Outrage at Courthouse Affair

Death row inmate's appeal reveals affair between judge and prosecutor

ByABC News
September 10, 2008, 6:27 PM

Sept. 11, 2008— -- The revelation that a former judge had an affair with a prosecutor in Texas has outraged legal ethicists and may call into question dozens of criminal cases.

In a letter sent Tuesday to Texas Gov. Rick Perry, lawyers for Charles Dean Hood, a death row inmate, said that the district attorney who prosecuted Hood and the judge who oversaw his trial had admitted under oath on Monday night and Tuesday morning that they had a sexual relationship.

Hood, who was convicted of a double murder in 1990, was scheduled to be executed Wednesday. The Texas Court of Criminal Appeal stayed the execution Tuesday night for an unrelated reason.

It was unclear what the immediate impact of the affair would be for Hood or others, but lawyers expected that some other defendants who have been convicted in Holland's courtroom would attempt to challenge their convictions because of the reported affair.

"If I were a defense lawyer in a case over which this judge presided, I would be raising this. I think it's going to open the floodgates," said David Zarfes, an associate dean at the University of Chicago Law School who writes about legal ethics. "I find it shocking and disturbing. A man's life weighs in the balance here."

The letter from Hood's attorneys said the judge, Verla Sue Holland, who is now retired, and former Collin County District Attorney Tom O'Connell had differing recollections about when the affair ended and it was unclear if they were involved during Hood's trial. A former district attorney has said in a sworn statement that he believed the affair continued until 1993.

The parties are still under a gag order in the case, and lawyers for Holland and O'Connell did not return calls from ABC News.

It was unclear if Hood will be granted a new trial because of the affair. The Court of Criminal Appeals stayed Hood's execution, saying the jury may have received improper jury instructions.

It rejected Hood's appeal for a new trial based on the alleged affair, but Holland and O'Connell did not admit to the affair until after Hood's appeal had been filed.

Several legal experts have told ABC News that a sexual relationship between a judge and prosecutor under these circumstances would violate a defendant's right to a fair trial and would render the conviction invalid.

If that is found to be the case, the reported affair could call into question many other cases that O'Connell prosecuted in Holland's court. Holland was a Collin County judge from 1981 to 1997, when she joined the Court of Criminal Appeals. O'Connell was district attorney from 1971 to 2002, except for several years in the 1980s.

"It's not just shocking. It really reflects a complete disregard of the fundamental tenets of the justice system," Robert Cummins, the former chair of the American Bar Association Committee on Professional Discipline, said of the affair. Cummins earlier had signed a letter asking courts to fully investigate the allegations that Holland and O'Connell had an affair.

It was unclear how many cases could potentially be affected. The Collin County court clerk's office said it was still researching the number of cases O'Connell prosecuted in Holland's court during that time.

David Dow, litigation director at Texas Defender Services, which represents death row inmates, said the office did not represent any other death row inmates whose cases were tried in front of Holland.