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In Death Row Case, Supremes Say Judge's Adultery Didn't Matter

Trial judge and prosecutor had had a long-standing sexual affair

In Death Row Case, Supremes Say Judge's Adultery Didn't Matter

WASHINGTON, D.C.—It was just a single line under the "Certiorari Denied" section of the U.S. Supreme Court's April 19 Order List: "09-8610 HOOD, CHARLES D. V. TEXAS." But what it meant was, the man who had been convicted for a 1990 double homicide did not have the right to have his conviction retried, even though the judge presiding over the case, Verla Sue Holland, had been carrying on a clandestine sexual affair with the prosecutor in the case, Tom O'Connell, until shortly before the trial had begun.

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"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," ruled U.S. District Judge Greg Brewer following Hood's habeas corpus hearing in April, 2009. "Indeed, Mr. O'Connell misled habeas counsel during the successive state habeas proceedings, and Judge Holland resisted counsel's investigative efforts."

While rumors of the Holland/O'Connell affair had been widespread in Texas legal circles for several years, the pair continued to deny their relationship until forced to admit it in depositions ordered by a judge in September 2008. Previously, Hood's defense attorneys had sought such admissions in legal filings in 1995, 1996 and 2005, but were rebuffed each time. But even after the affair was verified, the Texas Court of Criminal Appeals still refused to grant Hood a new trial, "ruling—incredibly—that he took too long to raise the conflict of interest and should be executed," stated a New York Times editorial published on Wednesday.

"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," declared Andrea Keilen, director of the Texas Defender Service, which represents Hood.

But as the Times editorial pointed out, the Supreme Court's decision not to hear the case was even more egregious considering that less than one year ago, that same Supreme Court (albeit with Justice David Souter still sitting) had ruled, in the case of Hugh Caperton, et al v. A.T. Massey Coal Company, Inc., et al—the same Massey Coal Company that owns the mine where 29 miners were killed earlier this month—that Caperton and his fellow petitioners had not received a fair hearing in an appeal before the Supreme Court of Appeals of West Virginia, which overturned a $50 million judgment awarded by a trial court against Massey.

Why? Because the judge presiding over the appeal, Brent Benjamin, had had the benefit of over $2.5 million in campaign contributions from Massey's owner, Don Blankenship, during Benjamin's run for the West Virginia Supreme Court seat then held by Justice Warren McGraw—a seat the Benjamin won in a November 2004 election. "Not every campaign contribution by a litigant or attorney creates a probability of bias that requires a judge’s recusal, but this is an exceptional case," wrote Justice Anthony Kennedy for a unanimous Court. "We con­clude that there is a serious risk of actual bias—based on objective and reasonable perceptions—when a person with a personal stake in a particular case had a significant and disproportionate influence in placing the judge on the case by raising funds or directing the judge’s election campaign when the case was pending or imminent."

Bottom line: When it comes to the U.S. Supreme Court's consideration of judicial bias, money counts. Sex doesn't. And that's a problem.






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Mark Kernes

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