OCPA’s website has frequently been a source of criticism for Oklahoma’s appellate courts—especially the Oklahoma Supreme Court. I recently noted many of the justices on the Oklahoma Supreme Court are not serious people, and the need for judicial reform has never been higher. Yes, I think it is worse than the corruption scandal of the 1960s. Our state has a history of political corruption, and the judiciary is no exception, but the ineptitude our highest court often displays is staggering. Well, it turns out the Oklahoma Court of Criminal Appeals is in the same boat.

Last week, in a 3-2 decision, the court overturned the conviction of a man convicted of first-degree murder, because one of the prosecutors on his case had been sexually involved with the judge who sentenced him. That in and of itself is shocking. The fact that two judges dissented from the decision to grant a new trial is even more shocking.

Leon Hashagen appealed his sentence in March of 2021. After learning of the affair between his judge and one of the prosecuting attorneys, he requested a new trial and an evidentiary hearing to determine if there had been judicial bias in his case. The court granted Hashagen’s request for an evidentiary hearing, noting “[t]he allegations contained in the motion for new trial strike at the heart of an accused’s constitutional right to due process to a fair trial before a fair tribunal.” Additionally, the court noted the federal Constitution requires a judge to recuse “when, objectively speaking, ‘the probability of actual bias on the part of the judge . . . is too high to be constitutionally tolerable.’”

Concurring in the decision to remand for an evidentiary hearing was Judge Gary L. Lumpkin. He made it clear he believed the trial court should “include a determination of whether any of the allegations, if found to be true, had any effect on the trial of the case.” More on this below.

At the evidentiary hearing, evidence was presented that confirmed a sexual relationship with the prosecutor and judge did exist. The trial court concluded a “past or current sexual relationship between a prosecutor and a judge is one of those circumstances” where “the probability of actual bias on the part of the judge or decision maker is too high to be constitutionally tolerable.” No kidding. Immaterial to the fairness of the defendant’s trial was whether the relationship was ongoing or ended prior to trial. Again, this seems obvious that the judge’s feelings for the prosecutor or concern that she might disclose the relationship—ruining his career—that creates an unconstitutional potential for bias.

After the evidentiary hearing, the parties briefed the issues to the Oklahoma Court of Criminal Appeals. The defendant argued he was deprived of a fair trial because his case was tried before a judge who should have recused due to a sexual relationship with one of the prosecutors on the case. The State, in its brief, argued an absence of bias because the sexual relationship wasn’t going on during the defendant’s trial. The State then further argued that the defendant couldn’t point to any specific rulings that went against the defendant because of the sexual relationship. In sum, the State’s position was “well sure, this was bad, but it wasn’t that bad!”

Luckily, a majority of the court wasn’t buying it. Judge William J. Musseman, writing for the majority said, “the undisclosed relationship violated [the defendant’s] due process rights.” As in a prior case—yes, there was another case dealing with the judge’s sexual relationship with a different female prosecutor (and who knows how many more)—“the structural error cannot be found harmless as the sexual relationship between the trial judge and prosecutor ‘affect[s] the conduct of the entire trial and cannot be separated from it for the purpose of analysis.’” No kidding. How anyone could think a criminal trial is fair when the judge and prosecutor have had a previous, secret sexual relationship is beyond me.

But, unfortunately, two judges disagree with that seemingly rational sentiment (this may say something about stacking the Court of Criminal Appeals with former prosecutors). For his part, Judge David B. Lewis dissented—buying the State’s argument that, because the sexual relationship wasn’t during the trial, there was not a “high degree of risk that the average trial judge in this situation is objectively likely to be biased in favor of the State.” But not to worry—this didn’t mean he condones the behavior of the judge or the prosecutor. That’s a relief!

But Judge Lewis’s dissent wasn’t the worst. Because, while Judge Lewis would have presumably found a similar relationship taking place during trial to be fundamentally unfair, Judge Lumpkin does not think this kind of relationship would—on its own—result in an unfair trial even if it was going on during trial. We know this because of the other case I referenced above, in which case the sexual relationship took place during the trial (and other substantive proceedings).

Judge Lumpkin complained of the majority’s ruling that created, in his words, an “ipso facto” rule that a new trial must be granted if the judge is sleeping with the prosecutor while the case is unfolding in his courtroom. He further complains that the majority “assumes and speculates there must be bias against Appellant regardless of the lack of actual evidence of bias.” It leaves you to wonder what Judge Lumpkin would consider “actual evidence of bias.” Maybe a wink at the prosecutor during trial?

Judge Lumpkin went further by analyzing a dissent by Justice Clarence Thomas in Williams v. Pennsylvania—a case cited by the lawyers and the majority opinion. Leaving aside the silliness of relying on a Supreme Court dissent to make law, there is a glaring problem with Judge Lumpkin’s reliance on the Williams dissent. For starters, the Williams case, while dealing with judicial recusal, did not deal with a sexual relationship between judge and prosecutor. Nevertheless, Judge Lumpkin quotes Justice Thomas’s analysis of the history of judicial recusal, landing on the common law idea that the only reason for recusal would be a “direct and substantial pecuniary interest or when they served as counsel in the same case.”

The problem is, the first woman admitted to the bar was admitted in 1869. Looking to common law to determine whether a sexual relationship between the judge and a prosecutor is silly. Such a relationship would have been, as a matter of fact, a homosexual relationship. Though rarely enforced, colonial America criminalized homosexual acts as capital offenses. The idea they would need a recusal rule for such acts is patently absurd. So while I appreciate Justice Thomas’s reliance on history and tradition, this is one area where we simply can’t rely on history and tradition.

But even if that must be the standard, is there any doubt that the judge had some pecuniary interest? Certainly he knew that if these extramarital (at least for him) affairs were made public, he would lose his job and station in life. Might that affect his handling of matters with the women he had relations with? Of course it could! There simply is no reason to require a defendant to show anything other than the existence of a secret sexual relationship between the judge and prosecuting attorney. That two judges on the state’s highest court for criminal matters think otherwise should shock us all.

I have opinions on whether the sexual relationships were consensual, but those are based on circumstantial evidence at best. I don’t think it’s relevant, and neither did the Court of Criminal Appeals. I have no opinion on the guilt of either defendant. I argue that it is even more important to insist on the fairness of trials for guilty defendants. Our criminal justice system (which sometimes seems more criminal than just) can only be trusted if we hold it to the highest standards. If we are going to trust the system got it right, as so many are inclined to do, we have to hold the system accountable—even when it is hard. There is no telling how many cases are tainted by this judge’s indiscretions. But if due process means anything, it means we have to give similarly situated defendants a new trial.