An Undisclosed, Widely-Known Conflict as a Matter of Life and Death

Undisclosed conflicts can cause a lot of problems, but rarely are they a matter of life and death. In Collin County, TX, north of Dallas, an undisclosed conflict could have been responsible for a man's death sentence (and, perhaps, many more sentences).

According to an article this week in the Plano Star-Courier, a district attorney and judge were having an affair, which they made an effort to keep hidden. During that time, the district attorney successfully obtained a conviction and death sentence against a man. The man's attorney heard of the affair, made some effort to find proof of it, but failed.

According to the dissent to an appellate decision effectively saying that there was no conflict sufficient to save the life of the convicted man, the district attorney denied they had had an affair, and the judge would not comment, even when the man was scheduled for execution many years later.

Three years later (2008), when the man was again about to be executed, an assistant district attorney filed an affidavit saying that he had heard of such an affair, that many people in the justice system were aware of it, but the he did not have direct knowledge of it.

Finally, last September, a court ordered the judge and district attorney to be deposed. They admitted to their affair under oath.

But the State is asserting that "the failure of the trial attorneys to file a motion to recuse before trial based upon the rumors" prevents the convicted man from now arguing that the affair existed. It's even saying that the assistant D.A.'s memory cannot be trusted after all these years, even though the judge and D.A. admitted to their affair.

What is horrifying to me is that any representative of the government could be anything but extremely ashamed and apologetic that its representatives had intentionally hidden and, in one case, falsely denied a serious conflict. Because the judge and D.A. did not responsibly deal with the conflict, the current government must go out of its way to deal with it responsibly. To bring up any technicality is to add insult to serious injury.

The fact that the judge in this case sat on a bench with eight of the nine appellate judges is another embarrassment for the government. In ordinary situations this may not be considered a conflict, but in this situation, where the court's and a colleague's integrity are at issue, this becomes a serious matter. The appellate judges may support their colleague, or go out of their way to make up for her conduct, but in either case they would be acting in their personal interest, out of their own emotions, not in the public interest. They should have insisted that the matter be considered by judges not involved with the judge in this case, even if it meant farming the appeal out to another state.

“No one would want to be prosecuted for a parking violation — let alone for capital murder — by a district attorney who is sleeping with the judge. Yet the Court of Criminal Appeals is unmoved,” said Greg Wiercioch, Texas Defender Service senior staff attorney. The Service is pursuing this matter for the convicted man, but no one should have to teach this lesson to public servants.

But this problem goes beyond just the judge and the D.A. According to the assistant D.A. who filed the affidavit (Goeller), as discussed in an article in The Atlantic, "What Goeller made clear—and what is perhaps the most remarkable aspect of this case—is the sheer number of people who have some knowledge of the personal relationship between Holland and O’Connell yet remain mute, even as a man is about to be put to death. Among them are numerous, prominent elected and appointed public officials, including members of the Collin County district attorney’s office, which has relentlessly pursued Hood’s execution, justices of the Collin County courts and, as Hood’s lawyers suggest in a pair of motions they filed today, members of the Court of Criminal Appeals (CCA)."

As in the case of the Pennyslvania judges who sentenced young people for the judges' financial benefit, there are too many people involved in the justice system who turn a blind eye to serious conflicts and other sorts of injustice. It is important that public servants be required to report conflicts of which they have knowledge or reason to believe. If this were true, the case would never have been allowed to go forward, and a fair trial would have taken place. These bystanders are responsible for the shameful trial that occurred.

Robert Wechsler
Director of Research-Retired, City Ethics

---