Bid to Halt Execution Over Judge's Alleged Affair Rejected

June 17, 2008— -- A Texas death row inmate who claims the judge in his double murder trial had a long-running affair with the prosecutor is scheduled to be executed tonight after the state's highest criminal appeals court rejected a bid to overturn his conviction.

In an unsigned opinion, the Texas Court of Criminal Appeals ruled that Charles Hood had raised the issue of the alleged affair too late in the appeals process for it to be considered. It also said the allegations were not new information.

The court rejected a separate appeal from Hood because it had not been signed by the lead attorney in the case.

"We were surprised and disheartened that the court chose to allow form to rule over substance," said Andrea Keilen, director of the Texas Defender Service. "We had hoped that the court would take the issue seriously. It's always disappointing when a court chooses not to look at the real issue and instead dismisses a case for something that is hyper-technical."

Hood's attorneys said he was denied a fair trial because the judge in the case, Verla Sue Holland, allegedly had an affair with the former Collin County district attorney, Tom O'Connell, at the time that Hood was convicted and sentenced to death. Holland, who is now retired, went on to serve on the Court of Criminal Appeals.

A former Collin County assistant district attorney said in a sworn statement filed with Hood's appeal that it was "common knowledge" that Holland and O'Connell had a romantic relationship.

If true, legal experts said, an affair between a trial court judge and prosecutor would be a clear violation of Hood's constitutional right to a fair trial.

In a concurring opinion, four judges said that information about the alleged affair was available years ago, but Hood's lawyers never raised the issue. They said the affidavit from the former assistant district attorney didn't add significant new information about the alleged affair.

Holland and O'Connell could not be reached for comment.

If the allegations are true, "There's no serious question here," said Monroe Freedman, a professor at Hofstra Law School and a leading expert on legal ethics. "I don't think there's any question at all that Mr. Hood did not have a constitutionally fair trial. He's about to be killed without having had a real trial."