Lawyers for a death-row inmate in Texas have won a reprieve for their client less than a day before his scheduled execution – but not for the reason they'd most recently requested.
They had asked Texas officials to postpone the execution of Charles Dean Hood for 30 days to allow a complete investigation into allegations that the judge and prosecutor at Mr. Hood's 1990 capital murder trial were having a secret affair.
On Monday, a Texas judge ordered the former prosecutor, Thomas O'Connell, and former judge, Verla Sue Holland, to answer questions under oath about their alleged secret romance. On Tuesday evening, Gregory Wiercioch, one of Hood's lawyers, sent a letter to Texas Gov. Rick Perry urging him to halt the execution in light of admissions by the former judge and prosecutor "that they had an intimate sexual relationship for many years."
But in a surprise move also on Tuesday evening, the Texas Court of Criminal Appeals, the state's highest criminal court, ordered a halt to Hood's execution. The action was not related to the alleged secret romance. Instead, the court stopped the execution pending resolution of an appeal related to the fairness of instructions given to the jury during the sentencing phase of the Hood murder trial.
The action appears to give Hood's lawyers what they wanted – a halt to the execution. But his lawyers were also fighting for a new trial based on what they say were substantial ethics violations by the prosecutor and the judge during the trial.
By agreeing to reconsider the jury instructions motion but not the secret affair issue, the Court of Criminal Appeals is closing the door on attempts by Hood's lawyers to obtain a new trial.
In its order Tuesday evening, the Court of Criminal Appeals again rejected Hood's claim that the secret sexual relationship undercut the fundamental fairness of Hood's capital murder trial. Instead, the court said it was willing to take another look at whether the jury received improper instructions about how much weight to give mitigating evidence concerning Hood's troubled life prior to the alleged murders.
"Because of developments in the law [concerning jury instructions], this Court has determined that it would be prudent to reconsider [the court's earlier ruling]," the order says.
The court also denied a motion that eight of the nine judges on the court remove themselves from consideration in the case because Judge Holland had served with them for nearly five years on the Court of Criminal Appeals.
Hood's lawyers had hoped to keep attention focused on Holland's alleged ethics violations and the impact on the fairness of the trial. But the court's order moves the inquiry away from her ethics and instead focuses on the instructions she gave to the jury.
In his letter to Governor Perry, Mr. Wiercioch wrote: "There is no doubt that the relationship was sexual in the years immediately leading up to the time that Judge Holland had jurisdiction over the case."