The Hood Case: Unsurprisingly Disturbing

Mr. Hood’s execution did not take place last night, but not because the Texas courts recognized the seriousness of Mr. Hood’s judicial ethics argument.  Rather, the prison had the legal authority to execute Mr. Hood only until midnight, and the legal skirmishes prevented the execution from taking place in time.

I wish I could say that I’m surprised that the Texas courts have failed to address Mr. Hood’s allegations that his judge secretly slept with the prosecutor during Mr. Hood’s trial.  But I can’t.

Our country’s criminal justice system regularly produces disturbing law, particularly in death penalty cases.  Consider that we have a line of cases that turns on how long a public defender can sleep through a trial before the proceedings are considered to be unconstitutional.  (You have to sleep through quite a bit.)  We have prosecutors frequently and willfully concealing exculpatory evidence from defense counsel, and we have a disciplinary system unwilling to punish prosecutors for doing so.  We have public defenders and, more disturbingly, capital defender systems that are so woefully underfunded (see here and here) that lawyers can’t even conduct a basic investigation into serious felony cases.  Judges will even jail public defenders if they aren’t ready to go to trial within hours of being assigned to handle a case.  And we have television reporters who question the motives of criminal defense attorneys for protecting a client’s confidences, but those reporters fail to question why prosecutors and juries would have convicted innocent men.

So as disturbing as it is to discover that Mr. Hood’s judge was sleeping with the prosecutor in Mr. Hood’s case and as disturbing as it is to discover that the Texas courts (and the Texas governor) have so far been unwilling to do anything about it, I can’t say that I’m surprised.  If you are, just dig a little deeper into the Wonderland of capital punishment and you’ll see just how deep this rabbit hole goes. 

Comments

[Patrick S. O'Donnell]

Some very helpful links: thanks! The last one is quite revealing. I happen to have a short list of books on capital punishment that I'll paste here should those new to this area of the law be interested in doing some basic reading or research.

The following list is limited to books (in English) and represents what I believe to be the best available work on this topic. (*The* web site for research on capital punishment is the Death Penalty Information Center:
http://www.deathpenaltyinfo.org)

*Acker, James R. et al., eds. America’s Experiment with Capital Punishment: Reflections on the Past, Present and Future of the Ultimate Penal Sanction. Durham, NC: Carolina Academic Press, 1998.
*Allen, Howard W. and Jerome C. Clubb. Race, Class, and the Death Penalty: Capital Punishment in American History. Albany, NY: State University of New York Press, 2008.
*Banner, Stuart. The Death Penalty: An American History. Cambridge, MA: Harvard University Press, 2002.
*Bedau, Hugo Adam. Death is Different: Studies in the Morality, Law, and Politics of Capital Punishment. Boston, MA: Northeastern University Press, 1987.
*Bedau, Hugo Adam, ed. The Death Penalty in America: Current Controversies. New York: Oxford University Press, 1997.
*Bedau, Hugo Adam and Paul G. Cassell, eds. Debating the Death Penalty: Should America have Capital Punishment? New York: Oxford University Press, 2004.
*Berger, Raoul. Death Penalties: The Supreme Court’s Obstacle Course. Cambridge, MA: Harvard University Press, 1982.
*Berns, Walter. For Capital Punishment: Crime and the Morality of the Death Penalty. New York: Basic Books, 1979.
*Bessler, John. Death in the Dark: Midnight Executions in America. Boston, MA: Northeastern University Press, 1997.
*Black, Charles L. Jr. Capital Punishment: The Inevitability of Caprice and Mistake. New York: W.W. Norton, 2nd ed., 1981.
*Brown, Edmund (Pat). Public Justice, Private Mercy: A Governor’s Education on Death Row. New York: Wiedenfeld and Nicholson, 1989.
*Brugger, E. Christian. Capital Punishment and Roman Catholic Moral Tradition. Notre Dame, IN: University of Notre Dame Press, 2003.
*Burnett, Cathleen. Justice Denied: Clemency Appeals in Death Penalty Cases. Boston, MA: Northeastern University Press, 2002.
*Cabana, Donald. Death at Midnight: The Confession of an Executioner. Boston, MA: Northeastern University Press, 1996.
*Carter, Dan T. Scottsboro: A Tragedy of the American South. Baton Rouge, LA: Louisiana State University Press, 2nd ed., 1979.
*Christianson, Scott. Condemned: Inside the Sing Sing Death House. New York: New York University Press, 2000.
*Costanzo, Mark. Just Revenge: Costs and Consequences of the Death Penalty. New York: St. Martin’s Press, 1997.
*Coyne, Randall and Lyn Entzeroth. Capital Punishment and the Judicial Process. Durham, NC: Carolina Academic Press, 3rd ed., 2006.
*Dicks, Shirley, ed. Congregation of the Condemned: Voices Against the Death Penalty. Buffalo, NY: Prometheus Books, 1991.
*Garvey, Stephen P. Beyond Repair?: America’s Death Penalty. Durham, NC: Duke University Press, 2002.
*Gattrell, V.A.C. The Hanging Tree: Execution and the English People, 1770-1868. Oxford, UK: Oxford University Press, 1994.
*Gorecki, Jan. Capital Punishment: Criminal Law and Social Evolution. New York: Columbia University Press, 1983.
*Hanks, Gardner C. Against the Death Penalty: Christian and Secular Arguments against Capital Punishment. Scottdale, PA: Herald Press, 1997.
*Hood, Roger G. The Death Penalty : A World-Wide Perspective. Oxford, UK : Clarendon Press, 2nd ed., 1996.
*Johnson, Robert. Death Work: A Study of the Modern Execution Process. New York: Wadsworth,1998.
*Koosed, Margery B., ed. Capital Punishment. 3 Vols. New York: Garland, 1996.
*Lesser, Wendy. Pictures at an Execution: An Inquiry into the Subject of Murder. Cambridge, MA: Harvard University Press, 1993.
*Lu, Hong and Terance D. Miethe. China’s Death Penalty: History, Law, and Contemporary Practices. New York: Routledge, 2007.
*Marquart, James W. The Rope, the Chair, and the Needle: Capital Punishment in Texas, 1923-1990. Austin, TX: University of Texas Press, 1994.
*Mello, Michael A. Against the Death Penalty: The Relentless Dissents of Justices Brennan and Marshall. Boston, MA: Northeastern University Press, 1996.
*Mello, Michael A. Dead Wrong: A Death Row Lawyer Speaks Out Against Capital Punishment. Madison, WI: University of Wisconsin Press, 1997.
*Mello, Michael. The Wrong Man: A True Story of Innocence on Death Row. Minneapolis, MN: University of Minnesota Press, 2001.
*Miller, Kent S. and Michael L. Radelet. Executing the Mentally Ill: The Criminal Justice System and the Case of Alvin Ford. Newbury Park, CA: Sage, 1993.
*Nakell, Barry. The Arbitrariness of the Death Penalty. Philadelphia, PA: Temple University Press, 1987.
*Nathanson, Stephen. An Eye for an Eye? The Immorality of Punishing by Death. Lanham, MD: Rowman & Littlefield, 2nd ed., 2001.
*Ogletree, Charles J., Jr. and Austin Sarat, eds. From Lynch Mobs to the Killing State: Race and the Death Penalty in America. New York: New York University Press, 2006.
*O’Shea, Kathleen A. Women and the Death Penalty in the United States, 1900-1998. Westport, CT: Praeger, 1999.
*Owens, Erik C., John D. Carlson, and Eric P. Elshtain, eds. Religion and the Death Penalty: A Call for Reckoning. Detroit, MI. Wm. B. Eerdmans, 2004.
*Peters, Rudolph. Crime and Punishment in Islamic Law: Theory and Practice from the Sixteenth to the Twenty-first Century. Cambridge, UK: Cambridge University Press, 2005.
*Prejean, Sister Helen. Dead Man Walking: An Eyewitness Account of the Death Penalty in the United States. New York: Random House, 1993.
*Radelet, Michael L., Hugo Adam Bedau and Constance E. Putnam. In Spite of Innocence: Erroneous Convictions in Capital Cases. Boston, MA: Northeastern University Press,
revised ed., 1994.
*Russell, Gregory D. The Death Penalty and Racial Bias: Overturning Supreme Court Assumptions. Westport, CT: Greenwood Press, 1993.
*Sarat, Austin. When the State Kills: Capital Punishment and the American Condition. Princeton, NJ: Princeton University Press, 2001.
*Sarat, Austin, ed. The Killing State: Capital Punishment in Law, Politics, and Culture. New York: Oxford University Press, 1999.
*Schabas, William A. The Death Penalty As Cruel Treatment and Torture: Capital Punishment Challenged in the World's Court. Boston, MA: Northeastern University Press, 1996.
*Schabas, William A. The Abolition of the Death Penalty in International Law. Cambridge, UK: Cambridge University Press, 3rd ed., 2002.
*Scheck, Barry, Peter Neufeld and Jim Dwyer. Actual Innocence: Five Days to Execution and Other Dispatches from the Wrongly Convicted. New York: Doubleday, 2000.
*Sorell, Tom. Moral Theory and Capital Punishment. Oxford, UK: Blackwell, 1987.
*Steelwater, Eliza. The Hangman’s Knot: Lynching, Legal Execution and America’s Struggle with the Death Penalty. Boulder, CO: Westview Press, 2003.
*Trombley, Stephen. The Execution Protocol: Inside America’s Capital Punishment Industry. New York: Crown, 1992.
*Turow, Scott. Ultimate Punishment: A Lawyer’s Reflections on Dealing with the Death Penalty. New York: Farrar, Straus, and Giroux, 2003.
*von Drehle, David. Among the Lowest of the Dead: The Culture of Death Row. New York: Random House, 1995.
*White, Welsh S. The Death Penalty in the Nineties: An Examination of the Modern System of Capital Punishment. Ann Arbor, MI: University of Michigan Press, 1991.
*White, Welsh S. Litigating in the Shadow of Death: Defense Attorneys in Capital Cases. Ann Arbor, MI: University of Michigan Press, 2005.
*Zimring, Franklin E. The Contradictions of American Capital Punishment. New York: Oxford University Press, 2003.
*Zimring, Franklin E. and Gordon Hawkins. Capital Punishment and the American Agenda. Cambridge, UK: Cambridge University Press, 1986.

[John Steele]

Andy,

What is the nature and the strength of the claim that the judge and prosecutor were romantically intimate during the trial? The idea we'd execute someone after such a trial is absolutely insane. And I wonder if he wouldn't be criminal for the judge and prosecutor to do that.

[Andrew Perlman]

John,

There is substantial evidence that the judge and prosecutor were sleeping with each other during that period of time. It was evidently widely known in some circles that they had a romantic relationship. Neither was married, but the romantic relationship was not disclosed to defense attorneys who were appearing opposite the prosecutor. And it was clearly not disclosed in this case.

I suppose it is possible (and I think this is the gist of your question) that the two of them refrained from having sex with each other while the trial was ongoing. But I don't think that would cure the problem. If the two of them were having an affair at around that time, it should have been disclosed, regardless of whether they were actually sleeping together at the end of each court day.

For their part, both the prosecutor and the judge have consistently refused to comment. One would think they would have every incentive to submit an affidavit saying that they had no such relationship at the time in question if that were in fact the case. Their silence is deafening.

Andy

[Alan Childress]

Let me add to what Andy is saying, with a little different stance. John asks a fair question as to whether the proof supports the rumors. Add to the innuendo the fact that the Judge who stopped the execution and recused himself had been an ADA in that DA's office back then -- and one might infer had heard the rumors or known something. But I don't like rumors or innuendo and don't quite subscribe to the smoke=fire thing or the silence-is-deafening idea. But.

The serious "but" here is that the attorneys last night were simply asking for a stay of execution and to notice a deposition to determine the facts in this case. That is all. As far as I know, no one has gotten the relevant parties under oath, or other courtroom or DA office witnesses, and asked the 64 million dollar question (Andy too young to get allusion).

That is all they wanted, against the juggernaut of a wanted execution that just HAD to be done last night after 18 years of waiting.

I have no problem with finding after subpoena power and discovery is used that there is nothing to this allegation. But if it turns out that the allegation is true, that's a serious miscarriage of justice for all the reasons Andy says. Imagine how you'd feel in your divorce case to find out that the Judge and your ex's attorney were sleeping together. Now multiple by a million because it's a death case. Let them have their discovery, please. Let the question be asked and witnesses talk.

To me, it is not as much about the defendant as all of us (though of course he has a gripe too). I am saying WE deserve a justice system better than this seems to be. Once we start thinking about getting our money's worth and holding the actors to the acceptable minimum standards for our sake, for decency, and not just as "defendants' rights," maybe it can be a political issue for left and right. If I were a fiscal conservative or a moral conservative, for example, I'd be pissed to find out that people I was paying were acting like this.

My 2 cents.

[Andrew Perlman]

Alan,

Thanks for the comment. You're right that the silence = guilt logic is typically very flimsy in the criminal context for a variety of reasons. For example, a criminal defendant might not want to take the stand, even if he is innocent, because he is worried about the impact that his lengthy criminal record might have on the jury. I'm not sure those kinds of reasons apply here, however. Why wouldn't the judge and prosecutor issue affidavits saying that they had not had an affair prior to or during the trial in question? Is there any reason for them not to do so (aside from the affidavit being false)? There may be one, but I can't think of it.

Putting that to one side, I am well aware that I am convicting the judge and the prosecutor without a full and fair hearing. The irony is that Texas has executed quite a full people on fair less evidence...

[Alan Childress]

Right, far less evidence and far more subpoena power and trial resources, expert witnesses, lighter case loads for that side's attorneys, well-dressed prosecution witnesses even if they are prisoners, police investigation in support ... the list is endless and simply unfair.

My point is that should be disappointing to everyone who pays fot the system to work, and also that the lawyers' filings yesterday asked modestly not to convict the actors or even assume they acted badly, but to stop the execution for a chance to depose witnesses to expose the truth. Since pro-prosecutor rhetoric is all about getting at the truth, and protecting the public from wrongful acts, I would say that everyone has a stake in finding out whether this particular case is the result of a biased process. We deserve to know that.

I hope you know my comment was not a criticism of you, Andy. I was trying to point out how little, in the larger scheme of things, these defense attorneys have been requesting lately: just to *find out* through lawful processes. And doesn't the public have a right to know?

Personally, I am far more interested in this alleged relationship while this trial and others were going on (and affecting them) than I am in the governor of New York's illegal sex actions on his own time and with his own money in less than 10k chunks. Yet the press just does not eat this case up the same way because it is about a death penalty case and they cannot see the value to all of us of fair process (if news, it is just about this likely murderer trying to get off, or more likely it is just not news). Yahoo!News' big story while I was trying to find out whether we were executing a guy who may have had this flawed a trial was: Is Miley Cyrus's dad a good dad?

[Andrew Perlman]

Alan,

All points well taken.

For what it's worth, I didn't take your comment as criticism, but it was certainly a fair and reasonable critique of my comment.

I agree completely about the disturbing lack of coverage of this story. But, again, it's not surprising...

Andy