Outrage at Courthouse Affair

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.

Affair Between Judge and Prosecutor Taints Cases

Mitch Nolte, president of the local defense lawyers' association, said it was possible that the reported affair could call into question "a lot of cases," but that it was too soon to know how many.

"We don't know the extent of the relationship and its effect on the cases," he said, adding that there were various procedural barriers to defendants challenging old convictions.

According to Texas Defender Services, which represented Hood, Holland recused herself as a judge on the Court of Criminal Appeals from nearly 80 percent of cases from Collin County. Two other judges on the court who were former trial court judges recused themselves from cases from their district less than one percent of the time, Texas Defender Services said.

The reported affair also raised the possibility that Holland and O'Connell could face sanctions from the state bar association. Maureen Ray, special administrative counsel to the state bar, said ethics complaints were confidential and could not say if Holland or O'Connell were under investigation.

Judges have been publicly sanctioned only eight times in the last 18 years for having relationships with lawyers who appear in their courtrooms, none of them in Texas, according to the Center for Judicial Ethics at the American Judicature Society, which tracks judicial discipline. None appeared to have involved capital cases. Punishment ranged from public censure to temporary suspensions.

The letter, which asked for a reprieve, said it was unclear when the relationship ended, but that it continued in the "years leading up to" Hood's case. After the sexual relationship ended, Hood and O'Connell remained close friends, the letter says.

The fact that neither Holland nor O'Connell disclosed the relationship is a "shocking and devastating indictment of the Texas criminal justice system," the letter argues.

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.

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.

Though he has maintained his innocence, 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.