Attorney Andrew Cohen analyzes legal issues for CBS News and CBSNews.com.
Barring last-minute court intervention, the state of Texas is prepared Tuesday evening to execute Charles Dean Hood, who was convicted and sentenced to death nearly two decades ago by a judge who allegedly was sleeping with the prosecutor during the trial. If this jolts your conscience a bit - tell me, would you want to be a defendant in such circumstances? - consider the utter lack of curiosity and compassion with which the startling revelation has been met by the state courts in Texas.
The Texas Court of Criminals Appeals, in three separate rulings Monday (which it requested not be made public), declared on procedural grounds that "rumors" of an intra-court, intra-trial romance aren't legally sufficient to warrant a 30-day reprieve from Hood's execution in order to allow his lawyers to investigate the allegations. The court ruled that because Hood's investigator could not prove back in 1997 that there was an affair Hood now is barred from raising the issue today, on the eve of his execution. It also rejected Hood's request for a delay because the wrong lawyer signed the appeal papers.
This is the same court, remember, that has repeatedly gone head-to-head with the United States Supreme Court in capital cases over the past few years - and lost. This is the same court that rubber-stamped a capital conviction in a case where another doomed defendant's lawyer slept through significant portions of his trial. It is an incurious court which has demonstrated repeatedly it is more interested in serving as a processing center for executions rather than as an independent safeguard against government excess.
The wrinkle in the Hood case came two weeks ago when Matthew Goeller, an assistant district attorney during the time in question, filed an affidavit stating under oath that it was "common knowledge" that Hood's prosecutor, Tom O'Connell, was engaged in a sexual relationship with Hood's judge, Verla Sue Holland, during Hood's capital trial. It is a fluke, apparently, that Hood's lawyers got this information when they did. But the law accounts for such flukes, and allows them to become appellate issues, at least before reasonable appellate panels.
I have no idea whether Hood is guilty of his crimes or not - the odds say that he is. For all I know there was plenty of good evidence against him and another judge might also have rendered decisions leading to Hood's conviction. But right now that is not the point. Right now the point is to determine, before it is too late for Hood, whether the law in America - and not just in Texas - permits a capital conviction when such a potentially blatant conflict of interest exists.
O'Connell and Holland are still around. Not surprisingly, they are reluctant to testify, under oath or otherwise, about the nature of their relationship during Hood's trial. That's just too bad. Both have a legal and ethical and moral obligation to help resolve the questions that now have been raised. Both have a responsibility to come forward and tell the truth. If O'Connell and Holland were involved in a relationship during the Hood trial, they will be subject to sanctions for not disclosing that to defense attorneys at the time. But those sanctions pale in comparison to the ultimate sanction - death - that is awaiting Hood in just a few hours.
Texas and the rest of the nation should demand to know why a former prosecutor, Goeller, would make up an embarrassing story about his former boss and a judge; why O'Connell and Holland haven't spoken about what went on so many years ago; why their alleged relationship doesn't constitute such grave misconduct that it warrants at the very least a new hearing. If Hood is executed before these questions are answered it will be another stain upon capital punishment procedures in America.
With just a few hours to go before Hood's execution, his attorneys told me Tuesday morning that they aren't yet sure where they are next going to raise the "relationship" issue on appeal. But surely, unless Gov. Rick Perry intercedes on Hood's behalf, the whole matter, including other important appellate issues, will end up before the United States Supreme Court. And that means Justice Antonin Scalia, who initially handles appeals out of the 5th U.S. Circuit Court of Appeals - the jurisdiction in which the Hood case took place.
It will be fascinating to see whether and to what extent the righteous and religious justice handles this case.
By Andrew Cohen