Lithwick has a good article about the case of Charles Dean Hood, who was given a death sentence despite the fact that his prosecutor and judge were literally in bed together. The Supreme Court has refused to hear his appeal, and while his death sentence has been temporarily thrown out on independent grounds, the result is that the real issue is being ignored:
After the clandestine relationship finally came to light, the Texas Court of Criminal Appeals rejected Hood’s challenge in two curt sentences last September, finding that his lawyers had waited too long to raise the issue on appeal. How Hood was to have raised the conflict of interest when the existence of the affair was not conclusively established until 2008, when the judge and prosecutor were forced to admit it under oath, is not explained.
Hood has already been granted a new sentencing hearing because the Texas appeals court has acknowledged that the jury instructions were improper, but prosecutors say they will again seek the death penalty. In any event, resentencing Hood doesn’t resolve the fundamental problem with the case. The issue here is whether any reasonable person would believe that a criminal trial at which one’s prosecutor and judge are secretly in love could ever be fair. And that’s the issue the courts keep refusing to address.
It would be too charitable to call this a case of creatively using a legal technicality to produce a massive injustice. As Kim Scheppele pointed out with respect to Bush v. Gore, Catch-22s created by judges themselves are in and of themselves inconsistent with due process and the rule of law. The fact that Hood still faces the possibility of a death sentence is an utter disgrace, as was the Supreme Court’s failure to take the case (although, in fairness, the Court’s four more liberal members may well have elected not to vote to grant cert out of a plausible fear that the Court’s statist reactionaries may have upheld the lawless Texas courts.)