Oct. 2 (Bloomberg) -- If you find yourself in a court of law with your money or your freedom at stake, you wouldn’t much like it if the judge was sleeping with your opponent’s lawyer.

So if you’re standing trial for murder and facing a possible sentence of death, an intimate relationship between the prosecutor and the judge would be of special concern, to put it mildly.

In Texas, it isn’t such a big deal, a state appeals court says. At least, it isn’t so serious that the court would reopen an old case.

It didn’t matter to the court that the defense tried to substantiate the rumors earlier. Nor did it matter that the judge and the prosecutor were ethically obligated to avoid conflicts of interest and disclose any that occur.

They kept their secret for nearly two decades until it was forced into the open, and so did other prosecutors who knew about it.

The state’s “hands are unclean,” Judge Greg Brewer ruled in May. That is the decision the appeals court reversed 6-3 last month.

This is yet another story of justice in Texas.

That Thomas O’Connell Jr. and Verla Holland were cheating on their spouses normally wouldn’t matter to the rest of us.

But when Charles Dean Hood stood trial in the Dallas suburb of Plano, Texas, for capital murder in 1990, District Attorney O’Connell was prosecuting him and Holland presided as judge.

Rumored Affair

Their affair was rumored, but neither of them stepped off the case, and all the defense had was gossip.

The two “took deliberate measures to ensure that their affair would remain secret,” Judge Brewer would later find.

When Hood was convicted and sentenced to die, his lawyers stepped up their investigation. They found nothing substantial enough to bring to court.

Finally, 18 years later, when Hood was scheduled for execution, an assistant district attorney stepped forward to report that his ex-boss’s affair with the judge had been “common knowledge” around the office. In a sworn statement, he dated the affair from 1987 until 1993, according to an account in The Atlantic magazine.

Hood’s lawyers had what they needed to put the pair under oath and question them. Yes, they both admitted, they had been romantically involved.

Sexual Aspect

She said the sexual aspect of their relationship ended three years before the trial, although the two took a trip together a year after it. He initially said it ended in the year before the trial.

Brewer said this was enough to let Hood, 40, pursue his claim that the affair fatally tainted his trial. But the Texas Court of Criminal Appeals said no, it isn’t enough, without elaboration.

Let us pause here to acknowledge that the relationship between the judge and the prosecutor says nothing about the crime or whether Hood committed it.

Hood had a history of fighting, thievery and abusing 15- year-old girls (two different ones) before he shot and killed his boss and his boss’s girlfriend in the house he shared with them, the state says. Captured in Indiana the day after the murders, Hood had the dead man’s car, wallet, credit cards, jewelry, camera and clothing.

In Plano, he had left behind fingerprints and bloody footprints at the scene of the murder, police said.

A Fair Trial

Right now you have probably lost any concern about whether this man got a fair trial. In the face of all that, who cares what the judge and the prosecutor were up to, right?

I’ll skip the lecture that we can’t be sure of Hood’s guilt if his trial was fundamentally flawed.

Think of it this way. Because O’Connell and Holland showed up in the same courtroom despite their secret relationship, they risked putting Hood’s conviction and sentence in jeopardy.

And it isn’t only the Hood case that they risked. Any criminal case that came before Holland while O’Connell was D.A., and especially those he personally prosecuted during the course of their relationship, could be challenged.

I reached Holland by phone, who said she couldn’t discuss the matter because the Hood case is pending. Nor would she say whether O’Connell prosecuted other cases in her court.

The former district attorney didn’t return a message I left at the phone number the state bar association has for him. Nor did the Collin County district attorney’s office, which is defending the Hood conviction and sentence, call me back. Neither did lawyers for Hood at Texas Defender Service.

State Bar Association

The state bar association said O’Connell hadn’t been disciplined, but can’t disclose whether any complaints had been dismissed or were pending. As for Holland, who went on the appellate bench before retiring, “There is no disciplinary action that is public,” said spokesman Bob Warneke.

That means any disciplinary complaint has been dismissed, is pending or resulted in a private sanction.

For now, at least, both are eligible to practice law in Texas, according to the bar directory.

There are plenty of death row inmates looking for a way out, bogus or legitimate. To win a reversal of either a conviction or a death sentence, they usually have to show that, if it weren’t for some serious error, the result might well have been different.

In this case, Hood’s lawyers argue that a trial can be so tainted by an appearance of unfairness that the verdict can’t be trusted.

That’s the issue the appeals court shut down.

Most Troubling

What is most troubling is that this is a case where the prosecution and the judge had firsthand knowledge of a conflict of interest from the beginning.

They “wrongfully withheld relevant information from defense counsel prior to and during the trial, the direct appeal” and through a series of proceedings afterwards, Brewer found. In fact, O’Connell “misled” Hood’s lawyers, and Holland “resisted” their investigative efforts, Brewer said.

They kept their secret so long that the appeals court said time was up for the defense to present the claim. This is one of those cases where the prosecution can’t blame the defense for slowing down justice.

Hood remains on death row.

(Ann Woolner is a Bloomberg News columnist. The opinions expressed are her own.)

To contact the writer of this column: Ann Woolner in Atlanta at awoolner@bloomberg.net.

Last Updated: October 1, 2009 21:00 EDT