The following is the substance of an opinion I am giving in the case of Charles Dean Hood, who is scheduled to be executed in Texas on Tuesday. (Citations appear in the attached copy.) If you are willing to sign onto the opinion, please email his lawyers as soon as possible at email@example.com, including a statement of your qualifications.
1. I have read the letter to Governor Rick Perry from Thomas Scott Smith, Esquire, dated June 12, 2008, relating to the case of Charles Dean Hood. For purposes of this Declaration, I assume the truth of the facts recited in that letter and of reasonable inferences from those facts.
2. The judge, Vera Sue Holland, who presided over Mr. Hood’s trial and sentenced him to death, had a romantic relationship with the prosecutor in the case, Tom O’Connell. The affair was carried on throughout the time of Mr. Hood’s trial and continued for about three years thereafter.
3. During the time of Mr. Hood’s trial, Mr. O’Connell was the elected District Attorney, with the likely expectation of seeking re-election or election to a higher office. Accordingly, Mr. O’Connell’s success or failure as the prosecutor in Mr. Hood’s case could have had considerable significance to the advancement of Mr. O’Connell’s career. Accordingly, Judge Vera Sue Holland had a personal interest on behalf of her lover, District Attorney O’Connell, in the conviction and death sentence of Mr. Hood.
4. Based on those facts, the impartiality of the judge who presided over Charles Dean Hood’s trial, and who sentenced him to death, is subject to reasonable question. Accordingly, there was a structural defect in the proceedings, rendering Mr. Hood’s trial and sentence invalid per se.
5. An impartial judge is an essential component of the American adversary system. If a judge’s impartiality is subject to reasonable question, there is a “structural defect” in the trial, meaning that vacation of the conviction is required without consideration of the harmless error doctrine. Indeed, because the right to an impartial tribunal is essential to fundamental fairness, it is one of those “extraordinary” rights that cannot be waived.
6. Not only must judges be neutral and detached in fact; they must avoid even reasonable suspicion of any possible interest or bias. As long ago as 1270, Henry of Bracton wrote:
“[L]et the suspect judge be removed and one who is not suspect substituted for him.... [I]t is a very fearful thing to litigate under a suspect justice and very often results in the saddest outcomes.
“But there is only one reason to recuse – suspicion, which arises from many causes....”
As that passage indicates, a principal method for ensuring that judges will be neutral and detached is to disqualify judges from cases in which their ability to be impartial might be reasonably questioned.
7. This centuries-old principal of Anglo-American jurisprudence is reflected in the American Bar Association’s Model Code of Judicial Conduct. Since 1972, twenty-eight years before Mr. Hood’s trial, the ABA’s Model Code has required a judge to recuse herself sua sponte whenever her impartiality “might reasonably be questioned.”
8. More important, the U.S. Supreme Court has held that the Due Process Clause of the Constitution requires that a judge “not only must be unbiased but also must avoid even the appearance of bias.”
9. For example, the U.S. Supreme Court reversed a conviction on the grounds of due process because a state judge had held a defendant guilty of contempt of a grand jury that had been presided over by the same judge. As noted by the dissent in that case, the state judge had had no pecuniary interest in the matter, nor had there been any contention that the judge had become embroiled in the matter, or that he had been biased in any way. Nevertheless, the U.S. Supreme Court reversed the conviction, holding that “to perform its high function in the best way, ‘justice must satisfy the appearance of justice.’”
10. Judge Vera Sue Holland’s personal interest in District Attorney Tom O’Connell’s conviction of Mr. Hood is an equal or greater violation of fundamental fairness than was the judge’s interest in the outcome in the grand jury contempt case described above. Thus, the structural defect in the trial and sentencing of Mr. Hood, rendered the proceedings against him invalid per se.