By William Fisher
Prosecutorial Misconduct. We hear about it so rarely that it often becomes a big media deal, good for a day or more in the 24-hour news cycle.
Well, in three weeks, a Texas Court of Inquiry will be the scene of that kind of big media deal.
The Court will be reviewing allegations of prosecutorial misconduct against former District Attorney Kenneth Anderson. The former prosecutor -- since appointed by Gov. Rick Perry to be a County Judge -- will be defending himself against charges that he withheld critical information in a first-degree murder case in Williamson County, near Austin.
The absence of that information caused Michael Morton to serve 25 years in prison for a crime he didn't commit.
Ken Anderson was the prosecutor in 1987 when Michael Morton was sentenced to life in prison for the slaying of his wife at their home in Williamson County. A year ago, DNA evidence cleared Morton and he was freed. Another man now faces a murder trial in his wife's death.
Back in February, a Texas Judge ruled that there was probable cause to believe that Anderson violated state criminal law by refusing to turn over evidence that contributed to Morton's wrongful murder conviction.
"As Mr. Morton's case so painfully illustrates, tragic consequences can result when prosecutors put aside their ethical obligations in their zeal to win convictions, yet far too often their misdeeds go unpunished," said Barry Scheck, Co-Director of the Innocence Project, which is affiliated with Cardozo School of Law.
According to Paul Cates of The Innocence Project, the judge's ruling came in response to a report submitted by the Innocence Project asking the court to recommend a Court of Inquiry. That body enables a unique Texas legal procedure that can be initiated by a judge, to investigate whether Anderson committed wrongdoing by refusing to turn over to the trial court as ordered evidence pointing to Morton's innocence. If the judge or a jury sides with the bar, the judge would decide a penalty ranging from public reprimand to disbarment.
Morton always maintained that his wife's murder was committed by a third party intruder. The Innocence Project conducted depositions with key witnesses and uncovered other evidence showing that Anderson did not turn over the transcript of the victim's mother telling lead investigator Sgt. Don Wood that Morton's three-year-old son told her that Morton was not the attacker, a message to Wood dated two days after the murder reporting that what appeared to be the victim's Visa card was recovered at a store in San Antonio, and a report from a neighbor observing someone staking out the Morton's house before the murder.
Morton's defense attorneys suspected all along that the prosecution was in possession of evidence pointing to Morton's innocence because of the prosecution's unusual decision not to call its lead investigator Sgt. Don Woods at trial. The defense raised these concerns with the trial judge who ordered Anderson to turn over all of the reports by Woods so that he could conduct a review of the reports. Although Anderson has repeatedly claimed to have no recollection of his prosecution of Morton, Anderson claimed for the first time in his deposition that his understanding of the trial judge's order was that he turn over only those reports by Woods dealing with Morton's statements.
This explanation contradicts all other participants' understanding of the judge's order and the judge's own handwritten notes on the pre-trial hearing docket which state: "Court to conduct in camera [in chambers] inspection of report of officer Don Wood in connection with D[efendant']s Brady motion."
Evidence suggesting Morton's innocence, including a bloody bandana found near the crime scene, was kept from the defense. DNA testing of the bandana led to Morton's exoneration in 2011, and implicated another man who is also suspected of subsequently murdering another woman. Anderson's successor as D.A., John Bradley, who fought against allowing DNA testing in Morton's case, has said he now believes he was wrong, adding, "We shouldn't set up barriers to the introduction of new evidence."
According to the bar's lawsuit, Anderson violated professional conduct rules by withholding five items. They include a memo to the sheriff's lead investigator in the case regarding a tip that a check made out to the victim was cashed nine days after she was killed; a phone message to the investigator that the victim's credit card was recovered in San Antonio; and a sheriff's department report from neighbors describing a man parking a van on the street behind the Mortons' home several time before the August 1986 killing.
The bar also alleges he withheld the transcript of a taped interview between the investigator and Morton's mother-in-law; and a condensed transcript of the taped interview.
The taped interview included the victim's mother saying her 3-year-old grandson told her that he witnessed the killing, gave details about it and said his father wasn't home at the time. Morton, who was convicted on circumstantial evidence, maintained he was working when the murder took place and that an intruder was responsible for his wife's death.