Another Banner Day for Texas "Justice"

One would think that discovering that the judge who presided over your murder trial was having an affair with the man who prosecuted you (and put you on death row) would be pretty solid grounds for a do over. Not in Texas, thanks to a feat of judicial formalism overwhelming all else (via Crime & Federalism):

The question of whether a romantic relationship between a judge and prosecutor is unfair won't be decided by the Texas Court of Criminal Appeals.

The issue in the capital murder case of Charles Dean Hood roiled the legal community last summer, but the Court ruled Wednesday it would not consider the issue because defense attorneys did not raise it initially.

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Hood is on death row for the 1989 robbery and murder of Ronald Williamson and Tracie Lynn Wallace in Plano. His attorneys had tried to explore the issue of whether the relationship between judge and prosecutor had affected the trial for years but had little except rumors.

Then a few weeks before Hood's June 2008 execution date, a former assistant district attorney filed an affidavit indicating he was aware of the relationship.

In September 2008, Hood's attorneys finally got the proof they needed by forcing depositions from the two parties under a civil procedure. At that time, Holland and O'Connell admitted to having a sexual relationship before Hood's trial, which had not been revealed to the defense at trial or during years of appeals.

I understand the principles behind issue preclusion and "raise or waive" rules, but we're not talking about a clever legal argument here. We're talking about a clandestine affair that - guess what? - wasn't known until years after trial. Notice that once some evidence came out, Hood's lawyers scrambled to prove the allegations.

The lower court judge, which had ordered Hood's case to go forward, said the state's "hands are unclean." No kidding. When the executive and the judicial branches are sharing pillow talk at night while one of them's trying to get you sent to death row, that's pretty damn shameful. What can you expect from Texas?