Texas: prosecutor's intimacy may affect more than a single death row case

Recent confirmation of a long-rumored romance between a former Collin County district attorney and a former judge could lead to allegations of unfair trials in hundreds of cases, but legal experts differ over what should happen next.

In court depositions sought by attorneys trying to get a new trial for death row convict Charles Dean Hood, Judge Verla Sue Holland and prosecutor Tom O'Connell reportedly admitted to a years-long affair that Mr. Hood's attorneys say prevented him from getting a fair trial in 1990.

At least one other man, Timothy David Nixon, was found guilty of murder while Judge Holland was on the bench and Mr. O'Connell tried the case. He was sentenced to 99 years in prison for allegedly killing his mother.

Some legal ethicists say prosecutors have a responsibility to identify cases from the years the two held office and ensure that the convicted have their day in court. Others doubt that is the prosecutors' role.

"They do have a proactive responsibility," argues Robert Schuwerk, a University of Houston law professor who co-wrote the Handbook of Texas Lawyer and Judicial Ethics.

"The principal duty of a prosecutor under our system is not to convict but to see that justice is done," he said. "I would think that a prosecutor has the duty to either bring those cases forward or, at the very least, cooperate in establishing which cases were affected by this behavior."

Others say it is a defense responsibility to raise issues about the validity of a conviction.

Collin County Assistant District Attorney John Rolater says it is his duty to see "that justice is done," but the chief of the county's appellate division declined to comment on whether the county will proactively identify cases that might have been affected by the relationship between the judge and prosecutor.

Normal procedure

It's "uncharted territory," said Rob Kepple, executive director of the Texas District and County Attorneys Association. "I'm at a loss to answer that."

Prosecutors "normally wait for a defendant or someone else to raise these questions," he said. And, he added, prosecutors "want to see where the injury is, where the harm is. We want someone to spell it out for us. ... If the defendant can link that up and show me something in the record, I guess we can talk about it."

Texas Attorney General Greg Abbott who stepped in days before Mr. Hood's most recent execution date to urge an investigation into the relationship said he would have "to know more background facts, what exactly happened, when did it happen" in each case before deciding whether a review was warranted.

So far, Mr. Hood's defense team has not cited any specific example of unfair treatment during his trial. In a petition filed Thursday, the defense wrote that the relationship, which included professions of love and sexual encounters, "created an appearance of impropriety and an impression of possible bias" requiring automatic reversal of his conviction and sentence.

According to the writ, Judge Holland said it was "absolutely not" improper for her to have presided over Mr. Hood's trial while Mr. O'Connell prosecuted it. She told attorneys that the romantic relationship began in 1982 and ended in 1987, before Mr. Hood's arrest and trial.

Mr. O'Connell told attorneys that it began around 1984 or 1985 and continued until 1989 or later. Even after the romance ended, they remained close friends, and in 1991 traveled to New Mexico and Missouri together.

Neither the trial court nor the Texas Court of Criminal Appeals has ruled on the writ.

As a death row inmate, Mr. Hood has had an army of attorneys, including state-paid appellate attorneys and pro bono attorneys, to champion his cause.

But many convicts, like Mr. Nixon, may not even be aware of the relationship and that it could affect their cases. Unlike Mr. Hood, most don't have attorneys to investigate the issue. Mr. Nixon, who remains in prison, could not be reached for comment.

The number of cases that could be affected is unknown.

"It's premature at this point to confidently say that all these cases are going to be affected," said Mitch Nolte, president of the Collin County Criminal Defense Lawyers Association. "There's been no ruling on this case. ... And so, in legal terms, the issue's just not fully ripe."

Though difficult, it would not be impossible to identify the cases, said Tim Wyatt, public information officer for Collin County. "But no one to my knowledge has been asked to do it," he said.

The number of cases Judge Holland heard in her 15 years as a state district judge and while Mr. O'Connell was district attorney could number in the hundreds. But veteran attorney Keith Hampton, second vice president of the Texas Association of Criminal Defense Attorneys, expects the number of cases that could have been affected to be "relatively few."

"The devil is going to be in the details," Mr. Hampton said.

Most cases pled out

The vast majority of criminal cases are disposed of through plea bargains, he explained, and if the judge served primarily in an administrative role in those cases, he doubts there will be any issue to raise.

In addition, most elected district attorneys rarely appear in court, so the number of cases with direct participation by both Judge Holland and Mr. O'Connell is probably small. Finally, defendants are not entitled to a court-appointed attorney to raise the issue, and raising it on their own is a long shot.

Mr. Hampton said he does not expect a blanket order from either the district attorney or a court to cover all cases potentially affected by the relationship. Instead, "they're going to have to do this one case at a time."

But Lawrence Fox, former chair of the American Bar Association Ethics Committee, said sweeping steps may be necessary to preserve confidence in Texas' criminal justice system. Not only does he think the district attorney is obligated to bring the cases to the attention of the court, he suggested that the state should provide attorneys for defendants to challenge their convictions.

"I would hope that, under these circumstances, the state would recognize a special obligation to these people, because, remember, it was two state officers who did all this.

"You would hope somebody would say the system of justice has a black eye right now, and one way to remove it is to make sure these people who are in a prison get counsel to deal with these issues," he said.

If that doesn't happen, Mr. Fox hopes local attorneys will step up to provide free services.

"There's so much at stake for the individual," he said, "but there's so much at stake for the system."

Source: Dallas Morning News