Thursday, September 11, 2008

Privacy more important than legal ethics?

If you would have to go to court, you would expect the judge to be nonpartisan, impartial and clinical, wouldn't you? And normally, if someone has a sexual affair which is going on for years, this person does have a personal relationship to his partner, doesn't he?

Now if your judge and your proscecutor have an affair, you should get the chance to recuse the judge for bias I would believe... Which on the other hand is a problem if both of them fail to reveal their affair for years. In a case like this, wouldn't you think that you at least deserve a second chance in court?

"A judge and a prosecutor who handled the murder trial of a man sentenced to death here have admitted under oath that they carried on a secret affair for years, lawyers for the condemned man said Tuesday in a letter to Gov. Rick Perry.

On the same day, the highest criminal court in Texas postponed the man’s execution, which had been set for Wednesday evening — not because of the affair, but to reconsider whether the jury instructions were flawed.

In the letter to the governor, lawyers for the inmate, Charles Dean Hood, said the former judge, Verla Sue Holland, and the former prosecutor, Thomas S. O’Connell Jr., testified in depositions given late Monday and Tuesday morning that they had a romantic relationship for years.

“Judge Holland and Mr. O’Connell confirmed that they kept the relationship secret,” Mr. Hood’s lawyer, Gregory W. Wiercioch, wrote to the governor. “She never disclosed it to a single litigant or lawyer who appeared before her, and she never recused herself from hearing a single case because of her affair with the elected district attorney.”

“Similarly, Mr. O’Connell never disclosed the romantic relationship to any of his adversaries nor did he recuse himself or his office from prosecuting a single case because of his affair with Judge Holland,” Mr. Wiercioch added.[...]

For years, rumors had swirled around Collin County, just north of Dallas, about a romantic liaison between Judge Holland, who was a district judge from 1981 to 1997, when she joined the state’s highest court, and Mr. O’Connell, who served as the prosecutor from 1971 until 2002, except for four years in the 1980s.

Hannah Kunkle, the court clerk, said it was impossible to determine how many other cases Mr. O’Connell had prosecuted before Judge Holland.

The affair might have gone unnoticed by history had it not been for the trial of Mr. Hood, who was convicted and sentenced to death for the murder and robbery of a couple in Plano. Mr. O’Connell handled part of the prosecution, while Judge Holland presided.

This June, a former assistant district attorney came forward and signed an affidavit saying the affair was common knowledge in Mr. O’Connell’s office during the time of the trial.

The Texas Court of Criminal Appeals later that month rejected a request to stay the execution based on that information, saying it amounted to hearsay. Mr. Hood’s lawyers sued in civil court to compel Mr. O’Connell and Judge Holland to testify.[...] (NYT, 9/9/08)

"Hood's attorneys said in their letter to the governor that the affair and the failure to inform Hood's lawyers was "a shocking and devastating indictment of the Texas criminal justice system."

Legal ethicists agreed, saying that Holland and O'Connell had a duty to acknowledge the affair before trial, and especially as Hood faced death in June.

"A relationship between a judge and a prosecutor, when a man's life is at stake? I can't understand how anyone could reach the conclusion that there's no bias," said David Zarfes, associate dean of the University of Chicago Law School and a scholar of legal ethics. "It's a no-brainer."

Lawrence Fox, a professor at the University of Pennsylvania Law School and a former chairman of the American Bar Assn.'s ethics panel, said the date that the affair ended was unimportant.

"I don't care when it ended. Because the very nature of a personal relationship like that has such a dramatic effect on people -- positive, negative -- that no litigant should be in a position where they have to worry if the judge will be biased," said Fox, one of 36 legal ethicists who signed a letter to the Texas courts and to Perry saying that such a relationship would be a conflict of interest.

Fox said it was outrageous that Holland and O'Connell had refused to confirm the affair in June, when Hood was facing execution and survived only because of legal fighting.

"This man would be dead," he said. "And these people stood silent."

Supporters of the judge and prosecutor have said that their privacy was an issue.

Fox said too that acknowledgment of the affair likely would lead to challenges by other inmates who were prosecuted by O'Connell in Holland's courtroom.

"They must have handled many cases. And every one of them will be subject to a new trial," Fox said. "Any objective observer would say, 'Oh my God, you can't have that relationship going on.' " (LA Times, 9/10/08)

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