What’s More Compromising Than Money?

New York Times
Tuesday, April 27, 2010

The Supreme Court abdicated its responsibility to address fundamental questions of ethics and fairness when it declined to review the case of Charles Dean Hood, an inmate on death row in Texas.

The one-line order, issued without comment from any of the justices, left in place an egregiously tainted 1990 double-murder conviction. Eighteen years after Mr. Hood was sentenced to death, the state trial judge, Verla Sue Holland, and Tom O’Connell, then the Collin County district attorney, admitted that they had had a secret affair that appears to have ended not long before the trial.

After considering these seamy circumstances, the Texas Court of Criminal Appeals last year denied Mr. Hood’s request for a new trial, ruling — incredibly — that he took too long to raise the conflict of interest and should be executed. Yet it took a court-issued subpoena to get the two officials to confirm their long-rumored affair. Their success in hiding their relationship should not count against Mr. Hood.

In a separate appeal, Mr. Hood was granted a new punishment trial on grounds that jurors were not allowed to properly consider mitigating evidence that might have persuaded them that he didn’t deserve a death sentence. The ruling made no mention of their entanglement. That trial is pending.

Judge Holland’s failure to recuse herself violates the most basic, and obvious, principles of judicial ethics and due process. The Supreme Court should have grabbed the case to say so and order a new trial for Mr. Hood. That was the course urged by 21 former judges and prosecutors and 30 experts on legal ethics who supported Mr. Hood’s petition to the Supreme Court.

The Supreme Court correctly ruled last year that millions of dollars in campaign spending on behalf of a judge’s election bid created an intolerable “probability of actual bias.” The court decided that Chief Justice Brent Benjamin, of the West Virginia Supreme Court of Appeals, was required to recuse himself from a case involving Massey Energy, one of the country’s biggest coal companies, after Massey’s chief executive spent $3 million to help get Justice Benjamin elected.

The right to a fair hearing, before an impartial judge, is at the heart of the nation’s judicial system. If money raises a serious question about that impartiality, love seems to be at least as worrisome. The Supreme Court, sadly, failed in its duty to clearly draw that line.