Charles Dean Hood's mug shot
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When
the U.S. Supreme Court denied Charles Dean Hood's appeal last week, it was done in a
one-sentence, unsigned order. Hood is a Texas
death-row inmate who was convicted of murdering two people in 1990. Long after
the conclusion of the trial, it became clear that his trial judge and
prosecutor had been secretly involved in a years-long extramarital affair. Because
they were both married, they denied the affair—even to Hood's death-penalty
lawyers. After the clandestine relationship finally came to light, the Texas
Court of Criminal Appeals rejected Hood's challenge in two curt sentences last
September, finding that his lawyers had waited too long to raise the issue on appeal.
How Hood was to have raised the conflict of interest when the existence of the
affair was not conclusively established until 2008, when the judge and
prosecutor were forced to admit it under oath, is not explained.
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Hood
has already been granted a new sentencing hearing because the Texas appeals court has acknowledged that
the jury instructions were improper, but prosecutors say they will again seek
the death penalty. In any event, resentencing Hood doesn't resolve the fundamental
problem with the case. The issue here is whether any reasonable person would
believe that a criminal trial at which one's prosecutor and judge are secretly
in love could ever be fair. And that's the issue the courts keep refusing to
address.
Last
year, the Supreme Court handed down a blockbuster opinion in Caperton v. Massey, a case testing whether a
justice on West Virginia's
highest court should have recused himself from hearing an appeal in which one
of the parties—Don Blankenship of A.T. Massey Coal Co.—had just donated $3
million to his judicial election campaign. Writing for a sharply divided 5–4
court, Justice Anthony Kennedy called the appearance of a conflict of interest
in this case so "extreme" that the judge's failure to recuse himself
undermined the constitutional right to due process. The Hood
appeal to the Supreme Court essentially asked whether a judge might be as
compromised by great sex as by big money. In his filings, Hood argued that the
trial judge's "long-term, intimate sexual relationship and later close
friendship with [the prosecutor] attuned her to his professional and personal
interests and made those interests her own." Hood said that unlike the
Caperton case, in which Blankenship's financial support of the judge was a
matter of public knowledge, the Texas
judge was more compromised because she kept her relationship a secret.
If the facts of the Caperton case were sufficiently shocking to become
a John Grisham novel, the facts of Hood's trial would make a sizzling movie for
Lifetime. You don't even have to take a position on Hood's guilt, innocence, or
the efficacy of the death penalty to recognize that when a judge and prosecutor
are secret paramours, the integrity of the whole judicial system suffers. Texas law requires a
judge's recusal whenever "his impartiality might reasonably be
questioned" or if "he has a personal bias or prejudice concerning the
subject matter or a party." The test here isn't whether the judge thinks
she's biased (although Hood's judge later admitted she should have recused
herself). It's a constitutional "ick" test: How bad does the conflict
of interest look?
The
facts of Hood's case look very bad. That's why his appeal to the Supreme Court
was supported by 30 top legal ethicists and an array of high-profile judges and
prosecutors, including former FBI Director William Sessions and former Texas
Governor and Attorney General Mark White, who supports capital punishment.
I n his compelling new book, The Autobiography of an Execution, Texas
death-penalty lawyer David Dow condemns a system of capital punishment built on
evading responsibility at every stage of litigation: Jurors duck behind other
jurors. Judges take refuge behind jury verdicts. The appeals courts wordlessly
affirm the trial judge. Then the Supreme Court hangs out a sign that says GONE
FISHIN'. Since everyone is fairly certain the accused probably killed someone,
the fact that along the line an injustice may have occurred just doesn't
matter. But if you believe that a one-sentence disposition of his case is more
justice than a Charles Hood deserves, you're still asking the wrong question.
Hood may be sentenced to die in a justice system where outrageous judicial bias
merits only a sentence. The rest of us have to go on living in it.
A version of this article also appears in Newsweek.
(Full article
available at: http://www.slate.com/id/2251663/)
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