SCOTUS, Sex, Sex Scandals, State Judges, State Judges Are Clowns, Supreme Court

If the judge used to sleep with the prosecutor, is recusal required?

Verla Sue Holland Judge Thomas O'Connell Jr old people having sex is gross.jpgWe previously named Verna Sue Holland, a retired judge from Texas, an Ex-Judge of the Day. Now the ex-judge — or should that be “sex judge” — is back in the news.
Writes Adam Liptak, in the New York Times:

Charles Dean Hood was sentenced to death in 1990 by a Texas judge who had been sleeping with the prosecutor in his case. It took Mr. Hood almost 20 years to establish that fact.

But he finally managed to force the two officials to testify about their rumored affair in the fall of 2008. They admitted it.

Sounds like a conflict of interest that would justify overturning the conviction, right?
Not so fast. Not in Texas.

Texas’s highest court for criminal matters, its Court of Criminal Appeals, considered all of this and concluded that Mr. Hood should be executed anyway. In a 6-to-3 decision in September, the court told Mr. Hood that he had taken too long to raise the issue of whether a love affair between a judge and a prosecutor amounted to a conflict of interest.

Mr. Hood has asked the United States Supreme Court to hear his case. On Thursday, 21 former judges and prosecutors filed a brief supporting him. So did 30 experts in legal ethics.

Question presented: whether a conflict of interest arising out of an affair between a judge and a prosecutor is vitiated if the affair was lousy.
“Affair” may be a generous characterization of the relationship. Because this was, to quote one judge who heard the appeal, “hardly the torrid relationship of romance novels”:

The affair itself, as described in the depositions of the two former lovers, sounded tawdry and sad.
chafing dish with sterno can.jpgJudge Verla Sue Holland, who presided over Mr. Hood’s case in a district court in Collin County, Tex., testified that she and the prosecutor, Thomas S. O’Connell Jr., had had sex at each other’s homes when their spouses were away. This happened, she said, seven or eight times.
Mr. O’Connell did not seem especially romantic. Judge Holland testified that he once gave her a picture of a polar bear with a matching cup. Another time he gave her a chafing dish.

Come on baby light my… Sterno can? Giving your lover a chafing dish sends a strange message. “Your body is a wonderland… hot buffet?”
(If he had given her a chocolate penis instead of a chafing dish, maybe the Texas court would have tossed out the conviction.)
Perhaps the relationship isn’t grounds for overturning the conviction because, if anything, it made Judge Holland biased against the prosecution. It sounds like prosecutor Thomas O’Connell was an inconsiderate lover:

He never stayed the night. “I had a truck that everybody recognized,” Mr. O’Connell explained.
And he might have been more sympathetic when Judge Holland’s mother died.
“Tom didn’t send a card,” the judge testified. “He didn’t send flowers. He didn’t come by. He didn’t call. You know, I think that’s pretty callous.”

We feel bad for Judge Holland. But, at the same time, it sounds like she may have mistaken a “f**k buddy” relationship for a true “love affair.” What was Judge Holland expecting — whore flowers, delivered to chambers?
And flowers and phone calls might have blown the lovers’ cover, since Judge Holland kept this relationship firmly underneath her robe:

Whatever the precise contours and intensity of the affair, Judge Holland did testify that she would have disqualified herself from Mr. Hood’s case had his lawyers asked. But she also said she and Mr. O’Connell had kept their extramarital affair secret. She said it ended in 1987, three years before Mr. Hood’s trial.

She would have stepped aside if asked — but how were Hood’s lawyers to have known about the relationship? Practice pointer for Texas defense lawyers: file a protective Motion to Recuse in Case the Judge Used to Sleep with the Prosecutor, in all of your pending cases.

In her deposition, Judge Holland said she had lately become angry with Mr. Hood’s lawyers for “annihilating my reputation.” She said she had asked the attorney general’s office to represent her in Mr. Hood’s challenge to her conduct because she thought she needed to fight back. She was “tired of laying over,” she said, and “getting licked without any input.”

Actually, it sounds like Judge Holland quite enjoyed “laying over” and “getting licked.” So it seems rather untimely for her to be worrying about her “reputation.”
In all seriousness, this case isn’t completely clear-cut. The sexual relationship ended some three years before the trial, and it seems like O’Connell was a piss-poor paramour anyway. Was Judge Holland somehow obligated to mention, sua sponte, that the prosecutor used to pay nocturnal visits to her “in chambers” — bedchambers, that is — years ago?
Should there perhaps be a “statute of limitations” on sexual relationships between litigation participants and the presiding judge as grounds for disqualification? What if the judge and a litigant had hooked up back in college — would that be enough to disqualify?
And what precise level of physical intimacy would trigger recusal? As we once wondered: “If the Court Has Gone Down on You, Is Recusal Required?”
We hope the Supreme Court grants certiorari. It would be interesting to watch the justices tackle these thorny questions.
Earlier: Ex-Judge of the Day: Verla Sue Holland
Legal Ethics Question of the Day: If the Court Has Gone Down on You, Is Recusal Required?
Seitz v. Bareille: Blown Out of Proportion?

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