Oh, look – very timely
The New York Times, today
By Adam Liptak, Washington
Adam Liptak’s column about the legal world appears every two weeks.
Charles Dean Hood was sentenced to death in 1990 by a Texas judge who had been sleeping with the prosecutor in his case. It took Mr. Hood almost 20 years to establish that fact.
But he finally managed to force the two officials to testify about their rumored affair in the fall of 2008. They admitted it.
Texas’s highest court for criminal matters, its Court of Criminal Appeals, considered all of this and concluded that Mr. Hood should be executed anyway.
In a 6-to-3 decision in September, the court told Mr. Hood that he had taken too long to raise the issue of whether a love affair between a judge and a prosecutor amounted to a conflict of interest.
Mr. Hood has asked the United States Supreme Court to hear his case. On Thursday, 21 former judges and prosecutors filed a brief supporting him. So did 30 experts in legal ethics.
“A judge who has engaged in an intimate, extramarital, sexual relationship with the prosecutor trying a capital murder case before her has a conflict of interest and must recuse herself,” the brief from the ethics experts said.
“Of all the courts to have considered the issue, only the Texas Court of Criminal Appeals in this case failed to recognize this imperative.”
The affair itself, as described in the depositions of the two former lovers, sounded tawdry and sad.
Judge Verla Sue Holland, who presided over Mr. Hood’s case in a district court in Collin County, Tex., testified that she and the prosecutor, Thomas S. O’Connell Jr., had had sex at each other’s homes when their spouses were away. This happened, she said, seven or eight times.
Mr. O’Connell did not seem especially romantic. Judge Holland testified that he once gave her a picture of a polar bear with a matching cup. Another time he gave her a chafing dish.
He never stayed the night. “I had a truck that everybody recognized,” Mr. O’Connell explained.
And he might have been more sympathetic when Judge Holland’s mother died.
“Tom didn’t send a card,” the judge testified. “He didn’t send flowers. He didn’t come by. He didn’t call. You know, I think that’s pretty callous.”
Asked if they had professed their love to each other, Judge Holland sounded wistful. “Yeah,” she said. “Yes. I loved him.”
Judge Holland was elected to the Court of Criminal Appeals in 1996, served for five years and sat with eight of the nine judges who considered her conduct last September. The exception was Judge Cathy Cochran, one of four women on the court and the author of the dissenting opinion.
Judge Cochran took a stab at characterizing the relationship in a footnote. It was misleading, Judge Cochran wrote, to say that Judge Holland and Mr. O’Connell had “an intimate sexual relationship,” though she conceded that the phrase was “literally true.”
“Theirs was hardly the torrid relationship of romance novels,” Judge Cochran clarified. It was, rather, “a close personal relationship that, on a few rare occasions, dipped into intimacy.”
Whatever the precise contours and intensity of the affair, Judge Holland did testify that she would have disqualified herself from Mr. Hood’s case had his lawyers asked. But she also said she and Mr. O’Connell had kept their extramarital affair secret. She said it ended in 1987, three years before Mr. Hood’s trial.
In her deposition, Judge Holland said she had lately become angry with Mr. Hood’s lawyers for “annihilating my reputation.” She said she had asked the attorney general’s office to represent her in Mr. Hood’s challenge to her conduct because she thought she needed to fight back. She was “was tired of laying over,” she said, and “getting licked without any input.”
Mr. Hood was convicted of murdering a couple he had been living with, Ronald Williamson and Tracie Lynn Wallace, in Plano, Tex., in 1989.
The district attorney in Collin County, John R. Roach, has said that the case should not be reopened in light of the gravity of those crimes and Mr. Hood’s delay in pursuing rumors of the affair. Mr. Roach added that there was no need for a categorical rule against a little romance.
“The existence of a prior sexual relationship between a judge and a prosecutor is not cause to absolutely disqualify a judge,” Mr. Roach told the appeals court last year. “At some point, the past romantic relationships, of even public figures, become a matter that is entitled to some privacy.”
John R. Rolater Jr., a lawyer in Mr. Roach’s office, declined to elaborate. “We have no comment at this time because of the pending litigation,” Mr. Rolater said in an e-mail message on Friday.
The Supreme Court has lately taken some interest in the integrity of the judicial system.
Last year, it ruled that millions of dollars in campaign spending on behalf of a West Virginia judge was reason enough to require his disqualification from a case involving his supporter.
“The probability of actual bias on the part of the judge,” Justice Anthony M. Kennedy wrote for the majority, was “too high to be constitutionally tolerable.”
And last month, the Supreme Court ordered the federal appeals court in Atlanta to have another look at a case in which jurors in a capital trial gave a trial judge an odd gift — a penis made of chocolate.
“From beginning to end,” the unsigned majority decision said, “judicial proceedings conducted for the purpose of deciding whether a defendant shall be put to death must be conducted with dignity and respect.”
To review the bidding: Campaign spending may undermine the integrity of the judicial system. The same goes for a gag gift of confectionary genitalia. But a love affair between the judge and prosecutor in a death penalty case is, in Texas, at least, another matter.
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I know I am running the risk of being called a male chauvinist. But it seems there could be a modicum of validity in ancient wisdom, so vehemently derided and ferociously attacked by feminists and so-called liberals. Perhaps really certain public offices should be occupied solely by one sex.
or by people who know how to behave themselves.
As long as they are not the same sex as Noel Arrigo.
In Bondi+ yesterday parts were quoted from the Code of Ethics of the Judiciary. In my view these are particularly relevant to the circumstances:
8. Members of the Judiciary have every right to administer their personal assets and belongings in the manner most beneficial to them. However, they shall not engage in any activity that is in its very nature incompatible with the office they hold.
11. Members of the Judiciary, as other persons, have a right to their private life. However, in this context, members of the judiciary are to ensure that their conduct is consistent with their office and that it does not tarnish their personal integrity and dignity which are indispensable for the performance of their duties.
12. Members of the Judiciary shall not join organizations, associations or bodies with political leanings, or which in their nature or in the purpose of their existence can be in conflict with their independence or impartiality, nor in any way can then show
support even by way of financial assistance….Members of the Judiciary shall not associate or show familiarity with persons or associations that could discredit such members of the Judiciary or the office they hold, and they shall avoid conduct that could give rise to public scandal.
17. Members of the Judiciary shall conduct themselves, both in Court and outside Court, in such a manner as not to put into doubt their independence and impartiality or the independence and impartiality of the office they hold.
18. Members of the Judiciary shall not, whether in their private or public life, act in such manner as might imply political partiality.
19. Members of the Judiciary shall not communicate, directly or indirectly, with any of the parties involved in a case, their advocates or legal procurators regarding a case that has not yet been decided upon or one that is about to commence or proceed,
except in the manner prescribed by law.
22. Members of the Judiciary shall not preside over a case in which they know there exists any one of the reasons for being challenged as provided for in the Code of Organization and Civil Procedure or where there exists a manifest danger or prejudice
to fair hearing: in all other cases they are bound not to abstain from their duty.
I see many breaches here….am I the only one?
You forgot number 25.
“Members of the Judiciary shall not, whether in their public or private life, act in such a manner as may imply political partiality.”
The photos and information across this blog speak for themselves on this one.
Your number 22 is actually number 23, and if you want your stomach to turn even further, see my comment about this one here
http://daphnecaruanagalizia.com/2010/02/20/please-no-more-wheels-within-wheels-this-country-has-had-enough/
‘..as may *imply* political partiality’
as opposed to unequivocally proving political partiality.
Interesting.
Alan, I see you had pre-empted me with your comments on the 20th. I had not seen them. You are right: the COCP adds yet another breach.
The sad thing is that it is highly unlikely that any action will be taken by the Commission, and even if it did, it is almost impossible to imagine that parliament (which requires a 2/3rds majority) would impeach.
After all no action has been taken in relation to two judges who have been blatantly breaching the Code of Ethics by being involved in sports organisations.
@Hmmm
Magristrate Scerri Herrera did not break this rule.
She annihalated it blind-folded with a steam-roller on steroids.
No. You’re not the only one.
“I see many breaches here….am I the only one?”
I see several breaches too. And I know several people who agree.
Raphael isn’t one of them.
Raphael who?
Oh, you mean Raphael Vassallo.
In my opinion, the real scandal is that Ms Piggy should have already been dealt with by the powers that be, and that it shouldn´t have been necessary for Daphne to bring this up here for someone to start thinking of how to tackle this (and if at all!).
Of course, I understand that this is a great shakeup of a fermenting status quo. That does not justify taking no action at all – if anything, appropriate strong measures are the more urgent.
I must add that the President, with all due respect, was not very convincing about the steps being taken during the interview he gave to The Times last week.
It is very interesting indeed to watch how all this will unfold.
Who needs the corruption perception index?
Of course, I was glued to the TV yesterday evening waiting for BondiPlus.
I was not expecting something out of Jerry Springer, with Consuelo Scerri Herrera stripping down to her bra and screaming down the camera “Ejja Daphne, ejja hawn issa, u tara!”
No, we were pre-advised that the show would only consist of one guest, and that no sensationalism was to be expected. Fair enough.
But neither was I expecting such a restrained and obviously highly-measured conversation, treading on eggs.
The most (note, I didn’t say ‘least’) I was expecting was for Lou Bondi to show some of those photos from Facebook that appear on this blog, and ask/discuss “Is this in breach of Article xyz of the Code of Ethics for Magistrates?”
Not even that. Zip. Nothing.
What a shame.
The way I saw it, Lou Bondi was pressing Fr. Joe Borg to take a stand, but on the other hand he made sure to keep himself ‘clean’.
Normally Lou gives his opinion on any subject that he discusses during his programme and is not afraid to let his views known, but not this time.
The programme was strained from beginning to end and so were Lou Bondi and Fr. Joe Borg. No, we were not expecting any sensationalism but a good discussion programme with a gutsy presenter. That’s what normally Bondi+ is all about.
“For our next programme, we will round up all the editors of all news organisations to explain why they don’t think this issue is worth looking into.”
Somehow, I don’t think so…
The only moment, as expressed by someone on this blog, of “balls”, and very tiny ones at that, was Lou Bondi’s: “Din xi haga veru ddejjaqni fil-gurnalizmu Malti…. ghid l-isem tal-gazzetta. Kienet it-Torca.” So it wasn’t even Joe Borg who said it. So much for going out on a limb. Treading on eggs? Treading on soufflé more like.
@H.P. Baxxter
You’re mistaken. It was Fr. Borg who stated that it ws It-Torca when questioned by Bondi. Frankly, I saw nothing gutsy in Lou’s stance yesterday. Sitting on the fence and expecting Fr. Borg to take a line.
For the rest of you:
In my opinion, for what its worth, Fr. Borg acted wisely and was cautious in his replies. This would serve him not being misquoted or misinterpreted further down the line.
The issue is rather delicate and demands to be treated with respect. Throwing caution to the wind and barging around this affair with all the grace of a bull in your proverbial china shop is an attitude which one would, and very potentially could, later live to regret.
It’s very easy for some of you talking heads to go on shooting your mouths off and criticising Borg for his performance. Why don’t you do something yourselves? Get yourselves invited on Bondi+ and illuminate us, why don’t you. I’m sure you’ll have no problem convincing Lou, what with all this distilled and calculated logic, and lest we forget, your sharp wit to boot.
Alan, I agree, we were regaled with a lot of pussyfooting (pun intended) and avoidance of issues, issues which are blatantly there for all to see thanks to this website.
Neither Lou Bondi nor Father Joe Borg had the guts to call a spade a spade.
And yet admittedly Father Joe’s article two Sundays ago hit a lot of points home and he had the courage put them in print.
As far as I’m concerned the rest of the local journalists, apart from Vanessa Mcdonald, can go back to school and learn what investigative journalism is all about.
I agree, it was a most boring affair, but one couldn’t expect much from someone who actually attended the very same dinner that set the ball rolling.
Malta Today reports that Lou Bondi had “ostensibly communicated the magistrate’s comments to blogger Caruana Galizia” – perhaps they meant “allegedly”, since if he did communicate the matter he definitely did not do so ostensibly.
But even if this were not the case (it was denied by Daphne, but do we trust her?), he was still a guest at the Magistrate’s pivotal private dinner.
[Daphne – It wasn’t Lou. ‘Do we trust her?’ Yes, and certainly more than you can trust a magistrate who cheated on her husband and lied about it, and ditto, a politician who cheated on his wife. Which brings me back to my original point.]
The question is, given his involvement if not outright participation, how does he expect us to take him seriously when he brings in Fr Beirut to discuss the matter? In this, Saviour Balzan was right to slam Bondi in his weekly column.
[Daphne – Whatever the merits of your argument re Lou Bondi, Saviour Balzan is in no position to ‘slam’ anyone on this matter, given that for purposes best know to himself, he has decided to serve the interests of the politician and the magistrate rather than those of his readers, and the public in general.]
That pivotal private dinner wasn’t anything of the kind. Tell us, Kev:
Do you or do you not think that Magistrate Scerri Herrera’s behaviour breaches the Judiciary’s code of ethics?
Answer on a postage stamp please.
Saviour Balzan will earn the right to slam the likes of Lou Bondi when he has the guts to serve the interests of his readers like Lou did last night.
Okay, maybe the programme was a little strained in places but at least it was dignified because neither he nor Fr Joe resorted to any sort of tactics a’ la Saviour Balzan.
Kev
How about resurrecting MaltaFly and transferring your discussion there? You lurk on this blog and take swipes at everyone you disagree with and say nothing about the key people at issue – Consuelo Scerri Herrera and Robert Musumeci.
You’re not bereft of opinions so what are you hiding and why?
[Daphne – How can Kevin give an opinion about the matter when his wife was photographed at a masquerade with Robert Musumeci? I hasten to add that Kevin was at the masquerade too, but not in the photograph.]
Do we trust Kev the former policeman who might know what policemen get up to on magisterial ‘inkjesti’?
Braminu, those were Malta Today’s unfortunate choice of words. The truth is very different.
Lou Bondi and Fr Borg didn’t need to be more specific than they were. Even by just talking about the subject, albeit in a general manner, they broke the unofficial media silence that surrounds the entire case and this is what counts, in the end.
That’s it, Antoine Vella. Hence my appreciation of the programme.
Agreed. Very valid point.
But it also reminds me of what my mother constantly drummed into my head “If you’re going to do something, do it right or not all”
They could havemade the programme a little bit more interesting, especially Lou!
Hawn Malta, qisu kulhadd bla bajd, hlief Daphne.
Allura kif qed jinghad lanqas membru tal-gudikatura ma jista jkun president ta’ assocjazzjoni tal-isport bhal ma’ hemm?
Hawduni ha nifhem.
Lil ghalhekk zewg membri tal-gudikatura prezentement jinsabu quddiem il-Kummissjoni dwar l-Amministrazzjoni tal-Gustizzja sabiex jirrispondu ghal fatt li huma presidenti (ossija membri) ta’ assocjazjoni sportivi.
Il-membri huma il-Mag. Antonio Mizzi (President tal-MBA) u l-Imhallef Lino Farrugia Sacco (Chairman tal-MOC)
It’s a question of character rather than of Kev not giving an opinion because he was at the magistrate’s party. If you follow that line of reasoning, Lou was at one of the magistrate’s parties, but unlike Kev he is not ignoring the issue. He is using his show to bring the matter to those who do not use the internet, in the hope that the national discussion does not remain underground.
Oh, we all know Kev was having a ball in a mask. I was just being disingenuous. He has vested interests. He’ll sweep in here to take a swipe at everyone except the two people at the centre of the storm.
Maybe they bought him a new sex toy for Valentine’s day.
Actually, La Redoute, I did give an opinion. Let me rephrase it, this time without being judgemental on the cens… er… moderator.
The reasoning behind a ‘cheating magistrate’ is sound, even if marital cheating is nowadays condemned less. Moreover, enough time has elapsed to render any questions of when and what exactly happened subject to speculation.
The ‘in flagrante’ aspect is lost.
I also believe there was an overkill here of the sort that turns perpetrators into victims. And the flippant nature of some of the posts, although entertaining to many, did not help either.
Ironically, it was the Magistrate’s police report that shot this story to the mainstream media.
And by the way, I have never attended any of the said magistrate’s private functions.
@Mr. Lou Bondi
You are no doubt following this blog, particulary this thread where yesterday’s BondiPlus is being discussed.
Yesterday’s edition did a very fine job of portraying to the public the overall principles of what has prompted these blog-posts and their subsequent threads.
Can we expect a more in-depth follow-up programme focussing on the very specific matters being portrayed and discussed?
Every now and then Saviour seems to remember the phrase ‘conflict of interest’. Pity he uses it very selectively.
http://www.maltatoday.com.mt/2010/02/21/t1.html
I think Fr Joe Borg missed the point completely on BondiPlus,. possibly deliberately. He seemed to imply that the major issue is the ethics of a scandalous intrusion onto a magistrate’s private life, when in fact the whole point of the scandal is the conflict of interest, which could lead to a miscarriage of justice.
No. Fr. Borg did not miss the point. You, however, very evidently did.
In fact there isn’t one single POINT in this whole sordid affair, as there usually – and very often – isn’t. There is the matter of creating a public scandal. There is NO issue, you veritable twat, of a “scandalous intrusion onto a magistrate’s private life”.
The ethics issue, however, is the fact of a member of the judiciary causing a public scandal and, separately, of behaviour bringing the reputation of the office into disrepute. Conduct unbecoming of sorts. Conflict of interest IS another issue, which if it exists, DOES lead de motu proprio to injustice given that it runs counter to the principle, nemo judex in causa propria (sua).
A letter criticising the Commission for the Administration of Justice appeared in today’s Times, eliciting a comment from
Victor Laiviera (1 hour, 41 minutes ago)
‘Perhaps Mr Ripard could specify, precisely, what “misconduct” he is referring to.
As far as I can see, all that has been presented is a mass of disconnected facts, non-sequiturs, innuendo and snide (to put it mildly) personal invective. All presented in an “Oh God, look at this..” way to create an impression on the impressionable mind.’
Perhaps someone should buy him a pen so that he can connect all the dots.
Or maybe it’s time he read this:
http://www.judiciarymalta.gov.mt/file.aspx?f=576