Recently, major news outlets reported that Anita Alvarez, the district attorney for Cook County, Illinois, had subpoenaed the grades, grading standards and electronic communications between students and professors in the Medill Innocence Project. Northwestern University runs the Medill project, which, during its 10-year history, has helped to secure the release of 11 innocent inmates.
Medill journalism students in the project research claims of innocence by incarcerated individuals. If the students believe the claims have merit, they give the information to lawyers who then decide whether to pursue legal relief. Medill students have gathered evidence that seems to exonerate Anthony McKinney, who is serving a life sentence for the 1978 murder of a security guard. Another individual, Tony Drakes, confessed to the murder during a videotaped interview with students.
The prosecutors' subpoena has sparked almost universal condemnation. Many commentators view it as a blatant attempt to harass the students and their professors and to chill advocacy on behalf of wrongly convicted individuals.
The prosecutors, however, will likely get the documents they seek -- unless a judge determines that the students are "journalists" under Illinois law. If the judge treats the students as journalists, then Illinois law would shield their communications from disclosure.
Full smear campaign
The merits of the subpoena depend solely upon the status of the students under the Illinois journalistic shield statute. Nevertheless, Alvarez has apparently decided to launch a full smear campaign against the Medill project.
First, Alvarez defended the subpoena by claiming that she wanted to know whether students received higher grades if they concluded that inmates were innocent. Now, Alvarez has made the salacious claim that Medill students paid two witnesses for their testimony.
According to an article in the Wall Street Journal, Cook County prosecutors argued in court yesterday that Drakes received $40 from a cab driver hired by the Medill project and that he used the money to purchase "crack cocaine." Prosecutors also argued that students paid Michael Lane, a friend of Drakes and possible accessory to the murder, between $50 and $100 and "took him out for cocktails and dinner and flirted with him." Prosecutors, however, provided no other details regarding the payment to Lane. These assertions reflect absolute hypocrisy and desperation by the prosecutors.
Prosecutors "pay" witnesses all the time. In exchange for testimony from witnesses, prosecutors pursue lesser charges, or they give them full or partial immunity. They also drop pending charges in other cases. Prosecutors also threaten harsher penalties if witnesses refuse to cooperate. Indeed, it is probably likely that prosecutors threatened Drakes, who confessed to a murder, with severe penalties before he "recanted." In order to question the students' credibility, Alvarez must also question the credibility of prosecutors across the nation.
Furthermore, the prosecution's assertions seem highly unlikely. Indeed, the Medill project has a simple explanation for the payment to Drakes, which suggests that prosecutors made the allegation purely for shock value, rather than substance. David Protess, the professor who runs the Medill project, says students paid a cab driver to transport Drakes and that he retains the receipt.
Protess also questions the sincerity of Cook County prosecutors who seem to believe that Drakes would confess to murder for $40. But these prosecutors are so desperate to conceal the truth that they apparently do not care about their own reputations or the reputations of the Medill students who pursue justice for wrongfully convicted individuals.
Students in the Medill Innocence Project at Northwestern University investigate claims of innocence and wrongful conviction by inmates. Over the course of a decade, the Medill project has helped secure the release of 11 innocent persons, five of whom were slated for execution.
Rather than applauding the students for their difficult and compelling work, prosecutors have hit them with a low blow. In a current case involving a claim of innocence by Anthony McKinney, Cook County prosecutors have served the Medill project with a shocking subpoena. According to the New York Times, the subpoena demands "the grades, grading criteria, class syllabus, expense reports and e-mail messages of the journalism students themselves."
The subpoena is highly inappropriate
The subpoena raises several red flags. First, the information the prosecutors seek is completely unrelated to the question of McKinney's guilt or innocence. Second, student grades are normally protected from disclosure by federal law. Third, the program is operated by the school of journalism and likely qualifies for protection by state journalism shield laws and the First Amendment. Fourth, the professor's course materials are possibly protected from disclosure by the concept of academic freedom -- which the Supreme Court has construed as a value secured by the First Amendment.
Sally Daly, a spokesperson for the Cook County District Attorney's Office, denies any wrongdoing by prosecutors. Instead, Daly points the finger at students. Daly claims that prosecutors are concerned that students could have qualified for higher grades if they concluded that the inmate was innocent. This is a highly unusual -- and insulting -- assertion. First, any reputable professor would grade a student's research by evaluating the methodology and written presentation, rather than using the final conclusion as a litmus test. Second, prosecutors should make their own independent determination regarding McKinney's guilt or innocence -- rather than treating the students as suspects.
During interviews the students conducted, several key witnesses recanted their testimony. The students have already turned over videotapes of these interviews to prosecutors. Prosecutors should question these witnesses rather than fishing for the students' personal materials.
Daly makes other nonsensical and outrageous arguments in defense of the subpoena. Although the subpoena extends to grades, she says that "[w]e’re not trying to delve into areas of privacy or grades ..." Daly also likens the subpoena to the routine disclosure of information by "detectives." Police detectives, however, work for the government and assist the prosecution. They are colleagues. Although private detectives do not work for the government, they have an unambiguous financial stake in the outcome of their investigation. The students, by contrast, are private citizens and journalists. The Medill project exists to monitor and improve the criminal justice system -- not to service the prosecutors' office or inmates.
Northwestern University vows to fight the subpoena
Fortunately, Northwestern University is fighting the subpoena. As the New York Times reports:
Northwestern University and David Protess, the professor who leads the students and directs the Medill Innocence Project, say the demands are ridiculously overreaching, irrelevant to Mr. McKinney’s case, in violation of the state’s protections for journalists and a breach of federal privacy statutes — not to mention insulting.
John Lavine, the dean of the Medill School of Journalism, said the suggestion that students might have thought their grades were linked to what witnesses said was "astonishing." He said he believed that federal law barred him from providing the students grades, but that he had no intention of doing so in any case.
Professional journalism groups have also stepped forward to defend the students.
Irony
The outcome of this matter could turn on whether a judge treats the students as "journalists" under Illinois law. If the students are journalists, their work is protected from disclosure.
Ironically, the prosecutors' brief provides the best argument for treating the students as journalists. In awfully butchered and revealing prose, prosecutors complain that: "The school believes it should be exempt from the scrutiny of this honorable court and the justice system, yet it should be deemed a purveyor of its inadequacies to the public ..." The prosecutors are uncomfortable with the idea of shielding journalists who investigate and publicize "inadequacies" in the criminal justice system. But having an additional "check" on the government is one of the strongest justifications for vigorously protecting the work of journalists.
Illinois prosecutors are blatantly using the strong arm of the state to harass Medill journalism students. The prosecutors' behavior evinces a deep contempt for the law, which makes the students' efforts to uncover wrongful convictions even more compelling.
On Oct. 13, we lost a resolute champion of the law, a man who left his impact on the lives of untold numbers of Americans.
His very name made his life's work almost inevitable, a matter of destiny. William Wayne Justice was a federal judge for the Eastern District of Texas. That's right, he was "Judge Justice." And he spent a distinguished legal career making sure that everyone -- no matter their color or income or class -- got a fair shake. As a former Texas lieutenant governor put it last week, "Judge Justice dragged Texas into the 20th century, God bless him."
Dragged it kicking and screaming, for it was Justice who ordered Texas to integrate its public schools in 1971 -- 17 years after the Supreme Court's Brown v. Board of Education decision made separate schools for blacks and whites unconstitutional. Texas resisted doing the right thing for as long as it could. Many of its segregated schools for African-American children were so poor they still had outhouses instead of indoor plumbing.
This small-town lawyer appointed to the federal bench by President Lyndon B. Johnson ordered Texas to open its public housing to everyone, regardless of their skin color. He looked at the state's "truly shocking conditions" in its juvenile detention system and said, Repair it. He struck down state law that permitted public schools to charge as much as a thousand dollars tuition for the children of illegal immigrants.
And Justice demanded a top-to-bottom overhaul of Texas prisons, some of the most brutal and corrupt in the nation. He even held the state in contempt of court when he thought it was dragging its feet cleaning up a system where thousands of inmates slept on the dirty bare floors of their cellblocks and often went without medical care. The late, great Molly Ivins said, "He brought the United States Constitution to Texas."
Some say that justice stings. William Wayne Justice certainly did -- and his detractors stung back with death threats and hate mail. Carpenters refused to repair his house; beauty parlors denied service to his wife. There were cross burnings and constant calls for his impeachment.
After he desegregated the schools he was offered armed guards for protection. He turned them down and instead took lessons in self-defense.
You need to understand that while so many Texans have fought and are fighting the good fight in the Judge Justice tradition, others believe in the law only when it sides with them. They long for the good old days of Judge Roy Bean, the saloonkeeper whose barroom court was known in the frontier days as "the law west of the Pecos." His judicial philosophy was simple: "Hang 'em first, try 'em later."
The present governor of Texas seems to be channeling Bean. During his nine years in office, Rick Perry -- "Gov. Goodhair," as Ivins called him -- has presided over more than 200 executions, dwarfing the previous record of 152 set by his predecessor in the governor's mansion, George W. Bush. (The most, it is said, of any U.S. governor in modern history.)
Lethal injection is practically a religious ritual in Texas. In fact, before their sentencing verdict that will send Khristian Oliver to die in just a couple of weeks -- on Nov. 5, to be exact -- jurors in the east Texas town of Nacogdoches consulted the Bible and found what they were looking for in the book of Numbers, where it reads, "The murderer shall surely be put to death," and, "The revenger of blood himself shall slay the murderer." Although it was noted that referencing holy writ was an inappropriate "external influence," two appeals courts upheld the jury's sentence and the U.S. Supreme Court refused to hear the case.
Perry will do almost anything to please the vengeful crowd in the Colosseum with their thumbs turned down. Did we mention that next year he's up for reelection? When it turned out recently that five years ago the state may have executed a man for a crime he didn't commit, Perry pulled some particularly shady moves.
In February 2004, Cameron Todd Willingham was put to death for allegedly setting a fire that killed his three young daughters. Perry has willfully ignored evidence from top arson investigators that the blaze was not homicide but an accident.
Now Perry has fired the chairman and three members of the state's Forensic Science Commission just as they were about to hear further scientific testimony that might prove Willingham's innocence. This week, Perry told reporters that the controversy is "nothing more than propaganda from the anti-death penalty people across the country."
They can be short on mercy in Texas. All the more reason to mourn the loss of Justice -- William Wayne Justice. Rest in peace, your honor.
If anyone had any doubt that the Texas justice system operates in a parallel universe, look no further than the latest decision by the state's highest court in the case of death-row inmate Charles Dean Hood. On Wednesday the Court of Criminal Appeals (CCA) said it wasn't interested in examining whether there was a conflict of interest in Hood's 1990 trial simply because District Attorney Thomas S. O'Connell Jr., Hood's prosecutor, had had a long-term sexual relationship with presiding Judge Verla Sue Holland, an affair the two tried to hide for 20 years.
In 1989, Hood was convicted of murdering Ronald Williamson and Tracie Lynn Wallace. The Holland-O'Connell affair was first reported by Salon in 2005, quoting anonymous sources. Judge Holland refused to either confirm or deny the affair at the time. A year ago this month, Holland and D.A. O'Connell, both since retired, acknowledged under oath that they had had a long-term sexual relationship, which was never revealed during more than a decade of appeals by Hood's lawyers. In her defense, Judge Holland said the affair ended more than two years before Hood's trial. But O'Connell also testified that the two had discussed marriage, and recalled that the affair continued as late as mid-1989 -- just before Hood's trial. He said the two continued to have a "good relationship," sans sex, during and after the trial. He said the two took a trip together in 1991.
Rather than address the affair directly, the CCA ruled 6-3 on a technical question, concluding that Hood should have raised the issue at his original trial. But Hood's lawyers couldn't prove the widespread rumors of the affair before Hood's trial. The CCA had earlier criticized Hood for failing to present any "personal knowledge" of the affair, a virtually impossible hurdle given that, as far as we know, there were no witnesses to the lovemaking other than the two principals, no Paris Hilton-style video, and the judge and her boyfriend weren't talking. The CCA also said Hood's claims were based on "rumor," not fact. But when Hood's lawyers were able to present the detailed facts of the affair, based on the confessions of the principals, the CCA said it was not interested in these facts.
Needless to say, some people have found the behavior of the since-retired judge and prosecutor, and that of the CCA, since Judge Holland was once a member of the very panel weighing her actions, more than a little unsavory. A score of legal ethicists concluded that the participation of the two at Hood's trial was unethical, unprofessional and unconstitutional, and the legal basis for a new trial self-evident. Hood's lawyers insist the affair rendered the conviction and death sentence invalid. Now they will have to convince a federal court that Hood has a right to a new trial.
Andrea Keilen, executive director of the Texas Defender Service, which represents Hood, said, "No one would want to be prosecuted for a parking violation -- let alone for capital murder -- by a district attorney who is sleeping with the judge. Yet the Court of Criminal Appeals is unmoved. We are outraged by this breakdown in the integrity of the justice system." John Rolater, an assistant district attorney for Collin County, which is pursuing the case against Hood, called the CCA ruling "a significant procedural victory."
Given the failure of a majority of the CCA to see any conflict of interest in the Hood case, it should come as no surprise that not one of the court's justices saw fit to recuse him- or herself from hearing arguments about Hood, despite the fact that eight of the nine justices had served with Judge Holland. Holland served on the CCA for nearly four years after leaving the district court where she presided over Hood's death sentence. Hood's lawyers presented evidence suggesting that some of the justices might have been aware of the affair.
In addition, the CCA's presiding judge, Sharon Keller, who has described herself as a "prosecution-oriented person," was tried in August before the State Commission on Judicial Conduct on five counts of judicial misconduct, including violations of due process in another death case in 2007. Advised by her staff that lawyers for death-row inmate Michael Richard -- scheduled to be executed that night -- needed an extra 15 minutes to file a final appeal, Keller had replied, "We close at 5." Richard was executed that night without having his appeal heard by the CCA. The outcome of Keller's misconduct proceeding should be announced soon.
Sadly, the conflicts of interest in the Hood case don't end with Judge Holland, D.A. O'Connell and the CCA. Before the Hood case reached the CCA, the case was briefly assigned to District Judge Robert T. Dry who presided over Judge Holland's divorce, and was a defendant with Holland's former husband in a million-dollar lawsuit. Dry issued several rulings unfavorable to Hood, including one that infamously scheduled a hearing for two days after Hood was set to die. Dry recused himself the day after I inquired whether his relationship with the Hollands created a conflict of interest.
The state's ongoing effort to see that Hood is executed is spearheaded by Collin County District Attorney John Roach, who succeeded O'Connell. Roach and Holland both crossed party lines in 1982 to urge voters to reelect O'Connell, a Democrat. Roach and Holland had overlapping terms as Collin County judges for 15 years, and for most of that time O'Connell was the county D.A. Roach told the CCA that Hood's lawyers had been gaming the system to delay the execution, and that they "possessed a more than adequate factual basis upon which to raise his claim" about the affair long before Holland and O'Connell came clean. Among the evidence Roach cited were a series of motions and letters Hood filed -- without a lawyer -- which Roach acknowledged were based on nothing more than rumors, and various news reports about the alleged affair that quoted anonymous sources.
But if Hood had a "factual basis" to raise the claim, why didn't Roach -- who had access to the same information and an obligation to find the truth and not just win a conviction -- use those facts to investigate whether the conviction of Hood obtained by his predecessor as D.A. had been compromised, and whether other attorneys in his office had knowledge of the affair?
He might start by asking his Assistant D.A. John Schomburger, who was O'Connell's co-counsel at Hood's trial, and who now heads Roach's felony trial division and continues to be actively involved in efforts to execute Hood. Given his decades-long association with the judge and former D.A., it is not entirely surprising that Roach opposed efforts by Hood's attorneys to ascertain whether rumors of their affair were true. Hood's lawyers asked that Roach be disqualified from any further participation in the case. Naturally, that motion was denied by the CCA.
Roach had several reasons for preventing the truth about the affair from coming out. In addition to his friendship with O'Connell and Holland, Roach no doubt realizes that a ruling that the relationship deprived Hood of a fair trial could mean that scores of cases O'Connell brought before Judge Holland were also tainted and could be reversed.
In 2008, Roach was named the state's top prosecutor by the Texas District and County Attorneys Association. Accepting the award, Roach said: "Recognition by my fellow Texas prosecutors as Lone Star Prosecutor of the Year is a great honor -- and doubly so because of our shared dedication to truth, justice and the rule of law."
Like many D.A.'s, Roach has campaigned on his office's high conviction rates, taking special note of murder convictions. Similarly, Judge Holland undoubtedly knew that winning convictions and death sentences in Texas was a career booster for her good friend O'Connell. Even if Holland were able to treat both parties fairly in every case she heard, the courts have ruled that the appearance of such bias is enough to compromise a judge. In the Hood case, Holland was obliged to recuse herself with or without a request from the defense. But she didn't. Certainly, no defendant in his right mind would have elected to have a case tried by this pair of sometime lovers.
Roach's resistance to any investigation of the affair brought Hood within minutes of execution on June 17, 2008, with Roach rejecting a 30-day postponement so Hood's lawyers could investigate the affair rumors. Hood, who had eaten his "last meal," was spared when his execution warrant expired. The execution was rescheduled for Sept. 10. Roach next rejected an appeal from Texas Attorney General Greg Abbott, who filed a highly unusual friend of the court brief on the defendant's behalf, asking the court to investigate the affair allegations, even if it meant delaying the execution. In a personal letter to Roach, Abbott argued that, "if the execution proceeds as scheduled, before questions about the fairness of his trial are legally resolved, neither the victims nor justice will be served."
Hood would almost certainly be dead had it not been for two people: Matthew Goeller, a former assistant district attorney under O'Connell, signed an affidavit in June 2008, stating that it was "common knowledge in the district Attorney's Office, and the Collin County Bar, in general," that O'Connell and Holland had a "romantic relationship." Taking note of this affidavit, District Court Judge Greg Brewer ruled in a highly unusual civil action that the failure of Hood's lawyers to develop hard facts about the affair was "squarely attributable to Judge Holland and Mr. O'Connell's deception and non-disclosure, rather than the lack of reasonable diligence on Hood's part."
Judge Brewer said that Holland and O'Connell failed in their "duty to disclose the fundamental conflict caused by their relationship," and that, "State officials prevented him [Hood] from obtaining concrete evidence of the Holland-O'Connell affair." Three of the CCA judges agreed with Brewer's analysis, concluding that the unsuccessful efforts of Hood's lawyers to obtain concrete evidence of the affair were due entirely to "the principal's longstanding efforts to keep the affair hidden." But they were outnumbered by the six members of the panel who decided to endorse the state's questionable prosecution of Charles Dean Hood, and write another episode in the lamentable saga of Texas justice.
Rarely in the annals of criminal justice does a conflict of interest get more sordid or have greater consequences than this. Charles Dean Hood is scheduled to be executed in Texas on Tuesday morning. In 1990, when he was on trial for capital murder in the Dallas suburbs, the presiding judge who imposed that death sentence and the local prosecutor who was trying to have Hood put to death had been involved in a "long-term intimate relationship."
That's according to papers filed by Hood's attorneys in two Texas courts Thursday. Hood's lawyers allege that Texas state court Judge Verla Sue Holland had a "personal and direct interest in the outcome of the case," and was disqualified from trying the case under the Texas Constitution because of her ongoing affair with Collin County District Attorney Tom O'Connell. Hood's lawyers are seeking a stay of execution and the reversal of his conviction and death sentence.
Allegations that Judge Holland and District Attorney O'Connell were romantically involved when Holland presided over the murder case prosecuted by O'Connell were first reported in Salon in June 2005. But yesterday's petition, which cites the original Salon report, marks the first time Hood's lawyers have taken the matter to court. The "wall of silence that has long protected Judge Holland must now come down," the lawyers argue in their filing.
Hood's claims rely in part on Matthew Goeller, who was an assistant district attorney in O'Connell's office at the time of Hood's conviction. Goeller signed an affidavit earlier this month, nearly 18 years after Hood's conviction, stating that "it was common knowledge in the District Attorney's Office, and the Collin County Bar, in general," that O'Connell and Holland "had a romantic relationship." According to Goeller, "This relationship ... was in existence in 1987 when I joined the District Attorney's Office, and continued until approximately 1993."
Neither the judge nor the prosecutor has publicly confirmed or denied the relationship. Neither returned phone calls yesterday. Asked about the case and any such relationship in 2005, Holland told Salon it would be "unethical to comment" about a pending case and refused comment on her personal ties with O'Connell.
Hood, 38, was sentenced to death in August 1990 for the 1989 murder of Ronald Williamson, 46, and Williamson's girlfriend, Tracie Wallace, 26. Hood had worked as Williamson's bodyguard and was living with him and Wallace at the time of the murders. The victims were found in Williamson's house.
O'Connell and Assistant District Attorney John Schomburger prosecuted Hood. O'Connell delivered closing arguments in the penalty phase of the trial at which he asked the jury to sentence Hood to death. The jury sentenced him to death, a sentence imposed by Judge Holland the following day, as required by Texas law. Schomburger also did not respond to a request for comment.
Lawyers for Hood admit they cannot prove that Judge Holland and D.A. O'Connell were having an affair, but they believe the law and the Texas Constitution oblige the courts to investigate the matter. "It's clear the parties did not want to make the affair public and they took steps at the time and now to keep it private," said Gregory W. Wiercioch, one of Hood's attorneys, insisting that Judge Holland was disqualified from hearing the case and that her judgment therefore has no authority. Wiercioch, an attorney with the private, nonprofit Texas Defender Service, a law firm that represents indigent capital defendants in Texas, says the courts should ask O'Connell and Holland to confirm or deny the relationship, arguing that asking Hood to offer concrete proof of a private affair is unreasonable.
The Texas Constitution bars a judge from sitting in a case "where either of the parties may be connected with the judge, either by affinity or consanguinity." As district attorney, O'Connell represented the State of Texas, the party seeking to execute Hood. The constitution further states that "Public policy demands that the judge who sits in a case act with absolute impartiality. Beyond the demand that a judge be impartial, however, is the requirement that a judge appear to be impartial so that no doubts or suspicions exist as to the fairness or integrity of the court."
Judge Verla Sue Holland was divorced from the late Earl Holland, a banker, in 1987. Friends of Earl Holland told Salon in 2005 that his wife had a relationship with O'Connell, and that it began while Judge Holland and Earl Holland were still married. One woman close to Earl Holland told Salon that Earl had a shoebox filled with tape recordings of his wife and O'Connell conversing. This source said, "I am 100 percent sure there was an affair." One of Earl Holland's closest friends said, there was "a mountain of circumstantial evidence of an affair," and that Earl Holland discussed the affair with him frequently, both while he was married to Judge Holland and after.
Earlier this week, Ray Wheless, a Collin County judge who previously argued cases before Judge Holland, told Salon that he had asked Judge Holland to recuse herself in a family law case in 1987 in which O'Connell was representing one of the parties and Wheless the other. Wheless said there was "a lot of speculation about that relationship" and "a long history of them being close friends." Wheless' recusal motion makes no mention of a romantic relationship, but notes that O'Connell represented Holland's sister in a divorce matter, and that "Judge Holland was previously employed by Tom O'Connell as an assistant district attorney." Wheless argued that both the attorney-client relationship and the employer-employee relationship created potential conflicts of interest.
Hood's original attorney, David K. Haynes, also signed an affidavit filed yesterday stating that he was "aware of rumors concerning a romantic relationship" at the time of the trial. But Haynes never mentioned the matter when his client was facing a death sentence.
Court records show that Holland presided over at least six other cases argued by O'Connell during the six-year period in which Goeller says they were romantically involved, and numerous other cases before and after. Were a court to overrule Hood's conviction based on a finding that Judge Holland had compromised her office, judgments in all of these cases could be called into question.
Judge Holland served on the state district court from 1981 through 1996 and then on the Texas Court of Criminal Appeals (CCA) until 2001. Hood's lawyers filed their motions in both courts. Seven of the nine judges now on the CCA served with Holland. O'Connell retired from the prosecutor's office in 2001 and practices law in Plano.
Hood's lawyers also filed a petition with Texas Gov. Rick Perry, seeking a 30-day reprieve so that the new evidence can be considered by the courts.
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.
