Judges and Prosecutors in Death Penalty Cases: When Are Their Private Communications During a Capital Trial Considered Inappropriate?
In Texas not too long ago, Charles Dean Hood lost his appeal for a new trial to the highest state court even though he had evidence that his defense counsel was unaware that at the time of Hood's criminal trial the judge presiding over that case, Judge Verna Sue Holland, was having an affair with the prosecutor in that trial, Thomas S. O'Connell, Jr.
The Texas Court of Criminal Appeals, where Judge Holland later presided, ruled that Mr. Hood should have raised the issue in his initial appeal and even though the lower court had ruled he deserved a new trial, the Texas Court of Criminal Appeals nixed it.
Now, in Florida, there's a similar situation. Florida Judge Ana Gardiner communicated with the prosecutor in a 2007 capital case while the death penalty trial of Omar Loureiro was ongoing, and the defense counsel wasn't aware this was happening.
Gardiner resigned as judge in 2010 so the Judicial Misconduct complaint filed against her went nowhere. Right now, she's dealing with the Florida Bar Association's disciplinary proceedings and last week, there was a two day inquiry (see the video feed provided by the Sun Sentinel online).
Seems that the trial judge and the prosecutor in the Florida case are not portraying their relationship as a love affair, but instead a close friendship where each was supporting the other through difficult times. This involved 949 phone calls and 471 text messages over the course of the death penalty trial.
The Florida Bar Report on the prosecutor recommended a suspension - we'll know soon enough what will happen to Judge Gardiner.