrity of the judicial system. The same goes for a gag gift of confectionary genitalia. But a love affair between the judge and prosecutor in a death penalty case is, in Texas, at least, another matter.

link to this column in The New York Times....

======================================

Also see commentary from Grits for Breakfast.

And BRIEF OF FORMER JUDGES, STATE OFFICIALS, AND PROSECUTORS AS AMICI CURIAE IN SUPPORT OF PETITIONER filed before the US Supreme Court. (Bill notes, this is worth reading. Look at who signed it.)

Today is George Washington's 278th birthday.

With the extreme discord that seems to have totally taken over national politics and which threatens even local political institutions, it seems fitting to this author to let our first President weigh in on the matter.

From President Washington's 1796 "Farewell Address":

"...To the efficacy and permanency of your Union, a Government for the whole is indispensable. No alliances, however strict, between the parts can be an adequate substitute; they must inevitably experience the infractions and interruptions, which all alliances in all times have experienced. Sensible of this momentous truth, you have improved upon your first essay, by the adoption of a Constitution of Government better calculated than your former for an intimate Union, and for the efficacious management of your common concerns. This Government, the offspring of our own choice, uninfluenced and unawed, adopted upon full investigation and mature deliberation, completely free in its principles, in the distribution of its powers, uniting security with energy, and containing within itself a provision for its own amendment, has a just claim to your confidence and your support. Respect for its authority, compliance with its laws, acquiescence in its measures, are duties enjoined by the fundamental maxims of true Liberty. The basis of our political systems is the right of the people to make and to alter their Constitutions of Government. But the Constitution which at any time exists, till changed by an explicit and authentic act of the whole people, is sacredly obligatory upon all. The very idea of the power and the right of the people to establish Government presupposes the duty of every individual to obey the established Government.

"All obstructions to the execution of the Laws, all combinations and associations, under whatever plausible character, with the real design to direct, control, counteract, or awe the regular deliberation and action of the constituted authorities, are destructive of this fundamental principle, and of fatal tendency. They serve to organize faction, to give it an artificial and extraordinary force; to put, in the place of the delegated will of the nation, the will of a party, often a small but artful and enterprising minority of the community; and, according to the alternate triumphs of different parties, to make the public administration the mirror of the ill-concerted and incongruous projects of faction, rather than the organ of consistent and wholesome plans digested by common counsels, and modified by mutual interests.

"However combinations or associations of the above description may now and then answer popular ends, they are likely, in the course of time and things, to become potent engines, by which cunning, ambitious, and unprincipled men will be enabled to subvert the power of the people, and to usurp for themselves the reins of government; destroying afterwards the very engines, which have lifted them to unjust dominion.

"Towards the preservation of your government, and the permanency of your present happy state, it is requisite, not only that you steadily discountenance irregular oppositions to its acknowledged authority, but also that you resist with care the spirit of innovation upon its principles, however specious the pretexts. One method of assault may be to effect, in the forms of the constitution, alterations, which will impair the energy of the system, and thus to undermine what cannot be directly overthrown. In all the changes to which you may be invited, remember that time and habit are at least as necessary to fix the true character of governments, as of other human institutions; that experience is the surest standard, by which to test the real tendency of the existing constitution of a country; that facility in changes, upon the credit of mere hypothesis and opinion, exposes to perpetual change, from the endless variety of hypothesis and opinion; and remember, especially, that, for the efficient management of our common interests, in a country so extensive as ours, a government of as much vigor as is consistent with the perfect security of liberty is indispensable. Liberty itself will find in such a government, with powers properly distributed and adjusted, its surest guardian. It is, indeed, little else than a name, where the government is too feeble to withstand the enterprises of faction, to confine each member of the society within the limits prescribed by the laws, and to maintain all in the secure and tranquil enjoyment of the rights of person and property.

"I have already intimated to you the danger of parties in the state, with particular reference to the founding of them on geographical discriminations. Let me now take a more comprehensive view, and warn you in the most solemn manner against the baneful effects of the spirit of party, generally.

"This spirit, unfortunately, is inseparable from our nature, having its root in the strongest passions of the human mind. It exists under different shapes in all governments, more or less stifled, controlled, or repressed; but, in those of the popular form, it is seen in its greatest rankness, and is truly their worst enemy.

"The alternate domination of one faction over another, sharpened by the spirit of revenge, natural to party dissension, which in different ages and countries has perpetrated the most horrid enormities, is itself a frightful despotism. But this leads at length to a more formal and permanent despotism. The disorders and miseries, which result, gradually incline the minds of men to seek security and repose in the absolute power of an individual; and sooner or later the chief of some prevailing faction, more able or more fortunate than his competitors, turns this disposition to the purposes of his own elevation, on the ruins of Public Liberty.

"Without looking forward to an extremity of this kind, (which nevertheless ought not to be entirely out of sight,) the common and continual mischiefs of the spirit of party are sufficient to make it the interest and duty of a wise people to discourage and restrain it.

"It serves always to distract the Public Councils, and enfeeble the Public Administration. It agitates the Community with ill-founded jealousies and false alarms; kindles the animosity of one part against another, foments occasionally riot and insurrection. It opens the door to foreign influence and corruption, which find a facilitated access to the government itself through the channels of party passions. Thus the policy and the will of one country are subjected to the policy and will of another.

"There is an opinion, that parties in free countries are useful checks upon the administration of the Government, and serve to keep alive the spirit of Liberty. This within certain limits is probably true; and in Governments of a Monarchical cast, Patriotism may look with indulgence, if not with favor, upon the spirit of party. But in those of the popular character, in Governments purely elective, it is a spirit not to be encouraged. From their natural tendency, it is certain there will always be enough of that spirit for every salutary purpose. And, there being constant danger of excess, the effort ought to be, by force of public opinion, to mitigate and assuage it. A fire not to be quenched, it demands a uniform vigilance to prevent its bursting into a flame, lest, instead of warming, it should consume..."

George Washington
United States - September 17, 1796

Picture this -- a man is arrested for let's say burglary and is brought before a judge who asks him if he understands the charges. "Yes, your honor and I want to plead guilty", replies the accused.

But then the District Attorney jumps up with, "We object. The people demand a jury trial".

"But I'm guilty. I did it and I'll accept my sentence.", replies the accused. "No matter, the State demands a jury trial, and we will have one", the prosecutor declares.

In Texas and especially in Collin County this actually happens. The judge is then forced to send out jury summons to 100 or more citizens, who take time off of work to come to court. A jury is chosen, sworn in and seated. The man is brought back into court and once again says, "your honor, I plead guilty, and I ask that you, the judge, set punishment." The Jury is sent home, and the man sentenced.

Not a very efficient way to run a court, is it?

Last week, in a Collin County case, the Texas 5th Court of Appeals overturned a visiting judge who refused to allow the DA to force a jury trial, when the defendant asked to plead guilty.

Visiting Judge John McCraw had accepted 4 guilty pleas from a defendant, when the prosecution objected and demanded jury trials.

Judge McCraw replied, "I'm accepting his constitutional right to enter a plea before the Court. I would submit the United States Constitution allows a defendant the right to enter a plea based on the Court's request and to avoid needless four jury trials and have at least a couple of hundred county citizens come forward [as potential jurors] and waive their right to make any type of living that day and costing the county some $5,000 per trial. I don't understand why the State is refusing to allow the defendant... to enter a plea of guilty."

In its opinion, Judge Douglas Lang, writing for the majority of the 5th Court of Appeals noted, "the Court of Criminal Appeals long ago concluded that defendants accused of felony offenses have a constitutional right to trial by jury, but do not have a constitutional protected right to waive trial by jury." Citing an earlier case opinion that said, "“As a matter of Texas constitutional law, an accused has an absolute right to trial by jury...but neither a historical nor express right to have a felony accusation tried by the court, sitting without a jury can be found.”.

The appeals court then found that, "The trial court abused its discretion when it allowed Blackburn to enter guilty pleas and waive jury trial without the prosecuting attorney's consent."

The court then issued its order, "The Court ORDERS the Honorable John McCraw, Presiding Judge by Assignment of the 429th District Court, Collin County, to set aside the guilty pleas entered for Cause Numbers 199- 80283-08, 199-80284-08, 199-80285-08, and 199-80286-08, set aside the jury trial waiver form not consented to by the State, and schedule these cases for further proceedings consistent with this opinion."

Bill

Notes:

Judge accuses DA of "forum shopping" and "needless expense": DA appeals (updated), CCO, December 21, 2009

The opinion of the Texas 5th Court of Appeals, IN RE JOHN ROACH, No. 05-09-01451-CV, February 17, 2010