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June 17, 2008

Two states scheduled to execute today

Both Oklahoma and Texas have executions scheduled for today.  Though the scheduled Oklahoma execution is the first one for the state in nearly a year (details in this AP story), the Texas execution is making the most news because of an alleged affair between the prosecutor and judge involved in Charles Dean Hood's capital trial.  Writing here for CBS News in a critical piece headlined "Sex And Death In Texas," Andrew Cohen provides this update on the Hood case:

Barring last-minute court intervention, the state of Texas is prepared Tuesday evening to execute Charles Dean Hood, who was convicted and sentenced to death nearly two decades ago by a judge who allegedly was sleeping with the prosecutor during the trial.  If this jolts your conscience a bit — tell me, would you want to be a defendant in such circumstances? — consider the utter lack of curiosity and compassion with which the startling revelation has been met by the state courts in Texas.

The Texas Court of Criminals Appeals, in three separate rulings Monday (which it requested not be made public), declared on procedural grounds that “rumors” of an intra-court, intra-trial romance aren’t legally sufficient to warrant a 30-day reprieve from Hood’s execution in order to allow his lawyers to investigate the allegations.  The court ruled that because Hood’s investigator could not prove back in 1997 that there was an affair Hood now is barred from raising the issue today, on the eve of his execution. It also rejected Hood’s request for a delay because the wrong lawyer signed the appeal papers....

I have no idea whether Hood is guilty of his crimes or not — the odds say that he is.  For all I know there was plenty of good evidence against him and another judge might also have rendered decisions leading to Hood’s conviction.  But right now that is not the point.  Right now the point is to determine, before it is too late for Hood, whether the law in America — and not just in Texas — permits a capital conviction when such a potentially blatant conflict of interest exists....

With just a few hours to go before Hood’s execution, his attorneys told me Tuesday morning that they aren’t yet sure where they are next going to raise the “relationship” issue on appeal.  But surely, unless Gov. Rick Perry intercedes on Hood’s behalf, the whole matter, including other important appellate issues, will end up before the United States Supreme Court. And that means Justice Antonin Scalia, who initially handles appeals out of the 5th U.S. Circuit Court of Appeals — the jurisdiction in which the Hood case took place.

It will be fascinating to see whether and to what extent the righteous and religious justice handles this case.

June 17, 2008 at 12:35 PM | Permalink

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Tracked on Jun 17, 2008 5:49:21 PM

Comments

That piece is so over-the-top, it belongs on a lunatic left blog, not on the website of a major television network.

It's not just "the odds" that say that Hood is guilty, it's a jury verdict, that no doubt was tested at every level of appeal and habeas corpus. This kind of allegation, coming at the eleventh hour and fifty-ninth minute, seems like nothing more than a ploy to extend Hood's life for another month, or year, or however long it takes to complete the review. There is something to be said for the fact that for nearly twenty years since Hood's conviction, no evidence of any impropriety had come out. Yet with just a few days remaining, now the rumors should be lend enough credibility to postpone the execution? Come on.

Posted by: | Jun 17, 2008 1:01:29 PM

Looks like Dow may get burned again with his tactics of filing a last-minute appeal . . . .

Posted by: federalist | Jun 17, 2008 1:09:05 PM

Nothing more than a ploy? This June 3, 2008 affidavit from former A.D.A. Goeller says that isn't so -- http://alt.coxnewsweb.com/statesman/pdf/06/061208_goelleraffidavit.pdf

Posted by: Jeroen | Jun 17, 2008 2:07:51 PM

"It will be fascinating to see whether and to what extent the righteous and religious justice [Scalia] handles this case."

Mr. Cohen did not do his homework before he opined. If he had asked any of the reporters who regularly cover the Supreme Court, he would know that the individual justices invariably refer these motions to the full court.

Posted by: Kent Scheidegger | Jun 17, 2008 2:12:12 PM

Jeroen,

As you may be aware, affidavit is a sworn statement based on personal knowledge. This "affidavit" is, apparently, based on "common knowledge"--in other words, on hearsay. It seems therefore to be inadmissible.

Posted by: | Jun 17, 2008 2:21:54 PM

Why do these people always wait until execution day to file these things?

Posted by: anonymous | Jun 17, 2008 3:12:00 PM

Kent, The article was technically correct. Initially such stays are handled by the circuit justices. They are, as you say, usually referred to the whole court.

Jun 17, 2008 2:21:54 PM, Hearsay is usually not admissible in a jury trial. (And, in fact, there are many exceptions to the hearsay rule.) In other proceedings it comes in and is weighed for whatever weight the trier of fact chooses to give it. So, for example, at sentencing (in non-DP cases), hearsay will come in. Whether “common knowledge” is reliable is another story. Usually the government prefers the admission of hearsay that suits its needs.

I suppose is it less reliable than “personal knowledge” but seeing that many decisions are made on the basis of “common knowledge” I guess it is as reliable as any other assertion. In looking at the affidavit, I see that there is *some* specificity, but not that much.

Jun 17, 2008 1:01:29 PM, See, the point isn’t whether it “belongs” on the “loony”
left’s blogs or not, the point is that it IS on CBS’s blog. Maybe you should organize a boycott of CBS (and its advertisers) until they portray killing in a most positive light.

Posted by: S.cotus | Jun 17, 2008 3:31:42 PM

My opinion is that Mr. Hood almost certainly did the deed, but that the judge also almost certainly was having an affair with the prosecutor.

What's more, the judge is former member of the Court of Criminal Appeals, and has served personally with all the judges who just declined to examine her conduct on procedural grounds.

Whether or not they execute Hood, IMO both the judge and the DA should be disbarred for not disclosing that relationship to the defense.

Posted by: Gritsforbreakfast | Jun 17, 2008 3:41:15 PM

S.cotus, your latest post encapsulates why you are clever, but not very bright.

Kent did not say that Cohen was correct or incorrect. Rather Cohen puffed up the importance of the decision before Scalia as a Circuit Justice, and Kent was pointing out that Scalia's decision, as a Circuit Justice, almost certainly, is going to be ministerial.

"I suppose is it less reliable than 'personal knowledge,' but seeing that many decisions are made on the basis of 'common knowledge' I guess it is as reliable as any other assertion. In looking at the affidavit, I see that there is *some* specificity, but not that much."

Interesting observation. Might I introduce you to Rule 602, which, as you know, requires personal knowledge? What everyone is getting at, albeit in a shorthand manner (and I know that's tough on you--when you can only read the music, it's hard to catch the tune), is that the affidavit has to satisfy some threshhold before we are going to have judicial inquiries into the alleged relationship between prosecutor and judge. Given that the affidavit does not demonstrate that the putative witness has personal knowledge of the issue (i.e., whether there was a relationship between judge and prosecutor), then there really isn't any evidence, so the argument goes, to support a stay of execution and judicial inquiry into the allegations.

That's the longhand version. Hopefully, that penetrates your skull. If not, well, I can explain it to you--I cannot understand it for you.

Now, of course, that is not to say that there aren't arguments in favor of Hood. These would be a melding of "death is different" and "where there's smoke, we should look to see if there's a fire".

Strangely, people seem to get that. You, on the other hand, spout irrelevance like "Usually the government prefers the admission of hearsay that suits its needs." You might think such things clever or an example of deep thinking. They're not. They show you to be the same ol' S.cotus, a pseudo-intellectual twit who mistakes lame debating tactics with erudition.


Posted by: federalist | Jun 17, 2008 4:07:17 PM

"It's not just "the odds" that say that Hood is guilty, it's a jury verdict, that no doubt was tested at every level of appeal and habeas corpus."
When will you people accept that virtually all that is ever tested at every level of appeal is the adequacy of legal procedure - and even that is so one-sided in counseling error, that only the grossest of "mistakes" is ever acted upon - judges preferring to second-guess that the error would not have made any difference to the verdict of a jury. The question of guilt or innocence is mostly only ever testing if dna or some other factual issue of innocence is uncovered by a third party.
"Mr. Hood almost certainly did the deed"
And that just about sums up Texas justice with regard to the death penalty, and perhaps much else.

Posted by: peter | Jun 17, 2008 4:09:07 PM

Grits, so far the allegations appear to be just that, allegations. Certainly, you join me in agreeing that there has to be some sort of process before we start disbarring people.

Posted by: federalist | Jun 17, 2008 4:09:46 PM

Federalist, Rule 602 doesn’t apply in proceedings on habeas petitions. Therefore, the rest of your post is problematic.

Posted by: S.cotus | Jun 17, 2008 4:37:20 PM

"Hearsay" and "common knowledge" are somewhat more polite terms for "courthouse gossip."

If we are at the point that defendants can prevail 18 years after the "fact" on the basis of courthouse gossip that was going around when Jimmy Carter was president, then the concept of gaming the system has taken on new meaning.

Posted by: Bill Otis | Jun 17, 2008 5:04:25 PM

As for your comment about Rule 602, once again, you hear the music, but don't catch the tune. As the TCCA indicated when it punted this latest appeal, the affidavit was based on "rumors", i.e., a lack of personal knowledge. Additionally, if you read my post carefully, you'll note that I did not say that Rule 602 disposed of the case at all--I just said that requirement of personal knowledge appearing on the face of an affidavit which is proffered to support a stay and presumably further judicial inquiry should, so the argument goes, be enforced. What's so difficult about understanding that?

Once again, you show your ignorance. You wrote that personal knowledge was better than common knowledge. But what you didn't catch was that the argument was that anything below personal knowledge simply wasn't going to fly. Rule 602 is an example of that. The TCCA apparently thought the same way.

Do I really need to quote, yet again, your silly post about "selective incorporation"?

Posted by: federalist | Jun 17, 2008 5:21:19 PM

Federalist, Not quite sure about what you mean about selective incorporation. Not sure how it is relevant. So, I don't know what you are talking about. Maybe you should try relating your comments to the actual post.

Rule 602 simply does not apply to this affidavit. It has some application under FRCP 56, but this is not under FRCP 56.

"Personal knowledge" is more of a shorthand for a "type" of observation that people have and a certain level of specificity required. As Mr. Otis is arguing, a reference to some gossip might not be "personal knowledge" simply because we are not willing to accept that "having an affair" is specific enough to support the underlying accusation. At some level, I suppose that the declarant thought he knew that they were "romantically involved." But, as Mr. Otis points out, he probably just heard some gossip from someone, anyway. But what *would* be personal knowledge? Watching them have sex? I don't think that could prove that they were "romantically" linked. But, it could indicate that a trier of fact would accept that as enough evidence to draw the conclusion that they really liked each other. Unfortunately, R. 602 (again, while not applicable here) will never be what people think it is.

Mr. Otis, Perhaps you are correct. Maybe it is just gossip. I don't know. On the other hand, unless there is an affidavit from the actual parties to the affair, I am not sure how one could go about proving such an illicit affair. But, I do take your point about "common knowledge."

Whether someone is "gaming" the system is a matter of perspective. People will claim that when states rely on procedural defaults to kill poor people it is "gaming" the system. We have substance and procedure to decide who is right.

Posted by: S.cotus | Jun 17, 2008 5:46:42 PM

Did I say that Rule 602 applied to the affidavit? No. Of course, if I were writing the opinion for the dismissal of the appeal, I would say that it was based on rumors, and I would drop in a "cf. Tex. R. Evid. 602."

By the way, S.cotus, there are ways to prove an "affair" without catching people in flagrante delicto. There's probably even a Westlaw keycite for it.

Posted by: federalist | Jun 17, 2008 8:49:32 PM

Guys/girls, I don't know you but it appears y'all go way back and I have no intention to interfere in your debate about the finer points of FRE 602. But if it was all just baseless "courthouse gossip," why did the prosecutor or the judge not sign an affidavit denying the affair? Unless, of course, they feared that they would end up like Bill Clinton or the mayor of Detroit.

Posted by: Jeroen | Jun 17, 2008 9:57:56 PM

Jeroen:

"[W]hy did the prosecutor or the judge not sign an affidavit denying the affair?"

I don't know and neither do you. Maybe it's for the same reason that I would refuse to sign an affidavit stating that I've stopped beating my wife. But one way or another, the NON-EXISTENCE of an affidavit is hardly a grounds to overturn a jury's verdict.

"Unless, of course, they feared that they would end up like Bill Clinton or the mayor of Detroit."

It must be very tempting to wind up like Bill Clinton, a celebrity wherever he goes who knocks down $100,000 a speech in between golf games and......uh......you know.


Posted by: Bill Otis | Jun 17, 2008 11:40:08 PM

In some states “affairs” for purposes of domestic relations would need to be proven by catching people in the act. However, people need not actually do the deed to be having an affair for ethical purposes.

Anyway, now that the killing has been put on hold and there seems to be some limited discovery about the affair, I maybe people will be put under oath and start talking.

Posted by: S.cotus | Jun 17, 2008 11:44:25 PM

What possible claim of prejudice could the defendant have here? Assuming that the affair took place and that the judge was in fact biased, this bias would presumably show in her rulings in favor of the prosecution. If any of those rulings were legally incorrect as a result of her bias, that issue could have been litigated long ago on the current record of the case.

The fact that the trial judge may have been motivated to be wrong in favor of the prosecution doesn't change the fact that the incorrect rulings, if there are any, could have been litigated long ago.

Posted by: NewFedClerk | Jun 18, 2008 8:56:31 AM

Bill --

There is a declaration under oath from a former prosecutor and practicing lawyer -- with no apparent interest in the outcome or motivation to lie -- that one of his former colleagues in the D.A.'s office was known to be sleeping with a judge while prosecuting a capital case that she presided over. If it was all just gossip, it would have been very easy for the prosecutor to make this sworn declaration go away by introducing an affidavit swearing under oath that he did not have sex with that woman. Because the prosecutor and the judge are the ones who are most intimately aware of the salient facts (no pun intended), and because the prosecutor is still seeking to execute Hood, it was at least incumbent upon the prosecutor to dispel these allegations if it was critically important that the execution proceed immediately. Under these circumstances, the fact that they chose not to do so supports an inference that there may be truth to the sworn affidavit, so that the allegations of the affair must be looked into in more detail before the issue becomes moot due to the irreversible nature of the death penalty (which, thanks to the stay, will now happen). I am sure you agree that if it turns out that they were in fact having an affair during Hood's trial, this jury verdict cannot stand.

Posted by: Jeroen | Jun 18, 2008 9:34:36 AM

Why would the affair negate the verdict? I've never seen a court declare that a violation of the judicial canon (avoiding the appearance of impropriety) amounts to structural error, so Hood would still need to show prejudice.

Posted by: NewFedClerk | Jun 18, 2008 9:43:26 AM

"...and because the prosecutor is still seeking to execute Hood..."

Jeroen, please cite the source of your information that this same prosecutor is still in the office and is the one seeking to have this execution carried out.

On my earlier point about Cohen not doing his homework, as predicted: "The application for stay of execution of sentence of death presented to Justice Scalia and by him referred to the Court is denied."

Posted by: Kent Scheidegger | Jun 18, 2008 10:32:17 AM

"'Personal knowledge' is more of a shorthand for a "type" of observation that people have and a certain level of specificity required. As Mr. Otis is arguing, a reference to some gossip might not be "personal knowledge" simply because we are not willing to accept that "having an affair" is specific enough to support the underlying accusation. At some level, I suppose that the declarant thought he knew that they were "romantically involved." But, as Mr. Otis points out, he probably just heard some gossip from someone, anyway. But what *would* be personal knowledge? Watching them have sex? I don't think that could prove that they were "romantically" linked. But, it could indicate that a trier of fact would accept that as enough evidence to draw the conclusion that they really liked each other. Unfortunately, R. 602 (again, while not applicable here) will never be what people think it is."

S.cotus, it really is a chore to read your posts. As near as I can tell, what you're getting at here is the intersection between opinions and facts--for example, how does a lay witness testify that a person was "happy". But that's absolutely not what's at issue here. What is at issue is whether an affiant's statement of what was "common knowledge" satisfies a condition to a stay and further inquiry. Additionally, your forays into proving an affair etc. are simply beside the point.

Posted by: federalist | Jun 18, 2008 11:01:12 AM

Kent --

According to the Dallas News the prosecutor apparently left the D.A.'s office in 2002. The same article (http://www.dallasnews.com/sharedcontent/dws/news/localnews/stories/DN-hood_13met.ART.South.Edition1.4664cec.html)
suggests that the judge retired from the bench in 2001.

I concede this makes their individual obligation to provide an affidavit less acute. However, it did not affect the obligation of the prosecutor's office to respond to Goeller's sworn affidavit. The quickest and most compelling way to do so would have been to request an affidavit from the prosecutor or the judge denying the affair. The fact that no such affidavit (or apparently any other proof) was provided in combination with the severity of the allegations and the irreversible nature of the death penalty still supports the need for an inquiry and the current stay.

Posted by: Jeroen | Jun 18, 2008 11:02:46 AM

Jeroen--I think that the issue is that we don't usually subject people to subpoenas based on an affidavit reciting "common knowledge" with no personal knowledge of the affiant. The problem is the sufficiency of the showing. You can certainly criticize that, but I don't think you can deny the problems with allowing intrusive and coercive inquiries into people's lives on the basis of little more than a rumor.

Posted by: federalist | Jun 18, 2008 11:09:13 AM

Jeroen:

Two points. First, what is common "knowledge" often turns out to be baloney. Example: It's common "knowledge" that blacks are not as smart as whites.

Millions of people believed this (and for all I know, some STILL believe it). Should we therefore ask the black jurors to submit affidavits attesting that they're as smart as the white ones?

Of course if there a a particularized factual basis that a given juror (black or white) was too dull to understand the proceedings, that's one thing. But just to demand additional inquiry after 18 years, based on what a non-involved party now characterizes as "common knowledge," is a prime example of throwing it up against the wall to see if anything sticks.

Second, what's the answer to NewFedClerk? He points out that the relationship, if any, might have a bad aroma (to say the least), but aromas are not legal error. The question is whether, on account of this alleged relationship (or for any other reason), the defendant suffered an erroneous and non-harmeless ruling. If he did, that should have been raised on appeal years ago (and for all I know it was). If he didn't, why should the result of a trial without prejudicial error be discarded at this stage because of the moral deficiencies of the prosecutor and/or judge?

The bench is populated by people of varying ability and temperament. A few of them are outright dopes. But you don't get an adverse verdict overturned because the judge is a dim bulb. You get it overturned only if, as a RESULT of his being a dim bulb, you lost a ruling about something important that you should have won. As NewFedClerk correctly notes, no one needs an affidavit to decide that question. What you need is the trial transscript. And that's been available for years, starting, I would think, with the direct appeal.

Posted by: Bill Otis | Jun 18, 2008 3:35:42 PM

Would this structural error be cognizable in a successive habeas petition? I don't think so.

Posted by: federalist | Jun 18, 2008 4:21:35 PM

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