No Comment — February 23, 2010, 10:56 am

Justice, Texas Style

Texas is in the process of declaring itself a judicial ethics-free zone. Adam Liptak reports on the latest courthouse embarrassment to emanate from deep in the heart of crazy:

Charles Dean Hood was sentenced to death in 1990 by a Texas judge who had been sleeping with the prosecutor in his case. It took Mr. Hood almost 20 years to establish that fact. But he finally managed to force the two officials to testify about their rumored affair in the fall of 2008. They admitted it. Texas’s highest court for criminal matters, its Court of Criminal Appeals, considered all of this and concluded that Mr. Hood should be executed anyway. In a 6-to-3 decision in September, the court told Mr. Hood that he had taken too long to raise the issue of whether a love affair between a judge and a prosecutor amounted to a conflict of interest.

Mr. Hood has asked the United States Supreme Court to hear his case. On Thursday, 21 former judges and prosecutors filed a brief supporting him. So did 30 experts in legal ethics. “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,” the brief from the ethics experts said. “Of all the courts to have considered the issue, only the Texas Court of Criminal Appeals in this case failed to recognize this imperative.” The affair itself, as described in the depositions of the two former lovers, sounded tawdry and sad.
Judge Verla Sue Holland, who presided over Mr. Hood’s case in a district court in Collin County, Tex., testified that she and the prosecutor, Thomas S. O’Connell Jr., had had sex at each other’s homes when their spouses were away. This happened, she said, seven or eight times.

In any other jurisdiction, these facts would lead to some simple conclusions. The judge had a duty to disclose the conflict that arose from her intimate relationship with the prosecutor, or, at the very least to recuse herself. She had no business proceeding with the trial, which no serious observer would ever consider fair. But then, this is Texas, where the “plenty guilty” rule applies.

Another taste of Texas judicial ethics came in a recent case involving another Republican judge, Sharon Keller.

Sharon Keller, the presiding judge of the state’s Court of Criminal Appeals, was the center of controversy concerning the 2007 execution of Michael W. Richard, a convicted murderer. On the day of Mr. Richard’s scheduled execution, the United States Supreme Court effectively suspended lethal injection, the method Texas used. Lawyers for Mr. Richard from the Texas Defender Service rushed to file a last-minute appeal in light of the new ruling.

When defense lawyers sought extra time to file their appeal, Judge Keller replied that the clerk’s office closed at 5 p.m. Mr. Richard was executed a few hours later.

Judge Keller went home and allowed Richard to be executed, notwithstanding the reprieve granted by the Supreme Court. In most states, this would be viewed as scandalous behavior meriting dismissal from the bench or at least a sharp rebuke. But under the standards of Texas judicial ethics, it’s no big deal. A judicial reviewing officer decided that it was the defense counsel and not Judge Keller who deserved berating.

Texas Governor Rick Perry likes to threaten secession every time the federal government makes a move of which he disapproves. But the Texas judiciary already operates in a different country. Indeed, on a different planet.

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