[This is in reply to Dahlia Lithwick's discussion of a death penalty case where the judge and prosecutor were later found to be having an affair (when's the Lifetime movie?), a problem even in a less serious case. I'm curious if the other issues in the case is one reason why no justice has appeared to dissent in denial of cert., the issues blocking a direct address of the issues or making it a clear review of a death sentence. OTOH, again, even a misdemeanor conviction on these facts would be problematic.]
In 1969, the Greenberg Commission, appointed by the Illinois Supreme Court to investigate Sherman Skolnick's corruption allegations leveled at former Chief Justice Ray Klingbiel and current Chief Justice Roy J. Solfisburg, Jr., named Stevens as their counsel, meaning that he essentially served as the commission's special prosecutor. The Commission was widely thought to be a whitewash, but Stevens proved them wrong by vigorously prosecuting the justices, forcing them from office in the end. As a result of the prominence he gained during the Greenberg Commission, Stevens became Second Vice President of the Chicago Bar Association in 1970. Stevens's role in the Greenberg Commission catapulted him to prominence and was largely responsible for President Richard Nixon's decision to appoint Stevens as a Judge of the United States Court of Appeals for the Seventh Circuit on November 20, 1970.
Justice Stevens writes about his involvement in the foreword of this book and those interested can "search inside" and read his remarks. They are well worth reading, including the value of a limited scope of investigation, a distinct contrast to the long drawn out affairs of some of the more "independent" prosecutors of later years. Another matter discussed is the importance of appellate judges publishing their opinions, including dissents. This was in part showed by a judge holding back from publishing his dissent in a case where improper influence was alleged:
"If there is disagreement within an appellate court about how a case should be resolved, I firmly believe that the law will be best served by an open disclosure of that fact, not only to the litigants and their lawyers, but to the public as well."
Charles Dean Hood's challenge on the impropriety of the affair was rejected 6-3, the majority of the Texas Court of Criminal Appeals disposing the case with the statement that it "fails to satisfy the requirements of [the relevant rules]" without saying why. This after a lower court found the judge and prosecutor “did not abide by their ethical and constitutional duties to disclose the fundamental conflict caused by their relationship.” No wonder:
21 former judges, government officials, and prosecutors filed an amicus brief in support of Charles Dean Hood’s petition to the United States Supreme Court asking the Court to hear the case. ...joined by Kenneth Mighell, former U.S. Attorney in the Northern District of Texas, Sam Millsap, former District Attorney for Bexar County, Texas, William S. Sessions, former FBI Director and federal judge in Texas, Mark White, former Texas Governor, and others
I tried to find the actual opinion dealing with the matter. Problem is the opinions in his case are repeatedly unpublished.* This is often the case for those deemed unimportant, but it also has the tendency at times to hide some important cases as well. In cases like this, an "an open disclosure" is particularly important. And, if one or more of the justices think this case warrants review, their own "open disclosure" of the facts are as well.
One sentence refusals and opaque unpublished rejections of serious claims is not the way to guarantee "the Nation’s confidence in the judge as an impartial guardian of the rule of law."
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* One [Lexis] summary suggests the problem:
US Supreme Court certiorari denied by Hood v. Texas, 128 S. Ct. 48, 169 L. Ed. 2d 43, 2007 U.S. LEXIS 9115 (U.S., 2007)
Writ of habeas corpus dismissed Ex parte Hood, 2008 Tex. Crim. App. Unpub. LEXIS 518 (Tex. Crim. App., Sept. 5, 2008)
Motion denied by, Writ of habeas corpus dismissed, Stay granted by Ex parte Hood, 2008 Tex. Crim. App. Unpub. LEXIS 520 (Tex. Crim. App., Sept. 9, 2008)
Habeas corpus proceeding at Ex parte Hood, 2008 Tex. Crim. App. Unpub. LEXIS 853 (Tex. Crim. App., Nov. 19, 2008)
Writ of habeas corpus dismissed Ex parte Hood, 2009 Tex. Crim. App. Unpub. LEXIS 561 (Tex. Crim. App., Sept. 16, 2009)
unpub = "unpublished"