A Texas death row inmate won't be able to argue for a new trial, despite admissions of an affair between his trial judge and the prosecutor, a court announced Wednesday.
The Texas Court of Criminal Appeals ruled that convicted murderer Charles Dean Hood should have raised concerns about the affair between the now retired court officials in earlier appeals. The ruling overturned a lower court's recommendation that Hood be able to make his case for a new trial based on the affair.
"Our argument is that they had this information and should have raised it in the earlier writ," said current prosecutor John Rolater, the chief of Collin County's appellate division. "We consider this a significant success for the state."
Greg Wiercioch, Hood's lead attorney, declined to comment. Hood's attorneys had argued in their appeal that the affair meant Hood's state and federal constitutional rights to an impartial trial were violated. Three judges agreed, and signed on to a dissent.
"Hood's lawyers say they haven't seen anything like it and neither have I," said CBS News legal analyst Andrew Cohen. "The prosecutor and the judge have an intimate relationship, which they do not disclose, during the course of a capital murder trial and the appeals court says the conviction and sentence stand. We'll see an appeal here for sure."
"The court that denied the new trial request - the Texas Court of Criminal Appeals - has consistently over the past few years butted heads with the U.S. Supreme Court over death penalty cases," Cohen said. "It's even outwardly defied the Justices. So I wouldn't be surprised if the High Court is receptive to an appeal here."
(Read Andrew Cohen's May 3, 2009, column about the Hood case.)
Hood, 40, was a bouncer at a topless club 20 years ago when he was arrested in Indiana for the fatal shootings of Tracie Lynn Wallace, 26, and her boyfriend, Ronald Williamson, 46. He has maintained his innocence.
Hood was driving Williamson's $70,000 Cadillac at the time of his arrest and his fingerprints were at the murder scene at Williamson's home in Plano, a Dallas suburb. Hood said he had permission to drive the car and his fingerprints were at the house because he had been living there.
Hood won a reprieve last September, a day before his scheduled execution. No new execution date has been scheduled, and he still has at least one other appeal pending regarding whether jury instructions were flawed. A ruling favorable to Hood could result in a new sentencing hearing but not a new trial.
The Austin-based appeals court granted the stay of execution because of the issue of jury instructions. It was unrelated to the once secret romantic relationship between Hood's trial judge, Verla Sue Holland, and Tom O'Connell, the former district attorney in Collin County.
O'Connell was the county's elected district attorney from 1971-82 and from 1987-2002. Holland was a state district judge from 1981-96 before moving on to the Court of Criminal Appeals, which issued the ruling Wednesday. She resigned from the court in 2001.
Neither Holland nor O'Connell have been publicly disciplined by the State Commission on Judicial Conduct or the State Bar of Texas.
Their relationship was apparently an open secret in Collin County legal circles. In an affidavit last year, former assistant district attorney Matthew Goeller said it was "common knowledge" that the judge and prosecutor "had a romantic relationship" from at least 1987 until about 1993. Hood was tried in 1990.
Last September, the former couple acknowledged under oath that they had an intimate relationship.
O'Connell's attorney didn't immediately return a message left by The Associated Press. Bill Boyd, Holland's attorney, died last month. His secretary said his cases have not been reassigned.
Last year, Boyd said that Hood's original court-appointed lawyers heard "every rumor and innuendo" about the affair and still did not ask Holland to recuse herself, a sign of their faith in her fairness.
News of the affair last year resulted in condemnation from about 30 former prosecutors and federal and state judges, who signed a letter sent to Gov. Rick Perry. The letter stated that the sexual relationship "would have had a significant impact on the ability of the judicial system to accord Mr. Hood a fair and impartial trial."