No.

IN THE SUPREME COURT OF THE UNITED STATES

October Term, 2009______________________________________

CHARLES DEAN HOOD,

Petitioner,

V.

THE STATE OF TEXAS,

Respondent.___________________________________________

PETITION FOR WRIT OF CERTIORARI TOTHE TEXAS COURT OF CRIMINAL APPEALS

__________________________________________

THIS IS A DEATH PENALTY CASE.

Gregory W. Wiercioch* Kathryn M. KaseTexas Defender Service Texas Defender Service430 Jersey Street 1927 Blodgett StreetSan Francisco, California 94114 Houston, Texas 77004(TEL) 832-741-6203 (TEL) 713-222-7788(FAX) 512-477-2153 (FAX) 713-222-0260

* Counsel of Record, Member Supreme Court Bar

CAPITAL CASE

QUESTIONS PRESENTED

1. Is the Due Process Clause violated when a defendant is tried, convicted,and sentenced to death before a judge who had carried on a secret, intimatesexual relationship for years with the prosecuting attorney that was notdisclosed to the defendant or his counsel?

2. Is the decision of the Texas Court of Criminal Appeals letting standPetitioner’s conviction and death sentence despite undisputed evidencethat the judge presiding over the capital murder trial and the electeddistrict attorney prosecuting the case had been involved in a long-term,secret, intimate sexual relationship prior to the trial in direct conflict withthis Court’s recent opinion in Caperton v. A.T. Massey Coal Co., Inc., 129S. Ct. 2252 (2009)?

i

TABLE OF CONTENTS

QUESTIONS PRESENTED. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i

TABLE OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv

CITATION TO OPINIONS BELOW. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

JURISDICTION.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

CONSTITUTIONAL PROVISIONS INVOLVED. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

I. STATEMENT OF FACTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

II. EFFORTS TO UNCOVER EVIDENCE OF THE AFFAIR. . . . . . . . . . . . . . . . . . . . . . . . 6

A. Trial. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

B. Initial State Post-Conviction Proceedings. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

C. Penry Successive Application. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

D. First Successive Application Raising Judicial Bias Claim. . . . . . . . . . . . . . . . . . . 9

E. Motion to Modify Execution Date. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

F. Sixth Execution Warrant. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

G. Rule 202 Proceedings. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

H. Letter to Governor Requesting Reprieve. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

I. Second Successive Application Raising Judicial Bias Claim. . . . . . . . . . . . . . . . 15

J. Third Successive Application Raising Judicial Bias Claim.. . . . . . . . . . . . . . . . . 16

HOW THE ISSUES WERE DECIDED BELOW. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

NO ADEQUATE AND INDEPENDENT STATE GROUND BARS REVIEW. . . . . . . . . . . . . 23

ii

REASONS THE WRIT SHOULD BE GRANTED. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

ONLY THIS COURT CAN DISPEL THE DEEP SHADOW THAT HAS BEENCAST OVER THE TEXAS CRIMINAL JUSTICE SYSTEM BY THE HOLLAND-O’CONNELL AFFAIR AND THE REFUSAL OF THE COURT OF CRIMINALAPPEALS, THE DISTRICT ATTORNEY, THE ATTORNEY GENERAL, OR THEGOVERNOR TO REPAIR THE DAMAGE.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

I. The evidence is undisputed, the facts are extreme, and the constitutionalviolation is patently obvious. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

II. The State of Texas has refused to address the damage that the Holland-O’Connell affair has done to the public’s confidence in the administration ofjustice. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37

iii

TABLE OF AUTHORITIES

FEDERAL CASES

Abdul-Kabir v. Quarterman, 550 U.S. 233 (2007). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35

Ake v. Oklahoma, 470 U.S. 68 (1985) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

Baze v. Rees, 551 U.S. 1192 (2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Berger v. United States, 295 U.S. 78 (1935) .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33

Brewer v. Quarterman, 550 U.S. 286 (2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35

Caperton v. A.T. Massey Coal Co., Inc., 129 S.Ct. 2252 (2009) . . . . . . . . . . . . . . . . . . . . . . 26,28

Coleman v. Thompson, 501 U.S. 722 (1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23,24

McCleskey v. Kemp, 481 U.S. 279 (1987) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33

Michigan v. Long, 463 U.S. 1032 (1983) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23,24

Mistretta v. United States, 488 U.S. 361 (1989) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

Penry v. Lynaugh, 492 U.S. 302 (1989) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3,7,8,16,35

Richmond Newspapers v. Virginia, 448 U.S. 555 (1980) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

Rivera v. Quarterman, 505 F.3d 349 (5th Cir. 2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

Ruiz v. Quarterman, 504 F.3d 523 (5th Cir. 2007) .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24,25

Smith v. Texas, 550 U.S. 297 (2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35

STATE CASES

Ex Parte Campbell, 226 S.W.3d 418 (Tex. Crim. App. 2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

Commonwealth v. Croken, 733 N.E.2d 1005 (Mass. 2000) .. . . . . . . . . . . . . . . . . . . . . . . . . . . . 32

Ex parte Hood, 211 S.W.3d 767 (Tex. Crim. App. 2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

iv

Ex parte Staley, 160 S.W.3d 56 (Tex. Crim. App. 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

STATUTES

28 U.S.C. § 2244(b)(2)(B) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37

Tex. Code Crim. Proc. art. 11.071 § 5(a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

Tex. R. Civ. P. 203.1(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

MISCELLANEOUS

Association of Professional Responsibility Lawyers, Statement Concerning Charles DeanHood (July 22, 2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

Alan Berlow, Ardor in the Court, Salon (June 24, 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Editorial, Claim that Judge, Prosecutor had Affair Taints Murder Case, Corpus Christi CallerTimes (Sept. 6, 2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

Editorial, Hood Case Bruises Texas Judicial Trust, San Ant. Express News (Oct. 4, 2008). . . . 29

Editorial, Latest Tale of Texas Justice Rated “E” for Embarrassment, Austin-AmericanStatesman (Sept. 12, 2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29,35

Editorial, Leave No Question Unanswered, Dallas Morn. News (Sept. 10, 2008) .. . . . . . . . . . . 29

Editorial, Ruling in Hood Case Degrades Court System, Dallas Morn. News (Sept. 17, 2009). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

Editorial, Too Soon and Too Many Questions, N.Y. Times (Sept. 6, 2008) . . . . . . . . . . . . . . . . 29

Editorial, Wait A Minute: A Stay of Execution for Convicted Murderer Charles Hood Raises Troubling Questions of Judicial Integrity, Hous. Chron. (Sept. 15, 2008) . . . . . . . . . 29

Jennifer Emily, Family Tie Debated in Judge Race: DA’s Son Says He’d Pass on CriminalCases; Foe Sees Heavier Loads, Dallas Morn. News (Dec. 18, 2005) . . . . . . . . . . . . . . . . . . . 8

Diane Jennings, Attorney General Defends Actions in Investigation of Affair Between Judge, DA, Dallas Morn. News (Sept. 26, 2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14,35

v

Diane Jennings, Lawyer Files Grievance Against Abbot after He Urges Review of CollinCounty Murder Case, Dallas Morn. News (Sept. 8, 2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

James C. McKinley, Jr., Judge-Prosecutor Affair, But No New Trial, N.Y. Times (Sept. 17, 2009) .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

Texas Inmate Draws Prestigious Support, USA Today (Sept. 4, 2008) . . . . . . . . . . . . . . . . . . . . 30

Ian Urbina, Despite Red Flags about Judges, A Kickback Scheme Flourished, N.Y. Times (Mar. 27, 2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36

vi

No.

IN THE SUPREME COURT OF THE UNITED STATES

October Term, 2009

______________________________________

CHARLES DEAN HOOD,

Petitioner,

V.

THE STATE OF TEXAS,

Respondent.

______________________________________________

PETITION FOR WRIT OF CERTIORARI TOTHE TEXAS COURT OF CRIMINAL APPEALS

______________________________________________

Petitioner Charles Dean Hood asks that this Court issue a writ of certiorari and summarily

reverse the judgment of the Texas Court of Criminal Appeals.

CITATION TO OPINIONS BELOW

The order of the Texas Court of Criminal Appeals (CCA) remanding Mr. Hood’s

successive application to the trial court for further proceedings is attached to this petition as

Appendix A. Ex parte Hood, No. 41,168-11 (Tex. Crim. App. Nov. 19, 2008) (unpublished).

The trial court’s findings of fact and conclusions of law are attached as Appendix B. The CCA’s

1

opinion dismissing Mr. Hood’s claim of judicial bias is attached as Appendix C. Ex parte Hood,

No. 41,168-11 (Tex. Crim. App. Sept. 16, 2009) (unpublished).

JURISDICTION

The CCA entered its judgment on September 16, 2009. This Court has jurisdiction to

review the CCA’s decision pursuant to 28 U.S.C. § 1257(a).

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

1. This case involves the Eighth Amendment to the United StatesConstitution, which provides that, “Excessive bail shall not be required,nor excessive fines imposed, nor cruel and unusual punishments inflicted.”

2. This case involves the Fourteenth Amendment to the United StatesConstitution, which provides, in relevant part, that “No state may depriveany person of life [or] liberty . . . without due process of law.”

STATEMENT OF THE CASE

I. STATEMENT OF FACTS

In 1990, Mr. Hood was convicted of capital murder and sentenced to death for killing

Ronald Williamson and Tracie Lynn Wallace in the same criminal transaction. His trial took

place before the Honorable Verla Sue Holland of the 296th Judicial District Court of Collin

County, Texas. Thomas S. O’Connell, Jr., the elected District Attorney of Collin County,

actively participated in the prosecution of Mr. Hood. Paired with an assistant district attorney,

Mr. O’Connell addressed panels of venirepersons in general voir dire and individually questioned

numerous potential jurors, including every venireperson who eventually served on Mr. Hood’s

jury. See, e.g., See 16 RR 182 (voir dire of Juror Huff); 17 RR 388 (voir dire of Juror

2

Ensminger); 18 RR 447 (voir dire of Juror Thompson). He cross-examined defense witnesses at1

both the guilt-innocence and punishment stages of the trial. See 45 RR 910 (cross-examination

of Kelly King); 54 RR 1483 (cross-examination of Deborah Lacroix); 54 RR 1497 (cross-

examination of Michael Todd); 54 RR 1567 (cross-examination of Sandra Hood). He delivered

the rebuttal argument to the jury at the guilt-innocence closing. 46 RR 969-85. At the

sentencing charge conference, he persuaded Judge Holland to overrule Mr. Hood’s objections to

the former special issues based on Penry v. Lynaugh, 492 U.S. 302 (1989), and provide the jurors

with a nullification instruction instead. 54 RR 1594-96; 55 RR 1616. During punishment phase2

closing arguments, Mr. O’Connell spoke last to the jury, urging them to sentence Mr. Hood to

death. 55 RR 1657-71. After the jury convicted Mr. Hood of capital murder and answered the

former special issues affirmatively, Judge Holland sentenced him to death the next day. 2 CR

381-84; 56 RR 1676-77.

Neither Judge Holland nor Mr. O’Connell disclosed to Mr. Hood that they had been

involved in a long-term, intimate sexual relationship prior to the capital murder trial. JH at 36;

TOC at 37. Judge Holland and Mr. O’Connell first met in 1974 when Mr. O’Connell hired her3

as the juvenile prosecutor for the Collin County District Attorney’s Office. JH at 19-20; see

Citations to the reporter’s record of the trial are noted as “__ RR __.” Citations to the1

clerk’s record of the trial are designated as “__ CR __.”

The CCA granted a stay of execution on the Penry claim on September 9, 2008. See2

infra.

Citations to Judge Holland’s deposition are noted as “JH at ___”. Her deposition is3

attached as Appendix D. Citations to Mr. O’Connell’s deposition are noted as “TOC at ____.” His deposition is attached as Appendix E. Because Judge Holland and Mr. O’Connell did notreturn their depositions within 20 days after receipt, they “may be deemed to have waived theright to make . . . changes.” Tex. R. Civ. P. 203.1(b).

3

TOC at 11-13. She worked for Mr. O’Connell for nearly five years, until 1979, JH at 20, when

she was appointed to the County Court at Law bench. TOC at 13. In 1981, she became the

presiding judge of the 296th Judicial District Court of Collin County.

In 1982, Judge Holland, a Republican, crossed party lines (along with Judge John Roach,

the current Collin County District Attorney) to urge voters to re-elect Mr. O’Connell as the

District Attorney. JH at 23-24. Mr. O’Connell lost his bid for re-election. Shortly after the

campaign ended, according to Judge Holland, she and Mr. O’Connell began their affair. JH at

27. Mr. O’Connell testified that the romantic relationship began later, around 1984 or 1985.

TOC at 15. He testified that he was “in love” with Judge Holland, TOC at 16-17, and that she4

had talked about the possibility of their getting married. TOC at 22-23. Judge Holland

confirmed that they professed their love for each other, JH at 51-52, although she denied that

they had ever spoken about getting married. JH at 52. It is undisputed that their relationship

included sexual intimacy. JH at 30; TOC at 21, 56.

Judge Holland and Mr. O’Connell were determined to keep the relationship secret. There

were no public displays of affection. JH at 52; TOC at 43. Their sexual encounters took place at

each other’s homes when their spouses were away. TOC at 16-17; JH at 52. Mr. O’Connell

could not recall telling anyone, except possibly his sisters, about his romantic relationship with

Judge Holland. TOC at 18. Judge Holland told no one. JH at 31, 33.

Judge Holland said that the romantic encounters ended in 1987. JH at 29. Mr. O’Connell

testified that the romantic encounters continued until the middle of 1989, TOC at 24, and may

Both witnesses recall being married at the time their affair began. JH at 30; TOC at 15. 4

Mr. O’Connell filed for divorce in 1985. His divorce was finalized in 1986. TOC at 19. JudgeHolland and Earl Holland divorced in 1987. JH at 30.

4

even have continued beyond that time. TOC at 26. In any case, he continued to have strong5

feelings for Judge Holland, asserting that she was a “wonderful person” whom he “enjoyed being

with.” TOC at 26. Even after the nature of their relationship changed around 1991, according to

Mr. O’Connell, they remained “good friends.” TOC at 30. Judge Holland agreed that they

remained “good friends,” even after 1987, the time she asserted their romance ended. JH at 38.

For example, Mr. O’Connell and Judge Holland went on a trip to Santa Fe, New Mexico, in

1991, TOC at 30, 34; see JH at 40, and he attended her family reunion in Branson, Missouri, the

same year. TOC at 34; see JH at 39. He testified that they did not stop seeing each other until

1991 or 1992. TOC at 33.

Judge Holland never disclosed her romantic relationship with Mr. O’Connell to a single

litigant or lawyer who appeared before her, and she never recused herself from a single case

because of the affair. TOC at 40. After the allegations of the romantic relationship came to their

attention in the recent litigation, neither Judge Holland nor Mr. O’Connell felt any obligation to

come forward and substantiate them. JH at 15-16; TOC at 45-46. However, Judge Holland now

acknowledges that, had she been asked to do so, she would have recused herself. JH at 36-37.

In its order remanding the judicial bias claim for further proceedings, the CCA noted5

that: “Although both parties stated that the affair had ended by the time of applicant’s trial, thedates cited in the prosecutor’s deposition seem to contradict this assertion.” App. A at 3. Onremand, the State provided an affidavit from Mr. O’Connell, in which he said, “I have reviewedVerla Sue Holland’s deposition and do not disagree with any specific dates therein. . . .” Affidavit of Thomas S. O’Connell (Mar. 5, 2009).

5

II. EFFORTS TO UNCOVER EVIDENCE OF THE AFFAIR

A. Trial

Although rumors had swirled around Collin County’s legal community for years about a

romantic relationship between Judge Holland and District Attorney Tom O’Connell, Mr. Hood

had been appropriately reluctant to file a motion to recuse the judge without more concrete proof.

Defense counsel stated that:

At the time of the trial, I was aware of rumors concerning a romantic relationshipbetween the trial judge, Verla Sue Holland, and the Collin County DistrictAttorney, Tom O’Connell. As this was only a rumor, I had no way of verifying itstruth or accuracy and therefore I had no valid basis upon which to file either amotion to recuse Judge Holland or a motion to recuse the district attorney’s office.

Declaration of David K. Haynes (June 5, 2008) at 1; see Affidavit of David K. Haynes (Mar. 6,

2009) (confirming that, because neither he nor his co-counsel had any “definite information or

evidence that would confirm or deny the truth of the rumors,” they decided “there was nothing to

be gained by attempting to recuse Judge Holland”).

B. Initial State Post-Conviction Proceedings

Based only on the rumors, Mr. Hood’s former habeas counsel decided to look into the

matter, prior to filing the initial state post-conviction application. Counsel’s investigator, Tena S.

Francis, conducted extensive records research. She obtained divorce records, documents from

the Office of Elections Administration, and case files from the Collin County District Clerk’s

Office. Ms. Francis interviewed members of Mr. Hood’s defense team, attorneys practicing in

Collin County, and Judge Holland’s former husband, Earl Holland (now deceased). She

attempted to interview Judge Holland’s bailiff, but he refused to discuss the judge’s personal life

with her. She contacted the State Commission on Judicial Conduct. Despite her investigation in

6

1995-96, Ms. Francis could not develop any concrete evidence of the affair. See Affidavit of

Tena S. Francis (Aug. 1, 1996). Unable to confirm the rumors, former counsel did not include a

judicial bias claim in the initial state or federal habeas applications.

C. Penry Successive Application

After the conclusion of Mr. Hood’s state and federal post-conviction proceedings, the

trial court signed Mr. Hood’s fourth death warrant, setting his execution for June 30, 2005. On

June 22, 2005, Mr. Hood filed a successive habeas application raising a Penry claim. On June

24, 2005, an article appearing in Salon, an on-line magazine, relied on two anonymous sources to

confirm that Judge Holland and Mr. O’Connell were involved in an intimate relationship prior to

Mr. Hood’s trial. Alan Berlow, Ardor in the Court, Salon (June 24, 2005). One of the

anonymous sources said that she had listened to tape recordings of conversations between Judge

Holland and Mr. O’Connell that “provided irrefutable evidence that the two were intimately

involved.” Id.

On June 27, 2005, Mr. Hood’s counsel called Judge Holland at her home. Judge Holland

refused to comment on the allegations that she had had a romantic affair with Mr. O’Connell

around the time of Mr. Hood’s trial. Counsel then called Mr. O’Connell at his home. Mr.

O’Connell denied that he had had a romantic affair with Judge Holland around the time of Mr.

Hood’s trial. Affidavit of A. Richard Ellis (Mar. 3, 2009). Relying on the Salon article, counsel

filed a motion asking the trial court to withdraw the death warrant and appoint counsel so that

Mr. Hood could try to identify the anonymous sources. Later that same day, the CCA stayed the

execution and remanded the Penry claim for further proceedings in the trial court. Ex parte

Hood, WR-41,168-03 (Tex. Crim. App. June 27, 2005) (unpublished).

7

On December 6, 2005, a visiting judge assigned to the case entered findings of fact and

conclusions of law recommending that the CCA grant relief on Mr. Hood’s Penry claim. After

further briefing, the CCA set the case for oral argument. On January 10, 2007, the CCA

dismissed the successive application raising the Penry claim as an abuse of the writ. Ex parte

Hood, 211 S.W.3d 767 (Tex. Crim. App. 2007). By the time this Court denied Mr. Hood’s

petition for writ of certiorari, on October 1, 2007, Hood v. Texas, 552 U.S. 829 (2007), it was

already apparent that the grant of certiorari in Baze v. Rees 551 U.S. 1192 (Sept. 25, 2007), had

created an unofficial nationwide moratorium on executions.

On April 16, 2008 – literally within hours after this Court decided Baze – District

Attorney John Roach asked the trial court to set a new execution date for Mr. Hood. Judge Curt

Henderson signed Mr. Hood’s fifth death warrant the same day, scheduling the execution for

June 17, 2008. On April 29, 2008, Mr. Hood sought a stay of execution, asking the CCA to6

suspend the Texas Rules of Appellate Procedure to permit an out-of-time rehearing of his direct

appeal decision in which the court had overruled his Penry point of error. With one judge

dissenting, the CCA denied the motion. Hood v. State, AP-71,167 (Tex. Crim. App. May 14,

2008) (unpublished).

Judge Henderson of the 219th Judicial District Court of Collin County signed the death6

warrant, rather than the presiding judge of the court of conviction, the 296th Judicial DistrictCourt. Judge John Roach, Jr., of the 296th District Court hears no criminal cases; his father isCollin County District Attorney John Roach. When his son first sought election to the bench,District Attorney Roach said, “I know if I were a criminal defendant, and I were being prosecutedby John Roach and John Roach Jr. were the judge, I might be a little bothered by that.” JenniferEmily, Family Tie Debated in Judge Race: DA’s Son Says He’d Pass on Criminal Cases; FoeSees Heavier Loads, Dallas Morn. News (Dec. 18, 2005).

8

D. First Successive Application Raising Judicial Bias Claim

On June 3, 2008, Mr. Hood believed he had finally reached the requisite evidentiary

threshold on his judicial bias claim when he received an affidavit from Matthew Goeller, a

former Collin County assistant district attorney. Mr. Goeller’s coming forward was significant,

because it marked the first time that anyone – let alone an employee of the District Attorney’s

Office during Mr. O’Connell’s tenure – was willing to speak on the record and under oath about

the romantic relationship. Moreover, details in Mr. Goeller’s affidavit about the specific timing

of the relationship appeared to indicate that he relied on personal knowledge rather than rumor or

speculation. See Affidavit of Matthew Goeller (June 3, 2008). These factors convinced Mr.

Hood that, despite the inflammatory and salacious aspects of the claim, he could now allege

sufficient specific facts to satisfy the subsequent application provisions of Article 11.071.

Shortly before the June 2008 execution date, undersigned counsel called Judge Holland

and left her a voice mail message asking her to discuss the allegations. Judge Holland did not

return counsel’s call. JH at 15-16.

On June 13, 2008, Mr. Hood filed a successive application raising the judicial bias claim

for the first time. On June 16, 2008, the CCA dismissed the application as an abuse of the writ.

Ex parte Hood, 41,168-04 (Tex. Crim. App. June 16, 2008) (unpublished).

E. Motion to Modify Execution Date

On the morning of the scheduled execution, June 17, 2008, undersigned counsel for Mr.

Hood called the District Attorney’s Office and asked whether the State would agree to a 30-day

modification of the execution date. Counsel asserted that the Goeller affidavit might encourage

other people with knowledge of the Holland-O’Connell affair to speak on the record. The

9

District Attorney refused to agree to modify the date.

Later that day, Mr. Hood filed a motion to modify the execution date and a notice of

discovery asking the State to disclose all evidence in its possession related to the affair. Judge

Henderson heard argument on the motion. He withdrew the execution date and then sua sponte

recused himself from all further participation in the case. 7

At approximately 5:30 p.m., the District Attorney sought a writ of mandamus to compel

Judge Henderson to rescind his order withdrawing the execution date. The CCA denied leave to

file the petition for writ of mandamus. In dicta, the court explained that Judge Henderson had no

authority to withdraw the death warrant. However, the CCA noted that Judge Henderson was not

the appropriate subject of mandamus, because he had recused himself from the case. In re Hood,

WR-41,168-07 (Tex. Crim. App. June 17, 2008) (unpublished).

Around 8:30 p.m., the District Attorney sought a second writ of mandamus, this time

against Judge John Ovard, the presiding judge of the administrative judicial region who had

assigned the case to himself after Judge Henderson’s recusal. At approximately 9:00 p.m., the

CCA granted leave to file the petition for writ of mandamus and ordered Judge Ovard to

“immediately reinstate” the execution warrant. In re Hood, WR-41,168-08 (Tex. Crim. App.

June 17, 2008) (unpublished). At 9:51 p.m., Mr. Hood asked the CCA to reconsider its decision.

At approximately 10:30 p.m., the CCA denied the request for rehearing. Judge Ovard rescinded

Judge Henderson’s order and reinstated the execution warrant.

Several hours after the hearing, undersigned counsel spoke with Judge Henderson to7

determine if the basis for his recusal was related to the allegations about the Holland-O’Connellaffair. Judge Henderson said that he had recused himself because he had been good friends withJudge Holland and Mr. O’Connell. However, he did not believe the rumors of an affair weretrue.

10

At 11:17 p.m., Mr. Hood asked the CCA to reconsider its decision dismissing his

successive application raising the judicial bias claim. At 11:46 p.m., the CCA declined to

reconsider its decision. At that point, the Governor, in consultation with the Texas Department

of Criminal Justice, agreed to let the death warrant expire, because the execution team did not

have sufficient time to carry out its protocol before midnight.8

F. Sixth Execution Warrant

On June 20, 2008, the District Attorney sought another execution date for Mr. Hood. Mr.

Hood asked the newly-assigned judge, John Nelms, to refrain from setting a date and order the

State to disclose evidence related to the Holland-O’Connell affair. On June 25, 2008, Judge

Nelms signed Mr. Hood’s sixth death warrant, setting the execution for September 10, 2008.

In mid-June 2008, undersigned counsel retained an investigator, Toni Knox, to attempt to

uncover any concrete evidence of the Holland-O’Connell affair. Over the next three months, Ms.

Knox reviewed the results of Ms. Francis’s 1995-96 investigation, obtained and examined

pertinent records, and located and interviewed – or attempted to interview – over two dozen

potential witnesses. She spent over 80 hours working on the investigation. Pro bono counsel

paid over $5,500 out-of-pocket for her services. Although several witnesses could confirm the

rumors, not a single one had any personal knowledge of the affair.

Six days after the events on the night of June 17, 2008, the CCA promulgated8

Miscellaneous Rule 08-101, which requires death row inmates to file 48 hours in advance of thescheduled execution any motions challenging their sentences. Counsel who file an untimelymotion must prepare a sworn statement showing good cause for the delay. Counsel who fail tofile such a statement or cannot adequately justify the delay face sanctions, including referral tothe Chief Disciplinary Counsel of the State Bar, contempt of court, restitution of costs incurredby the opposing party, and removal from the list of attorneys eligible to handle death penaltypost-conviction cases. See Misc. R. 08-101 (available at http://www.cca.courts.state.tx.us/rules/miscruleexecution.pdf (last visited on Dec. 15, 2009)).

11

G. Rule 202 Proceedings

With Mr. Hood’s sixth scheduled execution date looming, all his efforts to uncover

evidence of the affair between Judge Holland and Mr. O’Connell had failed. However, on

August 19, 2008, Mr. Hood set in motion an unprecedented series of events by using a civil

discovery procedure to compel Judge Holland and Mr. O’Connell to speak. Mr. Hood filed a

request, pursuant to Rule 202 of the Texas Rules of Civil Procedure, seeking pre-suit

investigatory depositions of Judge Holland and Mr. O’Connell. Mr. Hood argued that the

depositions could lead to evidence supporting possible civil actions against them. He

emphasized that simply because the depositions might also yield evidence pertinent to a

challenge to his conviction and sentence did not undermine their validity for purposes expressly

contemplated by Rule 202.

Judge Robert Dry was assigned to the case. The District Attorney complained that Mr.

Hood was attempting to use a civil procedure to obtain evidence for a criminal case. See State’s

Motion to Correct Misnomer of Pleadings and File as Subsequent Habeas Petition (Aug. 22,

2008) at 3 (“Petitioner is merely seeking a different forum in which he can continue to litigate a

habeas petition which the Court of Criminal Appeals has already held could and should have

been investigated, raised, and litigated previously.”). Judge Dry set a hearing on the Rule 202

petition for September 12, 2008 – two days after Mr. Hood’s scheduled execution.

On September 3, 2008, Judge Dry sua sponte recused himself because of his previous

business relationship with Earl Holland, the ex-husband of Judge Holland. The case was

reassigned to Judge Greg Brewer of the 366th Judicial District Court of Collin County. He

promptly set a hearing for September 8, 2008, to consider Mr. Hood’s request to take

12

depositions.

On September 4, 2008, Greg Abbott, the Attorney General of Texas, informed the Collin

County District Attorney that he would be filing an amicus brief the next day with Judge Brewer.

The Attorney General explained that “because of the unique nature of the issues in this matter –

and to protect the integrity of the Texas legal system – we will ask the court to thoroughly review

the defendant’s claims before the execution proceeds.” Letter of Attorney General Greg Abbott

to District Attorney John Roach (App. F). The next day, the Attorney General argued in his

amicus brief that:

In light of the unique and extraordinary circumstances concerning the trial of thiscase, a closer review by this Court is warranted. The Court could consider aninquiry into the defendant’s allegations and the legal precedents that apply. TheCourt could also evaluate whether the appropriate inquiry and legal analysis canbe completed within the current timetable for the scheduled execution.

Brief of the Attorney General of Texas as Amicus Curiae (App. G) at 2. In a footnote, the

Attorney General noted that:

The position taken by the Attorney General in this case should not be construed asa departure from his longstanding position that parties are not ordinarilyauthorized to seek discovery from judges or prosecutors. He acknowledges,however, that the unique allegations presented here may warrant uniquedisposition by this Court. Accordingly, the Court should exercise its discretionand control over the proper scope of any inquiry permitted in this case.

Id. at 2 n.2

On August 26, 2008, Madeleine Connor, an Assistant Attorney General, had filed a

Notice of Appearance on behalf of Judge Holland in the Rule 202 proceedings. After the9

Attorney General filed the Amicus Brief, Ms. Connor withdrew as Judge Holland’s counsel,

Judge Holland had contacted the Attorney General’s Office for assistance, because she9

“was tired of laying over – getting licked without any input.” JH at 19.

13

citing “the potential for conflict.” See State’s Approved Motion for Withdraw[al] and for

Substitution of Counsel at 1. Judge Holland found a private attorney to represent her. 10

Before the Rule 202 hearing could take place on September 8, 2008, Judge Holland and

Mr. O’Connell removed the proceedings to federal court. A telephonic hearing with the federal

district judge took place in Judge Brewer’s courtroom that morning. By the early afternoon, Mr.

Hood had succeeded in convincing the federal district judge to send the matter back to state

court.

Judge Brewer finally heard argument on Mr. Hood’s request to take depositions. An

assistant district attorney interrupted the proceedings and, with Judge Brewer’s permission,

attempted to intervene. Judge Brewer denied the request of the District Attorney’s Office. He

granted Mr. Hood’s Rule 202 petition and ordered the depositions to take place immediately.

Judge Brewer, at the State’s request, allowed a representative of the District Attorney’s Office to

Two days later, Ms. Connor filed with the State Bar a formal grievance against the10

Attorney General. Diane Jennings, Lawyer Files Grievance Against Abbot after He UrgesReview of Collin County Murder Case, Dallas Morn. News (Sept. 8, 2008). A few weeks later,after the CCA stayed the execution, the Attorney General publicly responded to the complaint:

“That’s what happens when people shoot first and ask questions later. . . .Theperson filing the complaint had no information about what me or the office haddone months before representation of the judge was undertaken. We, includingme personally, had already taken action in this case months before Judge Hollandcontacted our office for representation.

Diane Jennings, Attorney General Defends Actions in Investigation of Affair Between Judge,DA, Dallas Morn. News (Sept. 26, 2008). Mr. Abbott explained that his office was closelyinvolved in the decision not to execute Mr. Hood on June 17, 2008. According to the article, he“declined to clarify the role played because ‘it may arguably be protected by attorney-clientprivilege.’” Id. Mr. Abbott also said that when he learned that an assistant attorney general hadundertaken the representation of Judge Holland, his office had immediately informed JudgeHolland that she needed to hire her own attorney. Id.

14

attend the depositions. Mr. Hood completed the deposition of Mr. O’Connell at 7:17 p.m. on

September 8, 2008, TOC at 2, and completed the deposition of Judge Holland at 12:19 p.m. the

following day. JH at 2. For the first time, Judge Holland and Mr. O’Connell acknowledged that

they had had a long-term, intimate sexual relationship.

H. Letter to Governor Requesting Reprieve

Immediately after completing the deposition of Judge Holland, counsel for Mr. Hood

asked Jeffrey Garon, the assistant district attorney who had attended the depositions, whether the

District Attorney’s Office would join him in seeking a 30-day reprieve from the Governor. After

consulting with the District Attorney, Mr. Garon and his colleague John Rolater, Chief of the

Appellate Division, announced that the District Attorney would not join Mr. Hood in his request.

A few hours later, counsel for Mr. Hood had drafted and faxed a letter to the Governor asking for

a reprieve so that he could present the evidence of the Holland-O’Connell affair to the Court of

Criminal Appeals and the Board of Pardons and Paroles.

I. Second Successive Application Raising Judicial Bias Claim

While litigating the Rule 202 petition, Mr. Hood made a second attempt to raise the

judicial bias claim. On the morning of September 8, 2008, he filed a successive application

based on new evidence he had compiled about Judge Holland’s recusal rate for cases originating

from Collin County when she sat on the CCA. Judge Holland served on the CCA from January

1, 1997, to September 2, 2001. Mr. Hood discovered that she recused herself from nearly 80

percent of the Collin County cases reaching the CCA. He compared her recusal rate with that of

Judges Price and Keasler, who – like Judge Holland – served on district court benches for years

before they were elected to the CCA. The statistics reveal that Judge Holland recused herself at a

15

rate nearly 160 times greater than her fellow jurists. The simplest explanation appeared to be11

the most plausible one: Judge Holland recused herself at such a high rate, because she had been

romantically involved with the then-current District Attorney of Collin County when cases from

his office reached the CCA. The CCA dismissed this second successive judicial bias claim as an

abuse of the writ. Ex parte Hood, WR-41,168-10 (Tex. Crim. App. Sept. 9, 2008)

(unpublished).12

J. Third Successive Application Raising Judicial Bias Claim

On September 8, 2008, Mr. Hood had tried, once again, to interest the CCA in his Penry

claim. He asked the court to reconsider sua sponte its decision dismissing the successive

application raising the Penry claim. On September 9, 2008, the CCA granted a stay of execution

Judge Holland recused herself from only about 4% of the cases originating from Collin11

County during her first year on the CCA bench – including cases over which she presided whilestill a trial judge. During the remainder of her time on the CCA, she recused herself from over90% of the cases originating from Collin County. When asked during the deposition about theseodd recusal rates, Judge Holland characterized her early-tenure decisions in which she did notrecuse herself from Collin County cases as “learning the procedures and learning the regimen,”JH at 45, a “how-to-find-the-courthouse-type thing.” Id. at 46. She said she adopted her laterpolicy of recusing herself in nearly all Collin County cases, because “I didn’t want to have aconflict. I didn’t want to be unfair.” Id. at 48.

Accompanying his successive application, Mr. Hood filed a motion to recuse eight12

judges on the CCA. Judge Holland was elected to the CCA in 1996. Her term began on January1, 1997. She resigned from the court on September 2, 2001. Judge Holland shared the benchwith eight of the nine current members of the court: Keller, P.J. (Year Elected: 1994); Meyers, J.(1992); Price, J. (1996); Womack, J. (1996); Johnson, J. (1998); Keasler, J. (1998); Hervey, J.(2000); Holcomb, J. (2000). The evidence Mr. Hood presented on the recusal rates wouldreasonably suggest that, when a recusal rate is as high as Judge Holland’s in cases coming from aparticular county, her fellow jurists would be bound to notice. Indeed, if Judge Holland made anadmission to any of her CCA colleagues that she recused herself from Collin County casesbecause she used to be romantically involved with the District Attorney, they would possesspersonal, first-hand knowledge from an extrajudicial source about the existence of the romanticrelationship that Mr. Hood was trying to establish. The CCA denied Mr. Hood’s motion torecuse. Hood, WR-41,168-10.

16

on this ground. See Ex parte Hood, AP-75,370 (Sept. 9, 2008) (unpublished) (“Because of

developments in the law regarding nullification instructions, this Court has determined that it

would be prudent to reconsider the decision we issued in dismissing applicant’s second

subsequent writ application.”).

On September 26, 2008, relying on the undisputed evidence of the affair between Judge

Holland and Mr. O’Connell, Mr. Hood filed a successive application raising the judicial bias

claim for the third time. On November 19, 2008, the CCA noted that Mr. Hood may have met

the requirements for the filing of a subsequent application. However, the CCA ordered the trial

court to resolve two preliminary issues first. The CCA explained:

Throughout the litigation in this case, applicant has claimed that the affairbetween the trial judge and the prosecutor was “common knowledge.” Butapplicant did not try to obtain proof of the affair until some eighteen years afterhis trial. He also asserts that he had to go to extraordinary measures to obtain theproof he now has. However, the method by which applicant obtained theevidence supporting his claim, Texas Rule of Civil Procedure 202, which providesfor depositions before suit or to investigate claims, became effective January 1,1999. Yet applicant did not utilize this tool until after he was given an executiondate. Further, he has filed other applications raising the claim since the date thattool became available.

Accordingly, the trial court shall collect or adduce any evidence it deemsnecessary to make a recommendation on whether the doctrine of laches bars theconsideration of applicant’s claim. While the State has the burden on the issue,both parties should be allowed to be heard on the matter. The court shall alsocollect or adduce any evidence it deems necessary to make a recommendation onwhether applicant meets the dictates of Article 11.071, § 5.

App. A at 4.

On remand, Judge Brewer appointed a special master to assist him in resolving these

17

issues. The District Attorney objected to the appointment of the special master for a number of13

reasons, one of which expressed concern that the master was “a criminal defense attorney

actively involved in capital litigation in this county and has practiced in Collin County for at least

two decades.” State’s Objections to Order Appointing Master (Dec. 10, 2008) at 3. Judge

Brewer overruled the District Attorney’s objections.

The District Attorney sought a writ of mandamus from the CCA to compel Judge Brewer

to rescind his order. The District Attorney argued that:

In Texas, the parties and public are assured that cases are properly resolvedbecause judges are duly qualified by election or gubernatorial appointment and aresworn to uphold the Constitution and laws. In this death penalty case, the electedtrial judge has illegally delegated the authority vested in him by this Court, and hedoes so in a manner that erodes confidence in the neutrality of our decision-makers and introduces uncertainty regardless of the results reached.

State’s Petition for Writ of Mandamus at 11. The CCA held that Judge Brewer had exceeded his

authority and directed him to vacate his order appointing the special master. In re John R. Roach,

Criminal District Attorney, AP-76,086 (Tex. Crim. App. Jan. 28, 2009) (unpublished).

On February 19-20, 2009, the parties filed their briefs on the preliminary issues. The

District Attorney raised a number of procedural arguments in support of his position that the

doctrine of laches barred consideration of the judicial bias claim and that Mr. Hood failed to

exercise reasonable diligence in uncovering the factual basis for it. See State’s Reply Regarding

the Impact of Applicant’s Repeated 11.071 Applications on the Ability to Consider the Instant

Claim at 15-29. The District Attorney repeatedly accused Mr. Hood’s counsel of gaming the

criminal justice system – manipulating the timing of his claims, making appeals to public

On September 26, 2008, the presiding judge of the administrative judicial region13

transferred the habeas proceedings from Judge Nelms to Judge Brewer.

18

opinion, and elevati[ng] . . . uproar over timely resolving issues.” Id. at 24.

In addition to his procedural arguments, the District Attorney challenged the merits of the

judicial bias claim:

! “At some point, the past romantic relationships, of even public figures,become a matter that is entitled to some privacy, and Hood’s new evidenceonly serves to cure any residual doubt that the relationship had been overfor a sufficient amount of time before the time of Hood’s trial.” Id. at 8.

! “Hood’s subsequent habeas application fails to state a cognizable claimbecause the existence of a prior sexual relationship between a judge and aprosecutor is not cause to absolutely disqualify a judge.” Id.

! “Hood is unable to illustrate any prejudice despite having challengednearly every other aspect of the trial through numerous legal proceedings.” Id. at 28.

On March 2, 2009, Mr. Hood filed a motion to disqualify the District Attorney. Mr.

Hood argued that the District Attorney’s conduct in the case – particularly his actions after the

depositions confirmed the existence of the Holland-O’Connell affair – coupled with his long and

close association with Judge Holland and Mr. O’Connell, created an appearance of impropriety

and demonstrated an actual conflict of interest that deprived Mr. Hood of his fundamental right

to due process. See Applicant’s Motion to Disqualify District Attorney at 1, 3. The current

Collin County District Attorney, John Roach, served as the presiding judge of the 199th Judicial

District Court of Collin County from 1981 until 1997, a time encompassing Judge Holland’s 15

years on the bench of the 296th Judicial District Court; a time when Mr. O’Connell served as the

Collin County District Attorney (for the bulk of those years); and, most important, a time

encompassing the Holland-O’Connell affair and Mr. Hood’s capital murder trial. The close ties

among then-Judge Roach, Judge Holland, and Mr. O’Connell are further evidenced by Judge

19

Roach’s decision to cross party lines with Judge Holland in 1982 and urge voters to re-elect Mr.

O’Connell, who ran for District Attorney as a Democrat. JH at 23-24. Both Judge Holland and

Mr. O’Connell testified that they did not know whether Judge Roach was aware of their romantic

relationship. JH at 31; TOC at 36.

Judge Brewer granted Mr. Hood leave to take the depositions of four members of the

District Attorney’s Office, including the District Attorney himself. After attempting for two

weeks to schedule the depositions at a mutually convenient time, Mr. Hood’s counsel received a

call from Robert J. Davis, a private attorney retained by the District Attorney’s Office. Mr.

Davis informed Mr. Hood’s counsel that he would not agree to deposition dates for the witnesses

and that he would seek a final order on the depositions so that he could seek a writ of mandamus

against Judge Brewer. In an e-mail message to Judge Brewer, Mr. Davis wrote:

My role in appearing is to obtain, at minimum, a hearing with this Court todiscuss more fully the applicable compelling public policy concerns associatedwith Mr. Hood’s request to conduct what appears to be essentially a fishingexpedition of the current District Attorney’s Office, the actual necessity ofdepositions of the four persons requested by Mr. Hood’s counsel to be deposed,and if any depositions are indeed ordered to proceed after further hearing, thelimitations on any such deposition(s).

E-mail from Robert J. Davis to Judge Brewer (Apr. 6, 2009). On April 9, 2009, Judge Brewer

indefinitely postponed the depositions.

On May 1, 2009, after receiving additional evidence and the parties’ proposed findings,

Judge Brewer issued findings of fact and conclusions of law on the preliminary issues remanded

by the CCA. Judge Brewer found that:

! Judge Holland and Mr. O’Connell were involved in an intimate sexualrelationship prior to Hood’s capital murder trial.

20

! Judge Holland continued to serve as the presiding judge of the 296thJudicial District Court during Hood’s direct appeal (1990-94). DuringHood’s state habeas proceedings (1994-99), she left the district courtbench and served as a judge on the Court of Criminal Appeals (“CCA”). She continued to serve on the CCA during Hood’s federal district courthabeas proceedings (1999-2000), as well as a portion of his Fifth Circuitappeal (2000-04). Prior to the capital murder trial – and during theappellate and post-conviction proceedings – Judge Holland neverdisclosed her relationship with Mr. O’Connell to Hood.

! Mr. O’Connell served as the District Attorney of Collin County during thetime of Hood’s indictment (1989), trial (1990), direct appeal (1990-94),state habeas review (1994-99), federal district court habeas review (1999-2000), and Fifth Circuit appeal (2000-04). During these proceedings, Mr.O’Connell never disclosed his relationship with Judge Holland to Hood.

! Judge Holland and Mr. O’Connell took deliberate measures to ensure thattheir affair would remain secret.

App. B at 1-2 (footnotes omitted). Answering the first question posed by the CCA, Judge

Brewer concluded that “[t]he State cannot invoke the equitable doctrine of laches because its

hands are unclean: Judge Holland and Mr. O’Connell did not abide by their ethical and

constitutional duties to disclose the fundamental conflict caused by their relationship.” Id. at 7.

Addressing the “reasonable diligence” issue, Judge Brewer found that:

Judge Holland and Mr. O’Connell wrongfully withheld relevantinformation from defense counsel prior to and during the trial, the directappeal, the state habeas proceedings, the federal habeas proceedings, andthe successive state habeas proceedings. Indeed, Mr. O’Connell misledhabeas counsel during the successive state habeas proceedings and JudgeHolland resisted counsel’s investigative efforts.

Id. at 10. Judge Brewer concluded that Mr. Hood had satisfied the successive application

requirements, reasoning that:

! Hood’s unsuccessful efforts to obtain concrete evidence of the Holland-O’Connell affair cannot be attributed to his failure to exercise reasonablediligence but, instead, is explained by the principals’ longstanding efforts

21

to keep the affair hidden.

! Hood’s repeated attempts to uncover evidence of a secret affair cannot becharacterized as less than reasonably diligent simply because he did notpursue Rule 202 proceedings earlier. Under the “reasonable diligence”inquiry of Article 11.071, the question is not whether the facts could havebeen ascertained previously, but whether the inmate was diligent in hisefforts. Diligence depends upon whether the prisoner made a reasonableattempt, in light of the information available at the time, to investigate andpursue his claims. It does not depend upon whether those efforts couldhave been successful.

! Despite relying on nothing but speculation as the basis for pursuing aninvestigation, Hood nonetheless made a conscientious attempt todetermine whether there was any truth to the rumors of the Holland-O’Connell affair. The failure to develop the facts of the judicial bias claimin the first or subsequent rounds of habeas review is squarely attributableto Judge Holland and Mr. O’Connell’s deception and non-disclosure,rather than the lack of reasonable diligence on Hood’s part.

! Simply because Rule 202 yielded evidence pertinent to a challenge toHood’s conviction and sentence does not mean that habeas counsel mustpursue civil remedies to satisfy their duty of exercising reasonable

diligence.

Id. at 11-15 (citations omitted).

The District Attorney filed lengthy objections in the CCA to Judge Brewer’s findings and

conclusions.

HOW THE ISSUES WERE DECIDED BELOW

On September 16, 2009, the CCA, in a 6-3 decision, held that: “[T]he allegation fails to

satisfy the requirements of Article 11.071, § 5(a). Accordingly, the application is dismissed as an

abuse of the writ.” App. C at 3 (citation omitted). The court provided no further explanation for

its decision. Judge Cochran, joined by Judges Price and Holcomb, dissented. Id. at 4-12

(Cochran, J., dissenting).

22

NO ADEQUATE AND INDEPENDENT STATE GROUND BARS REVIEW

In dismissing the judicial bias successive application, the CCA held that Mr. Hood

“fail[ed] to satisfy the requirements of Article 11.071, § 5(a).” App. C at 3. The Chief of the

Appellate Division of the Collin County District Attorney’s Office called this decision “a

significant procedural victory.” James C. McKinley, Jr., Judge-Prosecutor Affair, But No New

Trial, N.Y. Times (Sept. 17, 2009). The decision may, indeed, have provided the District

Attorney with a “significant . . . victory,” but it cannot be characterized as “procedural” under

this Court’s precedents: The CCA’s resolution of the claim was “‘interwoven with the federal

law’” and “‘did not clearly and expressly rely on an independent and adequate state ground.’”

Coleman v. Thompson, 501 U.S. 722, 735 (1991) (quoting Michigan v. Long, 463 U.S. 1032,

1040-41 (1983)). Consequently, this Court may review the merits of Mr. Hood’s judicial bias

claim.

The CCA has expressly recognized that the statutory requirements of Section 5(a) present

an interwoven question of state and federal law, because the applicant not only must show that

the factual or legal basis for the current claim was previously unavailable, but also must allege

“sufficient specific facts that, if proven, establish a federal constitutional violation sufficiently

serious as to likely require relief from his conviction or sentence.” Ex Parte Campbell, 226

S.W.3d 418, 421-22 (Tex. Crim. App. 2007); Ex parte Staley, 160 S.W.3d 56, 63-64 (Tex. Crim.

App. 2005); see Tex. Code Crim. Proc. art. 11.071 § 5(a)(1). The Fifth Circuit has14

The relevant portion of Section 5 provides that:14

(a) If a subsequent application for a writ of habeas corpus is filed after filing aninitial application, a court may not consider the merits of or grant relief based onthe subsequent application unless the application contains sufficient specific facts

23

acknowledged this understanding of Section 5(a) in assessing whether a state procedural ruling

bars federal habeas review, holding that “the Texas procedural bar based on factual availability

incorporate[s] a question of federal constitutional law.” Ruiz v. Quarterman, 504 F.3d 523, 529

(5th Cir. 2007); see Ake v. Oklahoma, 470 U.S. 68, 75 (1985) (“[W]hen resolution of the state

procedural law question depends on a federal constitutional ruling, the state-law prong of the

court’s holding is not independent of federal law, and our jurisdiction is not precluded.”); Rivera

v. Quarterman, 505 F.3d 349, 359 (5th Cir. 2007) (holding that, because the CCA has “imported

an antecedent showing of ‘sufficient specific facts’ to merit further review,” dismissal of an

Atkins claim as an abuse of the writ is actually a decision on the merits).

In dismissing Mr. Hood’s successive application, the CCA did not provide any

explanation for its finding that the Section 5(a) requirements had not been met. The per curiam

order offers no guidance on whether the court based its dismissal on the “unavailability” state-

law prong, or on the “sufficient specific facts” federal constitutional prong. Under the bright-line

rule of Long and Coleman, the CCA’s failure to articulate the basis for the dismissal triggers the

presumption of federal jurisdiction: The CCA analyzed a question of state law that was

interwoven with federal constitutional law, and the court did not make clear that its decision

establishing that:

(1) the current claims and issues have not been and could not beenpresented previously in a timely initial application or in a previouslyconsidered application filed under this article or Article 11.07 because thefactual or legal basis of the claim was unavailable on the date the applicantfiled the previous application[.]

Tex. Code Crim. Proc. art. 11.071 § 5(a)(1) (emphasis added).

24

rested on adequate and independent state procedural grounds. Had the CCA wished to make its

reasoning clear, it could have simply added a single sentence stating that Mr. Hood had failed to

satisfy the state-law driven “unavailability” hurdle of Section 5(a). It did not do so. As the Fifth

Circuit emphasized in Ruiz, the CCA is “keenly aware [that] its choice of language was made

against a background legal standard” that requires precision to announce an adequate and

independent state law ground for denial of relief. 504 F.3d at 527. Accordingly, this Court has

jurisdiction to review the CCA’s decision dismissing Mr. Hood’s application raising the judicial

bias claim.

REASONS THE WRIT SHOULD BE GRANTED

ONLY THIS COURT CAN DISPEL THE DEEP SHADOW THAT HASBEEN CAST OVER THE TEXAS CRIMINAL JUSTICE SYSTEM BYTHE HOLLAND-O’CONNELL AFFAIR AND THE REFUSAL OF THECOURT OF CRIMINAL APPEALS, THE DISTRICT ATTORNEY, THEATTORNEY GENERAL, OR THE GOVERNOR TO REPAIR THEDAMAGE.

The truth has a long fuse. This case proves that adage. Over the course of two days in

September 2008, the wall of silence that Judge Holland and District Attorney Tom O’Connell

had meticulously constructed and obsessively maintained for over twenty years collapsed. It not

only buried their life’s work and destroyed their reputations, it caused devastating and far-

reaching consequences to the public – imperilling confidence in the integrity of the judiciary

from the trial courts in Collin County to the high court in Austin. The failure of the State of

Texas to take any steps to repair the harm has further eroded the public’s trust. Despite the

length of time it has taken Mr. Hood to expose the romantic affair between his judge and

prosecutor, a decision to ignore the damage that resulted from keeping the truth concealed for so

25

long will only deepen the shadow that has been cast over the Texas judiciary. The due process

violation here is obvious, outrageous, and extreme. This Court must intervene, for no one else

has and no one else will.

I. The evidence is undisputed, the facts are extreme, and the constitutionalviolation is patently obvious.

In Caperton v. A.T. Massey Coal Co., Inc., 129 S.Ct. 2252 (2009), this Court reaffirmed

that the Due Process Clause mandates an objective inquiry to determine whether an alleged

violation is so egregious that “the probability of actual bias on the part of the judge or

decisionmaker is too high to be constitutionally tolerable” and recusal is required. Id. at 2257

(internal quotation marks omitted). This Court framed the standard as “not whether the judge is

actually, subjectively biased, but whether the average judge in his position is likely to be neutral,

or whether there is an unconstitutional potential for bias.” Id. at 2262 (internal quotation marks

omitted). As this Court recognized, “the disqualifying criteria cannot be defined with precision.

Circumstances and relationships must be considered.” Id. at 2261 (internal quotation marks and

citation omitted). Caperton explained that cases presenting “extreme facts” or an “extraordinary

situation” are more likely to meet the constitutional standard for recusal. Id. at 2265. Mr.

Hood’s case presents facts that are as “extreme” and “extraordinary” as those presented in

Caperton – if not more so.

The type of intimate relationship between Judge Holland and Mr. O’Connell, one that

they concealed from Mr. Hood, poses an overwhelming potential for bias that is offensive to due

process. Indeed, the formulation employed in Caperton, concluding that the judge had a

“personal stake in a particular case,” id. at 2263, applies with at least equal force to Mr. Hood’s

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facts. Judge Holland’s interest in the result of Mr. Hood’s capital murder trial was neither too

remote nor too speculative to support constitutional disqualification. Judge Holland’s intimate

sexual relationship and subsequent close friendship with Mr. O’Connell created a situation where

she naturally would be inclined to adopt his interests as her own or be solicitous and supportive

of his interests.

Mr. O’Connell wanted, of course, to secure a capital murder conviction and death

sentence against Mr. Hood. To this end, he did not simply hand over the case to an underling

while he remained seated behind a desk in his office. Instead, he actively participated in the

prosecution – questioning potential jurors, cross-examining witnesses, and arguing before the

jury. He put his professional reputation, and the prestige of his office, at stake in a special way

when he decided to try the case himself. Participating as a front-line prosecutor, he indicated the

importance of the case and of a conviction and death sentence, along with his belief in the

strength of the State’s case. The nature of the charges and sentence sought made it more likely

that Mr. O’Connell’s constituents were aware of the case and his involvement in it. It would

have been a damaging blow for him personally to try an important case like Mr. Hood’s and lose.

On the other hand, obtaining a death verdict would enhance his credentials and those of his

office. His tenure in office – his professional livelihood – depended on successful outcomes,

especially in death penalty cases.

Judge Holland would have been concerned about handing Mr. O’Connell a galling defeat

in such a highly visible case. Her long-term, intimate sexual relationship and later close

friendship with him attuned her to his professional and personal interests and made those

interests her own. Under these circumstances, it is inconceivable to assert that Judge Holland did

27

not have a direct and real interest in the outcome of Mr. Hood’s trial.

The violation in Mr. Hood’s case is even more egregious than the one in Caperton in two

respects. The first factor deals with the nature of the relationship at issue. Whatever the

temptation may be to disregard the guiding principle of neutrality for a campaign benefactor, the

objective probability that bias will creep into the judge’s decisionmaking is far greater when a

litigant has been the judge’s long-term paramour. The second factor is that Judge Holland and

Mr. O’Connell kept their relationship a secret. In Caperton, the offending relationship was

known to all the parties. The probability of actual bias increases when the relationship at issue is

not open to public scrutiny. Cf. Richmond Newspapers v. Virginia, 448 U.S. 555, 570 (1980)

(opinion of Burger, C.J.) (recognizing the “nexus between openness, fairness, and the perception

of fairness”). Even Judge Holland now acknowledges that, had she been asked to do so, it would

have been appropriate for her to recuse herself. JH at 36-37. In short, because her secret,15

intimate sexual relationship with the prosecutor created for Judge Holland a direct and personal

interest in the outcome of the proceedings, Mr. Hood’s trial was infected by a “probability of

actual bias . . . too high to be constitutionally tolerable.” Caperton, 129 S. Ct. at 2257 (internal

quotation marks and citation omitted).

The constitutional violation in this case, moreover, cannot be considered in a vacuum. As

in Caperton, a due process violation of this magnitude calls into question the integrity of the

judicial system as a whole. Judge Holland’s conduct is telling in this regard: Both her failure to

disclose the relationship at the time of the trial and her extensive efforts to keep the affair secret

Of course, the shroud of secrecy with which Judge Holland and Mr. O’Connell15

enveloped their relationship denied Mr. Hood’s prior counsel of any good faith basis for filingsuch a motion. See Declaration of David K. Haynes, supra; Affidavit of David K. Haynes, supra.

28

indicate her belief that public confidence in her role as an impartial fact-finder would be

undermined by disclosure.

The CCA’s handling of Mr. Hood’s case has only compounded the problem. Numerous

editorials have focused on the damage the case has caused to the public’s trust in the judiciary.

See Editorial, Ruling in Hood Case Degrades Court System, Dallas Morn. News (Sept. 17, 2009)

(“[T]he issue is the integrity of the Texas court system and the appeals court’s interest in flushing

out the stench of corrupted justice. Sadly, the court has proved itself unwilling.”); Editorial,

Hood Case Bruises Texas Judicial Trust, San Antonio Express News (Oct. 4, 2008) (“The

biggest loss . . . is to the integrity of the judicial system.”); Editorial, Wait A Minute: A Stay of

Execution for Convicted Murderer Charles Hood Raises Troubling Questions of Judicial

Integrity, Hous. Chron. (Sept. 15, 2008) (“What is at stake now is not only [Hood’s] fate, but the

integrity of the Texas judicial system. Now that the fact of the relationship between the judge

and the prosecutor has been established, the Court of Criminal Appeals should reconsider its

denial of Hood’s claims on this matter and grant him a new trial.”); Editorial, Latest Tale of

Texas Justice Rated “E” for Embarrassment, Austin-American Statesman (Sept. 12, 2008)

(“[T]he handling of his case by the Texas justice system is embarrassing and must not happen

again. But it probably will.”); Editorial, Leave No Question Unanswered, Dallas Morn. News

(Sept. 10, 2008) (“Legitimate questions of compromised justice must not linger when Texas

carries out the death penalty.”); Editorial, Too Soon and Too Many Questions, N.Y. Times (Sept.

6, 2008) (“Even supporters of capital punishment should be appalled at the prospect of executing

a man after a trial that – if Mr. Hood's charges are true – was so grossly unfair.”); Editorial,

Claim that Judge, Prosecutor had Affair Taints Murder Case, Corpus Christi Caller Times (Sept.

29

6, 2008) (“The Texas criminal justice system has performed atrociously in the prosecution of

Charles Dean Hood[.]”).

In addition to the public outcry, last year over two dozen former federal and state judges

and prosecutors, including William Sessions, who served as a United States Attorney and federal

judge in Texas before becoming the Director of the FBI, sent a letter to Governor Perry seeking a

halt to Mr. Hood’s execution. See App. H (“[W]e have no doubt that this relationship would

have had a significant impact on the ability of the judicial system to accord Mr. Hood a fair and

impartial trial.”); see also Texas Inmate Draws Prestigious Support, USA Today (Sept. 4, 2008).

Three dozen of the nation’s leading legal ethicists and the nearly 500-member Association of

Professional Responsibility Lawyers (APRL) also weighed in, stating that the alleged

relationship between Judge Holland and Mr. O’Connell would be a violation of Mr. Hood’s

constitutional rights. See Statement of APRL Concerning Charles Dean Hood (July 22, 2008)

(available at http://www.aprl.net/pdf/ APRL_Statement_CharlesDeanHood.pdf (last visited on

Dec. 10, 2009)).

Allowing this due process violation to stand would cause long-term, irreversible harm to

the public’s faith in the rule of law, for “[t]he legitimacy of the Judicial Branch ultimately

depends on its reputation for impartiality and nonpartisanship.” Mistretta v. United States, 488

U.S. 361, 407 (1989). The Court must take action.

30

II. The State of Texas has refused to address the damage that theHolland-O’Connell affair has done to the public’s confidence in theadministration of justice.

It staggers the imagination to think that 15 months after presenting undisputed evidence

that Judge Holland and Mr. O’Connell were involved in an intimate sexual relationship prior to

his trial Mr. Hood must turn to this Court as his last chance for relief. No one would want to

contest a traffic ticket – let alone a charge of capital murder – in Judge Holland’s courtroom

with Mr. O’Connell prosecuting. Yet the Court of Criminal Appeals remains unmoved by this

incredible event; the District Attorney continues to defend the conviction and death sentence with

vigor; and the Attorney General of Texas has abandoned the fight.

That a judge charged with avoiding the appearance of bias and a prosecutor tasked with

doing justice would allow their desire for secrecy to trump their sworn constitutional duties is a

stunning display of arrogance and the corrupting influence of unchecked power. That others in a

position to correct this injustice condoned the principals’ generation-long silence in a death

penalty case is unconscionable. Mr. Hood survived six execution dates before Judge Holland

and Mr. O’Connell were forced to reveal the truth. No one should escape blame for this

reprehensible record that has skewed the public’s perception of the administration of justice in

Texas.

On June 17, 2008, Mr. Hood was literally minutes away from being executed. No

individual or institution – not the Collin County District Attorney, not the Attorney General of

Texas, not the CCA, not the Governor – gave any credence to Mr. Hood’s evidence of an affair

between Judge Holland and Mr. O’Connell. But for a series of convoluted and serendipitous

events later that night, Mr. Hood would have been executed and the reputations of Judge Holland

31

and Mr. O’Connell would have remained intact. Time, not justice, saved Mr. Hood’s life that

night. But for one courageous jurist willing to apply the plain language of Rule 202, the truth

would have been buried with Mr. Hood three months later, on September 10, 2008, when he

faced his sixth execution date.

The District Attorney has lost sight of his primary duty to seek justice. Neither the public

nor this Court should have confidence that he can perform his duties in a dispassionate manner.

Given his long friendship with Judge Holland and Mr. O’Connell, serious questions remain about

whether the District Attorney knew about the romantic relationship. Despite receiving at least a

half dozen pro se pleadings from Mr. Hood over the years, putting him on notice of potential

constitutional problems emanating from the alleged relationship, the District Attorney never

lifted a finger to confirm or deny the allegations. As the Massachusetts Supreme Court aptly put

it, after an assistant prosecutor became romantically involved with a defendant’s lawyer:

We . . . find it unsettling that in an area where forthrightness should be the rule,the integrity of a member of the profession having been questioned, theCommonwealth offered no affidavit from either [the assistant prosecutor or thedefense attorney]. The Appeals Court’s view of this was that the absence of suchan affidavit suggests that the defendant’s allegations may not be far from themark. We agree.

Commonwealth v. Croken, 733 N.E.2d 1005, 1013 (Mass. 2000) (citation and internal quotation

marks omitted). The District Attorney’s behavior in this case is more egregious than the

prosecutor’s in Croken. Here, the District Attorney not only refused to conduct any investigation

into the allegations himself but he aggressively sought to prevent Mr. Hood from investigating

the allegations: First, he repeatedly opposed Mr. Hood’s efforts to take the depositions of Judge

Holland and Mr. O’Connell. Second, he refused to join the Attorney General in urging Judge

32

Brewer to grant a stay of execution and conduct a thorough inquiry of the issue. In retrospect, the

District Attorney’s complaints about Mr. Hood’s attempts to depose Judge Holland and Mr.

O’Connell sound like “the fear of too much justice.” McCleskey v. Kemp, 481 U.S. 279, 339

(1987) (Brennan, J., dissenting).

The conduct of the District Attorney since the taking of the depositions has been even

more disturbing, considering that the existence of the affair has now been proven beyond a doubt.

The District Attorney has yet to acknowledge that the behavior of his former colleagues in

refusing to disclose their relationship or recuse themselves was improper, unethical, or

unconstitutional. The District Attorney refused to join Mr. Hood in seeking a reprieve from the

Governor after Judge Holland and Mr. O’Connell had confirmed the existence of the affair.

Instead, he sought to shift the blame to Mr. Hood, accusing him of excessive delay in unearthing

concrete evidence of a clandestine affair, manipulating the courts, and stage-managing the media

to obtain last-minute stays of execution. Particularly galling, the District Attorney complained

that Judge Brewer’s appointment of a defense attorney as a special master on the remanded

issues would create an appearance of impropriety. The District Attorney’s intransigence in

continuing to defend Mr. Hood’s conviction and sentence calls into question his adherence to his

duty “that justice shall be done.” Berger v. United States, 295 U.S. 78, 88 (1935). Knowing

what we know now, the District Attorney’s behavior in this entire matter is stunning: He opposed

every attempt Mr. Hood made to get to the truth.16

Remarkably, District Attorney John Roach was named “Prosecutor of the Year” for his16

achievements in 2008 by the Texas District and County Attorneys Association. According to thepress release found on the website of the Collin County District Attorney’s Office, Mr. Roachsaid that “recognition by his fellow Texas prosecutors as Lone Star Prosecutor of the Year is agreat honor, ‘and doubly so because of our shared dedication to the truth, justice, and the rule of

33

The Attorney General of Texas is not without fault in this debacle either. Although he

eventually aligned himself with Mr. Hood prior to the depositions by filing an amicus brief

calling for a thorough review of the issues, the Attorney General emphasized that Mr. Hood’s

allegations were “unsubstantiated,” App. F, and he refused to take a position on “whether this

relationship existed.” App. G at 1. The Attorney General then trotted out the tired mantra that

Mr. Hood’s lawyers had abused the judicial process through their dilatory tactics, “wait[ing]

years before raising last minute claims,” and criticized counsel for re-traumatizing “the victims’

families, who desperately want, need, and deserve finality.” App. F. The Attorney General’s

cake-and-eat-it desires – to restore the public’s faith in the judiciary while castigating Mr. Hood’s

attorneys for not coming forward earlier with credible, compelling evidence of this furtive

relationship – raise serious questions about his commitment to justice in this case.

That the Attorney General would take the unprecedented and momentous action of filing

an amicus brief on behalf of a death row inmate days away from execution based solely on

“unsubstantiated” rumors beggars belief. But, of course, the Attorney General knew by the time

he wrote to the District Attorney that Mr. Hood’s allegations were no longer unsubstantiated: By

then, a lawyer in his office had been representing Judge Holland for ten days in the Rule 202

proceedings. Once the Attorney General confirmed the truth of the allegations, he had no choice

but to join Mr. Hood and withdraw from representing Judge Holland because of a conflict of

interest.

The Attorney General’s silence in the months since the CCA dispensed with Mr. Hood’s

law.’” Collin County DA John Roach Receives 2008 Lone Star Prosecutor Award (available athttp://www.collincountyda.com/press.htm (last visited on Dec. 8, 2009)).

34

claim is dismaying. Despite the Attorney General’s firm belief that “the allegations should be

explored before the sentence is carried out,” Jennings, Attorney General Defends Actions, supra,

he no longer professes any interest in the matter. On October 19, 2009, undersigned counsel

received the following voice mail message from the Solicitor General of the State of Texas:

The decision has been made that the earlier briefing that the Attorney General’sOffice filed speaks for itself and covers what this Office – the Attorney General’sOffice – would like to convey to the courts. So, there’s no plan to file anythingelse. Obviously, the filing that you’ve already seen [the Attorney General’sAmicus Brief of September 5, 2008] is a public document that can be used at anytime by anyone. So, good luck on your matter and take care.

One would have hoped that the Attorney General, after being presented with undisputed evidence

of the Holland-O’Connell affair, had in mind a more probing exploration of the claim than the

CCA’s two-sentence ruling.

Even before its inexplicable order of September 16, 2009, the CCA’s own motives were

called into question last year by its eleventh-hour interest in a Penry claim that it had soundly

rejected on three previous occasions. The CCA stayed Mr. Hood’s execution on September 9,

2008, “[b]ecause of developments in the law regarding nullification instructions.” Hood, AP-

75,370. The “developments in the law” to which the CCA referred were, of course, this Court’s

decisions in Abdul-Kabir v. Quarterman, 550 U.S. 233 (2007), Brewer v. Quarterman, 550 U.S.

286 (2007), and Smith v. Texas, 550 U.S. 297 (2007). This Court handed down all three of those

decisions on April 25, 2007, over a year before Mr. Hood came within minutes of being executed

on June 17, 2008. See Editorial, Rated “E” for Embarrassment, supra (“This latest action by the

Court of Criminal Appeals looks like an attempt to get this fiasco of justice out of the headlines

while holding a fig leaf up for one of its former members and the court itself.”). On June 17,

35

2008, after Judge Henderson unexpectedly withdrew the death warrant, the CCA denied the

District Attorney’s motion for leave to file a petition for writ of mandamus. However, instead of

issuing a one-sentence order, as is done in the vast majority of cases, the CCA addressed in dicta

the matter of the trial court’s authority – and handed the District Attorney a legal roadmap for

vacating Judge Henderson’s order. On his second attempt, the District Attorney succeeded in

obtaining a writ of mandamus. The CCA’s latest ruling is more disturbing yet: In the face of

undisputed evidence of the affair, the court issued a boilerplate decision. Moreover, the public

cannot help but question the fairness of the criminal justice system when eight of the nine current

members of the court reviewing Judge Holland’s conduct shared the bench with her. 17

The utter failure of the State of Texas to act in the wake of the confirmation of the17

Holland-O’Connell affair stands in marked contrast to the immediate and decisive steps taken bythe Pennsylvania Supreme Court and the state legislature following the recent revelation of thebiggest legal scandal in that state’s history. Earlier this year, two Pennsylvania state-court judgeswere accused of accepting more than $2.6 million in kickbacks in exchange for sendingthousands of juveniles to private detention centers. See generally Ian Urbina, Despite Red Flagsabout Judges, A Kickback Scheme Flourished, N.Y. Times (Mar. 27, 2009). The Supreme Courtof Pennsylvania, recognizing that the pending criminal charges “call[ed] into question thepropriety of juvenile adjudications and dispositions,” assumed plenary jurisdiction over thematter and appointed a special master to conduct a wide-ranging review of all juvenile casespotentially affected by the judges’ conduct. In re J.V.R., No. 81 MM 2008 (Feb. 11, 2009) at 1. A special master appointed by the Pennsylvania Supreme Court recommended extraordinaryrelief: that all adjudications of delinquency or consent decrees entered by the judge during theperiod in question be vacated and that many of those records be expunged. In adopting thoserecommendations, the Pennsylvania Supreme Court recognized that its order would apply even tojuveniles who were not committed to the juvenile detention facilities in question. The courtfound “that those cases are no less tainted” by the “‘pall’ that was cast over all juvenile matterspresided over” by the accused judge and that, “given the nature and extent of the taint, this Courtsimply cannot have confidence that any juvenile matter adjudicated by [the judge] during thisperiod was tried in a fair and impartial manner.” In re Expungement of Juvenile Records (Oct.29, 2009) at 6-7 (emphasis in original). The Pennsylvania Legislature likewise recognized thatexceptional action was necessary to restore public confidence in the integrity of the judicialsystem and created a special commission to investigate a range of juvenile justice issues broughtto light by the kickback scandal. Interbranch Commission on Juvenile Justice Act, 2009 Pa.Sess. Law 1648 (Aug. 7, 2009).

36

The State of Texas hopes that ignoring this cancer on the judiciary will cure it. The

District Attorney has lost sight of his duty to pursue justice, not a conviction. The Attorney

General has lost interest. The Texas courts have failed Mr. Hood. The federal courts appear

barred from reviewing the judicial bias claim in a successive petition. See 28 U.S.C. §

2244(b)(2)(B). Clemency in Texas is a farce. Only this Court is in a position to deliver justice to

Mr. Hood and restore public confidence in the integrity of the judiciary.

CONCLUSION

This Court should grant certiorari to ensure the CCA’s compliance with Caperton.

Without this Court’s intervention, the damage to the Texas criminal justice system will go

unrepaired. Because of the extreme, incredible, and undisputed facts of this case, the Court

should summarily reverse the decision of the CCA. In the alternative, the Court should grant

certiorari and schedule the case for briefing and oral argument.

Respectfully Submitted,

_____________________

Gregory W. Wiercioch* Kathryn M. KaseTexas Defender Service Texas Defender Service430 Jersey Street 1927 Blodgett StreetSan Francisco, California 94114 Houston, Texas 77004(TEL) 832-741-6203 (TEL) 713-222-7788(FAX) 512-477-2153 (FAX) 713-222-0260

* Counsel of Record, Member Supreme Court Bar

37

No.

IN THE SUPREME COURT OF THE UNITED STATES

October Term, 2009______________________________________

CHARLES DEAN HOOD,

Petitioner,

V.

THE STATE OF TEXAS,

Respondent.______________________________________________

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of Petitioner’s Petition for Writ of Certiorariwas served on Counsel for Respondent on this 15th day of December 2009, via First ClassUnited States Mail, addressed to:

Jeffrey GaronAssistant District AttorneyCollin County District Attorney’s Office2100 Bloomdale Road, Suite 20004McKinney, Texas 75071

__________________________