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.

Published June 24, 2005 2:45PM (EDT)

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.

By Alan Berlow

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.

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