Without comment, the Supreme Court this morning denied review in the case of Texas death row inmate Charles Dean Hood, whose trial judge Verla Sue Holland was in a romantic relationship with county district attorney Tom O'Connell,who was prosecuting him.
The case drew worldwide attention, and his Supreme Court appeal was joined by former FBI director and judge William Sessions, former judges including Patricia Wald and John Gibbons, and ethicists and prosecutors nationwide, in amicus briefs filed by Arnold & Porter's Lisa Blatt and Andrew Pincus of Mayer Brown.
Hood has been on death row since 1990 when he was convicted in a double murder. The judge and the prosecutor had an affair before the trial. Repeated requests at the state level for a new trial have failed, but in February, the Texas Court of Criminal Appeals ordered a new sentencing hearing on grounds relating to the jury instruction in his case, not the affair.
Last month, former Texas governor Mark White, a death penalty supporter who nonetheless joined a brief on Hood's behalf, wrote a column in the National Law Journal urging high court review.
"The trial judge and the prosecuting attorney's affair breaches every standard of fairness that you would expect a defendant to receive during a capital case or, for that matter, a noncapital case," wrote White. "Hood could not have gotten a fair trial under these circumstances. His trial was infected with an incurable conflict of interest. The judge and the prosecutor kept the affair secret for their own personal reasons, but they also concealed it from the people who were entitled to the information. If Hood's counsel had known about or had proof of the affair at the time of trial, he could have moved the judge to recuse herself."
Andrea Keilen, executive director of the Texas Defender Service, which represented Hood, issued this statement today:
"We are disheartened that the United States Supreme Court ruled not to hear the case of Charles Hood in which the trial judge and district attorney who prosecuted Hood engaged in a secret, long-term, extra-marital affair. This is particularly disappointing given that the Texas Court of Criminal Appeals to date has ignored this obvious and outrageous constitutional violation. Dozens of former state and federal prosecutors and judges and the nation's leading legal ethicists have criticized the handling of this case by the Texas death penalty system. No one should be prosecuted for a parking ticket let alone for capital murder by the district attorney who has had a sexual affair with the judge handling the case and despite the Court's decision today, we will continue to zealously represent Mr. Hood as we believe his case was marred by a fundamental injustice."
More later at nlj.com on today's Supreme Court action.