Permission to Approach the Bedroom ... er, Bench?

The Court of Criminal Appeals denied death row inmate Charles Dean Hood's plea last week for a new hearing, ruling that he should have raised earlier the question of whether a sexual affair between the prosecutor on his case and the judge overseeing his capital murder trial might have tainted the court proceedings. How Hood could have raised the issue sooner isn't clear: Although the affair between former Judge Verla Sue Holland and former Collin County District Attor­ney Thomas O'Connell had been rumored for years, it wasn't until last year, when the pair were compelled to sit for depositions in the Hood case, that their secret relationship was finally confirmed.

Collin County District Court Judge Greg Brewer concluded last year that Hood should be allowed a hearing to determine whether revelations about the affair – ongoing at the time of Hood's 1989 trial for the robbery and double murder of a couple in Plano – justified a new trial. Though it was the CCA that originally sent the case to Brewer, it has now rejected his findings. In an unsigned opinion delivered Sept. 16, six members of the CCA (including scandal-plagued Presiding Judge Sharon Kel­ler) wrote that Hood should have raised the matter in his first appeal more than a decade ago – ignoring all evidence that Hood's attorneys for years have worked to do just that. Until they had concrete proof of the affair, there was no way for them to raise the issue in court.

David Dow, lead litigator for the Texas Defender Service, which is representing Hood, told reporters last week that he was stunned by the ruling: When the CCA denied a stay for Hood last year, the court said, "Come back to us when you have proof." Now that Hood's defenders have finally gotten proof, the court has rejected them anyway. (Hood's isn't the only case in which the court has behaved contradictorily: It has handled the death row appeals of Rodney Reed in a similar manner, telling his attorneys to return with evidence that would support Reed's claims of innocence and to file that evidence with the court separately, as it came to them – then ruling that there was not enough evidence and that part of the problem was that it was compiled in a piecemeal manner.)

In dissent, Judge Cathy Cochran, joined by Judges Tom Price and Charles Holcomb, questioned the majority's decision to ignore evidence presented by Hood: "Based upon [Brewer's] factual findings outlining the considerable effort, time, and money that [Hood] spent in attempting to verify or dispel the rumors, [Brewer] concluded that [Hood] had exercised reasonable diligence in attempting to establish the factual basis of his claim," Cochran wrote. Brewer also concluded that Hood's previously "'unsuccessful efforts to obtain concrete evidence' of the relationship" could be explained by Holland and O'Con­nell's "longstanding efforts to keep the affair hidden."

Texas Defender Service Executive Director Andrea Keilen says Hood's lawyers are still reviewing their options – including whether to appeal the CCA's ruling in federal court – and that they will not let the case go. "Today's decision rewards the judge and prosecutor for maintaining a wall of silence about their affair for nearly two decades," Keilen said.