"...a black mark on our system of justice"

CAPITAL PUNISHMENT

12:00 AM CDT on Wednesday, June 18, 2008
By DIANE JENNINGS / The Dallas Morning News
djennings@dallasnews.com

After hours of legal wrangling between attorneys and judges, including protests from leading legal ethicists over an alleged relationship between a judge and prosecutor in the trial of Charles Dean Hood, Tuesday passed without the Collin County murderer's execution.

The Texas Court of Criminal Appeals ultimately green-lighted the execution by ordering a local judge to reinstate a death warrant that had been withdrawn by another judge.

The death warrant was reinstated, but the execution was called off shortly before midnight when prison officials said they didn't have time to ensure it was conducted properly before the midnight deadline for the death warrant was to expire.

Gov. Rick Perry then used his authority to issue a one-time 30-day reprieve.

The bizarre tug-of-war between the lower court and the state's highest criminal court over whether Mr. Hood got a fair trial is likely to roil death penalty advocates and opponents who keep a close eye on the nation's busiest death penalty state.

Mr. Hood came within 90 minutes of his scheduled 6 p.m. execution – which was delayed after a judge vacated his death warrant. But he could hardly draw a ragged breath of relief before prosecutors filed an appeal to have his sentence for a Plano double-slaying carried out.

The merits of the issue were then lost in a maze of technicalities as judges and attorneys debated whether Mr. Hood's death warrant could be vacated and reinstated.

On Monday, the Texas Court of Criminal Appeals rejected a stay to consider the issue of the alleged improper relationship, saying the allegation was unproved and not new.


Sequence of events

About 4:30 p.m. Tuesday, without explaining his reasoning, a district judge in Collin County ordered the death warrant vacated and immediately recused himself from the case.

The prosecution then repeatedly appealed to the Court of Criminal Appeals. The appeals court initially ruled that the district judge had no authority to act, but since he had recused himself, the appeals court also said it could not order him to reinstate the death warrant.

After more appeals from prosecutors, about 9:15 p.m. the Court of Criminal Appeals ordered Judge John Ovard, the regional presiding judge, to reinstate the death warrant. He did so shortly before 11 p.m.


Defense reaction

The legal maneuvering dumbfounded defense attorneys.

"We've never been in this position before," said Andrea Keilen, executive director of the Texas Defender Service, which is representing Mr. Hood. "I've never seen anything like this."

"All of this is quibbling over technical issues in the case when what we should be talking about is the trial judge and the trial prosecutor engaged in an affair during a capital murder case," she said.

John Rolater, the assistant district attorney now handling the Hood case, declined to comment.

Mr. Hood has been on death row since 1990 for the robbery and murders of Ronald Williamson and his girlfriend, Tracie Lynn Wallace, in Plano the year before.

When told Tuesday afternoon that his execution date had been withdrawn, Mr. Hood, 38, cried, according to prison spokeswoman Michelle Lyons.

"I just thank God," he said. "I just walk by my faith. If it didn't happen, I was going home to the Lord."

Relatives of the victims at the death chamber waiting to witness the execution could not be reached for comment.


Alleged affair

Rumors about the alleged intimate relationship between Judge Sue Holland and then-District Attorney Tom O'Connell have circulated for years. They have repeatedly declined to comment.

In a letter to The Dallas Morning News in 2000, Mr. Hood wrote, "During my trial, the setting [sic] judge and district attorney were having a sexual relationship, a huge ("conflict of interest")."

The allegations were publicized in 2005 in an article on Salon.com but had not been raised at trial or during Mr. Hood's other appeals because attorneys had no proof, only rumors.

But in early June, former Assistant District Attorney Matthew Goeller swore in an affidavit saying the relationship was "common knowledge," lasting from 1987 until 1993.

Mr. Hood's attorneys felt that affidavit from a former prosecutor who worked in the office during the time of the trial offered sufficient reason to introduce the alleged relationship as a reason to reverse the conviction and sentence.

"The absence of an impartial judge is a structural defect," they wrote.

But to the dismay of Mr. Hood's lawyers, and several leading legal ethicists, the Court of Criminal Appeals declined to address the issue, saying the information was not new.

The former assistant district attorney who filed the affidavit "does not allege that he has any personal knowledge of such a relationship," Judge Tom Price wrote in a concurring opinion denying the appeal and the stay of execution.

Defense attorneys then turned to Judge Curt Henderson in the Collin County district court, and he granted the execution date withdrawal.

Judge Henderson, who was an assistant district attorney in Collin County from 1979 until 1986, then immediately recused himself. He asked the presiding judge of the court's administrative region to appoint a new judge.


Prosecutors respond

Collin County prosecutors responded with the Tuesday evening appeal to the Court of Criminal Appeals that argued that the trial court had no authority to modify the execution date, saying Mr. Hood was engaging in "gamesmanship" and a "fishing expedition" to find more evidence after the Court of Criminal Appeals had already ruled.

Earlier in the day, Larry Fox, former chairman of the American Bar Association Ethics Committee, worried about the impact of Mr. Hood's possible execution. Mr. Fox was one of several other legal experts calling for review of the case.

"I was thinking the headlines tomorrow for us around the world would be a black mark on our system of justice," he said.