The lawyer for a death row inmate says he is trying to break a "conspiracy of silence" in Texas over whether the district attorney and the judge who presided over his client's 1990 capital murder trial were having a secret romantic relationship.
The inmate, Charles Dean Hood, is scheduled to be executed on Wednesday.
A Texas judge has ordered a hearing into the issue on Monday morning. The judge has also ordered the former judge and former district attorney to be prepared to answer questions under oath about their alleged affair and potentially surrender any documentary evidence of a relationship.
The unusual twists and turns in the Hood case are attracting national attention and adding fuel to an already-heated debate over capital punishment in Texas.
Mr. Hood's lawyer, Gregory Wiercioch, has been trying for months to persuade the Texas judiciary to investigate the alleged secret relationship. He says former Judge Verla Sue Holland and former Collin County District Attorney Thomas O'Connell may believe that their private relationship did not taint Hood's trial. But, he says, it should not be up to a judge and prosecutor to secretly decide such an issue -- particularly when the defendant was on trial for his life.
"No attorney knowing [of this relationship] would have allowed her to stay on and preside over this trial," Mr. Wiercioch says. "I wouldn't want her presiding over a parking ticket, let alone a capital murder trial."
The lawyer says others in Collin County, north of Dallas, were aware of the affair but did nothing. "There was this sense that we are going to keep it secret, and whoever their friends were that socialized with them -- and knew of the relationship -- those people kept it secret as part of a conspiracy of silence," Wiercioch says.
Fairness of other trials at stake, too
The allegation has been swirling in Texas legal circles for years, but no formal investigation has been undertaken. Judge Holland and Mr. O'Connell, both now retired, have declined to discuss the issue.
"It is a matter of Texas courts turning an absolute blind eye to a situation that is in plain sight," says Steve Hall, director of the Standdown Texas Project, a criminal justice reform group. "Legal ethicists have been outraged by the facts. This should not even be a close call."
If true, the secret affair would violate ethics regulations governing both judges and prosecutors, legal experts say. In addition, these experts say, it would raise questions not only about the fairness of Hood's murder trial but also of the fairness of every criminal case charged by O'Connell's office and tried before Judge Holland during their alleged affair.
According to an affidavit by a former assistant district attorney in O'Connell's office, the Holland-O'Connell relationship began prior to 1987 and lasted until 1993. Hood was convicted and sentenced to death in September 1990 for the shooting deaths of a man and woman in Plano, Texas, in 1989.
The former assistant, Matthew Goeller, says in the affidavit: "It was common knowledge in the district attorney's office, and the Collin County Bar, in general, that the district attorney, Mr. Tom O'Connell, and the presiding judge of the 296th District Court, Judge Verla Sue Holland, had a romantic relationship." Mr. Goeller is a past president of the county bar association and of the county's criminal defense lawyers association. He worked in the district attorney's office from 1987 to 1996.
One court rejected the complaint
Holland isn't some back-county judge. From 1997 to 2001, she served on the Texas Court of Criminal Appeals, the state's supreme court for criminal matters.
When Wiercioch brought the Holland-O'Connell affair issue to the attention of that court in June, the judges voted 9 to 0 to toss the complaint out as an abuse of the writ of habeas corpus. The judges said Hood's lawyers should have raised the matter in an appeal filed in 1999. The judges also voted unanimously to allow Hood's scheduled execution to go forward on June 17. The death warrant, however, expired and the execution was postponed until Sept. 10.
There is no indication in the court's opinions that the case involved potentially serious allegations against a former colleague. Holland had served with eight of the nine judges currently on the court. The opinions are marked "Do not publish."
The Holland-O'Connell affair allegations arose again in recent weeks after a Texas judge granted Wiercioch's request for a hearing. But that judge, Robert Dry, set the hearing date for Sept. 12 -- two days after Hood's scheduled execution. In a letter to Wiercioch, Judge Dry told the lawyer he had waited too long to raise the issue. He concluded his letter with a disclosure: "I know Judge Holland and Tom O'Connell. It is likely that every local judge knows them. If you are concerned about this, I will consider a motion to recuse."
Dry later removed himself from the case.
The new judge, Greg Brewer, ordered the Monday hearing. At the hearing, the judge will consider whether to order Holland and O'Connell to answer Wiercioch's questions about the alleged affair.
A group of 500 former judges and prosecutors wrote Sept. 2 to Texas Gov. Rick Perry urging him to grant a 30-day reprieve to allow an investigation into the alleged affair.
"If Mr. Hood's claim is proven, we believe that his right to an impartial judge and a fair trial was violated and his conviction and sentence were unconstitutionally obtained," the group writes. "Under the United States and Texas constitutions, the right to an unbiased judge is fundamental to due process."
The group includes William Sessions, former FBI director and a former federal judge and U.S. attorney in Texas; John Gibbons, former third circuit federal appeals court chief judge; and Patricia Wald, former Washington, D.C., appeals court judge. "No court has addressed the merits of Mr. Hood's allegations or permitted discovery of the facts," they wrote.
Two days later, Texas Attorney General Greg Abbott announced that his office would be filing a friend-of-the-court brief to urge the judge to "fully review" the affair allegations.
The U.S. Supreme Court has put an exclamation point on a 1986 precedent that bars racial discrimination in jury selection.
The justices did it in a 7-to-2 ruling announced on Wednesday, reversing the capital murder conviction of a black Louisiana death-row inmate.
Allen Snyder won the right to a new trial because the prosecutor in his 1996 murder case improperly excluded at least one African-American from the jury.
The case has been closely followed after reports that the state prosecutor, James Williams, excluded all five prospective African-American jurors from serving on the panel and then compared the defendant to O.J. Simpson during closing arguments. Analysts said it was an attempt to enrage the all-white jury and provoke a death sentence for a black defendant.
Writing the majority opinion, Justice Samuel Alito did not mention the O.J. Simpson episode. Instead, he focused on the plight of one prospective black juror, Jeffrey Brooks, who was excluded from the panel.
Justice Alito said the prosecutor told the trial judge that he'd excluded Mr. Brooks from the jury because he looked nervous and because as a student-teacher with only one semester until college graduation he might feel an urgency to rush through jury deliberations to get back to school.
The trial judge accepted the explanations and brushed aside allegations by Snyder's lawyer that race was playing an illegal role in the trial.
On Wednesday, the Supreme Court said that action by the trial judge was a "clear error."
Alito said the first justification for excluding Brooks does not appear to have been relied on by the trial judge. But he added that the second justification was "suspicious." Alito writes: "The prosecutor's proffer of this pretextual explanation naturally gives rise to an inference of discriminatory intent."
Despite the prosecutor's announced concern about Brooks and his busy schedule at school, prospective white jurors who were facing significantly more acute scheduling problems were not subject to the same questioning, Alito said.
In a dissent, Justices Clarence Thomas and Antonin Scalia said that the evaluation of a prosecutor's motives in assembling a jury is a credibility judgment that best belongs to the trial judge who is present and can witness events as they unfold. Appeals court judges should be reluctant to second-guess those judgments years later.
Justice Thomas said there is no evidence that the trial judge committed clear error. In addition, he said the majority justices should not have relied on a comparison between the treatment of black prospective jurors and white prospective jurors because that comparison was not presented as an argument until the case reached the U.S. Supreme Court.
"We have no business overturning a conviction, years after the fact and after extensive intervening litigation, based on arguments not presented to the courts below," Thomas wrote in the dissent.
The case, Snyder v. Louisiana, was being closely watched to see if the high court might use it as an opportunity to show how judges should go about properly policing the issue of racial bias in jury selection.
Details of the case
Allen Snyder was convicted in Jefferson Parish, La., of attacking his estranged wife and a man she was dating. The man, Howard Wilson, was killed in the 1995 knife attack.
The prosecutor in the case, Mr. Williams, compared the Snyder case both before and during the trial to the O.J. Simpson case. The retired football star was accused of stalking and killing his estranged wife and a male companion with a knife. Simpson's acquittal in 1995 triggered starkly different reactions among African-Americans and whites. Many African-Americans celebrated the Simpson acquittal, while many whites believed Simpson got away with murder.
In his appeal to the Supreme Court, Mr. Snyder's lawyer said the prosecutor intentionally excluded all five prospective black jurors to create a whites-only panel. That action set the stage for the prosecutor's inflammatory reference to O.J. Simpson during closing arguments, he said.
The Jefferson Parish District Attorney's Office has defended the prosecutor's conduct and the quality of the trial, saying race played no role in jury selection or in the O.J. Simpson comments. The Louisiana Supreme Court twice upheld Snyder's capital murder conviction.
A Kentucky case set precedent
In 1986, the U.S. Supreme Court ruled in the case of Batson v. Kentucky that race cannot be a factor in excluding someone from jury service. But the jury selection process includes allowing competing lawyers the ability to exclude a certain number of jurors without having to offer any justification. That means it is difficult -- and in some cases, impossible -- for trial judges to identify whether race or some legitimate factor was behind a decision to exclude someone.
If an allegation is made that race was a factor in jury selection, judges are required to seek an explanation from the accused counsel.
In Snyder's case the trial judge accepted the prosecutor's explanations and Louisiana appeals courts allowed those judgments to stand.
The U.S. Supreme Court action marks the second time the Snyder case is being remanded to the Louisiana courts. In effect, the justices are telling Louisiana judges that they must be more vigilant to ensure that race plays no role in the administration of justice.
There is no question of Snyder's guilt. His lawyer concedes that Snyder is clearly responsible for Mr. Wilson's death.
But the lawyer has said he seeks a new trial because a new jury, more representative of the entire community in Jefferson Parish, might find Snyder guilty of a lesser offense than capital murder. And even if they convict Snyder again of capital murder, he says, a different jury might opt for life in prison rather than death.
It took less than two days for a federal jury in August to return guilty verdicts against suspected Al Qaeda operative Jose Padilla and two codefendants in their Miami terror conspiracy trial.
But five months later, prosecutors and defense lawyers are still slugging it out over the extent to which the three men broke the law.
In a sentencing hearing now expected to stretch into a second week, US District Judge Marcia Cooke is officiating over an emotional courtroom drama unfolding between federal prosecutors determined to send the three men to prison for the rest of their lives and defense lawyers who say the government is hyping the conduct of the three beyond what has been proved.
In most criminal cases, once a defendant is convicted, meting out an appropriate punishment is a routine event. But there is nothing routine about the legal odyssey of Mr. Padilla, and codefendants Adham Hassoun and Kifah Jayyousi.
Padilla spent 3-1/2 years in military custody and was subjected to harsh interrogation tactics after being designated an enemy combatant by President Bush. The military detention was an intelligence-gathering operation aimed at breaking Padilla psychologically to force a confession while blocking access to the courts or a lawyer. When court rulings began to turn against the administration, Padilla was moved into the criminal-justice system and placed on trial in Miami.
Federal agents had Mr. Hassoun and Mr. Jayyousi under surveillance for more than a decade before the government decided to turn its intelligence-gathering operation into a criminal prosecution.
To make their case, prosecutors relied on a broad reading of conspiracy laws. The three men were accused of being members of a North American support cell providing money, equipment, and recruits to militant groups overseas waging what the prosecutors say was "violent jihad." Specifically the three men were charged with conspiring to murder, kidnap, and maim people overseas, conspiring to provide material support for terrorists, and providing material support to terrorists.
No evidence was presented at the trial linking the three men to an actual terrorist plot to conduct a specific bombing or other attack that might result in murder, maiming, or kidnapping. Instead, prosecutors presented a series of secretly recorded telephone calls that they said proved the three men had the necessary intent to help militant groups overseas wage violent jihad. They portrayed Hassoun as a recruiter in the cell, Jayyousi as providing money and logistics, and Padilla as the "star recruit."
Prosecutors presented a "mujahideen data form" that they say Padilla completed prior to attending an Al Qaeda training camp in Afghanistan. And they played the jury a tape of a CNN interview with Osama bin Laden - although there is no evidence that the three men had any dealings or connection to Mr. bin Laden.
According to a prosecutor, the tape was played to inform the jury of "the kind of value system [the defendants] subscribe to." Defense lawyers say it was aimed at poisoning the jury against their clients.
The jury convicted on all counts. What remains unclear is exactly how much of the government's case the jury endorsed.
To determine appropriate sentences, Judge Cooke must determine the culpability of each man.
A presentence investigation report was prepared to help the judge make that determination. But the report, written by the US Probation and Pretrial Services System with the help of prosecutors, suggests that virtually every allegation the government raised at trial was proved beyond a reasonable doubt.
Defense lawyers dispute this and have been waging a paragraph-by-paragraph battle to rewrite the report.
In addition, there is sharp disagreement over the scope and seriousness of the crimes. Legal experts say this is one of the consequences of prosecutors using expansive conspiracy charges in a case relying on circumstantial evidence and with no cooperating insider witnesses.
This mounting disagreement was highlighted in a courtroom exchange between Michael Caruso, an acting federal public defender representing Padilla, and Assistant US Attorney Russell Killinger.
Mr. Caruso told the judge that Padilla should receive a lighter sentence for his relatively minor role. He said the indictment identifies a global conspiracy to wage violent jihad in places like Kosovo, Somalia, and Chechnya, and that his client played an insignificant part in it. The government's evidence shows only that Padilla traveled to the Middle East and at some point filled out an application to attend a training camp, he said, but the trial record shows Padilla never traveled to Kosovo, Somalia, or Chechnya.
"Jose was not central or essential," Caruso said. "The fighting went on without his involvement."
Despite government assertions that Padilla was a "star recruit," Caruso said, there is no evidence that Padilla took any affirmative step to help in someone's murder, maiming, or kidnapping.
Mr. Killinger responded that Caruso's claim was "astonishing."
"[Padilla] stands before the court as a trained Al Qaeda killer," Killinger said.
Caruso shot to his feet: "That's outrageous, Your Honor."
Killinger said the government would introduce evidence later in the hearing to prove that Padilla had "successfully graduated from the camp."
"The jury found that Padilla willfully, intentionally, and knowingly supplied himself to Al Qaeda," the prosecutor said. "For him to say he is less culpable is tantamount to a hit man suggesting he is just a minor player in a murder-for-hire scheme. He is the instrument of the scheme itself."
Caruso said two of the government's own witnesses at trial established that many of the thousands of young Muslim men who attended training camps in Afghanistan did so out of a sense of religious obligation to protect the Muslim community, not to prepare to become terrorists and trained killers.
President Bush's decision to allow the super-secret National Security Agency to spy on Americans without court warrants has touched off stormy debate about his aggressive approach to the war on terror.
This clash -- between civil libertarians and the administration's expansive view of presidential power -- is a recurring theme in the Bush White House. It lies at the center of ongoing debates over the government's use of coercive interrogation techniques and the open-ended detention of alleged enemy combatants at Guantanamo Bay, Cuba, and in military prisons in the United States.
This week, the spotlight is on a recently disclosed classified operation that permits the NSA to monitor communications between suspected Al Qaeda members overseas and American citizens in the US. It is being done without first obtaining a warrant from a special intelligence court set up to police such sensitive intercepts.
Instead of following the safeguards established by Congress under the 1978 Foreign Intelligence Surveillance Act (FISA), Bush administration lawyers concluded that the White House could sidestep the warrant requirements while conducting the espionage operation.
Critics say the secret spying is illegal and an abuse of the president's constitutional authority. Supporters say Bush is well within his power to protect the nation from terrorists.
Disclosure of the NSA operation by the New York Times last Friday surprised many members of Congress and is said to have complicated efforts to reauthorize the Patriot Act. Republican Sen. Arlen Specter, chairman of the Judiciary Committee, has called for hearings to look into the NSA operation. Supreme Court nominee Samuel Alito has been warned to prepare for close questioning on the matter in his upcoming confirmation hearing. And there is talk of the possible appointment of two special counsels, one to look into the legality of the NSA operation, the other to investigate the disclosure of the classified project to the Times.
In addition, Sen. Barbara Boxer (D) of California has asked legal scholars to research whether Bush's authorization of secret spying is an impeachable offense. President Bush and other administration officials have sought to blunt the barrage of criticism by emphasizing the exigencies of protecting the nation from terrorists. They stress that despite the highly classified nature of the operation, the White House briefed key members of Congress about the ongoing covert effort.
But some members of Congress say they were given few details and were unable to effectively exercise oversight responsibilities after being sworn to secrecy. Administration officials also notified the chief judge of the Foreign Intelligence Surveillance Court, which is empowered to authorize warrants for such spying. One section of the foreign intelligence law, FISA, authorizes warrantless surveillance under limited circumstances -- but it does not appear to apply to the NSA operation as described by administration officials. Neither President Bush nor Attorney General Alberto Gonzales is claiming the secret operation was conducted in compliance with FISA.
Instead, they say the operation was carried out under President Bush's constitutional power as commander in chief, and under Congress's Joint Authorization for Use of Military Force, which was passed more than four years ago, shortly after the 9/11 attacks. The administration made the same argument before the US Supreme Court in the case of alleged enemy combatant Yaser Hamdi. The court declined to address the president's power as commander in chief. Instead, it based its June 2004 decision upholding Mr. Hamdi's military detention solely on the congressional authorization argument. But given the splintered posture of the high court in that case and the possible arrival of a second new justice, the potential outcome in any future case is less than clear.
"It is a murky area," says Ruth Wedgwood, an international law professor at Johns Hopkins University.
"It is an area in which Congress has legislated but, to be sure, they didn't anticipate Al Qaeda in 1978," she says. "It is also an area where obviously Americans have high expectations about their privacy."
FISA was enacted to prevent domestic surveillance abuses that occurred during earlier administrations, including the Nixon White House.
Should the debate make it into a courtroom, at issue will be whether FISA preempts the president from taking actions as commander in chief in the war on terror that ignore or violate the surveillance statute.
"The president is simply off the rails," says Marc Rotenberg, executive director of the Electronic Privacy Information Center, which closely monitors surveillance issues. Mr. Rotenberg says Bush's reliance on the commander-in-chief powers "is probably overly broad and will be rejected."
David Rivkin, a Washington lawyer and former Reagan and Bush I administration official, has a different perspective. "FISA was designed to deal with essentially peacetime counterintelligence and counterterrorism operations," he says. "We are now at war."
He says Bush's secret NSA operation is "tantamount to trying to break Japanese military codes or intercept German communications during World War II." The FISA requirement of judicial oversight of secret intelligence operations would mandate a war-fighting role for judges that the Constitution does not authorize, Mr. Rivkin says. "Where is it written in the Constitution that the president is supposed to exercise his commander-in-chief power based upon what a judge says or doesn't say?"