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).<br>
<br>
According to <a href="http://www.planostar.com/articles/2009/09/16/plano_star-courier/news/37…; target="”_blank”">an
article this week in the <i>Plano Star-Courier</i></a>, 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.<br>
<br>
According to the <a href="http://www.cca.courts.state.tx.us/OPINIONS/PDFOPINIONINFO2.ASP?OPINIONI…; target="”_blank”">dissent</a>
to an <a href="http://www.cca.courts.state.tx.us/OPINIONS/PDFOPINIONINFO2.ASP?OPINIONI…; target="”_blank”">appellate
decision</a> 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.<br>
<br>
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. <br>
<br>
Finally, last September, a court ordered the judge and district
attorney to be deposed. They admitted to their affair under oath.<br>
<br>
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.<br>
<br>
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.<br>
<br>
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.<br>
<br>
“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.<br>
<br>
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 <a href="http://www.theatlantic.com/doc/200809u/texas-execution" target="”_blank”">an
article in <i>The Atlantic</i></a>, "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)."<br>
<br>
As in <a href="http://www.cityethics.org/node/689" target="”_blank”">the case of the
Pennyslvania judges</a> 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.<br>
<br>
Robert Wechsler<br>
Director of Research-Retired, City Ethics<br>
<br>
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