Wednesday, June 18, 2008

Update on capital case involving alleged judge/prosecutor affair

Yesterday's scheduled execution was stayed (see here, with some great commentary by my friend Larry Fox), but the fight to do the right thing is far from over.  Keep an eye on Legal Profession Blog for more updates--the folks there have been doing a great job watching this case.

I don't know anything about the underlying crimes of which Mr. Hood is accused.  That's a separate issue from whether his original trial was conducted under outrageously biased conditions.  It would be difficult to imagine a more biased set of circumstances than a judge sleeping with the prosecutor in the case.  Each ruling--each judgment call--in the case is inherently suspect.  

Here's a new question:  if any attorney in the case had actual knowledge of the relationship between the judge and the prosecutor, didn't that attorney have a duty to report the judge and the prosecutor for ethics violations?

1 comment:

Richard Peck said...

Any lawyer who knows about an intimate relationship between a judge and a lawyer appearing before him or her certainly has a duty to report it. Nonetheless, matters like this are almost never reported - especially if they involve a judge.

I'll wager that in the Texas case very few lawyers will admit to having "actual knowledge" of the relationship, contending that riding to work in the same car and having the same address are circumstantial and that no one really knows what goes on behind closed doors (my apologies to Ronnie Milsap and Charlie Rich). Or that there's a vast difference between what one "knows" and what one can prove; can one have "actual knowledge" without having evidence of the type admissible at trial? Or that they both are outstanding lawyers who would never let their personal relationship interfere with their professional conduct (no harm - no foul).

Take the duty to report misconduct one step further. If a judge has a duty to avoid even the appearance of impropriety and a lawyer has a duty to report judicial misconduct, then to the extent this blatant appearance of impropriety was "common knowledge," doesn't every attorney who knew about it have a duty to report the pair and let the disciplinary system determine whether the relationship was an ethical violation by either, neither, or both of them? Or does "common knowledge" somehow change the duty?