The Oklahoma Court of Criminal Appeals made short work of former Judge Timothy Henderson’s having a sexual relationship with one of the prosecutors handling the trial of Robert Leon Hashagen, III, for the murder of 97-year-old Evelyn Goodall.

“It is no exaggeration to state that the very integrity of the judiciary in Oklahoma is at stake here,” attorney James Lockard argued in a defense appellate brief. “If a man can be convicted and sentenced to die in prison at a trial before a judge and prosecutor who were literally in bed together, then no citizen of Oklahoma can or should expect to get a fair trial in any Oklahoma court.”

And, indeed, the court held that it violated the defendant’s constitutional right to a trial before an impartial judge, as if there was any doubt about it. This isn’t to say that Hashagen didn’t kill Goodall, but it is to say that his conviction is reversed and he once again enjoys the presumption of innocence. Upon retrial before a judge who can manage to keep his fly zipped, the state will get the opportunity to prove his guilt. Until then, he’s an innocent man. Who would think otherwise?

As reflected in the 3-2 decision by the court. two judges on the Court of Criminal Appeals.

I respectfully dissent. Due process requires a judge’s recusal when the probability of actual bias on the part of the judge is objectively too great to be tolerable. See Rippo v. Baker, 137 S.Ct. 90S, 907 (2017)(holding the relevant inquiry is whether the average judge in the situation under review is objectively likely to be neutral rather than unconstitutionally biased).

The objective facts here are the undisclosed existence of a sexual relationship between a trial prosecutor and the then-married trial judge that ended more than two years before the current trial. These facts do not establish an especially high degree of risk that the average trial judge in this situation is objectively likely to be biased in favor of the State and against the defendant.

Preserving convictions, especially in serious cases like murder, is something of a judicial preoccupation. It’s akin to the harmless error rule, an admission that the trial was bad, that rules were violated, that rights were denied, but what the heck, the guy is guilty so no harm, no foul.

But what happened here is one of those things that should never happen, and is so flagrant as to put it beyond any line one wants to draw. But the dissent didn’t question that it was wrong or that it was flagrant. It questioned the “degree of risk” that an average judge’s sexual affair with the prosecutrix is objectively likely to be biased in favor of the state. First, is there really a metric for the “average judge” who does this? Is this the new normal for horny Oklahoma judges? If not, then how would dissenting Chief Judge David Lewis arrive at an “average judge” determination? Married judges fucking prosecutors would hopefully be anything but average, even in Oklahoma.

More substantively, what would compel an appellate judge to opine that he can “objectively” assess the “probability” of prejudice? Are the dissenting judges possessed of the extraordinary ability to read the minds of the “average” judges who have sex with prosecutors? Is there anything, anything at all, about judges having sex with prosecutors that requires an appellate judge to ponder the probabilities in order to preserve the outcomes of judges who have sex with prosecutors? Is this a judicial perk? Is this something that judges should be allowed to do, provided they aren’t likely to be biased in favor of the state?

Rather, there are two overarching points to be made given that there is no question but that the judge shtupped the prosecutor, no matter when it ended. First, it’s a line that should never be crossed. Second, there is no excuse for a judge doing what happened here, whether he was doing the prosecutor after cross in his chambers or had ended his liaison two years earlier. Judges shouldn’t fuck prosecutors, and if they do, appellate judges shouldn’t fuck the defendant to excuse the trial judge’s outrageously improper conduct.