The lawyer for a death-row inmate says he is trying to break a "conspiracy of silence" in Texas over whether the district attorney and the judge who presided over his client's 1990 capital murder trial were having a secret romantic relationship.
The inmate, Charles Dean Hood, is scheduled to be executed on Wednesday.
A Texas judge has ordered a hearing into the issue on Monday morning. The judge has also ordered the former judge and former district attorney to be prepared to answer questions under oath about their alleged affair and potentially surrender any documentary evidence of a relationship.
The unusual twists and turns in the Hood case are attracting national attention and adding fuel to an already-heated debate over capital punishment in Texas.
Mr. Hood's lawyer, Gregory Wiercioch, has been trying for months to persuade the Texas judiciary to investigate the alleged secret relationship. He says former Judge Verla Sue Holland and former Collin County District Attorney Thomas O'Connell may believe that their private relationship did not taint Hood's trial. But, he says, it should not be up to a judge and prosecutor to secretly decide such an issue – particularly when the defendant was on trial for his life.
"No attorney knowing [of this relationship] would have allowed her to stay on and preside over this trial," Mr. Wiercioch says. "I wouldn't want her presiding over a parking ticket, let alone a capital murder trial."
The lawyer says others in Collin County, north of Dallas, were aware of the affair but did nothing. "There was this sense that we are going to keep it secret, and whoever their friends were that socialized with them – and knew of the relationship – those people kept it secret as part of a conspiracy of silence," Wiercioch says.
Fairness of other trials at stake, too
The allegation has been swirling in Texas legal circles for years, but no formal investigation has been undertaken. Judge Holland and Mr. O'Connell, both now retired, have declined to discuss the issue.
"It is a matter of Texas courts turning an absolute blind eye to a situation that is in plain sight," says Steve Hall, director of the Standdown Texas Project, a criminal justice reform group. "Legal ethicists have been outraged by the facts. This should not even be a close call."
If true, the secret affair would violate ethics regulations governing both judges and prosecutors, legal experts say. In addition, these experts say, it would raise questions not only about the fairness of Hood's murder trial but also of the fairness of every criminal case charged by O'Connell's office and tried before Judge Holland during their alleged affair.
According to an affidavit by a former assistant district attorney in O'Connell's office, the Holland-O'Connell relationship began prior to 1987 and lasted until 1993. Hood was convicted and sentenced to death in September 1990 for the shooting deaths of a man and woman in Plano, Texas, in 1989.
The former assistant, Matthew Goeller, says in the affidavit: "It was common knowledge in the district attorney's office, and the Collin County Bar, in general, that the district attorney, Mr. Tom O'Connell, and the presiding judge of the 296th District Court, Judge Verla Sue Holland, had a romantic relationship." Mr. Goeller is a past president of the county bar association and of the county's criminal defense lawyers association. He worked in the district attorney's office from 1987 to 1996.
One court rejected the complaint
Holland isn't some back-county judge. From 1997 to 2001, she served on the Texas Court of Criminal Appeals, the state's supreme court for criminal matters.
When Wiercioch brought the Holland-O'Connell affair issue to the attention of that court in June, the judges voted 9 to 0 to toss the complaint out as an abuse of the writ of habeas corpus. The judges said Hood's lawyers should have raised the matter in an appeal filed in 1999. The judges also voted unanimously to allow Hood's scheduled execution to go forward on June 17. The death warrant, however, expired and the execution was postponed until Sept. 10.
There is no indication in the court's opinions that the case involved potentially serious allegations against a former colleague. Holland had served with eight of the nine judges currently on the court. The opinions are marked "Do not publish."
The Holland-O'Connell affair allegations arose again in recent weeks after a Texas judge granted Wiercioch's request for a hearing. But that judge, Robert Dry, set the hearing date for Sept. 12 – two days after Hood's scheduled execution. In a letter to Wiercioch, Judge Dry told the lawyer he had waited too long to raise the issue. He concluded his letter with a disclosure: "I know Judge Holland and Tom O'Connell. It is likely that every local judge knows them. If you are concerned about this, I will consider a motion to recuse."
Dry later removed himself from the case.
The new judge, Greg Brewer, ordered the Monday hearing. At the hearing, the judge will consider whether to order Holland and O'Connell to answer Wiercioch's questions about the alleged affair.
A group of 500 former judges and prosecutors wrote Sept. 2 to Texas Gov. Rick Perry urging him to grant a 30-day reprieve to allow an investigation into the alleged affair.
"If Mr. Hood's claim is proven, we believe that his right to an impartial judge and a fair trial was violated and his conviction and sentence were unconstitutionally obtained," the group writes. "Under the United States and Texas constitutions, the right to an unbiased judge is fundamental to due process."
The group includes William Sessions, former FBI director and a former federal judge and US attorney in Texas; John Gibbons, former third circuit federal appeals court chief judge; and Patricia Wald, former Washington, D.C., appeals court judge. "No court has addressed the merits of Mr. Hood's allegations or permitted discovery of the facts," they wrote.
Two days later, Texas Attorney General Greg Abbott announced that his office would be filing a friend-of-the-court brief to urge the judge to "fully review" the affair allegations.