When the U.S. Supreme Court denied Charles Dean Hood's appeal last week, it was done in a one-sentence, unsigned order. Hood is a Texas death-row inmate who was convicted of murdering two people in 1990. Long after the conclusion of the trial it became clear that his trial judge and prosecutor had been secretly involved in a years-long extramarital affair. Because they were both married they denied the affair, even to Hood's death-penalty lawyers. After the clandestine relationship finally came to light, the Texas Court of Criminal Appeals rejected Hood's challenge in two curt sentences last September, finding that his lawyers had waited too long to raise the issue on appeal. How Hood was to have raised the conflict of interest when the existence of the affair was not conclusively established until 2008, when the judge and prosecutor were forced to admit it under oath, is not explained.
Hood has already been granted a new sentencing hearing because the Texas appeals court has acknowledged that the jury instructions were improper, but prosecutors say they will again seek the death penalty. In any event, resentencing Hood doesn't resolve the fundamental problem with the case. The issue here is whether any reasonable person would believe that a criminal trial at which one's prosecutor and judge are secretly in love could ever be fair. And that's the issue the courts keep refusing to address.
Last year the Supreme Court handed down a blockbuster opinion in Caperton v. Massey, a case testing whether a justice on West Virginia's highest court should have recused himself from hearing an appeal in which one of the parties—Don Blankenship of A.T. Massey Coal Co.—had just donated $3 million to his judicial election campaign. Writing for a sharply divided 5–4 court, Justice Anthony Kennedy called the appearance of a conflict of interest in this case so "extreme" that the judge's failure to recuse himself undermined the constitutional right to due process. The Hood appeal to the Supreme Court essentially asked whether a judge might be as compromised by great sex as by big money. In his filings, Hood argued that the trial judge's "long-term, intimate sexual relationship and later close friendship with [the prosecutor] attuned her to his professional and personal interests and made those interests her own." Hood said that unlike the Caperton case, in which Blankenship's financial support of the judge was a matter of public knowledge, the Texas judge was more compromised because she kept her relationship a secret.
If the facts of the Caperton case were sufficiently shocking to become a John Grisham novel, the facts of Hood's trial would make a sizzling movie for Lifetime. You don't even have to take a position on Hood's guilt, innocence, or the efficacy of the death penalty to recognize that when a judge and prosecutor are secret paramours, the integrity of the whole judicial system suffers. Texas law requires a judge's recusal whenever "his impartiality might reasonably be questioned" or if "he has a personal bias or prejudice concerning the subject matter or a party." The test here isn't whether the judge thinks she's biased (although Hood's judge later admitted she should have recused herself). It's a constitutional "ick" test: how bad does the conflict of interest look?
The facts of Hood's case look very bad. That's why his appeal to the Supreme Court was supported by 30 top legal ethicists and an array of high-profile judges and prosecutors, including former FBI director William Sessions and Texas's former governor and attorney general Mark White, who supports capital punishment.
In his compelling new book, The Autobiography of an Execution, Texas death-penalty lawyer David Dow condemns a system of capital punishment built on evading responsibility at every stage of litigation: Jurors duck behind other jurors. Judges take refuge behind jury verdicts. The appeals courts wordlessly affirm the trial judge. Then the Supreme Court hangs out a sign that says GONE FISHIN'. Since everyone is fairly certain the accused probably killed someone, the fact that along the line an injustice may have occurred just doesn't matter. But if you believe that a one-sentence disposition of his case is more justice than a Charles Hood deserves, you're still asking the wrong question. Hood may be sentenced to die in a justice system where outrageous judicial bias merits only a sentence. The rest of us have to go on living in it.