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A Texas man scheduled for execution Tuesday alleges in documents filed Thursday in the Texas Court of Criminal Appeals that his conviction and sentence are “null and void,” because the judge who presided over his 1990 trial was having an affair with a prosecutor on the case — an allegation that surfaced at least three years ago. Charles Dean Hood, who faces death by lethal injection June 17, alleges in his “Original Petition for Writ of Habeas Corpus or in the Alternative Original Petition for Writ of Prohibition and Motion for Stay of Execution” that Verla Sue Holland, who was presiding judge of the 296th District Court in 1990, was involved in a long-term intimate relationship with then- Collin County District Attorney Tom O’Connell, who actively participated in Hood’s capital murder trial. As alleged in Hood’s writ petition, neither Holland nor O’Connell was married at the time of Hood’s trial, but neither chose to make their relationship public. Holland also served on the Court of Criminal Appeals from 1997 until her retirement in 2001. Neither Holland nor O’Connell, who is now in private practice in Plano, Texas, immediately returned telephone calls seeking comment. According to the writ petition in In Re: Hood, a 296th District Court jury convicted Hood of capital murder and sentenced him to death for the 1989 murders of Ronald Williamson and Tracie Lynn Wallace. The CCA previously stayed Hood’s execution on June 27, 2005, three days before he was scheduled to die by lethal injection. The CCA determined in 2005 that Hood met the requirements for consideration of a subsequent habeas writ based on his contention that the jury did not “consider and give effect to mitigating evidence presented at trial.” Richard Ellis of Mill Valley, Calif., one of Hood’s attorneys, said in 2005 that the stay would give Hood’s habeas team more time to investigate the allegations that Holland and O’Connell were having an affair at the time of the 1990 trial. The CCA dismissed Hood’s 2005 writ application in a 5-4 decision in 2007. CCA Presiding Judge Sharon Keller wrote for the majority that the court could not consider the writ application because the legal bases on which Hood relied in filing it had been available when he filed a previous writ application in 2004. Ellis says in an interview that Hood’s habeas team had been unable until recently to pin down the allegations regarding the alleged relationship between Holland and O’Connell. A Plano attorney has provided a sworn statement regarding the alleged romance between the former judge and prosecutor. Matthew Goeller, a former Collin County assistant district attorney, alleges in an affidavit attached to Hood’s habeas writ petition and other court documents that it was common knowledge in the DA’s office and the Collin County bar that Holland and O’Connell had a romantic relationship. “This relationship between the District Attorney and Judge Verla Sue Holland was in existence in 1989 when I joined the District Attorney’s Office, and continued until approximately 1993,” Goeller, now an attorney in private practice in Plano, alleges in the affidavit. As alleged in Hood’s writ petition, Holland’s relationship with O’Connell disqualified her from presiding over Hood’s trial under Texas Constitution Article 5, §11. That constitutional provision provides: “No judge shall sit in any case wherein the judge may be interested, or where either of the parties may be connected with the judge, either by affinity or consanguity, within such a degree as may be prescribed by law, or when the judge shall have been counsel in the case.” Hood further alleges in the writ petition that Holland’s participation in his case violated the Eighth and 14th Amendments to the U.S. Constitution. Citing the U.S. Supreme Court’s 1927 decision in Tumey v. Ohio, Hood argues in the writ petition that “a defendant’s right to be tried by an impartial tribunal is sacrosanct, regardless of the evidence against him.” In his writ petition, Hood cites several examples that he alleges show Holland’s favoritism toward O’Connell. Hood alleges that Holland had appointed O’Connell to “an inordinate number of high-fee guardian ad litem cases” and to a number of civil cases from 1983 through 1986, when O’Connell was not the district attorney. Hood also alleges that Holland served as an informal adviser on O’Connell’s campaign steering committee. Hood alleges in the writ petition that Holland had a personal and direct interest in the outcome of Hood’s case. “She had an active interest in the outcome because of her relationship with the district attorney,” contends Gregory Wiercioch, another of the attorneys representing Hood. Wiercioch, who currently lives in San Francisco, is a staff attorney with the Texas Defender Service. Wiercioch says O’Connell did not just sit behind his desk during Hood’s trial but actively participated in voir dire, the questioning of defense witnesses in the case and arguments to the jury. Hood alleges in the writ petition that public confidence in the integrity of the judiciary is eroded when a judge has an intimate relationship with the prosecutor in a case over which the judge presides. Wiercioch says Holland should not have sat on the bench from the trial of a traffic case in which O’Connell participated, but she certainly should not have presided over a capital murder case that O’Connell was prosecuting. John Rolater, chief of the appellate section in the Collin County district attorney’s office, declines comment because the case is pending. Hood is asking the court to stay the execution and issue a writ of habeas corpus that grants him relief from the conviction and sentence or to remand the case to the convicting court for further proceedings.

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