If the judge used to sleep with the prosecutor...

Discuss whatever you want here ... movies, books, recipes, politics, beer, wine, TV ... everything except classical music.

Moderators: Lance, Corlyss_D

Post Reply
Posts: 6723
Joined: Tue Jul 11, 2006 9:41 pm
Location: Minnesnowta

If the judge used to sleep with the prosecutor...

Post by living_stradivarius » Wed Feb 24, 2010 7:24 am

If the judge used to sleep with the prosecutor, is recusal required?
by David Lat

Abovethelaw blog

We previously named Verna Sue Holland, a retired judge from Texas, an Ex-Judge of the Day. Now the ex-judge -- or should that be "sex judge" -- is back in the news.

Writes Adam Liptak, in the New York Times:

Charles Dean Hood was sentenced to death in 1990 by a Texas judge who had been sleeping with the prosecutor in his case. It took Mr. Hood almost 20 years to establish that fact.
But he finally managed to force the two officials to testify about their rumored affair in the fall of 2008. They admitted it.

Sounds like a conflict of interest that would justify overturning the conviction, right?

Not so fast. Not in Texas.

Texas's highest court for criminal matters, its Court of Criminal Appeals, considered all of this and concluded that Mr. Hood should be executed anyway. In a 6-to-3 decision in September, the court told Mr. Hood that he had taken too long to raise the issue of whether a love affair between a judge and a prosecutor amounted to a conflict of interest.
Mr. Hood has asked the United States Supreme Court to hear his case. On Thursday, 21 former judges and prosecutors filed a brief supporting him. So did 30 experts in legal ethics.

Question presented: whether a conflict of interest arising out of an affair between a judge and a prosecutor is vitiated if the affair was lousy.

"Affair" may be a generous characterization of the relationship. Because this was, to quote one judge who heard the appeal, "hardly the torrid relationship of romance novels":

The affair itself, as described in the depositions of the two former lovers, sounded tawdry and sad.
Judge Verla Sue Holland, who presided over Mr. Hood's case in a district court in Collin County, Tex., testified that she and the prosecutor, Thomas S. O'Connell Jr., had had sex at each other's homes when their spouses were away. This happened, she said, seven or eight times.

Mr. O'Connell did not seem especially romantic. Judge Holland testified that he once gave her a picture of a polar bear with a matching cup. Another time he gave her a chafing dish.

Come on baby light my... Sterno can? Giving your lover a chafing dish sends a strange message. "Your body is a wonderland... hot buffet?"

(If he had given her a chocolate penis instead of a chafing dish, maybe the Texas court would have tossed out the conviction.)

Perhaps the relationship isn't grounds for overturning the conviction because, if anything, it made Judge Holland biased against the prosecution. It sounds like prosecutor Thomas O'Connell was an inconsiderate lover:

He never stayed the night. "I had a truck that everybody recognized," Mr. O'Connell explained.
And he might have been more sympathetic when Judge Holland's mother died.

"Tom didn't send a card," the judge testified. "He didn't send flowers. He didn't come by. He didn't call. You know, I think that's pretty callous."

We feel bad for Judge Holland. But, at the same time, it sounds like she may have mistaken a "f**k buddy" relationship for a true "love affair." What was Judge Holland expecting -- whore flowers, delivered to chambers?

And flowers and phone calls might have blown the lovers' cover, since Judge Holland kept this relationship firmly underneath her robe:

Whatever the precise contours and intensity of the affair, Judge Holland did testify that she would have disqualified herself from Mr. Hood's case had his lawyers asked. But she also said she and Mr. O'Connell had kept their extramarital affair secret. She said it ended in 1987, three years before Mr. Hood's trial.
She would have stepped aside if asked -- but how were Hood's lawyers to have known about the relationship? Practice pointer for Texas defense lawyers: file a protective Motion to Recuse in Case the Judge Used to Sleep with the Prosecutor, in all of your pending cases.

In her deposition, Judge Holland said she had lately become angry with Mr. Hood's lawyers for "annihilating my reputation." She said she had asked the attorney general's office to represent her in Mr. Hood's challenge to her conduct because she thought she needed to fight back. She was "tired of laying over," she said, and "getting licked without any input."
Actually, it sounds like Judge Holland quite enjoyed "laying over" and "getting licked." So it seems rather untimely for her to be worrying about her "reputation."

In all seriousness, this case isn't completely clear-cut. The sexual relationship ended some three years before the trial, and it seems like O'Connell was a piss-poor paramour anyway. Was Judge Holland somehow obligated to mention, sua sponte, that the prosecutor used to pay nocturnal visits to her "in chambers" -- bedchambers, that is -- years ago?

Should there perhaps be a "statute of limitations" on sexual relationships between litigation participants and the presiding judge as grounds for disqualification? What if the judge and a litigant had hooked up back in college -- would that be enough to disqualify?

And what precise level of physical intimacy would trigger recusal? As we once wondered: "If the Court Has Gone Down on You, Is Recusal Required?"

We hope the Supreme Court grants certiorari. It would be interesting to watch the justices tackle these thorny questions.

Dittersdorf Specialist & CMG NY Host
Posts: 20996
Joined: Fri Mar 25, 2005 6:54 am
Location: Paradise on Earth, New York, NY

Re: If the judge used to sleep with the prosecutor...

Post by Ralph » Wed Feb 24, 2010 10:19 am

Of course the judge should have recused herself. I couldn't care less about the mutual acts of adultery. The relationship between the judge and the prosecutor creates the likelihood if not the certainty of unfairness to the defense in terms of rulings on motions.

"Only two things are infinite, the universe and human stupidity, and I'm not sure about the former."

Albert Einstein

Posts: 3384
Joined: Mon May 30, 2005 7:05 am
Location: Northern California

Re: If the judge used to sleep with the prosecutor...

Post by DavidRoss » Wed Feb 24, 2010 10:39 am

Ralph wrote:Of course the judge should have recused herself. I couldn't care less about the mutual acts of adultery. The relationship between the judge and the prosecutor creates the likelihood if not the certainty of unfairness to the defense in terms of rulings on motions.
Or unfairness to the prosecution, depending. :wink:
"Most men, including those at ease with problems of the greatest complexity, can seldom accept even the simplest and most obvious truth if it would oblige them to admit the falsity of conclusions which they have delighted in explaining to colleagues, which they have proudly taught to others, and which they have woven, thread by thread, into the fabric of their lives." ~Leo Tolstoy

"It is the highest form of self-respect to admit our errors and mistakes and make amends for them. To make a mistake is only an error in judgment, but to adhere to it when it is discovered shows infirmity of character." ~Dale Turner

"Anyone who doesn't take truth seriously in small matters cannot be trusted in large ones either." ~Albert Einstein
"Truth is incontrovertible; malice may attack it and ignorance may deride it; but, in the end, there it is." ~Winston Churchill


Posts: 3552
Joined: Wed Apr 27, 2005 2:56 am

Re: If the judge used to sleep with the prosecutor...

Post by Madame » Wed Feb 24, 2010 1:21 pm

Where is the line where a judge/prosecutor relationship crosses into conflict of interest? In a golf foursome? As neighbors? Hunting buddies? There is the appearance of independence, and then there is the reality. And then there is the case itself ... if the preponderance of evidence supports the decision, is justice served by trumping it with something else?

Post Reply

Who is online

Users browsing this forum: No registered users and 17 guests