Texas Gov. Asked to Stop Execution

Sept. 4, 2008— -- Nearly two dozen former judges and prosecutors urged Texas Gov. Rick Perry to grant a temporary reprieve to a death row inmate whose claim that the judge and prosecutor in his case had an affair was scheduled to be heard in court two days after his execution.

A state judge had scheduled a hearing to determine whether Verla Sue Holland, the judge in Charles Dean Hood's death penalty trial, and former Collin County District Attorney Tom O'Connell must give depositions about their reported affair. But the hearing was scheduled for Sept. 12 -- two days after Hood is scheduled to die for a 1989 double murder.

Robert Dry, the judge hearing the case, recused himself from the case Wednesday, citing a prior business relationship with Holland's husband, throwing an already complicated case into uncertainty again.

Hood's case will be reassigned to another judge, who will decide when to hold the hearing, said his lawyer Greg Wiercioch.

Wiercioch criticized Dry for only recusing himself after he had made several important rulings in the case, including setting the hearing date after the scheduled execution.

"It's disturbing that no one is touching this," he said. "It's a hot potato that everyone's passing around. We're a week away from execution and we don't have a judge."

Dry could not immediately be reached for comment Wednesday. In a letter sent to Hood's attorneys last month, he said he knew Holland and O'Connell and said he would consider recusing himself if Hood's lawyers asked. They didn't take him up on the proposal.

Holland and O'Connell have not commented on the allegations. Neither returned calls from ABC News.

In a letter sent today to the Texas governor, 22 former judges and prosecutors, including the former chief judge of the federal Third Circuit Court of Appeal and the former attorneys general of Maryland and Tennessee, called the setting of Hood's hearing date "inexplicable."

If the allegations of an affair are true, they said, Hood's constitutional right to a fair trial was violated.

"It is an irrevocable wrong to send a man to his death without ever hearing this critical evidence," the letter stated.

A Governor's Office spokeswoman said Perry had received the letter but had not yet made a decision in the case.

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 pending Hood's 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 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."

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

Holland, who is now retired, went on to serve on the Court of Criminal Appeals.

Legal experts have told ABC News that 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 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.