They are tough in Texas and perhaps it is not surprising there has been little sympathy for the whining of Charles Dean Hood about the odd "daytime soap" circumstances of his conviction back in 1990 for double murder. He is on death row in a US state that has no peer in its enthusiasm for executing prisoners.
The condemned and their lawyers will always look for ammunition at least to delay the moment of final dispatch. But Hood and his defence team have something slightly unusual to say and, even though the highest appeals court in the Lone Star State has still declared itself unimpressed, a remarkable array of the great and the good of the legal world are now pleading with the US Supreme Court to intervene.
The controversy is now garnering wider attention not least because it rests on a tale of illicit sexual trysts between the judge who presided over Hood's trial and sentenced him to death and the prosecutor who argued the case for conviction.
It is the stuff if not of a television soap, then certainly a bad romance novel. Both were married and both kept their affair a secret before, during and for many years after the trial.
There is keen interest also because it is Texas that once more finds itself under scrutiny for the alleged mishandling of a capital case. It risks becoming as infamous as the "sleeping lawyer" trial of Calvin Burdine whose death penalty was overturned 10 years ago because of the failure of his court-appointed lawyer to stay awake during the proceedings. But here "sleeping lawyer" has a different connotation.
Most importantly, in the eye of some legal experts, is the fact that the shenanigans of prosecutor and judge were kept secret from Hood's defence team. The judge, Verla Sue Holland, has since said she would have withdrawn from the case had she been asked to by the defence. But they didn't know to ask.
That is one of the reasons his lawyers were more or less confident that he would at least be given a new trial when, in late 2008, the truth came out and in rather dramatic fashion. Hours before Hood was to be killed by lethal injection, a former assistant DA, Matthew Goeller, stepped forward and swore under oath that the rumours that had been circulating for years were true: judge and prosecutor had been lovers.
Judge Holland and her former beau, Thomas O'Connell, were forced to admit to the details of the love affair in court depositions. They would meet at one of their homes when the respective spouse was away. The prosecutor never stayed the night, apparently because he feared someone might one day spot his pick-up truck in the wrong driveway. He gave her small gifts sometimes, but otherwise was not especially romantic. Still, she had to admit, she was in love with him.
A degree of outrage appeared to be welling. A judge in Collin County where the original trial took place ruled that the pair had "wrongfully withheld relevant information from defence counsel prior to and during the trial", and that Hood be given a new trial.
But the case then reached the Texas Court of Criminal Appeals, in Austin, the state capital. In September last year, it issued its own finding. By vote of six to three, the justices said that Hood had waited too long to raise the issue and therefore no new trial was required. His death sentence would remain in place.
It was noted that Judge Holland, who is now complaining bitterly herself about the invasion of her privacy, had served on the Court of Appeals alongside some of those making the ruling for five years from 1996 .
The reaction of critics outside Texas was swift. "Hood's judge and prosecutor lied, over and over again, to hide their affair," noted Andrew Cohen, a legal analyst for CBS at the time. "Any blame for the delay in bringing justice to Hood is their fault, not his, and Texas would be better off acknowledging that now."
Despair was expressed also by his lawyers at the public defenders office, known as the Texas Defenders Service. "Today's decision rewards the judge and prosecutor for maintaining a wall of silence about their affair for nearly two decades," its executive director, Andrea Keilen, declared.
Another loud critic of the handling of Hood's case is David Dow, whose work defending no fewer than 100 death penalty defendants over the years for the Texas Defenders Service, is outlined in his just published book, Autobiography of Execution. Once a supporter of capital punishment, Dow uses his widely reviewed new work to deliver a harsh indictment of capital punishment in Texas.
But now the affair, not a moment too soon perhaps, has reached the national stage.
In the wake of a request by Hood's defence team to the United States Supreme Court to overturn the Texas decision, a collection of no fewer than 21 former prosecutors, judges and politicians have filed a so-called "amicus" brief in support of Hood. Joining them in the unusual action were 30 of America's leading legal ethicists.
Those coming to Hood's aid include such heavy hitters as William Sessions, the former head of the FBI, and Mark White, a former governor of Texas and staunch supporter of the death penalty.
The brief from the ethicists is to the point: "A judge who has engaged in an intimate, extramarital, sexual relationship with the prosecutor trying a capital murder case before her has a conflict of interest and must recuse herself."
In her deposition, Judge Holland, according The New York Times, expressed anger at the damage to her reputation and asked that the Texas Attorney General's office defend her in the case. Given the sexual nature of what is being discussed, her choice of words seems a tad unfortunate, however. She said she was "tired of laying over" as the allegations were made and "getting licked without any input".
It is too soon to know if the Supreme Court will agree to hear the Hood case. But critics of the legal system in Texas, which leads the country in executions – of the 1,749 people put to death since the reinstatement of the death penalty, 449 were in Texas – are hoping at least that the case will create a degree of embarrassment sufficient to nudge it closer to a moratorium and eventual repeal of the death penalty.Reuse content