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No.
IN THE SUPREME COURT OF THE UNITED STATES
October Term, 2009______________________________________
CHARLES DEAN HOOD,
Petitioner,
V.
THE STATE OF TEXAS,
Respondent.___________________________________________
PETITION FOR WRIT OF CERTIORARI TOTHE TEXAS COURT OF CRIMINAL APPEALS
__________________________________________
THIS IS A DEATH PENALTY CASE.
Gregory W. Wiercioch* Kathryn M. KaseTexas Defender Service Texas Defender Service430 Jersey Street 1927 Blodgett StreetSan Francisco, California 94114 Houston, Texas 77004(TEL) 832-741-6203 (TEL) 713-222-7788(FAX) 512-477-2153 (FAX) 713-222-0260
* Counsel of Record, Member Supreme Court Bar
CAPITAL CASE
QUESTIONS PRESENTED
1. Is the Due Process Clause violated when a defendant is tried, convicted,and sentenced to death before a judge who had carried on a secret, intimatesexual relationship for years with the prosecuting attorney that was notdisclosed to the defendant or his counsel?
2. Is the decision of the Texas Court of Criminal Appeals letting standPetitioner’s conviction and death sentence despite undisputed evidencethat the judge presiding over the capital murder trial and the electeddistrict attorney prosecuting the case had been involved in a long-term,secret, intimate sexual relationship prior to the trial in direct conflict withthis Court’s recent opinion in Caperton v. A.T. Massey Coal Co., Inc., 129S. Ct. 2252 (2009)?
i
TABLE OF CONTENTS
QUESTIONS PRESENTED. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i
TABLE OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv
CITATION TO OPINIONS BELOW. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
JURISDICTION.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
CONSTITUTIONAL PROVISIONS INVOLVED. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
I. STATEMENT OF FACTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
II. EFFORTS TO UNCOVER EVIDENCE OF THE AFFAIR. . . . . . . . . . . . . . . . . . . . . . . . 6
A. Trial. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
B. Initial State Post-Conviction Proceedings. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
C. Penry Successive Application. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
D. First Successive Application Raising Judicial Bias Claim. . . . . . . . . . . . . . . . . . . 9
E. Motion to Modify Execution Date. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
F. Sixth Execution Warrant. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
G. Rule 202 Proceedings. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
H. Letter to Governor Requesting Reprieve. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
I. Second Successive Application Raising Judicial Bias Claim. . . . . . . . . . . . . . . . 15
J. Third Successive Application Raising Judicial Bias Claim.. . . . . . . . . . . . . . . . . 16
HOW THE ISSUES WERE DECIDED BELOW. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
NO ADEQUATE AND INDEPENDENT STATE GROUND BARS REVIEW. . . . . . . . . . . . . 23
ii
REASONS THE WRIT SHOULD BE GRANTED. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
ONLY THIS COURT CAN DISPEL THE DEEP SHADOW THAT HAS BEENCAST OVER THE TEXAS CRIMINAL JUSTICE SYSTEM BY THE HOLLAND-O’CONNELL AFFAIR AND THE REFUSAL OF THE COURT OF CRIMINALAPPEALS, THE DISTRICT ATTORNEY, THE ATTORNEY GENERAL, OR THEGOVERNOR TO REPAIR THE DAMAGE.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
I. The evidence is undisputed, the facts are extreme, and the constitutionalviolation is patently obvious. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
II. The State of Texas has refused to address the damage that the Holland-O’Connell affair has done to the public’s confidence in the administration ofjustice. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
iii
TABLE OF AUTHORITIES
FEDERAL CASES
Abdul-Kabir v. Quarterman, 550 U.S. 233 (2007). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
Ake v. Oklahoma, 470 U.S. 68 (1985) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
Baze v. Rees, 551 U.S. 1192 (2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Berger v. United States, 295 U.S. 78 (1935) .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
Brewer v. Quarterman, 550 U.S. 286 (2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
Caperton v. A.T. Massey Coal Co., Inc., 129 S.Ct. 2252 (2009) . . . . . . . . . . . . . . . . . . . . . . 26,28
Coleman v. Thompson, 501 U.S. 722 (1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23,24
McCleskey v. Kemp, 481 U.S. 279 (1987) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
Michigan v. Long, 463 U.S. 1032 (1983) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23,24
Mistretta v. United States, 488 U.S. 361 (1989) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
Penry v. Lynaugh, 492 U.S. 302 (1989) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3,7,8,16,35
Richmond Newspapers v. Virginia, 448 U.S. 555 (1980) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Rivera v. Quarterman, 505 F.3d 349 (5th Cir. 2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
Ruiz v. Quarterman, 504 F.3d 523 (5th Cir. 2007) .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24,25
Smith v. Texas, 550 U.S. 297 (2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
STATE CASES
Ex Parte Campbell, 226 S.W.3d 418 (Tex. Crim. App. 2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
Commonwealth v. Croken, 733 N.E.2d 1005 (Mass. 2000) .. . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
Ex parte Hood, 211 S.W.3d 767 (Tex. Crim. App. 2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
iv
Ex parte Staley, 160 S.W.3d 56 (Tex. Crim. App. 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
STATUTES
28 U.S.C. § 2244(b)(2)(B) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
Tex. Code Crim. Proc. art. 11.071 § 5(a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
Tex. R. Civ. P. 203.1(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
MISCELLANEOUS
Association of Professional Responsibility Lawyers, Statement Concerning Charles DeanHood (July 22, 2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
Alan Berlow, Ardor in the Court, Salon (June 24, 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Editorial, Claim that Judge, Prosecutor had Affair Taints Murder Case, Corpus Christi CallerTimes (Sept. 6, 2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
Editorial, Hood Case Bruises Texas Judicial Trust, San Ant. Express News (Oct. 4, 2008). . . . 29
Editorial, Latest Tale of Texas Justice Rated “E” for Embarrassment, Austin-AmericanStatesman (Sept. 12, 2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29,35
Editorial, Leave No Question Unanswered, Dallas Morn. News (Sept. 10, 2008) .. . . . . . . . . . . 29
Editorial, Ruling in Hood Case Degrades Court System, Dallas Morn. News (Sept. 17, 2009). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
Editorial, Too Soon and Too Many Questions, N.Y. Times (Sept. 6, 2008) . . . . . . . . . . . . . . . . 29
Editorial, Wait A Minute: A Stay of Execution for Convicted Murderer Charles Hood Raises Troubling Questions of Judicial Integrity, Hous. Chron. (Sept. 15, 2008) . . . . . . . . . 29
Jennifer Emily, Family Tie Debated in Judge Race: DA’s Son Says He’d Pass on CriminalCases; Foe Sees Heavier Loads, Dallas Morn. News (Dec. 18, 2005) . . . . . . . . . . . . . . . . . . . 8
Diane Jennings, Attorney General Defends Actions in Investigation of Affair Between Judge, DA, Dallas Morn. News (Sept. 26, 2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14,35
v
Diane Jennings, Lawyer Files Grievance Against Abbot after He Urges Review of CollinCounty Murder Case, Dallas Morn. News (Sept. 8, 2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
James C. McKinley, Jr., Judge-Prosecutor Affair, But No New Trial, N.Y. Times (Sept. 17, 2009) .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
Texas Inmate Draws Prestigious Support, USA Today (Sept. 4, 2008) . . . . . . . . . . . . . . . . . . . . 30
Ian Urbina, Despite Red Flags about Judges, A Kickback Scheme Flourished, N.Y. Times (Mar. 27, 2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
vi
No.
IN THE SUPREME COURT OF THE UNITED STATES
October Term, 2009
______________________________________
CHARLES DEAN HOOD,
Petitioner,
V.
THE STATE OF TEXAS,
Respondent.
______________________________________________
PETITION FOR WRIT OF CERTIORARI TOTHE TEXAS COURT OF CRIMINAL APPEALS
______________________________________________
Petitioner Charles Dean Hood asks that this Court issue a writ of certiorari and summarily
reverse the judgment of the Texas Court of Criminal Appeals.
CITATION TO OPINIONS BELOW
The order of the Texas Court of Criminal Appeals (CCA) remanding Mr. Hood’s
successive application to the trial court for further proceedings is attached to this petition as
Appendix A. Ex parte Hood, No. 41,168-11 (Tex. Crim. App. Nov. 19, 2008) (unpublished).
The trial court’s findings of fact and conclusions of law are attached as Appendix B. The CCA’s
1
opinion dismissing Mr. Hood’s claim of judicial bias is attached as Appendix C. Ex parte Hood,
No. 41,168-11 (Tex. Crim. App. Sept. 16, 2009) (unpublished).
JURISDICTION
The CCA entered its judgment on September 16, 2009. This Court has jurisdiction to
review the CCA’s decision pursuant to 28 U.S.C. § 1257(a).
CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED
1. This case involves the Eighth Amendment to the United StatesConstitution, which provides that, “Excessive bail shall not be required,nor excessive fines imposed, nor cruel and unusual punishments inflicted.”
2. This case involves the Fourteenth Amendment to the United StatesConstitution, which provides, in relevant part, that “No state may depriveany person of life [or] liberty . . . without due process of law.”
STATEMENT OF THE CASE
I. STATEMENT OF FACTS
In 1990, Mr. Hood was convicted of capital murder and sentenced to death for killing
Ronald Williamson and Tracie Lynn Wallace in the same criminal transaction. His trial took
place before the Honorable Verla Sue Holland of the 296th Judicial District Court of Collin
County, Texas. Thomas S. O’Connell, Jr., the elected District Attorney of Collin County,
actively participated in the prosecution of Mr. Hood. Paired with an assistant district attorney,
Mr. O’Connell addressed panels of venirepersons in general voir dire and individually questioned
numerous potential jurors, including every venireperson who eventually served on Mr. Hood’s
jury. See, e.g., See 16 RR 182 (voir dire of Juror Huff); 17 RR 388 (voir dire of Juror
2
Ensminger); 18 RR 447 (voir dire of Juror Thompson). He cross-examined defense witnesses at1
both the guilt-innocence and punishment stages of the trial. See 45 RR 910 (cross-examination
of Kelly King); 54 RR 1483 (cross-examination of Deborah Lacroix); 54 RR 1497 (cross-
examination of Michael Todd); 54 RR 1567 (cross-examination of Sandra Hood). He delivered
the rebuttal argument to the jury at the guilt-innocence closing. 46 RR 969-85. At the
sentencing charge conference, he persuaded Judge Holland to overrule Mr. Hood’s objections to
the former special issues based on Penry v. Lynaugh, 492 U.S. 302 (1989), and provide the jurors
with a nullification instruction instead. 54 RR 1594-96; 55 RR 1616. During punishment phase2
closing arguments, Mr. O’Connell spoke last to the jury, urging them to sentence Mr. Hood to
death. 55 RR 1657-71. After the jury convicted Mr. Hood of capital murder and answered the
former special issues affirmatively, Judge Holland sentenced him to death the next day. 2 CR
381-84; 56 RR 1676-77.
Neither Judge Holland nor Mr. O’Connell disclosed to Mr. Hood that they had been
involved in a long-term, intimate sexual relationship prior to the capital murder trial. JH at 36;
TOC at 37. Judge Holland and Mr. O’Connell first met in 1974 when Mr. O’Connell hired her3
as the juvenile prosecutor for the Collin County District Attorney’s Office. JH at 19-20; see
Citations to the reporter’s record of the trial are noted as “__ RR __.” Citations to the1
clerk’s record of the trial are designated as “__ CR __.”
The CCA granted a stay of execution on the Penry claim on September 9, 2008. See2
infra.
Citations to Judge Holland’s deposition are noted as “JH at ___”. Her deposition is3
attached as Appendix D. Citations to Mr. O’Connell’s deposition are noted as “TOC at ____.” His deposition is attached as Appendix E. Because Judge Holland and Mr. O’Connell did notreturn their depositions within 20 days after receipt, they “may be deemed to have waived theright to make . . . changes.” Tex. R. Civ. P. 203.1(b).
3
TOC at 11-13. She worked for Mr. O’Connell for nearly five years, until 1979, JH at 20, when
she was appointed to the County Court at Law bench. TOC at 13. In 1981, she became the
presiding judge of the 296th Judicial District Court of Collin County.
In 1982, Judge Holland, a Republican, crossed party lines (along with Judge John Roach,
the current Collin County District Attorney) to urge voters to re-elect Mr. O’Connell as the
District Attorney. JH at 23-24. Mr. O’Connell lost his bid for re-election. Shortly after the
campaign ended, according to Judge Holland, she and Mr. O’Connell began their affair. JH at
27. Mr. O’Connell testified that the romantic relationship began later, around 1984 or 1985.
TOC at 15. He testified that he was “in love” with Judge Holland, TOC at 16-17, and that she4
had talked about the possibility of their getting married. TOC at 22-23. Judge Holland
confirmed that they professed their love for each other, JH at 51-52, although she denied that
they had ever spoken about getting married. JH at 52. It is undisputed that their relationship
included sexual intimacy. JH at 30; TOC at 21, 56.
Judge Holland and Mr. O’Connell were determined to keep the relationship secret. There
were no public displays of affection. JH at 52; TOC at 43. Their sexual encounters took place at
each other’s homes when their spouses were away. TOC at 16-17; JH at 52. Mr. O’Connell
could not recall telling anyone, except possibly his sisters, about his romantic relationship with
Judge Holland. TOC at 18. Judge Holland told no one. JH at 31, 33.
Judge Holland said that the romantic encounters ended in 1987. JH at 29. Mr. O’Connell
testified that the romantic encounters continued until the middle of 1989, TOC at 24, and may
Both witnesses recall being married at the time their affair began. JH at 30; TOC at 15. 4
Mr. O’Connell filed for divorce in 1985. His divorce was finalized in 1986. TOC at 19. JudgeHolland and Earl Holland divorced in 1987. JH at 30.
4
even have continued beyond that time. TOC at 26. In any case, he continued to have strong5
feelings for Judge Holland, asserting that she was a “wonderful person” whom he “enjoyed being
with.” TOC at 26. Even after the nature of their relationship changed around 1991, according to
Mr. O’Connell, they remained “good friends.” TOC at 30. Judge Holland agreed that they
remained “good friends,” even after 1987, the time she asserted their romance ended. JH at 38.
For example, Mr. O’Connell and Judge Holland went on a trip to Santa Fe, New Mexico, in
1991, TOC at 30, 34; see JH at 40, and he attended her family reunion in Branson, Missouri, the
same year. TOC at 34; see JH at 39. He testified that they did not stop seeing each other until
1991 or 1992. TOC at 33.
Judge Holland never disclosed her romantic relationship with Mr. O’Connell to a single
litigant or lawyer who appeared before her, and she never recused herself from a single case
because of the affair. TOC at 40. After the allegations of the romantic relationship came to their
attention in the recent litigation, neither Judge Holland nor Mr. O’Connell felt any obligation to
come forward and substantiate them. JH at 15-16; TOC at 45-46. However, Judge Holland now
acknowledges that, had she been asked to do so, she would have recused herself. JH at 36-37.
In its order remanding the judicial bias claim for further proceedings, the CCA noted5
that: “Although both parties stated that the affair had ended by the time of applicant’s trial, thedates cited in the prosecutor’s deposition seem to contradict this assertion.” App. A at 3. Onremand, the State provided an affidavit from Mr. O’Connell, in which he said, “I have reviewedVerla Sue Holland’s deposition and do not disagree with any specific dates therein. . . .” Affidavit of Thomas S. O’Connell (Mar. 5, 2009).
5
II. EFFORTS TO UNCOVER EVIDENCE OF THE AFFAIR
A. Trial
Although rumors had swirled around Collin County’s legal community for years about a
romantic relationship between Judge Holland and District Attorney Tom O’Connell, Mr. Hood
had been appropriately reluctant to file a motion to recuse the judge without more concrete proof.
Defense counsel stated that:
At the time of the trial, I was aware of rumors concerning a romantic relationshipbetween the trial judge, Verla Sue Holland, and the Collin County DistrictAttorney, Tom O’Connell. As this was only a rumor, I had no way of verifying itstruth or accuracy and therefore I had no valid basis upon which to file either amotion to recuse Judge Holland or a motion to recuse the district attorney’s office.
Declaration of David K. Haynes (June 5, 2008) at 1; see Affidavit of David K. Haynes (Mar. 6,
2009) (confirming that, because neither he nor his co-counsel had any “definite information or
evidence that would confirm or deny the truth of the rumors,” they decided “there was nothing to
be gained by attempting to recuse Judge Holland”).
B. Initial State Post-Conviction Proceedings
Based only on the rumors, Mr. Hood’s former habeas counsel decided to look into the
matter, prior to filing the initial state post-conviction application. Counsel’s investigator, Tena S.
Francis, conducted extensive records research. She obtained divorce records, documents from
the Office of Elections Administration, and case files from the Collin County District Clerk’s
Office. Ms. Francis interviewed members of Mr. Hood’s defense team, attorneys practicing in
Collin County, and Judge Holland’s former husband, Earl Holland (now deceased). She
attempted to interview Judge Holland’s bailiff, but he refused to discuss the judge’s personal life
with her. She contacted the State Commission on Judicial Conduct. Despite her investigation in
6
1995-96, Ms. Francis could not develop any concrete evidence of the affair. See Affidavit of
Tena S. Francis (Aug. 1, 1996). Unable to confirm the rumors, former counsel did not include a
judicial bias claim in the initial state or federal habeas applications.
C. Penry Successive Application
After the conclusion of Mr. Hood’s state and federal post-conviction proceedings, the
trial court signed Mr. Hood’s fourth death warrant, setting his execution for June 30, 2005. On
June 22, 2005, Mr. Hood filed a successive habeas application raising a Penry claim. On June
24, 2005, an article appearing in Salon, an on-line magazine, relied on two anonymous sources to
confirm that Judge Holland and Mr. O’Connell were involved in an intimate relationship prior to
Mr. Hood’s trial. Alan Berlow, Ardor in the Court, Salon (June 24, 2005). One of the
anonymous sources said that she had listened to tape recordings of conversations between Judge
Holland and Mr. O’Connell that “provided irrefutable evidence that the two were intimately
involved.” Id.
On June 27, 2005, Mr. Hood’s counsel called Judge Holland at her home. Judge Holland
refused to comment on the allegations that she had had a romantic affair with Mr. O’Connell
around the time of Mr. Hood’s trial. Counsel then called Mr. O’Connell at his home. Mr.
O’Connell denied that he had had a romantic affair with Judge Holland around the time of Mr.
Hood’s trial. Affidavit of A. Richard Ellis (Mar. 3, 2009). Relying on the Salon article, counsel
filed a motion asking the trial court to withdraw the death warrant and appoint counsel so that
Mr. Hood could try to identify the anonymous sources. Later that same day, the CCA stayed the
execution and remanded the Penry claim for further proceedings in the trial court. Ex parte
Hood, WR-41,168-03 (Tex. Crim. App. June 27, 2005) (unpublished).
7
On December 6, 2005, a visiting judge assigned to the case entered findings of fact and
conclusions of law recommending that the CCA grant relief on Mr. Hood’s Penry claim. After
further briefing, the CCA set the case for oral argument. On January 10, 2007, the CCA
dismissed the successive application raising the Penry claim as an abuse of the writ. Ex parte
Hood, 211 S.W.3d 767 (Tex. Crim. App. 2007). By the time this Court denied Mr. Hood’s
petition for writ of certiorari, on October 1, 2007, Hood v. Texas, 552 U.S. 829 (2007), it was
already apparent that the grant of certiorari in Baze v. Rees 551 U.S. 1192 (Sept. 25, 2007), had
created an unofficial nationwide moratorium on executions.
On April 16, 2008 – literally within hours after this Court decided Baze – District
Attorney John Roach asked the trial court to set a new execution date for Mr. Hood. Judge Curt
Henderson signed Mr. Hood’s fifth death warrant the same day, scheduling the execution for
June 17, 2008. On April 29, 2008, Mr. Hood sought a stay of execution, asking the CCA to6
suspend the Texas Rules of Appellate Procedure to permit an out-of-time rehearing of his direct
appeal decision in which the court had overruled his Penry point of error. With one judge
dissenting, the CCA denied the motion. Hood v. State, AP-71,167 (Tex. Crim. App. May 14,
2008) (unpublished).
Judge Henderson of the 219th Judicial District Court of Collin County signed the death6
warrant, rather than the presiding judge of the court of conviction, the 296th Judicial DistrictCourt. Judge John Roach, Jr., of the 296th District Court hears no criminal cases; his father isCollin County District Attorney John Roach. When his son first sought election to the bench,District Attorney Roach said, “I know if I were a criminal defendant, and I were being prosecutedby John Roach and John Roach Jr. were the judge, I might be a little bothered by that.” JenniferEmily, Family Tie Debated in Judge Race: DA’s Son Says He’d Pass on Criminal Cases; FoeSees Heavier Loads, Dallas Morn. News (Dec. 18, 2005).
8
D. First Successive Application Raising Judicial Bias Claim
On June 3, 2008, Mr. Hood believed he had finally reached the requisite evidentiary
threshold on his judicial bias claim when he received an affidavit from Matthew Goeller, a
former Collin County assistant district attorney. Mr. Goeller’s coming forward was significant,
because it marked the first time that anyone – let alone an employee of the District Attorney’s
Office during Mr. O’Connell’s tenure – was willing to speak on the record and under oath about
the romantic relationship. Moreover, details in Mr. Goeller’s affidavit about the specific timing
of the relationship appeared to indicate that he relied on personal knowledge rather than rumor or
speculation. See Affidavit of Matthew Goeller (June 3, 2008). These factors convinced Mr.
Hood that, despite the inflammatory and salacious aspects of the claim, he could now allege
sufficient specific facts to satisfy the subsequent application provisions of Article 11.071.
Shortly before the June 2008 execution date, undersigned counsel called Judge Holland
and left her a voice mail message asking her to discuss the allegations. Judge Holland did not
return counsel’s call. JH at 15-16.
On June 13, 2008, Mr. Hood filed a successive application raising the judicial bias claim
for the first time. On June 16, 2008, the CCA dismissed the application as an abuse of the writ.
Ex parte Hood, 41,168-04 (Tex. Crim. App. June 16, 2008) (unpublished).
E. Motion to Modify Execution Date
On the morning of the scheduled execution, June 17, 2008, undersigned counsel for Mr.
Hood called the District Attorney’s Office and asked whether the State would agree to a 30-day
modification of the execution date. Counsel asserted that the Goeller affidavit might encourage
other people with knowledge of the Holland-O’Connell affair to speak on the record. The
9
District Attorney refused to agree to modify the date.
Later that day, Mr. Hood filed a motion to modify the execution date and a notice of
discovery asking the State to disclose all evidence in its possession related to the affair. Judge
Henderson heard argument on the motion. He withdrew the execution date and then sua sponte
recused himself from all further participation in the case. 7
At approximately 5:30 p.m., the District Attorney sought a writ of mandamus to compel
Judge Henderson to rescind his order withdrawing the execution date. The CCA denied leave to
file the petition for writ of mandamus. In dicta, the court explained that Judge Henderson had no
authority to withdraw the death warrant. However, the CCA noted that Judge Henderson was not
the appropriate subject of mandamus, because he had recused himself from the case. In re Hood,
WR-41,168-07 (Tex. Crim. App. June 17, 2008) (unpublished).
Around 8:30 p.m., the District Attorney sought a second writ of mandamus, this time
against Judge John Ovard, the presiding judge of the administrative judicial region who had
assigned the case to himself after Judge Henderson’s recusal. At approximately 9:00 p.m., the
CCA granted leave to file the petition for writ of mandamus and ordered Judge Ovard to
“immediately reinstate” the execution warrant. In re Hood, WR-41,168-08 (Tex. Crim. App.
June 17, 2008) (unpublished). At 9:51 p.m., Mr. Hood asked the CCA to reconsider its decision.
At approximately 10:30 p.m., the CCA denied the request for rehearing. Judge Ovard rescinded
Judge Henderson’s order and reinstated the execution warrant.
Several hours after the hearing, undersigned counsel spoke with Judge Henderson to7
determine if the basis for his recusal was related to the allegations about the Holland-O’Connellaffair. Judge Henderson said that he had recused himself because he had been good friends withJudge Holland and Mr. O’Connell. However, he did not believe the rumors of an affair weretrue.
10
At 11:17 p.m., Mr. Hood asked the CCA to reconsider its decision dismissing his
successive application raising the judicial bias claim. At 11:46 p.m., the CCA declined to
reconsider its decision. At that point, the Governor, in consultation with the Texas Department
of Criminal Justice, agreed to let the death warrant expire, because the execution team did not
have sufficient time to carry out its protocol before midnight.8
F. Sixth Execution Warrant
On June 20, 2008, the District Attorney sought another execution date for Mr. Hood. Mr.
Hood asked the newly-assigned judge, John Nelms, to refrain from setting a date and order the
State to disclose evidence related to the Holland-O’Connell affair. On June 25, 2008, Judge
Nelms signed Mr. Hood’s sixth death warrant, setting the execution for September 10, 2008.
In mid-June 2008, undersigned counsel retained an investigator, Toni Knox, to attempt to
uncover any concrete evidence of the Holland-O’Connell affair. Over the next three months, Ms.
Knox reviewed the results of Ms. Francis’s 1995-96 investigation, obtained and examined
pertinent records, and located and interviewed – or attempted to interview – over two dozen
potential witnesses. She spent over 80 hours working on the investigation. Pro bono counsel
paid over $5,500 out-of-pocket for her services. Although several witnesses could confirm the
rumors, not a single one had any personal knowledge of the affair.
Six days after the events on the night of June 17, 2008, the CCA promulgated8
Miscellaneous Rule 08-101, which requires death row inmates to file 48 hours in advance of thescheduled execution any motions challenging their sentences. Counsel who file an untimelymotion must prepare a sworn statement showing good cause for the delay. Counsel who fail tofile such a statement or cannot adequately justify the delay face sanctions, including referral tothe Chief Disciplinary Counsel of the State Bar, contempt of court, restitution of costs incurredby the opposing party, and removal from the list of attorneys eligible to handle death penaltypost-conviction cases. See Misc. R. 08-101 (available at http://www.cca.courts.state.tx.us/rules/miscruleexecution.pdf (last visited on Dec. 15, 2009)).
11
G. Rule 202 Proceedings
With Mr. Hood’s sixth scheduled execution date looming, all his efforts to uncover
evidence of the affair between Judge Holland and Mr. O’Connell had failed. However, on
August 19, 2008, Mr. Hood set in motion an unprecedented series of events by using a civil
discovery procedure to compel Judge Holland and Mr. O’Connell to speak. Mr. Hood filed a
request, pursuant to Rule 202 of the Texas Rules of Civil Procedure, seeking pre-suit
investigatory depositions of Judge Holland and Mr. O’Connell. Mr. Hood argued that the
depositions could lead to evidence supporting possible civil actions against them. He
emphasized that simply because the depositions might also yield evidence pertinent to a
challenge to his conviction and sentence did not undermine their validity for purposes expressly
contemplated by Rule 202.
Judge Robert Dry was assigned to the case. The District Attorney complained that Mr.
Hood was attempting to use a civil procedure to obtain evidence for a criminal case. See State’s
Motion to Correct Misnomer of Pleadings and File as Subsequent Habeas Petition (Aug. 22,
2008) at 3 (“Petitioner is merely seeking a different forum in which he can continue to litigate a
habeas petition which the Court of Criminal Appeals has already held could and should have
been investigated, raised, and litigated previously.”). Judge Dry set a hearing on the Rule 202
petition for September 12, 2008 – two days after Mr. Hood’s scheduled execution.
On September 3, 2008, Judge Dry sua sponte recused himself because of his previous
business relationship with Earl Holland, the ex-husband of Judge Holland. The case was
reassigned to Judge Greg Brewer of the 366th Judicial District Court of Collin County. He
promptly set a hearing for September 8, 2008, to consider Mr. Hood’s request to take
12
depositions.
On September 4, 2008, Greg Abbott, the Attorney General of Texas, informed the Collin
County District Attorney that he would be filing an amicus brief the next day with Judge Brewer.
The Attorney General explained that “because of the unique nature of the issues in this matter –
and to protect the integrity of the Texas legal system – we will ask the court to thoroughly review
the defendant’s claims before the execution proceeds.” Letter of Attorney General Greg Abbott
to District Attorney John Roach (App. F). The next day, the Attorney General argued in his
amicus brief that:
In light of the unique and extraordinary circumstances concerning the trial of thiscase, a closer review by this Court is warranted. The Court could consider aninquiry into the defendant’s allegations and the legal precedents that apply. TheCourt could also evaluate whether the appropriate inquiry and legal analysis canbe completed within the current timetable for the scheduled execution.
Brief of the Attorney General of Texas as Amicus Curiae (App. G) at 2. In a footnote, the
Attorney General noted that:
The position taken by the Attorney General in this case should not be construed asa departure from his longstanding position that parties are not ordinarilyauthorized to seek discovery from judges or prosecutors. He acknowledges,however, that the unique allegations presented here may warrant uniquedisposition by this Court. Accordingly, the Court should exercise its discretionand control over the proper scope of any inquiry permitted in this case.
Id. at 2 n.2
On August 26, 2008, Madeleine Connor, an Assistant Attorney General, had filed a
Notice of Appearance on behalf of Judge Holland in the Rule 202 proceedings. After the9
Attorney General filed the Amicus Brief, Ms. Connor withdrew as Judge Holland’s counsel,
Judge Holland had contacted the Attorney General’s Office for assistance, because she9
“was tired of laying over – getting licked without any input.” JH at 19.
13
citing “the potential for conflict.” See State’s Approved Motion for Withdraw[al] and for
Substitution of Counsel at 1. Judge Holland found a private attorney to represent her. 10
Before the Rule 202 hearing could take place on September 8, 2008, Judge Holland and
Mr. O’Connell removed the proceedings to federal court. A telephonic hearing with the federal
district judge took place in Judge Brewer’s courtroom that morning. By the early afternoon, Mr.
Hood had succeeded in convincing the federal district judge to send the matter back to state
court.
Judge Brewer finally heard argument on Mr. Hood’s request to take depositions. An
assistant district attorney interrupted the proceedings and, with Judge Brewer’s permission,
attempted to intervene. Judge Brewer denied the request of the District Attorney’s Office. He
granted Mr. Hood’s Rule 202 petition and ordered the depositions to take place immediately.
Judge Brewer, at the State’s request, allowed a representative of the District Attorney’s Office to
Two days later, Ms. Connor filed with the State Bar a formal grievance against the10
Attorney General. Diane Jennings, Lawyer Files Grievance Against Abbot after He UrgesReview of Collin County Murder Case, Dallas Morn. News (Sept. 8, 2008). A few weeks later,after the CCA stayed the execution, the Attorney General publicly responded to the complaint:
“That’s what happens when people shoot first and ask questions later. . . .Theperson filing the complaint had no information about what me or the office haddone months before representation of the judge was undertaken. We, includingme personally, had already taken action in this case months before Judge Hollandcontacted our office for representation.
Diane Jennings, Attorney General Defends Actions in Investigation of Affair Between Judge,DA, Dallas Morn. News (Sept. 26, 2008). Mr. Abbott explained that his office was closelyinvolved in the decision not to execute Mr. Hood on June 17, 2008. According to the article, he“declined to clarify the role played because ‘it may arguably be protected by attorney-clientprivilege.’” Id. Mr. Abbott also said that when he learned that an assistant attorney general hadundertaken the representation of Judge Holland, his office had immediately informed JudgeHolland that she needed to hire her own attorney. Id.
14
attend the depositions. Mr. Hood completed the deposition of Mr. O’Connell at 7:17 p.m. on
September 8, 2008, TOC at 2, and completed the deposition of Judge Holland at 12:19 p.m. the
following day. JH at 2. For the first time, Judge Holland and Mr. O’Connell acknowledged that
they had had a long-term, intimate sexual relationship.
H. Letter to Governor Requesting Reprieve
Immediately after completing the deposition of Judge Holland, counsel for Mr. Hood
asked Jeffrey Garon, the assistant district attorney who had attended the depositions, whether the
District Attorney’s Office would join him in seeking a 30-day reprieve from the Governor. After
consulting with the District Attorney, Mr. Garon and his colleague John Rolater, Chief of the
Appellate Division, announced that the District Attorney would not join Mr. Hood in his request.
A few hours later, counsel for Mr. Hood had drafted and faxed a letter to the Governor asking for
a reprieve so that he could present the evidence of the Holland-O’Connell affair to the Court of
Criminal Appeals and the Board of Pardons and Paroles.
I. Second Successive Application Raising Judicial Bias Claim
While litigating the Rule 202 petition, Mr. Hood made a second attempt to raise the
judicial bias claim. On the morning of September 8, 2008, he filed a successive application
based on new evidence he had compiled about Judge Holland’s recusal rate for cases originating
from Collin County when she sat on the CCA. Judge Holland served on the CCA from January
1, 1997, to September 2, 2001. Mr. Hood discovered that she recused herself from nearly 80
percent of the Collin County cases reaching the CCA. He compared her recusal rate with that of
Judges Price and Keasler, who – like Judge Holland – served on district court benches for years
before they were elected to the CCA. The statistics reveal that Judge Holland recused herself at a
15
rate nearly 160 times greater than her fellow jurists. The simplest explanation appeared to be11
the most plausible one: Judge Holland recused herself at such a high rate, because she had been
romantically involved with the then-current District Attorney of Collin County when cases from
his office reached the CCA. The CCA dismissed this second successive judicial bias claim as an
abuse of the writ. Ex parte Hood, WR-41,168-10 (Tex. Crim. App. Sept. 9, 2008)
(unpublished).12
J. Third Successive Application Raising Judicial Bias Claim
On September 8, 2008, Mr. Hood had tried, once again, to interest the CCA in his Penry
claim. He asked the court to reconsider sua sponte its decision dismissing the successive
application raising the Penry claim. On September 9, 2008, the CCA granted a stay of execution
Judge Holland recused herself from only about 4% of the cases originating from Collin11
County during her first year on the CCA bench – including cases over which she presided whilestill a trial judge. During the remainder of her time on the CCA, she recused herself from over90% of the cases originating from Collin County. When asked during the deposition about theseodd recusal rates, Judge Holland characterized her early-tenure decisions in which she did notrecuse herself from Collin County cases as “learning the procedures and learning the regimen,”JH at 45, a “how-to-find-the-courthouse-type thing.” Id. at 46. She said she adopted her laterpolicy of recusing herself in nearly all Collin County cases, because “I didn’t want to have aconflict. I didn’t want to be unfair.” Id. at 48.
Accompanying his successive application, Mr. Hood filed a motion to recuse eight12
judges on the CCA. Judge Holland was elected to the CCA in 1996. Her term began on January1, 1997. She resigned from the court on September 2, 2001. Judge Holland shared the benchwith eight of the nine current members of the court: Keller, P.J. (Year Elected: 1994); Meyers, J.(1992); Price, J. (1996); Womack, J. (1996); Johnson, J. (1998); Keasler, J. (1998); Hervey, J.(2000); Holcomb, J. (2000). The evidence Mr. Hood presented on the recusal rates wouldreasonably suggest that, when a recusal rate is as high as Judge Holland’s in cases coming from aparticular county, her fellow jurists would be bound to notice. Indeed, if Judge Holland made anadmission to any of her CCA colleagues that she recused herself from Collin County casesbecause she used to be romantically involved with the District Attorney, they would possesspersonal, first-hand knowledge from an extrajudicial source about the existence of the romanticrelationship that Mr. Hood was trying to establish. The CCA denied Mr. Hood’s motion torecuse. Hood, WR-41,168-10.
16
on this ground. See Ex parte Hood, AP-75,370 (Sept. 9, 2008) (unpublished) (“Because of
developments in the law regarding nullification instructions, this Court has determined that it
would be prudent to reconsider the decision we issued in dismissing applicant’s second
subsequent writ application.”).
On September 26, 2008, relying on the undisputed evidence of the affair between Judge
Holland and Mr. O’Connell, Mr. Hood filed a successive application raising the judicial bias
claim for the third time. On November 19, 2008, the CCA noted that Mr. Hood may have met
the requirements for the filing of a subsequent application. However, the CCA ordered the trial
court to resolve two preliminary issues first. The CCA explained:
Throughout the litigation in this case, applicant has claimed that the affairbetween the trial judge and the prosecutor was “common knowledge.” Butapplicant did not try to obtain proof of the affair until some eighteen years afterhis trial. He also asserts that he had to go to extraordinary measures to obtain theproof he now has. However, the method by which applicant obtained theevidence supporting his claim, Texas Rule of Civil Procedure 202, which providesfor depositions before suit or to investigate claims, became effective January 1,1999. Yet applicant did not utilize this tool until after he was given an executiondate. Further, he has filed other applications raising the claim since the date thattool became available.
Accordingly, the trial court shall collect or adduce any evidence it deemsnecessary to make a recommendation on whether the doctrine of laches bars theconsideration of applicant’s claim. While the State has the burden on the issue,both parties should be allowed to be heard on the matter. The court shall alsocollect or adduce any evidence it deems necessary to make a recommendation onwhether applicant meets the dictates of Article 11.071, § 5.
App. A at 4.
On remand, Judge Brewer appointed a special master to assist him in resolving these
17
issues. The District Attorney objected to the appointment of the special master for a number of13
reasons, one of which expressed concern that the master was “a criminal defense attorney
actively involved in capital litigation in this county and has practiced in Collin County for at least
two decades.” State’s Objections to Order Appointing Master (Dec. 10, 2008) at 3. Judge
Brewer overruled the District Attorney’s objections.
The District Attorney sought a writ of mandamus from the CCA to compel Judge Brewer
to rescind his order. The District Attorney argued that:
In Texas, the parties and public are assured that cases are properly resolvedbecause judges are duly qualified by election or gubernatorial appointment and aresworn to uphold the Constitution and laws. In this death penalty case, the electedtrial judge has illegally delegated the authority vested in him by this Court, and hedoes so in a manner that erodes confidence in the neutrality of our decision-makers and introduces uncertainty regardless of the results reached.
State’s Petition for Writ of Mandamus at 11. The CCA held that Judge Brewer had exceeded his
authority and directed him to vacate his order appointing the special master. In re John R. Roach,
Criminal District Attorney, AP-76,086 (Tex. Crim. App. Jan. 28, 2009) (unpublished).
On February 19-20, 2009, the parties filed their briefs on the preliminary issues. The
District Attorney raised a number of procedural arguments in support of his position that the
doctrine of laches barred consideration of the judicial bias claim and that Mr. Hood failed to
exercise reasonable diligence in uncovering the factual basis for it. See State’s Reply Regarding
the Impact of Applicant’s Repeated 11.071 Applications on the Ability to Consider the Instant
Claim at 15-29. The District Attorney repeatedly accused Mr. Hood’s counsel of gaming the
criminal justice system – manipulating the timing of his claims, making appeals to public
On September 26, 2008, the presiding judge of the administrative judicial region13
transferred the habeas proceedings from Judge Nelms to Judge Brewer.
18
opinion, and elevati[ng] . . . uproar over timely resolving issues.” Id. at 24.
In addition to his procedural arguments, the District Attorney challenged the merits of the
judicial bias claim:
! “At some point, the past romantic relationships, of even public figures,become a matter that is entitled to some privacy, and Hood’s new evidenceonly serves to cure any residual doubt that the relationship had been overfor a sufficient amount of time before the time of Hood’s trial.” Id. at 8.
! “Hood’s subsequent habeas application fails to state a cognizable claimbecause the existence of a prior sexual relationship between a judge and aprosecutor is not cause to absolutely disqualify a judge.” Id.
! “Hood is unable to illustrate any prejudice despite having challengednearly every other aspect of the trial through numerous legal proceedings.” Id. at 28.
On March 2, 2009, Mr. Hood filed a motion to disqualify the District Attorney. Mr.
Hood argued that the District Attorney’s conduct in the case – particularly his actions after the
depositions confirmed the existence of the Holland-O’Connell affair – coupled with his long and
close association with Judge Holland and Mr. O’Connell, created an appearance of impropriety
and demonstrated an actual conflict of interest that deprived Mr. Hood of his fundamental right
to due process. See Applicant’s Motion to Disqualify District Attorney at 1, 3. The current
Collin County District Attorney, John Roach, served as the presiding judge of the 199th Judicial
District Court of Collin County from 1981 until 1997, a time encompassing Judge Holland’s 15
years on the bench of the 296th Judicial District Court; a time when Mr. O’Connell served as the
Collin County District Attorney (for the bulk of those years); and, most important, a time
encompassing the Holland-O’Connell affair and Mr. Hood’s capital murder trial. The close ties
among then-Judge Roach, Judge Holland, and Mr. O’Connell are further evidenced by Judge
19
Roach’s decision to cross party lines with Judge Holland in 1982 and urge voters to re-elect Mr.
O’Connell, who ran for District Attorney as a Democrat. JH at 23-24. Both Judge Holland and
Mr. O’Connell testified that they did not know whether Judge Roach was aware of their romantic
relationship. JH at 31; TOC at 36.
Judge Brewer granted Mr. Hood leave to take the depositions of four members of the
District Attorney’s Office, including the District Attorney himself. After attempting for two
weeks to schedule the depositions at a mutually convenient time, Mr. Hood’s counsel received a
call from Robert J. Davis, a private attorney retained by the District Attorney’s Office. Mr.
Davis informed Mr. Hood’s counsel that he would not agree to deposition dates for the witnesses
and that he would seek a final order on the depositions so that he could seek a writ of mandamus
against Judge Brewer. In an e-mail message to Judge Brewer, Mr. Davis wrote:
My role in appearing is to obtain, at minimum, a hearing with this Court todiscuss more fully the applicable compelling public policy concerns associatedwith Mr. Hood’s request to conduct what appears to be essentially a fishingexpedition of the current District Attorney’s Office, the actual necessity ofdepositions of the four persons requested by Mr. Hood’s counsel to be deposed,and if any depositions are indeed ordered to proceed after further hearing, thelimitations on any such deposition(s).
E-mail from Robert J. Davis to Judge Brewer (Apr. 6, 2009). On April 9, 2009, Judge Brewer
indefinitely postponed the depositions.
On May 1, 2009, after receiving additional evidence and the parties’ proposed findings,
Judge Brewer issued findings of fact and conclusions of law on the preliminary issues remanded
by the CCA. Judge Brewer found that:
! Judge Holland and Mr. O’Connell were involved in an intimate sexualrelationship prior to Hood’s capital murder trial.
20
! Judge Holland continued to serve as the presiding judge of the 296thJudicial District Court during Hood’s direct appeal (1990-94). DuringHood’s state habeas proceedings (1994-99), she left the district courtbench and served as a judge on the Court of Criminal Appeals (“CCA”). She continued to serve on the CCA during Hood’s federal district courthabeas proceedings (1999-2000), as well as a portion of his Fifth Circuitappeal (2000-04). Prior to the capital murder trial – and during theappellate and post-conviction proceedings – Judge Holland neverdisclosed her relationship with Mr. O’Connell to Hood.
! Mr. O’Connell served as the District Attorney of Collin County during thetime of Hood’s indictment (1989), trial (1990), direct appeal (1990-94),state habeas review (1994-99), federal district court habeas review (1999-2000), and Fifth Circuit appeal (2000-04). During these proceedings, Mr.O’Connell never disclosed his relationship with Judge Holland to Hood.
! Judge Holland and Mr. O’Connell took deliberate measures to ensure thattheir affair would remain secret.
App. B at 1-2 (footnotes omitted). Answering the first question posed by the CCA, Judge
Brewer concluded that “[t]he State cannot invoke the equitable doctrine of laches because its
hands are unclean: Judge Holland and Mr. O’Connell did not abide by their ethical and
constitutional duties to disclose the fundamental conflict caused by their relationship.” Id. at 7.
Addressing the “reasonable diligence” issue, Judge Brewer found that:
Judge Holland and Mr. O’Connell wrongfully withheld relevantinformation from defense counsel prior to and during the trial, the directappeal, the state habeas proceedings, the federal habeas proceedings, andthe successive state habeas proceedings. Indeed, Mr. O’Connell misledhabeas counsel during the successive state habeas proceedings and JudgeHolland resisted counsel’s investigative efforts.
Id. at 10. Judge Brewer concluded that Mr. Hood had satisfied the successive application
requirements, reasoning that:
! Hood’s unsuccessful efforts to obtain concrete evidence of the Holland-O’Connell affair cannot be attributed to his failure to exercise reasonablediligence but, instead, is explained by the principals’ longstanding efforts
21
to keep the affair hidden.
! Hood’s repeated attempts to uncover evidence of a secret affair cannot becharacterized as less than reasonably diligent simply because he did notpursue Rule 202 proceedings earlier. Under the “reasonable diligence”inquiry of Article 11.071, the question is not whether the facts could havebeen ascertained previously, but whether the inmate was diligent in hisefforts. Diligence depends upon whether the prisoner made a reasonableattempt, in light of the information available at the time, to investigate andpursue his claims. It does not depend upon whether those efforts couldhave been successful.
! Despite relying on nothing but speculation as the basis for pursuing aninvestigation, Hood nonetheless made a conscientious attempt todetermine whether there was any truth to the rumors of the Holland-O’Connell affair. The failure to develop the facts of the judicial bias claimin the first or subsequent rounds of habeas review is squarely attributableto Judge Holland and Mr. O’Connell’s deception and non-disclosure,rather than the lack of reasonable diligence on Hood’s part.
! Simply because Rule 202 yielded evidence pertinent to a challenge toHood’s conviction and sentence does not mean that habeas counsel mustpursue civil remedies to satisfy their duty of exercising reasonable
diligence.
Id. at 11-15 (citations omitted).
The District Attorney filed lengthy objections in the CCA to Judge Brewer’s findings and
conclusions.
HOW THE ISSUES WERE DECIDED BELOW
On September 16, 2009, the CCA, in a 6-3 decision, held that: “[T]he allegation fails to
satisfy the requirements of Article 11.071, § 5(a). Accordingly, the application is dismissed as an
abuse of the writ.” App. C at 3 (citation omitted). The court provided no further explanation for
its decision. Judge Cochran, joined by Judges Price and Holcomb, dissented. Id. at 4-12
(Cochran, J., dissenting).
22
NO ADEQUATE AND INDEPENDENT STATE GROUND BARS REVIEW
In dismissing the judicial bias successive application, the CCA held that Mr. Hood
“fail[ed] to satisfy the requirements of Article 11.071, § 5(a).” App. C at 3. The Chief of the
Appellate Division of the Collin County District Attorney’s Office called this decision “a
significant procedural victory.” James C. McKinley, Jr., Judge-Prosecutor Affair, But No New
Trial, N.Y. Times (Sept. 17, 2009). The decision may, indeed, have provided the District
Attorney with a “significant . . . victory,” but it cannot be characterized as “procedural” under
this Court’s precedents: The CCA’s resolution of the claim was “‘interwoven with the federal
law’” and “‘did not clearly and expressly rely on an independent and adequate state ground.’”
Coleman v. Thompson, 501 U.S. 722, 735 (1991) (quoting Michigan v. Long, 463 U.S. 1032,
1040-41 (1983)). Consequently, this Court may review the merits of Mr. Hood’s judicial bias
claim.
The CCA has expressly recognized that the statutory requirements of Section 5(a) present
an interwoven question of state and federal law, because the applicant not only must show that
the factual or legal basis for the current claim was previously unavailable, but also must allege
“sufficient specific facts that, if proven, establish a federal constitutional violation sufficiently
serious as to likely require relief from his conviction or sentence.” Ex Parte Campbell, 226
S.W.3d 418, 421-22 (Tex. Crim. App. 2007); Ex parte Staley, 160 S.W.3d 56, 63-64 (Tex. Crim.
App. 2005); see Tex. Code Crim. Proc. art. 11.071 § 5(a)(1). The Fifth Circuit has14
The relevant portion of Section 5 provides that:14
(a) If a subsequent application for a writ of habeas corpus is filed after filing aninitial application, a court may not consider the merits of or grant relief based onthe subsequent application unless the application contains sufficient specific facts
23
acknowledged this understanding of Section 5(a) in assessing whether a state procedural ruling
bars federal habeas review, holding that “the Texas procedural bar based on factual availability
incorporate[s] a question of federal constitutional law.” Ruiz v. Quarterman, 504 F.3d 523, 529
(5th Cir. 2007); see Ake v. Oklahoma, 470 U.S. 68, 75 (1985) (“[W]hen resolution of the state
procedural law question depends on a federal constitutional ruling, the state-law prong of the
court’s holding is not independent of federal law, and our jurisdiction is not precluded.”); Rivera
v. Quarterman, 505 F.3d 349, 359 (5th Cir. 2007) (holding that, because the CCA has “imported
an antecedent showing of ‘sufficient specific facts’ to merit further review,” dismissal of an
Atkins claim as an abuse of the writ is actually a decision on the merits).
In dismissing Mr. Hood’s successive application, the CCA did not provide any
explanation for its finding that the Section 5(a) requirements had not been met. The per curiam
order offers no guidance on whether the court based its dismissal on the “unavailability” state-
law prong, or on the “sufficient specific facts” federal constitutional prong. Under the bright-line
rule of Long and Coleman, the CCA’s failure to articulate the basis for the dismissal triggers the
presumption of federal jurisdiction: The CCA analyzed a question of state law that was
interwoven with federal constitutional law, and the court did not make clear that its decision
establishing that:
(1) the current claims and issues have not been and could not beenpresented previously in a timely initial application or in a previouslyconsidered application filed under this article or Article 11.07 because thefactual or legal basis of the claim was unavailable on the date the applicantfiled the previous application[.]
Tex. Code Crim. Proc. art. 11.071 § 5(a)(1) (emphasis added).
24
rested on adequate and independent state procedural grounds. Had the CCA wished to make its
reasoning clear, it could have simply added a single sentence stating that Mr. Hood had failed to
satisfy the state-law driven “unavailability” hurdle of Section 5(a). It did not do so. As the Fifth
Circuit emphasized in Ruiz, the CCA is “keenly aware [that] its choice of language was made
against a background legal standard” that requires precision to announce an adequate and
independent state law ground for denial of relief. 504 F.3d at 527. Accordingly, this Court has
jurisdiction to review the CCA’s decision dismissing Mr. Hood’s application raising the judicial
bias claim.
REASONS THE WRIT SHOULD BE GRANTED
ONLY THIS COURT CAN DISPEL THE DEEP SHADOW THAT HASBEEN CAST OVER THE TEXAS CRIMINAL JUSTICE SYSTEM BYTHE HOLLAND-O’CONNELL AFFAIR AND THE REFUSAL OF THECOURT OF CRIMINAL APPEALS, THE DISTRICT ATTORNEY, THEATTORNEY GENERAL, OR THE GOVERNOR TO REPAIR THEDAMAGE.
The truth has a long fuse. This case proves that adage. Over the course of two days in
September 2008, the wall of silence that Judge Holland and District Attorney Tom O’Connell
had meticulously constructed and obsessively maintained for over twenty years collapsed. It not
only buried their life’s work and destroyed their reputations, it caused devastating and far-
reaching consequences to the public – imperilling confidence in the integrity of the judiciary
from the trial courts in Collin County to the high court in Austin. The failure of the State of
Texas to take any steps to repair the harm has further eroded the public’s trust. Despite the
length of time it has taken Mr. Hood to expose the romantic affair between his judge and
prosecutor, a decision to ignore the damage that resulted from keeping the truth concealed for so
25
long will only deepen the shadow that has been cast over the Texas judiciary. The due process
violation here is obvious, outrageous, and extreme. This Court must intervene, for no one else
has and no one else will.
I. The evidence is undisputed, the facts are extreme, and the constitutionalviolation is patently obvious.
In Caperton v. A.T. Massey Coal Co., Inc., 129 S.Ct. 2252 (2009), this Court reaffirmed
that the Due Process Clause mandates an objective inquiry to determine whether an alleged
violation is so egregious that “the probability of actual bias on the part of the judge or
decisionmaker is too high to be constitutionally tolerable” and recusal is required. Id. at 2257
(internal quotation marks omitted). This Court framed the standard as “not whether the judge is
actually, subjectively biased, but whether the average judge in his position is likely to be neutral,
or whether there is an unconstitutional potential for bias.” Id. at 2262 (internal quotation marks
omitted). As this Court recognized, “the disqualifying criteria cannot be defined with precision.
Circumstances and relationships must be considered.” Id. at 2261 (internal quotation marks and
citation omitted). Caperton explained that cases presenting “extreme facts” or an “extraordinary
situation” are more likely to meet the constitutional standard for recusal. Id. at 2265. Mr.
Hood’s case presents facts that are as “extreme” and “extraordinary” as those presented in
Caperton – if not more so.
The type of intimate relationship between Judge Holland and Mr. O’Connell, one that
they concealed from Mr. Hood, poses an overwhelming potential for bias that is offensive to due
process. Indeed, the formulation employed in Caperton, concluding that the judge had a
“personal stake in a particular case,” id. at 2263, applies with at least equal force to Mr. Hood’s
26
facts. Judge Holland’s interest in the result of Mr. Hood’s capital murder trial was neither too
remote nor too speculative to support constitutional disqualification. Judge Holland’s intimate
sexual relationship and subsequent close friendship with Mr. O’Connell created a situation where
she naturally would be inclined to adopt his interests as her own or be solicitous and supportive
of his interests.
Mr. O’Connell wanted, of course, to secure a capital murder conviction and death
sentence against Mr. Hood. To this end, he did not simply hand over the case to an underling
while he remained seated behind a desk in his office. Instead, he actively participated in the
prosecution – questioning potential jurors, cross-examining witnesses, and arguing before the
jury. He put his professional reputation, and the prestige of his office, at stake in a special way
when he decided to try the case himself. Participating as a front-line prosecutor, he indicated the
importance of the case and of a conviction and death sentence, along with his belief in the
strength of the State’s case. The nature of the charges and sentence sought made it more likely
that Mr. O’Connell’s constituents were aware of the case and his involvement in it. It would
have been a damaging blow for him personally to try an important case like Mr. Hood’s and lose.
On the other hand, obtaining a death verdict would enhance his credentials and those of his
office. His tenure in office – his professional livelihood – depended on successful outcomes,
especially in death penalty cases.
Judge Holland would have been concerned about handing Mr. O’Connell a galling defeat
in such a highly visible case. Her long-term, intimate sexual relationship and later close
friendship with him attuned her to his professional and personal interests and made those
interests her own. Under these circumstances, it is inconceivable to assert that Judge Holland did
27
not have a direct and real interest in the outcome of Mr. Hood’s trial.
The violation in Mr. Hood’s case is even more egregious than the one in Caperton in two
respects. The first factor deals with the nature of the relationship at issue. Whatever the
temptation may be to disregard the guiding principle of neutrality for a campaign benefactor, the
objective probability that bias will creep into the judge’s decisionmaking is far greater when a
litigant has been the judge’s long-term paramour. The second factor is that Judge Holland and
Mr. O’Connell kept their relationship a secret. In Caperton, the offending relationship was
known to all the parties. The probability of actual bias increases when the relationship at issue is
not open to public scrutiny. Cf. Richmond Newspapers v. Virginia, 448 U.S. 555, 570 (1980)
(opinion of Burger, C.J.) (recognizing the “nexus between openness, fairness, and the perception
of fairness”). Even Judge Holland now acknowledges that, had she been asked to do so, it would
have been appropriate for her to recuse herself. JH at 36-37. In short, because her secret,15
intimate sexual relationship with the prosecutor created for Judge Holland a direct and personal
interest in the outcome of the proceedings, Mr. Hood’s trial was infected by a “probability of
actual bias . . . too high to be constitutionally tolerable.” Caperton, 129 S. Ct. at 2257 (internal
quotation marks and citation omitted).
The constitutional violation in this case, moreover, cannot be considered in a vacuum. As
in Caperton, a due process violation of this magnitude calls into question the integrity of the
judicial system as a whole. Judge Holland’s conduct is telling in this regard: Both her failure to
disclose the relationship at the time of the trial and her extensive efforts to keep the affair secret
Of course, the shroud of secrecy with which Judge Holland and Mr. O’Connell15
enveloped their relationship denied Mr. Hood’s prior counsel of any good faith basis for filingsuch a motion. See Declaration of David K. Haynes, supra; Affidavit of David K. Haynes, supra.
28
indicate her belief that public confidence in her role as an impartial fact-finder would be
undermined by disclosure.
The CCA’s handling of Mr. Hood’s case has only compounded the problem. Numerous
editorials have focused on the damage the case has caused to the public’s trust in the judiciary.
See Editorial, Ruling in Hood Case Degrades Court System, Dallas Morn. News (Sept. 17, 2009)
(“[T]he issue is the integrity of the Texas court system and the appeals court’s interest in flushing
out the stench of corrupted justice. Sadly, the court has proved itself unwilling.”); Editorial,
Hood Case Bruises Texas Judicial Trust, San Antonio Express News (Oct. 4, 2008) (“The
biggest loss . . . is to the integrity of the judicial system.”); Editorial, Wait A Minute: A Stay of
Execution for Convicted Murderer Charles Hood Raises Troubling Questions of Judicial
Integrity, Hous. Chron. (Sept. 15, 2008) (“What is at stake now is not only [Hood’s] fate, but the
integrity of the Texas judicial system. Now that the fact of the relationship between the judge
and the prosecutor has been established, the Court of Criminal Appeals should reconsider its
denial of Hood’s claims on this matter and grant him a new trial.”); Editorial, Latest Tale of
Texas Justice Rated “E” for Embarrassment, Austin-American Statesman (Sept. 12, 2008)
(“[T]he handling of his case by the Texas justice system is embarrassing and must not happen
again. But it probably will.”); Editorial, Leave No Question Unanswered, Dallas Morn. News
(Sept. 10, 2008) (“Legitimate questions of compromised justice must not linger when Texas
carries out the death penalty.”); Editorial, Too Soon and Too Many Questions, N.Y. Times (Sept.
6, 2008) (“Even supporters of capital punishment should be appalled at the prospect of executing
a man after a trial that – if Mr. Hood's charges are true – was so grossly unfair.”); Editorial,
Claim that Judge, Prosecutor had Affair Taints Murder Case, Corpus Christi Caller Times (Sept.
29
6, 2008) (“The Texas criminal justice system has performed atrociously in the prosecution of
Charles Dean Hood[.]”).
In addition to the public outcry, last year over two dozen former federal and state judges
and prosecutors, including William Sessions, who served as a United States Attorney and federal
judge in Texas before becoming the Director of the FBI, sent a letter to Governor Perry seeking a
halt to Mr. Hood’s execution. See App. H (“[W]e have no doubt that this relationship would
have had a significant impact on the ability of the judicial system to accord Mr. Hood a fair and
impartial trial.”); see also Texas Inmate Draws Prestigious Support, USA Today (Sept. 4, 2008).
Three dozen of the nation’s leading legal ethicists and the nearly 500-member Association of
Professional Responsibility Lawyers (APRL) also weighed in, stating that the alleged
relationship between Judge Holland and Mr. O’Connell would be a violation of Mr. Hood’s
constitutional rights. See Statement of APRL Concerning Charles Dean Hood (July 22, 2008)
(available at http://www.aprl.net/pdf/ APRL_Statement_CharlesDeanHood.pdf (last visited on
Dec. 10, 2009)).
Allowing this due process violation to stand would cause long-term, irreversible harm to
the public’s faith in the rule of law, for “[t]he legitimacy of the Judicial Branch ultimately
depends on its reputation for impartiality and nonpartisanship.” Mistretta v. United States, 488
U.S. 361, 407 (1989). The Court must take action.
30
II. The State of Texas has refused to address the damage that theHolland-O’Connell affair has done to the public’s confidence in theadministration of justice.
It staggers the imagination to think that 15 months after presenting undisputed evidence
that Judge Holland and Mr. O’Connell were involved in an intimate sexual relationship prior to
his trial Mr. Hood must turn to this Court as his last chance for relief. No one would want to
contest a traffic ticket – let alone a charge of capital murder – in Judge Holland’s courtroom
with Mr. O’Connell prosecuting. Yet the Court of Criminal Appeals remains unmoved by this
incredible event; the District Attorney continues to defend the conviction and death sentence with
vigor; and the Attorney General of Texas has abandoned the fight.
That a judge charged with avoiding the appearance of bias and a prosecutor tasked with
doing justice would allow their desire for secrecy to trump their sworn constitutional duties is a
stunning display of arrogance and the corrupting influence of unchecked power. That others in a
position to correct this injustice condoned the principals’ generation-long silence in a death
penalty case is unconscionable. Mr. Hood survived six execution dates before Judge Holland
and Mr. O’Connell were forced to reveal the truth. No one should escape blame for this
reprehensible record that has skewed the public’s perception of the administration of justice in
Texas.
On June 17, 2008, Mr. Hood was literally minutes away from being executed. No
individual or institution – not the Collin County District Attorney, not the Attorney General of
Texas, not the CCA, not the Governor – gave any credence to Mr. Hood’s evidence of an affair
between Judge Holland and Mr. O’Connell. But for a series of convoluted and serendipitous
events later that night, Mr. Hood would have been executed and the reputations of Judge Holland
31
and Mr. O’Connell would have remained intact. Time, not justice, saved Mr. Hood’s life that
night. But for one courageous jurist willing to apply the plain language of Rule 202, the truth
would have been buried with Mr. Hood three months later, on September 10, 2008, when he
faced his sixth execution date.
The District Attorney has lost sight of his primary duty to seek justice. Neither the public
nor this Court should have confidence that he can perform his duties in a dispassionate manner.
Given his long friendship with Judge Holland and Mr. O’Connell, serious questions remain about
whether the District Attorney knew about the romantic relationship. Despite receiving at least a
half dozen pro se pleadings from Mr. Hood over the years, putting him on notice of potential
constitutional problems emanating from the alleged relationship, the District Attorney never
lifted a finger to confirm or deny the allegations. As the Massachusetts Supreme Court aptly put
it, after an assistant prosecutor became romantically involved with a defendant’s lawyer:
We . . . find it unsettling that in an area where forthrightness should be the rule,the integrity of a member of the profession having been questioned, theCommonwealth offered no affidavit from either [the assistant prosecutor or thedefense attorney]. The Appeals Court’s view of this was that the absence of suchan affidavit suggests that the defendant’s allegations may not be far from themark. We agree.
Commonwealth v. Croken, 733 N.E.2d 1005, 1013 (Mass. 2000) (citation and internal quotation
marks omitted). The District Attorney’s behavior in this case is more egregious than the
prosecutor’s in Croken. Here, the District Attorney not only refused to conduct any investigation
into the allegations himself but he aggressively sought to prevent Mr. Hood from investigating
the allegations: First, he repeatedly opposed Mr. Hood’s efforts to take the depositions of Judge
Holland and Mr. O’Connell. Second, he refused to join the Attorney General in urging Judge
32
Brewer to grant a stay of execution and conduct a thorough inquiry of the issue. In retrospect, the
District Attorney’s complaints about Mr. Hood’s attempts to depose Judge Holland and Mr.
O’Connell sound like “the fear of too much justice.” McCleskey v. Kemp, 481 U.S. 279, 339
(1987) (Brennan, J., dissenting).
The conduct of the District Attorney since the taking of the depositions has been even
more disturbing, considering that the existence of the affair has now been proven beyond a doubt.
The District Attorney has yet to acknowledge that the behavior of his former colleagues in
refusing to disclose their relationship or recuse themselves was improper, unethical, or
unconstitutional. The District Attorney refused to join Mr. Hood in seeking a reprieve from the
Governor after Judge Holland and Mr. O’Connell had confirmed the existence of the affair.
Instead, he sought to shift the blame to Mr. Hood, accusing him of excessive delay in unearthing
concrete evidence of a clandestine affair, manipulating the courts, and stage-managing the media
to obtain last-minute stays of execution. Particularly galling, the District Attorney complained
that Judge Brewer’s appointment of a defense attorney as a special master on the remanded
issues would create an appearance of impropriety. The District Attorney’s intransigence in
continuing to defend Mr. Hood’s conviction and sentence calls into question his adherence to his
duty “that justice shall be done.” Berger v. United States, 295 U.S. 78, 88 (1935). Knowing
what we know now, the District Attorney’s behavior in this entire matter is stunning: He opposed
every attempt Mr. Hood made to get to the truth.16
Remarkably, District Attorney John Roach was named “Prosecutor of the Year” for his16
achievements in 2008 by the Texas District and County Attorneys Association. According to thepress release found on the website of the Collin County District Attorney’s Office, Mr. Roachsaid that “recognition by his fellow Texas prosecutors as Lone Star Prosecutor of the Year is agreat honor, ‘and doubly so because of our shared dedication to the truth, justice, and the rule of
33
The Attorney General of Texas is not without fault in this debacle either. Although he
eventually aligned himself with Mr. Hood prior to the depositions by filing an amicus brief
calling for a thorough review of the issues, the Attorney General emphasized that Mr. Hood’s
allegations were “unsubstantiated,” App. F, and he refused to take a position on “whether this
relationship existed.” App. G at 1. The Attorney General then trotted out the tired mantra that
Mr. Hood’s lawyers had abused the judicial process through their dilatory tactics, “wait[ing]
years before raising last minute claims,” and criticized counsel for re-traumatizing “the victims’
families, who desperately want, need, and deserve finality.” App. F. The Attorney General’s
cake-and-eat-it desires – to restore the public’s faith in the judiciary while castigating Mr. Hood’s
attorneys for not coming forward earlier with credible, compelling evidence of this furtive
relationship – raise serious questions about his commitment to justice in this case.
That the Attorney General would take the unprecedented and momentous action of filing
an amicus brief on behalf of a death row inmate days away from execution based solely on
“unsubstantiated” rumors beggars belief. But, of course, the Attorney General knew by the time
he wrote to the District Attorney that Mr. Hood’s allegations were no longer unsubstantiated: By
then, a lawyer in his office had been representing Judge Holland for ten days in the Rule 202
proceedings. Once the Attorney General confirmed the truth of the allegations, he had no choice
but to join Mr. Hood and withdraw from representing Judge Holland because of a conflict of
interest.
The Attorney General’s silence in the months since the CCA dispensed with Mr. Hood’s
law.’” Collin County DA John Roach Receives 2008 Lone Star Prosecutor Award (available athttp://www.collincountyda.com/press.htm (last visited on Dec. 8, 2009)).
34
claim is dismaying. Despite the Attorney General’s firm belief that “the allegations should be
explored before the sentence is carried out,” Jennings, Attorney General Defends Actions, supra,
he no longer professes any interest in the matter. On October 19, 2009, undersigned counsel
received the following voice mail message from the Solicitor General of the State of Texas:
The decision has been made that the earlier briefing that the Attorney General’sOffice filed speaks for itself and covers what this Office – the Attorney General’sOffice – would like to convey to the courts. So, there’s no plan to file anythingelse. Obviously, the filing that you’ve already seen [the Attorney General’sAmicus Brief of September 5, 2008] is a public document that can be used at anytime by anyone. So, good luck on your matter and take care.
One would have hoped that the Attorney General, after being presented with undisputed evidence
of the Holland-O’Connell affair, had in mind a more probing exploration of the claim than the
CCA’s two-sentence ruling.
Even before its inexplicable order of September 16, 2009, the CCA’s own motives were
called into question last year by its eleventh-hour interest in a Penry claim that it had soundly
rejected on three previous occasions. The CCA stayed Mr. Hood’s execution on September 9,
2008, “[b]ecause of developments in the law regarding nullification instructions.” Hood, AP-
75,370. The “developments in the law” to which the CCA referred were, of course, this Court’s
decisions in Abdul-Kabir v. Quarterman, 550 U.S. 233 (2007), Brewer v. Quarterman, 550 U.S.
286 (2007), and Smith v. Texas, 550 U.S. 297 (2007). This Court handed down all three of those
decisions on April 25, 2007, over a year before Mr. Hood came within minutes of being executed
on June 17, 2008. See Editorial, Rated “E” for Embarrassment, supra (“This latest action by the
Court of Criminal Appeals looks like an attempt to get this fiasco of justice out of the headlines
while holding a fig leaf up for one of its former members and the court itself.”). On June 17,
35
2008, after Judge Henderson unexpectedly withdrew the death warrant, the CCA denied the
District Attorney’s motion for leave to file a petition for writ of mandamus. However, instead of
issuing a one-sentence order, as is done in the vast majority of cases, the CCA addressed in dicta
the matter of the trial court’s authority – and handed the District Attorney a legal roadmap for
vacating Judge Henderson’s order. On his second attempt, the District Attorney succeeded in
obtaining a writ of mandamus. The CCA’s latest ruling is more disturbing yet: In the face of
undisputed evidence of the affair, the court issued a boilerplate decision. Moreover, the public
cannot help but question the fairness of the criminal justice system when eight of the nine current
members of the court reviewing Judge Holland’s conduct shared the bench with her. 17
The utter failure of the State of Texas to act in the wake of the confirmation of the17
Holland-O’Connell affair stands in marked contrast to the immediate and decisive steps taken bythe Pennsylvania Supreme Court and the state legislature following the recent revelation of thebiggest legal scandal in that state’s history. Earlier this year, two Pennsylvania state-court judgeswere accused of accepting more than $2.6 million in kickbacks in exchange for sendingthousands of juveniles to private detention centers. See generally Ian Urbina, Despite Red Flagsabout Judges, A Kickback Scheme Flourished, N.Y. Times (Mar. 27, 2009). The Supreme Courtof Pennsylvania, recognizing that the pending criminal charges “call[ed] into question thepropriety of juvenile adjudications and dispositions,” assumed plenary jurisdiction over thematter and appointed a special master to conduct a wide-ranging review of all juvenile casespotentially affected by the judges’ conduct. In re J.V.R., No. 81 MM 2008 (Feb. 11, 2009) at 1. A special master appointed by the Pennsylvania Supreme Court recommended extraordinaryrelief: that all adjudications of delinquency or consent decrees entered by the judge during theperiod in question be vacated and that many of those records be expunged. In adopting thoserecommendations, the Pennsylvania Supreme Court recognized that its order would apply even tojuveniles who were not committed to the juvenile detention facilities in question. The courtfound “that those cases are no less tainted” by the “‘pall’ that was cast over all juvenile matterspresided over” by the accused judge and that, “given the nature and extent of the taint, this Courtsimply cannot have confidence that any juvenile matter adjudicated by [the judge] during thisperiod was tried in a fair and impartial manner.” In re Expungement of Juvenile Records (Oct.29, 2009) at 6-7 (emphasis in original). The Pennsylvania Legislature likewise recognized thatexceptional action was necessary to restore public confidence in the integrity of the judicialsystem and created a special commission to investigate a range of juvenile justice issues broughtto light by the kickback scandal. Interbranch Commission on Juvenile Justice Act, 2009 Pa.Sess. Law 1648 (Aug. 7, 2009).
36
The State of Texas hopes that ignoring this cancer on the judiciary will cure it. The
District Attorney has lost sight of his duty to pursue justice, not a conviction. The Attorney
General has lost interest. The Texas courts have failed Mr. Hood. The federal courts appear
barred from reviewing the judicial bias claim in a successive petition. See 28 U.S.C. §
2244(b)(2)(B). Clemency in Texas is a farce. Only this Court is in a position to deliver justice to
Mr. Hood and restore public confidence in the integrity of the judiciary.
CONCLUSION
This Court should grant certiorari to ensure the CCA’s compliance with Caperton.
Without this Court’s intervention, the damage to the Texas criminal justice system will go
unrepaired. Because of the extreme, incredible, and undisputed facts of this case, the Court
should summarily reverse the decision of the CCA. In the alternative, the Court should grant
certiorari and schedule the case for briefing and oral argument.
Respectfully Submitted,
_____________________
Gregory W. Wiercioch* Kathryn M. KaseTexas Defender Service Texas Defender Service430 Jersey Street 1927 Blodgett StreetSan Francisco, California 94114 Houston, Texas 77004(TEL) 832-741-6203 (TEL) 713-222-7788(FAX) 512-477-2153 (FAX) 713-222-0260
* Counsel of Record, Member Supreme Court Bar
37
No.
IN THE SUPREME COURT OF THE UNITED STATES
October Term, 2009______________________________________
CHARLES DEAN HOOD,
Petitioner,
V.
THE STATE OF TEXAS,
Respondent.______________________________________________
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of Petitioner’s Petition for Writ of Certiorariwas served on Counsel for Respondent on this 15th day of December 2009, via First ClassUnited States Mail, addressed to:
Jeffrey GaronAssistant District AttorneyCollin County District Attorney’s Office2100 Bloomdale Road, Suite 20004McKinney, Texas 75071
__________________________