Sept. 5, 2008 -- The Texas attorney general today took the unusual step of backing a death row inmate seeking a new trial, asking a local court to investigate allegations that the judge and the prosecutor who oversaw the inmate's death penalty trial had an affair.
Noting the "unique and extraordinary circumstances" of the case, Attorney General Greg Abbott wrote in a brief filed in Collin County District Court that a closer review of the allegations was warranted and that Charles Dead Hood's scheduled Sept. 10 execution may have to be delayed.
"The integrity of our system of criminal justice and the administration of capital punishment rests on the assurance and confidence that all persons accused of a crime receive a trial before an impartial judge and jury," the brief says.
Hood claims that he was denied a fair trial because the judge who presided over his 1989 double murder trial, Verla Sue Holland, was having an affair with former Collin County District Attorney Tom O'Connell.
Holland and O'Connell have never spoken about the alleged affair, and neither has returned calls from ABC News.
In a letter to the local district attorney's office, Abbott said that he did not doubt Hood's guilt or doubt that he deserved the death penalty. But, he wrote, an inquiry into the alleged affair is necessary to protect the integrity of the justice system.
Several legal experts have told ABC News that they believe an affair between a judge and a prosecutor would be a clear violation of the constitutional right to a fair trial. Earlier this week, 22 former judges and prosecutors asked Texas Gov. Rick Perry to delay Hood's execution.
Hood's lawyers have asked to question Holland, who went on to serve on the state's Court of Criminal Appeals before retiring, and O'Connell under oath. A hearing on their request is scheduled for Monday; if it is granted, the depositions could take place as early as Monday.
If the allegation of an affair proves to be true -- a former prosecutor in O'Connell's offices has said in a sworn statement that the affair was common knowledge -- it could cause problems for hundreds of criminal cases heard by Holland while the alleged affair was taking place.
Aside from the allegations of the affair, the case has gained national attention, in part because a hearing to decide whether defense lawyers could depose Holland and O'Connell was set for two days after Hood's scheduled execution date.
The judge who scheduled that hearing, Robert Dry, on Wednesday recused himself from the case, citing a prior business relationship with Holland's husband.
Hood, 39, was scheduled to be executed in June after the Texas Court of Criminal Appeal rejected a bid to overturn his conviction, saying Hood had raised the issue of the reported affair too late in the appeals process for it to be considered.
After a flurry of last-minute legal filings, the execution was delayed in June because state prison officials said they had run out of time to carry out the execution by the midnight deadline.
His lawyers filed a request last month to question Holland and O'Connell under oath in a civil proceeding as a precursor to a possible civil lawsuit.
Dry scheduled a hearing to decide if Holland and O'Connell can be questioned, but refused to speed up the process to take into account Hood's pending execution.
"It is unlikely that these depositions will lead to civil litigation that will be concluded before the execution of your client," he wrote in a letter to Hood's lawyers.
"In reality, you are exploring a civil lawsuit for the estate of Mr. Hood."
Collin County Assistant District Attorney John Rolater said earlier this week that Hood's lawyers "haven't established the right to derail this at this late hour. They seem to be grossly abusing the system, filing improper motions in improper courts."
Even if the alleged affair did take place, it is unclear what effect it would have on Hood's case.
In a concurring opinion, four judges on the Court of Criminal Appeals said that information about the reported affair was available years ago, but that 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 reported affair.
Hood was convicted of the 1989 fatal shooting of his boss Ronald Williamson and Williamson's girlfriend, Traci Wallace. Hood was arrested in Indiana a day after the killing. He had Williamson's car, jewelry, camera, wallet, credit cards and clothing on him at the time of the arrest, according to the Texas Attorney General's Office.