Did Texas Blink

Just when you were thinking maybe the Supreme Court would tell the Texas Court of Criminal Appeals to grow up (OK, maybe you weren't thinking that, but maybe the CCA was), the CCA seemingly finds a way to dodge the (potential) bullet.

For the last few days, the media and the blawgs (including this one) have been talking about the case of Charles Hood. He's the guy on death row in Texas after a trial presided over by a judge who had had what sounds like a pretty tawdry affair with the guy prosecuting the case. If that suggests possible bias and conflict of interest to you, join the club. Only the Texas courts seemed insufficiently concerned.

Those who follow death penalty cases obsessively had been watching the Hood train wreck for quite a while. We'd seen the CCA doing gyrations to avoid addressing the issues. We'd been wondering how the case might look to the Supreme Court But the sudden uptick in the news this week came when an amicus brief from 21 former judges and prosecutors was filed urging the Court to hear the case and Adam Liptak wrote about it.

That was then.

Today, the CCA, in a split decision, granted Hood a new sentencing hearing.

The official explanation is that he was entitled to what is known as Penry relief. Penry was actually two cases.

In Penry I (1989), the Supreme Court held that mental retardation was not an absolute disqualifier for death (a position on which the Court reversed itself in Atkins v. Virginia). Relevant here, the Penry I court also said that Texas death penalty law at the time of Penry's trial didn't allow the jury to consider whether his mental retardation and abusive background should, in his case, have prevented a death sentence. Back he went to Texas where a new jury again sentenced him to die.

And then back to the Supreme Court which, in Penry II (2001), decided that the Texas solution to the problem of how to let jurors give effect to mitigation evidence (just ignore the actual questions you are formally asked and give a dishonest answer that will prevent death - I'm oversimplifying, but not by much) was itself unconstitutional.

Anyway, Hood now gets Penry relief because his jurors would have had to lie to prevent a death sentence.

Why now? And why Hood?

Maybe, just maybe, because the CCA really didn't want to be told just how slimy they were. Or, of course, maybe they just wanted to do the right thing. (Giggling allowed here.)

From Geneva to Austin (corrected to fix a broken sentence and confused link)

In a better world, I'd have had the money and time to go to Geneva this week.

That's where the 4th World Conference Against the Death Penalty is being held beginning in a couple of hours. The idea is that over 1,000 people from around the world will attend plenary sessions, roundtables, and workshops. There will be exhibits and films and theater, voices of the exonerated and innocent condemned, a special bookstore. Government officials and activists and artists.

According to the organizers,

The World Congress Against the Death Penalty is a triennial opportunity to bringtogether abolitionist groups, strengthen the international dimension of the fight againstthe death penalty and draw up common strategies with a view to universal abolition. More specifically, the 4th Congress will pursue the following goals:

• To strengthen ties between civil society, international and intergovernmental institutions and organisations (NGOs, the Arab League, the OIF, the OSCE,the Council of Europe, the OAS, the African Union, etc.) as well as national and local entities in support of the abolitionist movement;
• To involve players of retentionnist States from so-called Southern regions in the defining and the defining and the leading of abolitionist strategies;
• To increase the political, diplomatic, religious, social and cultural impact on retentionnist States;
• To enlarge the World Coalition Against the Death Penalty and to encourage the building of National and Regional Coalitions;
• To raise global awareness among the public, in favor of the urgent need for global abolition.

This is no small thing.

They begin at the United Nations, which is fitting as the death penalty pretty clearly violates currently understood norms of international law.

Still, some 30 % of the world's nations employ the death penalty.

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We don't live in that better world, though. We live in the world where Charles Hood sits on death row in Texas, condemned after a trial presided over by a judge who had an affair with the prosecutor.

The Texas Courts took a dim view, not of what the judge and prosecutor did but of Hood for taking so damn long to complain about it. In a 6-3 decision the Court of Criminal Appeals said, in essence, that Hood waited too long to complain. The majority did not address the question of whether the fact that judge and prosecutor had been lovers created a conflict of interest.

Nor did the dissenters. They would have sent the case back to the lower courts in an effort to answer that question. But they were dissenters. The lower court will have to wait. Perhaps forever.

Meanwhile, Hood has asked the Supreme Court to step in. And he's not alone. As Adam Liptak points out, a group of 21 former judges and prosecutors and judges filed an amicus brief with the Court on Hood's behalf. Another was filed by 30 experts in legal ethics. Sarah, that ranting public defender, says that she's never seen anything like it.

If that many prosecutors will publicly ask the United States Supreme Court to overturn a conviction, well then there's probably something seriously, and obviously, wrong with the conviction.

Really, it's pretty simple. Scott Greenfield calls it "one of the most embarrassing failures of the law in years." As Liptak observes, the ethics experts say in their brief that a judge in such a case must recuse herself. It's an open question, it seems, only in the Lone Star State.

Of all the courts to have considered the issue, only the Texas Court of Criminal Appeals in this case failed to recognize this imperative.

Rick Horowitz is driven to near profanity in his anger over the story, saving himself only by the substitution of asterisks for the "uc" in "fuck." (Regular readers of this blawg, all three of you, know that I'm less restrained than Rick and am willing on occasion to risk a terms of service violation with the odd word you can't say on television.)

It really is outrageous that Texas courts have, er, blown Hood off. But really, as the dissenters noted, it was just a little affair.

Based upon the sworn testimony of both of the participants, theirs was hardly the torrid relationship of romance novels. It might more fairly be characterized as a close personal relationship that, on a few rare occasions, dipped into intimacy. No one disagrees that those occasions ended in 1987, some three years before applicant's trial. It was, nonetheless, a personal relationship that went much further than the social relationship that one normally finds between professional colleagues.

No big deal. Just the occasional dip into intimacy.

More to the point, we excuse what prosecutors and judges do. Their hypocrisy and conflicts are, at least often, things we can comfortably ignore. After all, the alternative is that the Charles Hoods of the world might not get killed.

Do we care? Should we? Do we value doing it right and obeying the rules? Or are we just out for blood?

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As I said, in a better world, I'd have had the money and time to go to Geneva this week.

In a much better world, there wouldn't be any reason to go.