Hank Skinner has always maintained his innocence, and some of the evidence still sits there — no one has ever figured out if Hank’s DNA is on the stuff or not.  State hasn’t done it.  District Attorney, nope.  Judge, nope.  Just not done.

March 2010 – Within Hours of Skinner Being Executed, U.S. Supreme Court Grants Stay

Months passed after Skinner sued the Prosecutor, and nothing happened.  Execution Day arrived.  Pressure mounted — even the President of France (that’s right — the President.  of France.) got involved, calling the Governor of Texas asking him to intervene.  (Skinner’s wife is French.)

Within hours of the time that Skinner was set to die, the United States Supreme Court took on the part of the Cavalry and issued a stay in the case.  A stay to give them time to consider Skinner’s petition for writ of certiorari — and for the Court to decide if would hear arguments that Skinner’s should get a chance to get at the evidence to test it via a civil courtroom instead of a criminal one.

May 2010 – U.S. Supreme Court Grants Cert (Takes the Case)

This week, the Highest Court in the Land agreed to hear Skinner’s case.  Petition for Writ of Certiorari was granted.   It’s a big win for Death Row Hank Skinner. 

If he wins at the Supreme Court, then he starts through the civil courts, arguing for testing, getting the evidence for testing, and then proceeding to try and get himself freed assuming the testing works out his way. 

If he loses at the Supreme Court, then he goes back onto the Execution Schedule of the State of Texas.  And Texas Governor Perry will start getting lots of phone calls, emails, and such from lots of people.  People like the President of France.

Charles Dean Hood Is Snubbed by the United States Supreme Court – They Don’t Do a Thing about the Judge-DA Affair During Trial

However, the bad news is this: the United States Supreme Court has done squat about the rest of Mr. Hood’s case.  And Charles Dean Hood had a pretty darn good reason to ask for a new guilt-or-innocence trial: during his original trial, the judge and the District Attorney trying the case for the State of Texas were having a sexual affair. 

Pillow Talk?  We have to assume so, don’t we?  Isn’t that the right thing to do — assume that the lovers talked about their WORK, which just happened to be whether or not Charles Dean Hood should be convicted of capital murder and sentenced to die?

Supreme Court Is Silent on Their Reasons for This - Despite the Legion of Legal Ethics Scholars, Judges, and Prosecutors that Joined with Hood in his Request.

While for many, this Judge-DA Hanky Panky Point of Error seemed a slam dunk argument it obviously wasn’t for the High Court.  They tossed out Hood’s petition on Monday.  Without comment. 

This, in the face of 20+ former judges and prosecutors filing an amicus brief supporting Hood’s position, along with 30+ experts in legal ethics.

Hood’s attorney has decried this as “fundemental injustice.”   

Of course it is. 

Read the Amicus Brief filed on behalf of Charles Dean Hood before the U.S. Supreme Court by former judges, state prosecutors, and state officials (including former Texas Governor Mark White and former FBI director William Sessions) at the Constitution Project site, where it is available for download as a pdf.

For many, it was shocking that defense attorneys weren’t already allowed the chance to question lab technicians on the witness stand about their lab results.  (One more example of how CSI isn’t based in reality.)  Well, here’s something even more shocking: the U.S. Supreme Court may change its mind.

That’s right.  The Supreme Court may take back the right of a defense attorney to cross-examine crime lab pros. 

Melendez-Diaz was just argued this summer.  (Interestingly, Massachusetts’ Martha Coakley argued on behalf of the prosecution – you can watch the oral arguments at Oyez.org.  Yes, this is the same Martha Coakley that is rumored to be losing her battle with Republican Scott Brown in tomorrow’s special election to fill Teddy Kennedy’s vacant Senate seat.)   

Well, the U.S. Supreme Court granted – and heard – oral argument in another case just last week:  Briscoe v. Virginia (07-11191).  Briscoe is a consolidation of two cases, and it was argued by the Virginia Solicitor General for the prosecution.  The two cases in Briscoe both dealt with ”certificates of analysis” from state crime labs without any forensic scientists taking the witness stand at the defendants’ trials.  At issue, can the prosecution present evidence of illegal drugs (which is what the certificates claimed were found) without calling the human beings who did the forensic testing? 

In these situations, criminal defense attorneys have to make a decision – should they stipulate to the certificates as being truthful, without questioning the lab techs?  Sometimes, this may be smart.  Sometimes, a good defense lawyer wants that crime lab tech on the stand.

What Will Happen to Melendez-Diaz now? 

There are critics who argue that Melendez-Diaz was a wrong decision, that it was decided too fast and without sufficient consideration of the expense and confusion that forcing forensic technicians out of their labs and into courtrooms would raise.  They’re excited that the Supreme Court will correct what they see as an error — particularly with Justice Sotomayor on the court now. 

However, there are a great many criminal defense attorneys that aren’t happy about these rumblings.  As Justice Scalia pointed out during last week’s Briscoe arguments, not putting those crime lab reports up for cross-examination is tantamount to “trial by affidavit.” 

Without examination, these untrustworthy crime lab results are merely “trial by affidavit.”

Look, there’s a reason to put a human on the stand in these situations.  Crime lab analysis is scientific in nature and there aren’t many scientists in the courtroom, usually.  Those pieces of paper that pop out of labs are already known to be unreliable, and defense attorneys MUST have the opportunity to have that crime lab technician or forensic scientist on the witness stand to explain what was done, and why the results are (or aren’t) accurate. 

We cannot bow to worship crime lab reports as inviolate.  Let us only hope that the United States Supreme Court uses Briscoe to support Melendez-Diaz, and not to erase the victory for justice that Melendez-Diaz represents.

When the news first hit that a trial court judge and the district attorney who prosecuted cases in her courtroom had had a long-standing sexual relationship, lots of folk were stunned.  And lots expected something To.Be.Done.About.This.  (See earlier post by this blog.)

Especially Charles Hood and his appellate counsel.  Hood was tried, convicted, and sentenced to death in a trial before Judge Verna Sue Holland with D.A. Tom O’Connell putting on the state’s case.   Seems pretty easy to think that Hood deserves a fair trial, right? 

Charles Dean Hood Sits on Texas’ Death Row, Knowing that During The Trial that sent him to death, the Judge and the DA were playing footsy

It isn’t even up for debate at this juncture:  trial court judge Verna Sue Holland and prosecutor Tom O’Connell, Jr. were involved romantically (yes — having an affair, a sexual relationship) while the capital murder trial of Charlie Hood was taking place.  Let’s think about that … shouldn’t this be strongly and swiftly punished? NOT allowed? 

Apparently not in Charlie Hood’s case.  This week, the high court has decided that Hood doesn’t get a fair trial because — wait for it — Hood should have brought it up earlier.  In an earlier writ.  Not making this up, folks.

What the heck?  Read what the Court decided — here’s the opinion and the dissent.

The highest state court on the subject just denied Charles Hood’s request that he have a new trial.  Here’s the Majority Opinion. Per Curiam, Not to be Published.   Not everyone agreed. Here’s the Dissenting Statement by Justice Cochran, who is joined by Justices Price and Holcomb.   The dissent sure makes sense — kudos to Justices Cochran, Price, and Holcomb.

What about the undisputed facts that the Judge and the DA BOTH LIED REPEATEDLY about having this sexual relationship? 

Here, the litany of facts listed in this week’s Dissent:

1. Judge Verla Sue Holland of the 296th Judicial District Court of Collin County, presided over Hood’s capital murder trial.
2. The elected District Attorney of Collin County, Thomas S. O’Connell, Jr., participated in the prosecution of Hood for capital murder.
3. Judge Holland and Mr. O’Connell were involved in an intimate sexual relationship prior to Hood’s capital murder trial.
4. Prior to the capital murder trial-and during the appellate and post-conviction proceedings-Judge Holland never disclosed her relationship with Mr. O’Connell to Hood.
5. During these proceedings, Mr. O’Connell never disclosed his relationship with Judge Holland to Hood.
6. Judge Holland and Mr. O’Connell took deliberate measures to ensure that their affair would remain secret. . . . Mr. O’Connell could not recall telling anyone, except possibly his sisters, about his romantic relationship with Judge Holland. Judge Holland told no one.
7. Based only on rumors of an affair, Hood’s former habeas counsel decided to look into the matter prior to filing the initial habeas application. In 1995-96, Hood’s investigator, Tena S. Francis, conducted extensive records research. She reviewed divorce records, records obtained from the Office of Elections Administration, and case files in the Collin County District Clerk’s Office. Ms. Francis interviewed members of Hood’s defense team, attorneys practicing in Collin County, and Judge Holland’s former husband, Earl Holland. She attempted to interview Judge Holland’s bailiff, but he refused to discuss the judge’s personal life with her. She contacted the State Commission on Judicial Conduct.
8. Ms. Francis was unable to develop any concrete evidence of the affair.
9. On June 27, 2005, shortly before Hood’s scheduled execution date, A. Richard Ellis, former counsel for Hood, contacted Judge Holland. She refused to comment on the allegations that she had a romantic affair with Mr. O’Connell. On the same day, Mr. Ellis contacted Mr. O’Connell. Mr. O’Connell denied that he had a romantic affair with Judge Holland.
10. On June 3, 2008, Hood received the affidavit of Matthew Goeller, a former assistant district attorney in Collin County, Texas.
11. Mr. Goeller’s affidavit marked the first time that a former employee of the District Attorney’s Office who had worked there during Mr. O’Connell’s tenure was willing to speak on the record and under oath about the relationship.
12. Mr. Goeller stated that the romantic relationship between Judge Holland and Mr. O’Connell was ongoing when Mr. Goeller began working at the District Attorney’s Office in 1987. Mr. Goeller could only assert that the relationship was “common knowledge,” not that he personally knew of any romantic interactions. 
13. In June 2008, counsel for Hood retained Toni Knox, a private investigator. She reviewed the work previously conducted by Ms. Francis and then interviewed approximately two dozen individuals in the Collin County area who seemed likely to have some knowledge of the Holland-O’Connell affair.
14. The witnesses could only attest that they had heard rumors about the affair.

Hood’s Life is at Stake –  as is the Reputation of Our State’s Criminal Justice System

A man’s life is at stake here.  Charles Hood is sentenced to die as a result of the trial overseen by Judge Holland and based upon a case presented by her lover-prosecutor.  Surely a new trial is warranted here, and the idea that a writ should have been filed sooner and therefore, he should be executed based on that secretly sexy trial, is simply a dog that won’t hunt.   

And the nation knows it, and our courts are becoming a joke.  Just go read:

Salon Magazine this week:  “The Texas Justice System operates in a parallel universe ….”

CBS News:  Whitewash

USA Today this week:  read the comments….

By the way, Verna Sue Holland served on the Texas Court of Criminal Appeals as a justice during the years 1997 - 2001 and she worked dailiy with EIGHT of the current nine justices on the CCA. 

The victim, Stacey Stites, was sexually assaulted and then murdered. Her boyfriend, Jimmy Fennell, was a Georgetown policeman at the time of her death.

Fennell Has History of Abusing Women

Today, he is a prison inmate, having been sentenced last September to 10 years incarceration for the kidnapping and “improper sexual activity” with a woman who was in his custody. (He’d taken her into custody after a going to the scene of an alleged domestic disturbance, where an inebriated female had been the victim of rape.)

Reed pointed to this activity by the boyfriend, as well as facts discovered by the Georgetown cops in their investigation of Fennell: apparently, Fennell had forced a woman he pulled over during a traffic stop to have sex with him; Fennell abused his ex-wife; and stalked another woman.

Four different instances of Fennell abusing women. Apparently, in an escalating pattern. Aren’t you curious what his alibi is for the murder of his girlfriend, the crime for which Reed has been convicted?

Texas Court of Criminal Appeals – So What?

So, what did the Court of Criminal Appeals say about this new evidence — evidence that a Death Row inmate might be innocent and a convicted sexual predator might be guilty? The appellate court ruled that the evidence doesn’t clear Reed and there’s nothing to show that the prosecution hid it from the defense, so nothing is going to happen here. No new trial so a factfinder can weigh this new info.

The Court of Criminal Appeals opinion is unanimous. It is also unsigned. (READ THE TEXAS CCA OPINION HERE.)

Reed Is Taking the Case to the Feds

Death Row inmate Reed isn’t giving up. He’s going over to the federal system with all this.

Let’s see what the federal appeallate court rules. You gotta wonder what those justices are going to think about an unsigned opinion coming out of Justice Sharon Keller’s court.

Texas Judges Run for Office: They Kiss Babies and Take Contributions

In Texas, judges run for office. (The federal judges are appointed.) Running for office is expensive. Judges have to campaign: they shake hands and kiss babies — and take money from contributors.

The Caperton decision is big news because the highest court in the land has warned judges everywhere that if they are elected, then they must not allow even the appearance of bias regarding accepted contributions. They must recuse themselves if there is even the RISK of looking like they are playing favorites (emphasis added):

Although there is no allegation of a quid pro quo agreement,the fact remains that Blankenship’s extraordinary contributions were made at a time when he had a vested stake in the outcome. Just as no man is allowed to be a judge in his own cause, similar fears of bias can arise when — without the consent of the other parties — a man chooses the judge in his own cause. And applying this principle to the judicial election process, there was here a serious, objective risk of actual bias that required Justice Benjamin’s recusal.

Caperton, 556 U.S. ___ 2009 (slip opinion, p. 3).

How This May Impact Texas Judges

In Texas, at first glance this is not that big of a deal because we’ve already got a $5000 cap on campaign contributions to judicial campaigns. (There’s a $30,000 total contribution cap on members of a law firm.)

However, special interest groups don’t fall within that legal cap and Caperton may impact their activities in future campaigns. In criminal law, special interest groups are very active and it will be interesting to watch campaigns in the future to see how this decision from D.C. impacts our state in the future.

Excellent Warning by the Dissenters

In his dissent (joined by Justices Scalia, Thomas and Alito), Justice Roberts already warns that “this will inevitably lead to an increase in allegations that judges are biased, however groundless those charges may be,” as he criticizes the majority opinion for failing to place clear guidelines for judges on when they should recuse themselves as part of the decision.

Justice Roberts is right. This decision is going to be used to try and push judges off cases – a new kind of forum shopping, sorta. We all know it.

Andre Thomas is 26 years old, and he’s living on Texas’ Death Row for the killing of his wife’s 13-month old daughter. His wife and their 4 year old son were also murdered by Andre during this violence.

Each victim was stabbed and then their hearts were ripped from their bodies.

That’s horrific.

Andre did these horrible things, went home and stabbed himself three times in the chest, and then reportedly – somehow – walked into the Sherman Police Department, told the police what he had done, and said God had told him to do it.

And, yes, mental illness does run through Andre’s family.

At trial, it was revealed that several members of his family heard voices and had hallucinations – but they considered these to be “gifts” and that they were hearing from God.

Plucks Out One Eye, Eats the Other: Who Can Argue Against Insanity?

Five days after his arrest, while setting in the Grayson County jail, Andre plucked out his right eye. Yes, you read that right. Think about that.

Then, several months ago, Andre Thomas, now confined to Death Row, removed his only remaining eye and ate it. That’s right. Ate it.

That’s horrific, too. And, creepily there seems to be some insane connection in his mind to the removal of body parts. It just seems obvious that this guy is severely mentally ill, right?

The Court of Criminal Appeals Still Finds a Way to Keep Andre on Death Row

Well, the Court of Criminal Appeals agrees with that. In her concurring statement on whether or not Andre Thomas should be spared the death penalty, the high court’s Justice Cochran opined that Andre was “crazy” but — get this — he’s still sane under state law and therefore, his appeal was denied. (Read her statement in full, at the link below.)

It was a unanimous decision. In an unpublished opinion.

No wonder this court is getting the kind of media coverage it’s getting, with words like “bias” being used.

Crazy. Indeed.

For more on this court, go read the earlier post on Justice Keller’s impending trial and possible impeachment (link below) — it’s the same group of judges.

You gotta wonder — if Andre’s not crazy under Texas law, then who the heck IS?

Sources:

March Order (per curiam)
http://www.cca.courts.state.tx.us/OPINIONS/PDFOPINIONINFO2.ASP?OPINIONID=18129&FILENAME=WR-69,859-01 ORI.PDF

Justice Cochran’s Statement
http://www.cca.courts.state.tx.us/OPINIONS/HTMLOPINIONINFO.ASP?OPINIONID=18123

October 2008 Opinion
http://www.cca.courts.state.tx.us/OPINIONS/HTMLOPINIONINFO.ASP?OPINIONID=17509

UPI
http://www.upi.com/Top_News/2009/03/18/Blind_killers_appeal_denied_in_Texas/UPI-36251237426590/

KTEN.Com
http://www.kten.com/Global/story.asp?S=10031519

Texas Department of Criminal Justice – Andre Thomas Info
http://www.tdcj.state.tx.us/stat/thomasandre.htm

Dallas Criminal Lawyer Blog — Justice Keller Indictment
http://dallaslawyer.blogspot.com/2009/02/20-minutes-and-2-phone-calls-may-be.html