The following was my speech on prosecutorial misconduct delivered last night at the Fourth Annual Vanguard Dinner and Awards Ceremony.
The problem of prosecutorial misconduct has not received nearly enough attention, even in the wake of Supreme Court decisions such as the one that nullified John Thompson’s damages for wrongful imprisonment after his conviction was overturned.
Mr. Thompson was convicted of murder and spent 14 years on death row before private investigators learned that prosecutors had failed to turn over evidence that would have cleared him at his robbery trial. Prosecutors also destroyed clothing that would have shown that his blood type did not match the blood on the scene.
His conviction overturned, Mr. Thompson was awarded $14 million by a jury for the wrongful imprisonment, but the US Supreme Court overturned it in what some called “one of the most cruel Supreme Court decisions ever,” with Justice Clarence Thomas ruling that the district attorney can’t be responsible for the single act of a lone prosecutor.
The New York Times argued his ruling protects prosecutors, giving them “nearly absolute immunity over civil suits.”
New York Times in their editorial, “Rampant Prosecutorial Misconduct,” writes, “In the justice system, prosecutors have the power to decide what criminal charges to bring, and since 97 percent of cases are resolved without a trial, those decisions are almost always the most important factor in the outcome. That is why it is so important for prosecutors to play fair, not just to win. This obligation is embodied in the Supreme Court’s 1963 holding in Brady v. Maryland, which required prosecutors to provide the defense with any exculpatory evidence that could materially affect a verdict or sentence.
“Yet far too often, state and federal prosecutors fail to fulfill that constitutional duty, and far too rarely do courts hold them accountable,” the Editorial Board writes.
In 2010, the Northern California Innocence Project hired Maurice Possley, who was our keynote speaker back in 2012, to examine cases of prosecutorial misconduct. They uncovered about 700 cases during an 11-year period.
Interesting side story, I got to know Maurice Possley when I sent him an email telling him that I had seven other cases of Prosecutorial Misconduct in Yolo County and asked if he wanted them. Sure enough he did, and I believe most of them made the next edition of their report.
Anyway, one of the most critical findings in that report were that prosecutors were very rarely disciplined even for egregious conduct. In the original report only six prosecutors were disciplined.
One of the exceptions to this was the case of Michael Morton.
Morton was arrested and charged with beating his wife to death in 1986. He was convicted in 1987 and sentenced to life in prison. Pro bono civil attorney John Raley of Houston, Texas, together with Nina Morrison of the New York based Innocence Project filed a motion for DNA testing in February 2005. They relentlessly sought a court order for DNA testing in state and federal courts until the testing was finally achieved in June, 2011. The Williamson County District Attorney John Bradley “tenaciously fought” against DNA testing for six years before a judge finally ordered the tests.
On November 16, 2011, Mr. Morton’s original prosecutor, Ken Anderson, told reporters: “I want to formally apologize for the system’s failure to Mr. Morton. In hindsight, the verdict was wrong.” Baker’s daughter said she was unmoved by Anderson’s apology and held him partially responsible for her mother’s death because he and investigators allowed a killer to escape detection by focusing so intently on Mr. Morton. “It’s harder for me to hear him not holding himself accountable. He’s not taking responsibility,” she said.
The same day as Michael Morton’s formal acquittal, his attorneys asked Judge Harle to order a “court of inquiry” into the actions of Ken Anderson, who was by then a district judge in Williamson County. A court of inquiry is a special court that investigates allegations of misconduct by elected officials in Texas.
Michael Morton’s team of lawyers accused Mr. Anderson of failing to provide defense lawyers with exculpatory evidence indicating that another man might have killed Morton’s wife, including information that his 3-year-old son witnessed the murder and said his dad was not home at the time. They discovered this evidence while preparing a final appeal, and were able to get Anderson and others involved in the investigation deposed under oath.
On February 20, 2012 Judge Harle asked the Texas Supreme Court to convene a court of inquiry, finding that there was evidence to support Morton’s contention that Anderson had tampered with evidence and should have been held in contempt of court for not complying with the trial judge’s order to let him review all possible exculpatory evidence. The court of inquiry began on February 4, 2013.
On April 19, 2013, the court of inquiry ordered Ken Anderson to be arrested, saying “This court cannot think of a more intentionally harmful act than a prosecutor’s conscious choice to hide mitigating evidence so as to create an uneven playing field for a defendant facing a murder charge and a life sentence.”
Ken Anderson responded by claiming immunity from any prosecution under the expiry of applicable statutes of limitation.[16] On September 23, 2013, Anderson resigned from his position as district court judge.
On November 8, 2013, Anderson was found to be in contempt of court by 9th Judicial District Judge Kelly Moore. Mr. Anderson would plead no contest to the charges as part of a plea bargain. He was sentenced to 10 days in county jail, and was ordered to report to jail no later than December 2, 2013.
Amazingly, he received credit for one day he spent in jail in April 2013, when he was arrested following the court of inquiry. He was also fined $500, and ordered to perform 500 hours of community service. He agreed to give up his license to practice law in exchange for having the charges of evidence tampering dropped. He will be eligible to apply to have his law license reinstated after five years.
On 15 November 2013, Anderson was released from jail after having served five days of his 10-day sentence; he was released early after receiving credit for good behavior.
While this seems outrage, the symbolic nature of putting a prosecutor in jail and stripping him of his law license, forcing him to give up his judge seat should not be overlooked.
Orange County Deputy Public Defender Scott Sanders acknowledges his client, Scott Dekraai, is guilty of being the shooter in a 2011 Seal Beach salon massacre. However, he alleges that the Orange County District Attorney’s office, and Sheriff’s Department, cheated in hopes of securing the death penalty for his client.
Regardless, in August Judge Thomas Goethals ruled that, while the prosecutors committed serious misconduct in their investigation, their actions were “negligent rather than malicious.” That means that the defendant will still face the death penalty when the penalty portion of the trial begins.
Judge Goethals ruled misconduct in failing to turn over exculpatory evidence. He wrote, “The court further finds that the misconduct was the product of woefully inadequate legal training, along with a lack of professional energy and strategic imagination.”
While understandably disappointed, Scott Sanders told me, “He also showed a level of courage that we haven’t seen in this county (and) probably see in most counties around the state. He allowed us to really explore these issues.” He added, “He really should be commended for what he did.”
“While this seems outrage, the symbolic nature of putting a prosecutor in jail and stripping him of his law license, forcing him to give up his judge seat should not be overlooked.”
While I do not overlook the significance of the actions taken against this prosecutor/judge, I have a somewhat different take on the situation. I believe Mr. Anderson to be extremely dangerous to our society. My rationale is the following. His knowing and deliberate, pre-meditated actions caused the following:
1. Mr. Morton, although completely innocent was robbed of 25 years of his life.
2. Mr. Morton’s son, 4 years old at the time of his mother’s death, was robbed of the care, love and support of his remaining parent.
3. Mr. Anderson’s actions allowed a killer to go free in our society.
From my point of view, we have the destruction of 25 years of two people’s lives and the knowing abetting of the murderer. So within the same legal system we have one individual sentenced to multiple years in prison for stealing a bag of cheese while Mr. Anderson, a powerful and dangerous individual, receives a sentence of 10 days in jail ( 5 served), loss of license ( for 5 years), $500, and 500 hours of community service. To me this represents a terrible imbalance in our application of the law.
So what would I recommend. Certainly not incarceration for Mr. Anderson. My recommendation would be a form of restorative justice.
1. Hearing the actual damage done to Mr. Morton and his son.
2. House arrest with time out only to serve community service hours for the amount of time that Mr. Morton was incarcerated.
3. Monetary reparations to Mr. Morton in the amount calculated that Mr. Morton would have earned based on his job or profession at the time of his conviction.
It would seem to me that this kind of restorative approach might have enough deterrent value to keep Mr. Anderson from making the same kind of “mistake” in the future if his law license is ever restored and would serve as a deterrent to other prosecutors who might be tempted to withhold exculpatory evidence in order to “win” their case.
I guess I don’t understand your concept of “restorative justice”…
How will Mr Anderson live, for 25 years and thereafter, while not earning any money as all of his non-confinement hours must be spent pro-bono, AND provide monetary reparations equal in value to 25 years of income to Mr Morton? Sounds like Mr Anderson needs to surrender all assets, including home, investments, probably pension and SS (if any) just to do the reparations, leaving him nothing for the next 25 years and thereafter. That sounds more like vengeance than “restorative justice”, as I had understood the term.
I could see where Mr Anderson be precluded from his specific career (prosecututor), and have say 50% (pick your %-age) of his net income go towards reparations. I can’t understand your proposal items 2 & 3 as “restorative justice”.
hpierce
Ok, I get you that my numbers don’t pencil out. I would accept your counter proposal as also providing some deterrence and some restoration. I fully admit to my weakness with numbers, but do not admit to any desire for vengeance, as that is not my goal.
Tia’s suggestions make total sense.
Given her sensible suggestion, where does the money come to pay the reparations? Just not seeing it.
hpierce
I should have read all of the conversation prior to posting. Another way of seeing this is that the the reparations could be partially paid by Mr. Anderson’s existing assets some of which were earned by very questionable tactics , and partially from a fund of money saved by not imprisoning him despite his reckless and dangerous behavior. The approximately $ 60,000 a year not spent on the false imprisonment of an innocent man combined with the savings of another $ 60,000 for not incarcerating Mr. Anderson ( as was richly earned if not the accepted penalty) and you have a nice fund for compensating Mr. Morton and his son. Please feel free to correct me if you do not feel that the numbers now make sense as my first bid did not as you accurately pointed out.
hpierce
I fail to see why a defense of the real criminal behavior is an issue with you? Maybe taking everything he has as a sitting judge and giving ot to MR Morton might be a start, then they can both start from zero. Mr Anderson can then pay reparations for the rest of his life, much the way alimony would be paid?
Will the rest of his cases over the years now be under heavy scrutiny?
Miwok
Tia’s premise was:
Loss of license (unable to practice law), and further;
No income producing work (community service only) for 25 years.
You presume Mr Morton lost all HIS assets owned before being incarcerated. You also presume I defended the judge. I did no such thing…. re-read my post, please.
I didn’t say anything about whether the approach presented by Tia was inappropriate per se. I said that her proposal seemed to go beyond the concept of restorative justice, which I guess is in the eye of the beholder.
I can’t fathom why you think I was excusing Mr Anderson.
The system failed Mr. Morton. He should not have to pay taxes into the system for the rest of his life. He paid the government by sitting in jail all those years.
I think a truly restorative process would be to offer Mr Morton the opportunity to meet with Mr Anderson so he can name the harms caused by Mr Morton’s actions, ask the (perhaps obvious) question “Why did you do this?” and then discuss ways that Mr Anderson could make things right–as much as possible at this late date. For Mr Anderson to acknowledge the harms his actions caused would be significant and to provide the victim the opportunity to ask questions and propose ways to address the harms would be potentially transformative for both men.
Mr Anderson has not made any effort, according to this article. That says a lot.
Not surprising that he has not. Restorative justice is NOT part of our criminal justice system. There is nothing that encourages him to meet with Mr Morton. Perhaps if Mr Morton were to request such a meeting it might happen but it would depend on Mr Morton. IF, on the other hand, the judge in the case had RJ at his/her disposal, he could have offered both Mr Morton and Mr Anderson this option.
Robb, your “process” sounds more like what I understood restorative justice to be. Particularly the bottom line, that the goal is to transform/restore BOTH men.
The idea of a conference of this nature is one way RJ could be used in this case and probably the most straightforward.
“As much as possible” should mean for the rest of Mr. Anderson’s life, if that’s how long it would take him to financially fix his sins. As far as the emotional scars he’s caused Mr. Morton and all of Mr. Morton’s loved ones, those are probably impossible to completely heal, but I bet Mr. Morton has ideas.
I certainly hope no one is blaming Mr. Morton for not suggesting how Mr. Anderson could repent. It is not Mr. Morton’s responsibility; Mr. Anderson must claim full responsibility for his sins. Mr. Bradley should have to pay Mr. Morton back, also.
“As much as possible” could be defined in a carefully prepared victim/offender conference between Mr Morton and Mr Anderson but, again, the system does not offer this as an option. That compounds the tragedy and does not lead to accountability.
I think Mr. Morton has every right not to spend one more second in a room with someone who destroyed so much of his life and his loved ones’. Mr. Anderson and Mr. Bradley don’t get off the hook just because Mr. Morton may not want to spend time with them.
The only way to stop this type of “misconduct” is to incarcerate the prosecutor who lied and cheated to get a conviction. This “misconduct” should be considered a crime with a very long punishment. The deck is already stacked against anyone accused of a crime, so when a prosecutor has to cheat and lie to get a conviction you can bet there is no real evidence against the accused.
Thank you David for having the guts to address this issue. There are so many in the legal system that know exactly what is going on but won’t speak out publicly about it.
Themis
“The only way to stop this type of “misconduct” is to incarcerate the prosecutor who lied and cheated to get a conviction.”
I do not believe that “incarceration” is the only way to stop this kind of misconduct. From my previous post, I obviously do believe that some kind of deterrent action is needed, but except in cases where the individual represents a physical risk to society, I rarely believe that incarceration is the best option. Taking away once license to practice law or to ever serve as a judge again would absolutely be appropriate. Incarceration however, does nothing in my opinion beyond what the other penalties discussed would do. In this case it would be vindictive rather than of benefit to anyone.
The other concern that I would have would be about the cost of investigating how many other cases there are in which people were incarcerated wrongfully at the hands of Mr. Anderson.
My apologies to Tia, Miwok, and any others for my postings on this matter [including this one]. Upon reflection, and re-reading all of the article, I have realized:
The content was a speech an individual gave to introduce a topic at an event on ‘prosecution misconduct’ that he organized, advertised on his web site, for which he asked for a “donation” to attend, and I have no idea of how much that individual benefited financially from other than recovery of direct costs to present.
The same individual can charge advertising costs/revenue based, in part, from the “traffic” on his website.
The same individual appears to take his information on the Anderson/Bradley/Morton case from at least second, if not third or more ‘hand information.
The issue in question was but a bullet point in a number of “cases” cited.
I should have ignored all of it, lacking demonstrable veracity of the “facts” cited, to save myself the time, and also the misconstruing of my comments by those who found them in conflict with their “world view”. All of the presumptions I had, assuming that the “facts” were indeed “facts” were premature. My reaction to those who assumed the “facts” are indeed “facts”, was premature.
Had they been “facts”, I would stand by my comments. Now I see I was arguing about “theoreticals”. My bad. Lesson learned (hopefully).