If you want to know what I really think about the injustice Texas is currently perpetuating upon the person of one Charles Dean Hood, at left, let me put it to you this way: even if Osama bin Laden himself were on trial for mass murder, with Hitler, Stalin and Timothy James McVeigh as his co-defendants, I still would think it was wrong to allow a capital trial where the judge and the prosecutor were or had been lovers.
The Texas Court of Criminal Appeals Wednesday whitewashed -- poof, like pixie dust!-- one of the worst examples of conflict-of-interest I have ever seen. The same court that recently defied the United States Supreme Court dismissed in a three-page, fact-less, analysis-free opinion an appeal by lawyers for a convicted murderer who, like any one of us accused (or convicted) of murder, has a right to a fair trial by unbiased and professional agents of the government.
I have little sympathy for Hood. It may be that jurors in his second trial convict him as quickly as jurors in his first trial did. He may be guilty beyond all doubt, let alone reasonable doubt. I don't know. And really, it doesn't matter.
His guilt or his innocence does not and should not excuse the solemn duties of prosecutor and judge to grant him a trial free of even the perception of gross impropriety or unfairness. All of us deserve that right, including those of us who are accused of the most heinous crimes. In fact, those people probably need it most.
But this week a group of state court judges, with only one lone dissenter in the whole Lone Star state, gave a free pass to the trial judge, Verla Sue Holland, and the prosecutor, Thomas S. O'Connell, Jr., who handled the Hood murder trial.
The appeals court judges did so despite the fact that Holland and O'Connell had kept their affair quiet throughout the whole trial, which resulted in Hood's conviction of capital murder for the deaths of Ronald Williamson and Tracie Lynn Wallace. Judge and prosecutor didn't tell the truth until quite recently, in the past year, and only because they were under oath. Worse, when caught, they blamed Hood for not discovering their secret for 18 years.
If such a thing were to happen in, say, Maine or Montana, it would be a story with enormous national reach. I mean: you only have to ask the question: "If you were on trial, would you want your judge and prosecutor sleeping or having slept together?" to know the impact. But, sadly, it's old news. The nation has come to expect this sort of nonsense from this particular Texas court. On several occasions, in fact, it has openly defied the United States Supreme Court when it comes to death penalty cases.
For example, it was this Texas appeals court that directly and deliberately defied the Justices in Miller-El v. Dretke, an infamous capital case involving racial discrimination in jury selection. The increasingly-frustrated Justices kept sending the case back down to Texas with instructions to better protect the defendant's rights. And the Criminal Court of Appeals kept failing to take the hint. I don't think I have ever read about or studied such open defiance, a lower court proudly disobeying the High Court, since law school.
You could argue that this case, the Hood case, is even more egregious than Miller-El or the sleeping lawyer case or even any of the clemency cases that then-Texas Governor George W. Bush and his legal counsel at the time, Alberto Gonzales infamously blew off during the 1990s. It will almost certainly become the next chapter in the Justices' battle with their Texas counterparts. It's hard for me to believe that at least five Justices won't want to intercede here and demonstrate their capacity for basic justice and integrity when it comes to a guarantee of a fair trial.
Some conflicts-of –interest are subtle. Some are minor. Some can be easily remedied, either before or after trial. But some are so patently obvious that they don't generally generate case law because no one defending such conflicts has the gall to raise the argument. This should be one of those times. Short of direct cash payments, after all, sex between judge and prosecutor during a capital trial is a fairly easy call: Thou Shalt Not. Except in the Hood case; except with this appellate court. Here we have case law. And Texas. And the death penalty. And a man who guilty or not still hasn't gotten a fair trial.
Andrew Cohen is CBS News' Chief Legal Analyst and Legal Editor. CourtWatch is his new blog with analysis and commentary on breaking legal news and events. For columns on legal issues before the beginning of this blog, click here. You can also follow him on Twitter.