IN THE COUNTY COURT AT LAW OF COLLIN COUNTY, TEXAS IN RE CHARLES DEAN HOOD, ) ) CAUSE NO. ) PETITIONER PETITION TO TAKE DEPOSITIONS UNDER RULE 202 Petitioner Charles Dean Hood Petitioner asks the Court for permission to take the oral depositions with subpoena duces tecum of the Hon. Verla Sue Holland and Mr. Thomas S. O'Connell, Jr., to investigate potential actions that are civil in nature, as authorized by the Texas Rules of Civil Procedure and specifically by Rule 202.
I. Introduction Petitioner is an individual who resides in Polk County, Texas. Petitioner seeks to depose the following persons, both of whom reside in Collin County, Texas: Hon. Verla Sue Holland Mr. Thomas S. O'Connell, Jr. Texas Bar No. 09855000 Texas Bar No. 15181000 5501 Channel Isle Drive 427 Sunrise Drive Piano, Texas 75093 Allen, Texas 75002 972-267-6897 972-678-1008 II. Relevant Factual Background and Description of Subject Matter of Requested Depositions Judge Holland is a former Associate Judge of the Texas Court of Criminal Appeals and the former Presiding Judge of the 296th Judicial District Court of Collin County, Texas. Judge Holland presided over Petitioner's capital murder trial in 1990. She remains eligible to practice law in Texas. It is not known at this time whether she is currently practicing. Mr. O'Connell is the former District Attorney of Collin County, Texas. He actively participated in the capital murder prosecution of Petitioner in Judge Holland's courtroom in 1990. Mr. O'Connell remains an active member of the State Bar of Texas, and is of counsel with the Law Office of Jeff L. Pierce in
Piano, Texas. III. Request to Depose Based on information and belief, it appears that, during Petitioner's capital murder trial, Judge Holland and Mr. O'Connell were engaged in a secret, longterm, intimate relationship. Petitioner has only recently received highly credible evidence supporting this allegation. On June 3, 2008, Petitioner obtained the affidavit of Matthew Goeller, a former assistant district attorney in Collin County, Texas. Mr. Goeller's affidavit marked the first time that a former employee of the District Attorney's Office who had worked there during Mr. O'Connell's tenure was willing to speak on the record and under oath about the relationship. Mr. Goeller stated that the romantic relationship between Judge Holland and Mr. O'Connell was in existence when Mr. Goeller began working at the District Attorney's Office in 1987; that it continued throughout Petitioner's capital murder trial in 1990; and that it ended around 1993. 1 Petitioner seeks to depose Judge Holland and Mr. O'Connell to investigate potential actions civil in nature against one or both persons, including but not limited to claims under 42 U.S.C. 1983. IV. Request for Production 1 For the Court's convenience, a copy of Mr. Goeller's affidavit is attached as an appendix.
Petitioner asks the Court to order Judge Holland and Mr. O'Connell to produce the following documents or tangible items at their depositions: A. All letters, cards, and gifts exchanged between Judge Holland and Mr. O'Connell. B. All credit card or store receipts for any gifts exchanged between Judge Holland and Mr. O'Connell or purchases made for each other. C. All photographs and videotapes depicting Judge Holland and Mr. O'Connell together. D. All e-mails or text messages from Judge Holland or Mr. O'Connell to any others, pertaining to Petitioner's recent allegations about their romantic relationship. V. Need for Depositions Judge Holland and Mr. O'Connell have refused to speak voluntarily with Petitioner. Their strategy of silence is understandable: Proof of an undisclosed intimate relationship could not only result in civil liability, it could also taint the validity of numerous judgments, convictions, and sentences in Collin County, Texas, including Petitioner's capital murder conviction, for which he is scheduled to be put to death on September 10, 2008. This Petition under Rule 202 should be granted, therefore, because the information sought cannot be obtained from any other source or through any other means prior to Petitioner's scheduled execution. It is for this reason that Petitioner must use this extraordinary procedural route. That these depositions may also
yield evidence pertinent to potential habeas corpus proceedings in which Petitioner may ultimately be able to challenge the constitutional legitimacy of his capital murder conviction in no way undermines their validity for purposes expressly contemplated by the Rules. The specific criteria set forth by Rule 202 are fully met for the sought-after depositions. For the reasons recounted, the likely benefit of allowing Petitioner to take the requested depositions significantly outweighs the burden or expense of the procedure. Equally important, allowing Petitioner to take the requested oral depositions may prevent a failure or delay of justice. Proof of an undisclosed intimate relationship between Judge Holland and Mr. O'Connell could reveal the valid existence of civil claims and suits by Petitioner, as well as any other persons who were convicted by Judge Holland with Mr. O'Connell prosecuting. The evidence could also serve as the basis for initiating other proceedings civil in nature, such as a bar complaint against Judge Holland and/or Mr. O'Connell, or a complaint against Judge Holland with the State Commission on Judicial Conduct. See Gonzalez v. Rodriguez, 250 S.W.2d 253, 255 (Tex. App. - San Antonio 1952) (holding that the precursor to Rule 202 "[is] not to be applied only to 'civil suits' but [is] to be applied in all 'actions of a civil nature,' which would include all proceedings of a civil nature").
VI. Prayer for Relief Petitioner requests that the Court hold a hearing on this Petition after service of this Petition and notice, pursuant to Tex. R. Civ. P. 202.3(a). Because Petitioner is scheduled to be executed on September 10, 2008, he asks the Court to shorten the 15-day notice period, as justice and necessity require. After the hearing, he asks the Court to order the depositions of Judge Holland and Mr. O'Connell, along with the production of the documents and tangible items listed in this Petition, at a specific time, place, and date. Respectfully submitted, A. Richard Ellis Gregory W. Wiercioch 75 Magee Avenue 430 Jersey Street Mill Valley, CA 94941 San Francisco, CA 94114 (415) 389-6771 (832) 741-6203 (415) 389-0251 (fax) (512) 477-2153 (fax) Counsel for Charles Dean Hood
STATE OF CALIFORNIA SAN FRANCISCO COUNTY VERIFICATION BEFORE ME, the undersigned authority, personally appeared Gregory W. Wiercioch, and who being by me duly sworn did depose and say that: "My name is Gregory W. Wiercioch. I am an attorney licensed in Texas, Bar No. 00791925. I represent Petitioner Charles Dean Hood. I have read the Petition to Take Depositions under Rule 202. Each and every allegation of fact contained in that petition is true and correct based on information and belief." Gregory W. Wiercioch Sworn and subscribed before me on the day of August 2008. Notary Public in and for the State of California My commission expires:
CERTIFICATE OF SERVICE I hereby certify that on the 18 th day of August 2008,1 served a true and correct copy of this Petition upon the following persons via Federal Express priority overnight delivery: Hon. Verla Sue Holland 5501 Channel Isle Drive Piano, Texas 75093 972-267-6897 Mr. Thomas S. O'Connell, Jr. 427 Sunrise Drive Allen, Texas 75002 972-678-1008
IN THE COUNTY COURT AT LAW OF COLLIN COUNTY, TEXAS IN RE CHARLES DEAN HOOD, ) ) CAUSE NO. ) PETITIONER ORDER This Court finds that justice and necessity require that the notice periods under Tex. R. Civ. P. 202 be shortened. The Hon. Verla Sue Holland and Mr. Thomas S. O'Connell, Jr., must file any opposition to Petitioner's request to take their depositions pursuant to Rule 202 within seven (7) days from the date of this Order. This Court further ORDERS that a hearing on Petitioner's Petition to Take Depositions under Rule 202 shall be heard on August _, 2008 at _ a.m./p.m. Signed this _ day of August 2008.
IN THE COUNTY COURT AT LAW OF COLLIN COUNTY, TEXAS IN RE CHARLES DEAN HOOD, ) ) CAUSE NO. ) PETITIONER ORDER This Court finds that allowing Petitioner to take the requested depositions may prevent a failure or delay of justice. The Court further finds that the likely benefit of allowing Petitioner to take the requested depositions outweighs the burden or expense of the procedure. This Court therefore ORDERS that the depositions of the Hon. Verla Sue Holland and Mr. Thomas S. O'Connell, Jr., will be taken on oral examination. The depositions will take place at _ on August _, 2008, starting at _ a.m./p.m. and are not to exceed six (6) hours each. No further notice by Petitioner to take these depositions is necessary. The Court further ORDERS that the Hon. Verla Sue Holland and Mr. Thomas S. O'Connell, Jr., are to produce the following requested documents and information when they appear for their depositions:
A. All letters, cards, and gifts exchanged between Judge Holland and Mr. O'Connell. B. All credit card or store receipts for any gifts exchanged between Judge Holland and Mr. O'Connell or purchases made for each other. C. All photographs and videotapes depicting Judge Holland and Mr. O'Connell together. D. All e-mails or text messages from Judge Holland or Mr. O'Connell to any others, pertaining to Petitioner's recent allegations about their romantic relationship. Signed this day of August 2008.
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