Court Orders Hearing Into Prosecutorial Misconduct that Led to Wrongful Murder Conviction

Michael Morton was released from prison in October 2011 after spending nearly 25 years in prison for the murder of his wife.

Indeed, earlier this week the Houston Chronicle reported on Richard Miles, who “cried Wednesday as a state district judge formally declared him innocent of a 1995 murder for which he spent 14 years in prison.”

Writes the Houston Chronicle, “With a declaration of innocence, the 36-year-old Miles will be fully cleared of the crime and can apply for state compensation for wrongfully imprisoned inmates. Miles’ mother, several inmates who’ve also been exonerated and other supporters cheered inside the courtroom as Judge Andy Chatham called him a free man.”

“Now, the world knows that I’m innocent,” Mr. Miles told reporters before his formal exoneration. “I’ve always known that I was innocent.”

While exonerations have become commonplace, particularly in Texas, what is unprecedented about the Michael Morton case is that his lawyers filed a request for a special hearing that will determine or could determine whether prosecutors broke laws or ethical rules when they withheld evidence that would have likely led to Mr. Morton’s acquittal 25 years ago.

“I haven’t seen anything like this, ever,” said Bennet L. Gershman, an expert on prosecutorial misconduct at Pace University in New York. “It’s an extraordinary legal event.”

Earlier this month, that finally did occur as Judge Sid Harles recommended “a Texas court of inquiry to investigate possible prosecutorial misconduct by former Williamson County prosecutor Ken Anderson.”

One week later, Texas Supreme Court Chief Justice Wallace Jefferson ordered the investigation.

The Innocence Project, who represented Morton, discovered, according to a release two weeks ago, that evidence of Morton’s innocence was suppressed from the defense at his original trial in 1987, and called for the court of inquiry to review the evidence.

According to their release, “Among the suppressed evidence was a police transcript of the victim’s mother saying that the Mortons’ three-year-old son, who witnessed the murder, told her that his father was not at home at the time.”

According to a New York Times article, Mr. Morton managed an Austin supermarket and had no criminal history when he was charged with the beating death of his wife.

At the time, he argued that the killer entered their home as he had left work early in the morning, but according to the New York Times article, “Mr. Anderson convinced the jury that Mr. Morton, in a rage over his wife’s romantic rebuff the previous night – on Mr. Morton’s 32nd birthday – savagely beat her to death.”

He would be sentenced to life in prison, but in 2005 he pleaded with the court to test DNA on a blue bandanna that was found near his home after the murder.

According to the Times, “For six years, the Williamson County district attorney, John Bradley, fought the request for DNA testing, based on advice from Judge Anderson, his predecessor and friend. In 2010, however, a Texas court ordered the DNA testing, and the results showed that Mrs. Morton’s blood on the bandanna was mixed with the DNA of another man: Mark A. Norwood, a felon with a long criminal history who lived about 12 miles from the Mortons at the time of the murder. By then, Mr. Morton had spent nearly 25 years in prison.”

Attorneys for Mr. Morton argue that there is probable cause to believe that the prosecutor withheld reports they were ordered to turnover in 1987.

“The judge had demanded the documents to determine whether they might help Mr. Morton’s case. Finding nothing exculpatory in the small number of documents he was provided by the prosecutor, the judge ordered the record sealed,” the Times reported.

However a different judge last August ordered those records unsealed and attorneys for Mr. Morton say “Mr. Anderson had provided only a fraction of the available evidence. Missing from the file was the transcript of a telephone conversation between a sheriff’s deputy and Mr. Morton’s mother-in-law, in which she reported that her 3-year-old grandson had seen a ‘monster’ – who was not his father – attack and kill his mother.”

There were also police reports from Mr. Morton’s neighbors who claimed to have seen “a man in a green van repeatedly park near their home and walk into the woods behind their house. And there were even reports, also never turned over, that Mrs. Morton’s credit card had been used and a check with her forged signature cashed after her death..”

In an editorial in the Fort Worth Star-Telegram, Bob Ray Sanders writes, “But Morton’s case, one of 289 DNA-related exonerations in the country and more than 40 in Texas in the last 10 years, shines a glaring light on a more chilling and sinister issue involving criminal prosecutions, particularly in the Lone Star State.”

“His lawyers contend that Morton wasn’t just a victim of mistaken identity, but a casualty of prosecutorial misconduct. Specifically, they allege that the prosecutor in the case, Ken Anderson, who was then the Williamson County district attorney, deliberately withheld evidence that pointed to Morton’s innocence.”

“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,” Barry Scheck, co-director of the Innocence Project, said in a statement.

According to the Innocence Project, a red flag was the fact that the prosecutor in the case did not call its lead investigator Sgt. Don Woods to testify at trial.  This led the Innocence Project to suspect that the prosecution may have been in possession of evidence that could exonerate Mr. Morton.

The Innocence Project reports, “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.”

They add: “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.’ “

“As Mr. Morton has said, revenge is a natural instinct, but it’s not our goal here,” said Nina Morrison, a senior staff attorney with the Innocence Project. “Our goal is to ensure that no one has to suffer like Mr. Morton and the other people whose lives were destroyed in this case.”

This is yet another chilling case where prosecutorial misconduct meets wrongful conviction, and people’s lives get destroyed due, not to mistakes by prosecutors, but due to lies and fabrications compounded over time.

“The prosecution’s complete disregard for the truth in this case is stunning,” said Ms. Morrison.  “Rather than try to get to the bottom of what really happened, the prosecution went to great lengths to keep evidence pointing to Mr. Morton’s innocence from his lawyers, blatantly ignoring direct orders from the judge who conducted a review of the evidence. This case and the other tragic murder that might have been prevented if the leads had been investigated will hopefully spur the Legislature to enact legislation requiring open file discovery in every case.”

Worse yet, for six years, the current DA in Williamson County, John Bradley, fought the request for DNA testing, according the Times, “based on advice from Judge Anderson, his predecessor and friend.”

To his credit, Williamson County District Attorney John Bradley joined with the Innocence Project in seeking Mr. Morton’s release, after it was discovered that the DNA of an unnamed male was linked to the Morton crime through a bandana that also contained the blood of the victim, which DNA was also found at the scene of a later murder in Travis County.  The unnamed male is now under investigation for both crimes.

The question is really whether there will be justice in this case.

According to the NY Times, “Susan R. Klein, a professor at the University of Texas Law School who specializes in criminal issues and prosecutorial ethics, said that such actions would be ‘incredibly unusual,’ particularly after the Supreme Court’s decision this year dismissing a $14 million civil jury award against a Louisiana prosecutor, Harry Connick Sr. [father of the famous entertainer], for his failure to turn over evidence that ultimately led to an exoneration.”

While withholding material evidence intentionally can get a lawyer disbarred, Ms. Klein told the Times, “It’s extremely unlikely.”

In an editorial in December, the Times Editorial Board wrote: “While this process is an urgent matter for Mr. Morton, it is also a test of American justice – whether a prosecutor who flouts his duty under the Constitution to disclose crucial evidence to a defendant is subject to any meaningful sanction.”

They add: “Prosecutors have enormous power in determining who is subjected to criminal punishment because they have broad discretion in deciding criminal charges. The Brady rule, established by the Supreme Court in 1963, is supposed to be an important check on that power. It requires prosecutors to disclose evidence favorable to the defendant. But their failure to comply is rarely discovered, and, even then, prosecutors are almost never punished.”

Checks on that power, they note, were further weakened in a decision earlier this year by the Supreme Court which overturned liability for New Orleans prosecutors who had not only withheld evidence, but destroyed it, in gaining the conviction of John Thompson in the 1980s.

The Times argues this ruling protects prosecutors, giving them “nearly absolute immunity over civil suits.”

Justice Clarence Thomas justified the ruling, noting that an “attorney who violates his or her ethical obligations is subject to professional discipline, including sanctions, suspension, and disbarment.”

But, notes the Times, “Bar associations hardly ever punish this behavior; judges seldom discipline prosecutors for such violations; and criminal sanctions are rarely imposed against prosecutors.”

They argue: “This is why the Morton inquiry is crucial. The Innocence Project report found that Mr. Anderson willfully failed to disclose police notes that another man committed the murder, concealed from the trial judge that he did not provide the full police report and advised his successor as prosecutor ‘to oppose all of Mr. Morton’s post-conviction motions for DNA testing.’ If a court confirms these findings, it must hold Mr. Anderson accountable – or it will send a message to prosecutors in Texas and elsewhere that the criminal justice system is incapable of deterring or punishing this conduct.”

On a more positive note, they report that there is a small but increasing number of prosecutors that have taken steps to prevent the type of misconduct that occurred in Mr. Morton’s case.

The Times writes, “There are, however, a small but growing number of prosecutors’ offices around the country that have systems to prevent the gross miscarriage of justice that Mr. Morton suffered. Like the New York County District Attorney’s Office, they allow open records so defendants can have a copy of almost anything in the case file, and they support having courts audit their compliance with Brady.”

All of which sounds good in the future, but does little if there are not sanctions and consequences when prosecutors withhold or destroy evidence.  Mr. Morton will never get his 25 years back, but his case can ensure that no one else has to experience the injustice that he did.

—David M. Greenwald reporting

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