Thursday, May 7, 2009

More Texas Injustice?

Every set of Rules of Professional Responsibility that I have seen includes some version like this statement from the Preamble of American Bar Association’s Model Rules of Professional Conduct:

“A lawyer, as a member of the legal profession, is a representative of clients, an officer of the legal system and a public citizen having special responsibility for the quality of justice.”
Likewise, at least 13 states have a provision in Canons of Judicial Ethics substantially equivalent to this from the ABA’s Model Code of Judicial Conduct, Rule 1.2:

“A judge shall act at all times in a manner that promotes public confidence in the independence, integrity, and impartiality of the judiciary, and shall avoid impropriety and the appearance of impropriety.”
So what is so difficult about avoiding the appearance of impartiality? Or refraining from actions that would make the public question the quality of the judicial system? Help me understand this one.

In 1990, Charles Dean Hood was on trial in Plano, Texas, for murder. He had a lawyer who was unhappy with the assigned court because there were rumors that the assigned prosecutor, Thomas O’Connell, was having or had previously been intimately involved with the judge, Verla Sue Holland. Mr. Hood was convicted and sentenced to death.

The defense attorneys continued to pursue the matter on several occasions but either could not find evidence of the relationship or were told outright by the DA that the rumors were false. But they did not accept the denial.

Finally, 18 years after the trial, both the former DA and the former judge admitted under oath that they had been involved in an intimate relationship that ended prior to the trial. Yet neither one recused themselves from cases such as Mr. Hood’s. The Texas Court of Criminal Appeals stayed Mr. Hood’s execution and asked a new trial judge to determine whether these new facts were significant and timely.

It is another situation that screams “Here we go again!”

First of all, the efforts by the DA and judge in the original trial are plainly unethical. Nothing reeks of impropriety more than to have the person asking for the death sentence to turn out to have had a secret relationship with the person who can sign the execution order. It is offensive to the American sense of fair and impartial justice.

The result is that Mr. Hood will at least likely have to stand trial all over again—20 years later! Even if found guilty again, the taxpayers get to pay for a new trial, new investigations, new appeals, etc.

Secondly, the Court of Criminal Appeals—the highest court in criminal cases in Texas—has, in its own actions, brought into question the appearance if ITS impropriety. As it turns out, Judge Holland once served on that court, too.

I commend them for halting the execution and remanding the question. They got that part right. But the spineless way they went about it makes their action look like one calculated to produce the answer they wanted someone else to give them.

Call a spade a spade. Shine the light on judicial and prosecutorial misconduct when you find it. The harm done by this attempt to “do a little side-step” is far greater than the impact of stamping the behavior in question as inappropriate and moving on.

Here is a good story by Rick Casey of the Houston Chronicle on this affair (pun intended). For another unfortunate event related to Texas Courts, see my earlier post.

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