Ardor in the court

When the judge and prosecutor involved in a capital case are sleeping together, can the defendant possibly get a fair trial? Meet Charles Dean Hood, on Texas' death row.

Topics: Death Penalty, Texas,

Here’s a not very tough question of legal ethics to ponder over the morning coffee: Let’s say you’re on trial for murder, and the judge and the prosecutor in your case have been having an affair. Is it possible for you to get a fair trial?

In the case of Charles Dean Hood, the short answer is, “Don’t bet your life on it.”

Hood, who was sentenced to death for a 1989 double murder, is scheduled to be executed by the state of Texas on June 30. Unfortunately for Hood, in the 15 years since he arrived on death row, the issue of the strange and not-so-secret relationship of State District Court Judge Verla Sue Holland and Collin County District Attorney Tom O’Connell has never been raised in a single state or federal court.

Now, it should be stated at the outset that the private affairs of public officials, including extra-marital relations, should under all but the most extraordinary circumstances remain solely the business of the parties involved.

But when a person is charged with a serious crime and his life hangs in the balance, such a private relationship may well become a matter of public interest, because the public has a right to know that the judicial process that prosecutors and judges swear to uphold will not be compromised.

Hood was convicted in August 1990 of the brutal murders of his boss Ronald Williamson, 46, and Williamson’s girlfriend, Tracie Wallace, 26. Hood worked as Williamson’s bodyguard. Both victims were shot at close range in the head. Hood’s bloody fingerprints were found at the crime scene. Although Hood’s trial left a welter of unanswered questions — about a possible accomplice, the motive for the killings, Hood’s mental state, and the quality of Hood’s representation, to name just a few — there is little doubt that the state could easily have won a conviction of Hood by assigning a prosecutor whose presence in the courthouse would not raise a question of unethical conduct.

Yet District Attorney Tom O’Connell chose to prosecute the case himself and not to reveal that he and Judge Holland had been involved in a long-running romantic relationship.

Why O’Connell would have risked jeopardizing what had to have looked like a slam-dunk conviction over questions about his personal life is not at all clear, unless he was fairly confident that no one would dare to challenge him. O’Connell, who has since retired from public service, did not respond to phone calls seeking comment.

For her part, Judge Holland refused to either confirm or deny the alleged relationship with O’Connell, insisting that it would be “unethical to comment” on a pending case. Asked if it was also unethical to try a case in which she had been romantically involved with the prosecutor, the judge said, “I’m not going to comment on anything, and I resent the fact that you’re calling.” Judge Holland, who served on the Collin County court for 15 years before being elected to the state criminal appeals court, has since retired.

The Collin County District Attorney’s Office, where O’Connell served for more than a decade, also refused to respond to written questions, as did John Schomburger, the assistant district attorney who prosecuted Hood with O’Connell.

Close friends of the late Earl Holland, who was married to Verla Sue Holland for 17 years, say there is no question that she and O’Connell had an ongoing, intimate relationship that began while she was married to Earl, a prominent banker active in local Republican politics. Friends of Holland, who died earlier this year, insist that he told them the affair was the precipitating factor in his decision to file for divorce.

“I am 100 percent sure that there was an affair,” said one woman who refused to be named. This source recounted having listened to tape recordings Earl Holland obtained of conversations between the judge and O’Connell that provided irrefutable evidence that the two were intimately involved. Earl Holland had collected an entire “shoe box” of these recordings, she said, but she did not know how he obtained them.

Holland’s friend said Holland “thought he [O'Connell] was a family friend,” and invited him often to his home, only to learn later that O’Connell “was of course sleeping with Sue.” Earl Holland became convinced that the alleged affair had gone on for several years before he learned about it. The divorce was finalized in October 1987. Sources differ on when the relationship ended; according to Holland’s friend, the affair continued for at least a year after the divorce, possibly longer.

Another close personal friend in whom Earl Holland confided said there was “a mountain of circumstantial evidence of an affair,” and that Earl Holland frequently discussed the alleged affair with him, both while he was married to Judge Holland and after. “Earl was convinced that they [Verla Sue and O'Connell] were having an affair. He was absolutely convinced.”

Hood’s original trial lawyer, David K. Haynes, said, “Everyone in the courthouse had heard those rumors” about the judge and the DA. But Haynes said that without proof, he did not feel he could raise the issue at trial.

According to a report prepared by a private investigator in 1995 in connection with Hood’s appeals, Haynes may have had other reasons for failing to pursue “those rumors.” The report quotes a paralegal who worked for Haynes, Janet Heitmiller, claiming that her boss “feared raising the relationship as an issue in Dean’s [Charles Dean Hood's] case would cost them points with the judge concerning other cases” he might argue before her. According to the investigator’s report, Heitmiller learned of the alleged relationship while working for Haynes and believed that Judge Holland and O’Connell “were still dating up to a year after the case was resolved.”

The report, written by Tena S. Francis, also quotes a local attorney, Ray Wheless, as saying that “the judge and DA tried to keep their relationship as private as possible. People in the legal community knew about it, though, and the two could often be seen going to lunch together from the courthouse.”

The investigator concluded that “the relationship with O’Connell is what cost [Judge] Holland her marriage.” The report added that Wheless “does not know why or how or when O’Connell’s relationship with Holland ended.” Now a Collin County judge, Wheless did not return phone calls to his home and office. Although Hood’s appellate lawyers discussed the alleged affair over the years, the issue was never formally raised on any court proceeding.

Today, Hood’s trial attorney, David Haynes, says that evidence of the alleged affair “certainly would have made a difference in the way the defense was approached. It would have cast some doubt about the fairness of the tribunal.” But he says there is no way to know for sure if rulings Judge Holland made against his client were prejudiced due to the alleged relationship with the district attorney.

Richard Ellis, a San Francisco attorney now representing Hood, agrees that there is no way to connect Holland’s rulings to allegations about her personal life, but he considers at least one of her decisions, refusing a defense request for a psychological evaluation, “totally out of the mainstream of judicial authority,” given a Supreme Court ruling on the issue. Although Hood is not mentally retarded, a scientific presentation by a defense psychiatrist might have convinced the jury to forgo the death sentence. As a child, Hood suffered a traumatic head injury, and there was evidence that he was regularly whipped by his father.

David R. Dow, a University of Houston law professor who is also working on the Hood matter, insists, “It is a red herring to look for particular things that are challengeable, because what you have in a case like this is a complete and fundamental breakdown of all the premises of the adversary system.” Based on the relationship of the judge and the prosecutor, Dow says there is no question that Hood should be granted a new trial. “Any criminal defendant who stands to be sentenced to death is entitled to a proceeding that is not only fair, but has the appearance of fairness. At a minimum, there is no appearance of fairness in this case, and we have good reason to believe the judge made decisions that resulted in concrete harm. Did she make those decisions because she was sleeping with the prosecutor? Who knows. But we shouldn’t have to engage in that kind of idle speculation.” Dow says the judge should have recused herself from the case.

Stephen Gillers, a professor of law at New York University Law School, agrees. One of the country’s leading authorities on legal ethics, Gillers said, “There’s no question — it’s incontrovertible — this justice should not have sat in this case, at least not without informed consent on the record from the defense … The public has a right to complete confidence in the court’s disinterestedness, in the court’s objectivity. It’s simply not possible to know how the case might have gone differently or how the rulings might have been altered absent this relationship.”

Gillers cited the widely used ABA Code of Judicial Conduct, which provides that “A judge shall disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned.” Where there is doubt, a judge is obliged to disclose information that lawyers might consider relevant to the question of disqualification.

Citing the same provision, Hofstra law professor Monroe Freedman, author of “Understanding Lawyers’ Ethics,” said, “Beyond any doubt, a judge’s romantic involvement with a lawyer appearing before him ‘might’ cause a reasonable person to ‘question’ his impartiality. I am confident that no one who works in the field of judges’ ethics would take a different view from mine in this case.”

Hood, 36, may have some of the country’s top legal ethicists on his side, but getting the courts to grant him a new trial is another matter. If Judge Holland’s behavior in the case is challenged, the state will almost certainly argue that the defense still cannot prove that her rulings were prejudiced or that they would have changed the outcome of the jury’s deliberations.

With his execution date imminent, Hood’s lawyers have raised several other legal issues. On Thursday, the Supreme Court was scheduled to hear Hood’s appeal for a new DNA test, with a decision expected on Monday. Hood’s lawyers are also contesting the constitutionality of the Texas jury instructions given at his trial, which used the same language as instructions since deemed unconstitutional by the Supreme Court.

Alan Berlow is the author of "Dead Season: A Story of Murder and Revenge." His writing has appeared in the The New York Times Magazine, Atlantic Monthly and Harper's.

More Related Stories

Featured Slide Shows

  • Share on Twitter
  • Share on Facebook
  • 1 of 14
  • Close
  • Fullscreen
  • Thumbnails

    13 of "Girls'" most cringeworthy sex scenes

    Hannah and Adam, "Pilot"

    One of our first exposures to uncomfortable “Girls” sex comes early, in the pilot episode, when Hannah and Adam “get feisty” (a phrase Hannah hates) on the couch. The pair is about to go at it doggy-style when Adam nearly inserts his penis in “the wrong hole,” and after Hannah corrects him, she awkwardly explains her lack of desire to have anal sex in too many words. “Hey, let’s play the quiet game,” Adam says, thrusting. And so the romance begins.

    13 of "Girls'" most cringeworthy sex scenes

    Marnie and Elijah, "It's About Time"

    In an act of “betrayal” that messes up each of their relationships with Hannah, Marnie and Elijah open Season 2 with some more couch sex, which is almost unbearable to watch. Elijah, who is trying to explore the “hetero side” of his bisexuality, can’t maintain his erection, and the entire affair ends in very uncomfortable silence.

    13 of "Girls'" most cringeworthy sex scenes

    Marnie and Charlie, "Vagina Panic"

    Poor Charlie. While he and Marnie have their fair share of uncomfortable sex over the course of their relationship, one of the saddest moments (aside from Marnie breaking up with him during intercourse) is when Marnie encourages him to penetrate her from behind so she doesn’t have to look at him. “This feels so good,” Charlie says. “We have to go slow.” Poor sucker.

    13 of "Girls'" most cringeworthy sex scenes

    Shoshanna and camp friend Matt, "Hannah's Diary"

    We’d be remiss not to mention Shoshanna’s effort to lose her virginity to an old camp friend, who tells her how “weird” it is that he “loves to eat pussy” moments before she admits she’s never “done it” before. At least it paves the way for the uncomfortable sex we later get to watch her have with Ray?

    13 of "Girls'" most cringeworthy sex scenes

    Hannah and Adam, "Hard Being Easy"

    On the heels of trying (unsuccessfully) to determine the status of her early relationship with Adam, Hannah walks by her future boyfriend’s bedroom to find him masturbating alone, in one of the strangest scenes of the first season. As Adam jerks off and refuses to let Hannah participate beyond telling him how much she likes watching, we see some serious (and odd) character development ... which ends with Hannah taking a hundred-dollar bill from Adam’s wallet, for cab fare and pizza (as well as her services).

    13 of "Girls'" most cringeworthy sex scenes

    Marnie and Booth Jonathan, "Bad Friend"

    Oh, Booth Jonathan -- the little man who “knows how to do things.” After he turns Marnie on enough to make her masturbate in the bathroom at the gallery where she works, Booth finally seals the deal in a mortifying and nearly painful to watch sex scene that tells us pretty much everything we need to know about how much Marnie is willing to fake it.

    13 of "Girls'" most cringeworthy sex scenes

    Tad and Loreen, "The Return"

    The only sex scene in the series not to feature one of the main characters, Hannah’s parents’ showertime anniversary celebration is easily one of the most cringe-worthy moments of the show’s first season. Even Hannah’s mother, Loreen, observes how embarrassing the situation is, which ends with her husband, Tad, slipping out of the shower and falling naked and unconscious on the bathroom floor.

    13 of "Girls'" most cringeworthy sex scenes

    Hannah and the pharmacist, "The Return"

    Tad and Loreen aren’t the only ones to get some during Hannah’s first season trip home to Michigan. The show’s protagonist finds herself in bed with a former high school classmate, who doesn’t exactly enjoy it when Hannah puts one of her fingers near his anus. “I’m tight like a baby, right?” Hannah asks at one point. Time to press pause.

    13 of "Girls'" most cringeworthy sex scenes

    Hannah and Adam, "Role-Play"

    While it’s not quite a full-on, all-out sex scene, Hannah and Adam’s attempt at role play in Season 3 is certainly an intimate encounter to behold (or not). Hannah dons a blond wig and gets a little too into her role, giving a melodramatic performance that ends with a passerby punching Adam in the face. So there’s that.

    13 of "Girls'" most cringeworthy sex scenes

    Shoshanna and Ray, "Together"

    As Shoshanna and Ray near the end of their relationship, we can see their sexual chemistry getting worse and worse. It’s no more evident than when Ray is penetrating a clothed and visibly horrified Shoshanna from behind, who ends the encounter by asking if her partner will just “get out of me.”

    13 of "Girls'" most cringeworthy sex scenes

    Hannah and Frank, "Video Games"

    Hannah, Jessa’s 19-year-old stepbrother, a graveyard and too much chatting. Need we say more about how uncomfortable this sex is to watch?

    13 of "Girls'" most cringeworthy sex scenes

    Marnie and Desi, "Iowa"

    Who gets her butt motorboated? Is this a real thing? Aside from the questionable logistics and reality of Marnie and Desi’s analingus scene, there’s also the awkward moment when Marnie confuses her partner’s declaration of love for licking her butthole with love for her. Oh, Marnie.

    13 of "Girls'" most cringeworthy sex scenes

    Hannah and Adam, "Vagina Panic"

    There is too much in this scene to dissect: fantasies of an 11-year-old girl with a Cabbage Patch lunchbox, excessive references to that little girl as a “slut” and Adam ripping off a condom to ejaculate on Hannah’s chest. No wonder it ends with Hannah saying she almost came.

  • Recent Slide Shows



Comment Preview

Your name will appear as username ( settings | log out )

You may use these HTML tags and attributes: <a href=""> <b> <em> <strong> <i> <blockquote>