Charles Hood has been on Death Row in Texas since 1990, when he was convicted of murder in the shootings of Ronald Williamson and Tracie Lynn Wallace at Williamson’s home in Plano, Tx. Hood had worked for Williamson and was living in his home. There was plenty of convincing evidence that Hood committed the murders; his defense was essentially based on mitigating circumstances. Nonetheless, it was by any logical and ethical standards, an outrageously unfair trial. Why? In a scenario that would have been laughed out of a “Law and Order” writers’ conference, the trial judge, Verla Sue Holland was sleeping the prosecutor,  county district attorney Tom O’Connell.

Needless to say, this constituted serious misconduct by both the judge and the prosecuting attorney. It was, shall we say, extreme ex parte communication: neither lawyer not judge are permitted to confer with each other, much less engage in whispering sweet nothings in each others’ ears, during a trial without opposing counsel present. (We have no way of knowing whether the defense attorney was invited to partake in a “three-way” to cure this problem, but if he was, he declined.)  The relationship created a conflict of interest for both Holland and O’Connell; both had an obligation to disclose it, but as it was a travesty of justice, they kept it secret. O’Connell, who was aware of professional misconduct by a judge (since he was participating in the misconduct), had an obligation to report it. The judge, who knew the relationship created “an appearance of impropriety” forbidden by the judicial ethics rules, dealt with it by hiding its appearance. Despite loud rumors about the affair, the judge and the prosecutor stonewalled and denied anything for nearly two decades, while Hood sat in a cell, waiting to be killed. A criminal court in which the judge and one of the lawyers are secretly engaging in intimate relations is a kangaroo court. As Hood’s lawyer said, “No one should be prosecuted for a parking ticket let alone for capital murder by the district attorney who has had a sexual affair with the judge handling the case.”

Texas courts, strongly suspected of acting to protect one of their own (“taking one for the team” is how one commentator described it), have denied the claim of judicial bias and refused to order a new trial. Hood’s case was sent to the U.S. Supreme Court in hopes that the Justices would review it. Yesterday, without comment, the Supreme Court denied cert.

One can speculate on legitimate legal reasons why the Court would pass on the Hood case, but if ever there was a reason to review a case on ethical as well as legal grounds, this was it. Mark White, a former Texas governor and attorney general who is a death penalty supporter made the point well in a column for The National Law Journal last month. He wrote…

“…The harm to Hood is obvious, but the damage does not stop there. If the system fails to correct itself, it will deliver a blow to public confidence that cannot be easily remedied. Citizens can rightfully wonder how many other defendants were denied their right to a fair trial because the presiding judge and the prosecuting attorney concealed the true nature of their relationship.

…I believe that the death penalty is appropriate for the most heinous crimes, those in which 21st ­century forensics or other probative evidence prove the defendant is guilty beyond a reasonable doubt, and after constitutional safeguards have been carefully observed. During the past 20 years, DNA and other advances have gone a long way to hold criminals accountable, but modern science does not address every failing of the criminal justice system. Hood’s case shows, at the most basic level, that there are huge flaws in our procedures and human frailties in the people who administer them.

The U.S. Supreme Court should take Hood’s case to reinforce not only the standards that are to be applied in Texas courts, but in courts across the country, and strengthen the faith that the American people have in their judicial system. There’s only one thing that can cure an unfair trial. That’s a new trial. This time, it should be a fair one.”

In other words, for the public to trust a system that can take away a citizen’s liberty and life, it has to be seen as trustworthy. The Hood case threatens to harm much more than Charles Hood. It threatens the integrity of the justice system itself. That,and not merely interpreting the law, is something the Supreme Court has an obligation to safeguard: it needs to place the highest priority on ensuring that the judicial system is and appears to be fair, just, unbiased and worthy of respect and trust.

Failing to review Hood’s trial is ethically misguided.