What happens when the judge and prosecutor are dating?
The case against Charles burst into the news last year when his lawyers discovered that the Judge who presided over his case was in a relationship with the District Attorney at the time of the trial. Needless to say, they had done everything possible to prevent anyone from finding out. While that is interesting enough, the case becomes more interesting when you learn that the judge went on to serve on the Court of Criminal Appeals for a period of time; the same court that will have to decide the habeas petition filed by Mr. Hood.
Last week, the current trial judge entered findings in the habeas proceeding. Among other things, he found that Mr. Hood could not be faulted for not raising the issue sooner. Predictably, the State had argued that the issue had been waived because he had waited too long to raise. To his credit, the judge found the fault for not raising the claim earlier lay on the District Attorney and the Judge; they went to great lengths to cover up the relationship, and shouldn't be allow to benefit from their success in doing so.
The case now goes to the Court of Criminal Appeals - several of whom served with the Judge. They have to decide whether to accept the findings, and if they do, what to do with the case. CBS news reporter Andrew Cohen seems to think there is no way Hood will not get a new trial. I'm not so sure; the Court certainly has a history of rejecting equally compelling claims.
If the court frames the issue as whether the judge was impartial, they could look at the decisions made during trial. They might conclude it did not appear she was favoring the State. Of course, that doesn't pass the smell test, but neither does many of the things the Court does.
Mr. Cohen also suggests the current DA follow the lead of the U.S. Attorneys in the Ted Stevens case, and dismiss the prosecution. The problem is that they have no authority to do so. Mr. Hood has already been convicted, and sentenced. The only one who can undo that is the Court of Criminal Appeals. They could agree that the a new trial should be granted, but the final decision is still up to the court. They do not have to accept the State's recommendation, and they have found against defendants before when the court and prosecutor both believed relief should be granted.
I believe this may be a test for the court.. They have certainly done much to bring disfavor on themselves. This would be an opportunity to start on a different direction. While a decision to grant relief in this case won't solve their credibility problem, it won't make it worse. On the other hand, public opinion of the Court can't get much worse.
We have become conditioned to have low expectations of the Court, espeically in death penalty cases. I
