A turning point has perhaps been reached in terms of the handling of prosecutorial misconduct. It was 2011 when the US Supreme Court overturned a multimillion dollar civil verdict for John Thompson, who spent years in prison as New Orleans prosecutors not only withheld evidence, but destroyed it.
As the New York Times noted at the time, the 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.”
It is well known, as the Times reported, that, “Bar associations hardly ever punish this behavior; judges seldom discipline prosecutors for such violations; and criminal sanctions are rarely imposed against prosecutors.”
But that, too, is changing. In Northern California an attorney faces a bar association recommendation of disbarment “for communicating with a defendant without her attorney’s consent, withholding evidence from the defense and acts of moral turpitude.”
However, the Michael Morton case may be the straw that breaks the camel’s back on this issue. Last year, as Innocence Project founder Barry Scheck recounted, “Texas Supreme Court Chief Justice Wallace Jefferson affirmed the finding of state District Judge Sid Harle that there was probable cause to believe former Williamson County prosecutor Ken Anderson had violated the criminal laws of Texas by disobeying a court order to disclose evidence pointing to the innocence of Michael Morton, who in 1987 was wrongly convicted of murdering his wife.”
On Friday, came the biggest news of all, when a Texas court ruled that former Williamson County District Attorney Ken Anderson will face criminal contempt and tampering charges for failing to turn over evidence pointing to the innocence of Michael Morton, who was later exonerated by DNA evidence after serving 25 years for his wife’s murder, despite a court order and legal obligation to turn over the evidence.
The judge ruled there was probable cause to believe Anderson, now a judge, violated three criminal laws by concealing evidence in the case and issued a warrant for his arrest.
The Innocence Project, in a press release, writes, “The decision to bring criminal charges against Anderson comes at the conclusion of a Court of Inquiry that was convened at the request of the Innocence Project, which uncovered evidence that Anderson failed to turn over that could have prevented Morton’s wrongful conviction during its decade long legal battle to prove Morton’s innocence.”
The release continues, “The court found that Anderson should face criminal charges for failing to turn over favorable evidence pointing to Morton’s innocence despite specific requests from the defense and an order by the trial judge to do so. The court made specific findings that Anderson knew of evidence supporting Morton’s innocence but intentionally failed to disclose it to the defense.”
Anderson was then arrested and taken to Williamson County Jail for processing. He will be released on bond which was set at $25,000 for each felony count.
“We believe this is a landmark case. I know that good prosecutors, and that’s most of them, agree that it’s important Judge Anderson be held accountable for the willful misconduct that caused Michael Morton to lose 25 years of his life,” said Barry Scheck, Co-Director of the Innocence Project, which is affiliated with Cardozo School of Law. “It’s extremely rare for prosecutors to be punished for deliberately hiding exculpatory evidence, much less face criminal charges. But this outcome will hopefully usher in a new era of oversight to ensure that prosecutors live up to their ethical obligations.”
After Morton was exonerated for the 1987 murder of his wife Christine, the Innocence Project filed a report calling for a Court of Inquiry to investigate whether Anderson engaged in criminal conduct by failing to turn over to the trial court, as requested, evidence favorable to Morton that was in his file and police files, their release states.
They conducted depositions of key witnesses and discovered additional evidence that showed definitively that Anderson failed to turn over “the transcript of the victim’s mother telling lead investigator Sgt. Don Wood that Morton’s 3-year-old son told her that Morton was not the attacker, a message to Wood dated two days after the murder reporting that what appears to be the victim’s Visa card was used at store in San Antonio, a report from a neighbor observing someone in a van staking out the Morton’s house before the murder and a report saying that a check made out to the victim may have been cashed with a forged signature nine days after her murder which police appeared to dismiss out of hand before investigating.”
Mr. Morton maintained all along that the murder had been committed by an intruder during the course of a burglary.
In March 2013, Mark Alan Norwood, who was identified as the likely true perpetrator through the Innocence Project’s DNA testing, was convicted of the murder of Michael Morton’s wife and sentenced to life in prison. The Innocence Project reports, “Norwood has also been indicted for another murder in Texas that was committed after Morton was wrongfully imprisoned.”
District Judge Louis Sturns of Fort Worth presided over the Court of Inquiry under a special appointment by Chief Justice Wallace Jefferson of the Texas Supreme Court. At the hearing, “He said that the Court of Inquiry does not require him to decide whether the statute of limitations prevents prosecution and that Anderson must raise that issue after his arrest,” the release stated.
In February, Judge Sturns heard evidence about Anderson’s handling of the case over a weeklong hearing. “Today, Judge Sturns announced his decision in the matter, finding that there was probable cause to believe that Anderson was guilty of criminal contempt and concealment of official records for deliberately disobeying the trial judge’s directives to disclose exculpatory evidence and ordered Anderson’s arrest in the courtroom,” the Innocence Project said.
“This case provides a very clear roadmap for judges, going forward, on how to deal with prosecutors who deliberately hide exculpatory evidence,” added Mr. Scheck. “The court found that Anderson intentionally misled the trial judge, and that’s what makes this prosecution possible. If judges ordered prosecutors to follow state ethical obligations to disclose all evidence that tends to negate guilt, we would have a very powerful tool for holding accountable those few prosecutors who intentionally break the rules.”
Ken Anderson is now a district court judge in Williamson County. He faces disciplinary action from the State Bar for his actions in the Michael Morton Case.
“Over the past year, the Innocence Project launched the Prosecutorial Oversight campaign to bring better oversight and accountability over prosecutors. Research conducted over a five year period in six states, including Texas, has found that prosecutors are almost never disciplined for even intentional misconduct. While the available data is scarce, the Innocence Project notes that very few prosecutors have ever been charged criminally for their misconduct,” the Innocence Project reports.
“Hopefully this case will serve as a wake-up call to prosecutors across the nation that there are real consequences for ignoring the ethical rules that have been established to ensure that everyone gets a fair trial,” said Nina Morrison, a Senior Staff Attorney with the Innocence Project. “As we’ve seen by what happened to Mr. Morton, failing to abide by these rules can have devastating consequences, and prosecutors should be held accountable for their actions just like virtually every other profession.”
Mr. Sheck wrote last year, “Our system rarely disciplines, much less brings criminal charges against, prosecutors who have engaged in acts of intentional misconduct. Far too often, prosecutors, who wield enormous power over our lives, aren’t investigated at all, even for intentional misconduct that has led to a wrongful conviction, much less ‘harmless’ intentional misconduct in cases in which the defendant was guilty.”
In a sense, Anderson is likely getting off too easy. First, while the judge made it a point not to consider the statute of limitations, if states are serious about cracking down on these crimes, they have to pass legislation to eliminate the statute of limitations in these cases, because often exonerations take decades to occur.
Second, if the real perpetrator also committed another murder because he was allowed to go free as Michael Morton sat in prison, that should be on Anderson as well. While he will not be prosecuted for that crime, he perhaps should face civil penalties if the family of that victim wish to pursue civil litigation.
Is the Michael Morton case simply the most egregious example, or are we seeing the efforts of the Innocence Project and other advocates pay off and change the landscape in terms of how we respond to prosecutorial misconduct?
—David M. Greenwald reporting
[quote]”The court found that Anderson should face criminal charges for failing turn over favorable evidence pointing to Morton’s innocence despite specific requests from the defense and an order by the trial judge to do so. The court made specific findings that Anderson knew of evidence supporting Morton’s innocence but intentionally failed to disclose it to the defense.”[/quote]
It seems to me that there would be a very simple and foolproof way to avoid “failing to turn over favorable evidence”. That would be to require that all evidence be revealed to the prosecution and the defense
simultaneously or at the earliest opportunity once the defense lawyers have been selected or appointed. I realize that this would be a major change in the sequence of events in our legal system.
But, seriously, what would be the downside ?
It is so very important for all people (District Attorneys included) to pay the consequences when they break the law. A justice system cannot be fair if one agent of that system does not have to pay any consequences for breaking the rules of the court.
When this is allowed, the justice system creates new victims–those they allow to suffer in prison for wrongful convictions.
Thanks to the Innocence Project for helping to bring public awareness to these problems. Allowing intentional misconduct by even a small number of prosecutors go unpunished, makes the whole legal system look questionable.
We don’t have a “justice” system in the U.S., we have a legal industrial complex, and all of the participants strive to serve the complex… not “justice.”