Prosecuting the Prosecutor

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.
"(Anderson) affirmatively told the trial court that he had no evidence favorable to the accused," the lawsuit said. "That statement was false."

Morton was freed last year after DNA testing not available at the time of his trial revealed his wife's blood and DNA from another man on a bloody bandanna found near the Mortons' house around the time of the killing. The DNA tests are not mentioned in the disciplinary petition against Anderson.

Research by the Prosecutorial Oversight coalition illustrates the lack of accountability and transparency for prosecutorial misconduct in Texas.
The coalition includes the death row exoneree John Thompson, who was stripped of $14 million in civil damages for prosecutorial misconduct by the U.S. Supreme Court in Connick v. Texas; the Innocence Project; the Veritas Initiative, Northern California Innocence Project’s prosecutorial accountability program; the Innocence Project of New Orleans; Voices of Innocence; and local partners, the Texas Center for Actual Innocence; and the Actual Innocence Clinic at the University of Texas School of Law.

The research was conducted by the Veritas Initiative, which issued a groundbreaking report on prosecutorial misconduct in California last year. The group reviewed all of the published trial and appellate court decisions addressing allegations of prosecutorial misconduct between 2004-2008. To see what, if any, consequences prosecutors face for their misconduct, Veritas looked at Texas’ public attorney disciplinary records from 2004 to November 2011.

From 2004 to 2008, courts found that prosecutors committed error in 91 cases. Of these, the courts upheld the conviction in 72 of the cases, finding that the error was “harmless.” In 19 of the cases, the court ruled that the error was “harmful” and reversed the conviction. From 2004 until November 2011, only one prosecutor was publicly disciplined by the Texas Bar Association, and this was from a case that arose before 2004.

The coalition notes that this review doesn’t begin to fully illustrate the scope of the problem. Almost all of the errors identified were of cases where defendants went to trial (only 3% of Texas criminal cases according to 2010 data) and had access to an attorney who raised the error on appeal. Courts declined to directly address the issue in many of the cases where the issue was raised. Additionally, many opinions are not in writing and many aren’t published. Furthermore, the distinction between harmful and harmless is problematic because it doesn’t illustrate how serious the misconduct was, merely that the court determined that it wouldn’t have affected the ultimate outcome of the trial.

Of the 91 cases where error was found, improper argument and improper examination were the leading types of error found by the courts, but these errors rarely resulted in the court reversing the conviction. (Of the 36 instances of improper argument, only 3 were reversed. Similarly, of 35 instances of improper examination, only 3 were reversed.

Courts were more likely to reverse in cases where prosecutors failed to turn over “Brady” material (information that pointed to the defendant’s innocence), which occurred in 8 of the cases, resulting in 7of the reversals. Misconduct was found most often in murder cases (28 % of the cases) and sex crimes (24% of the cases).

“As best we can determine, most prosecutors’ offices don’t even have clear internal systems for preventing and reviewing misconduct. But perhaps even more alarming is that bar oversight entities tend not to act in the wake of even serious acts of misconduct,” said Stephen Saloom, Policy Director of the Innocence Project, which is affiliated with Cardozo School of Law.

“We don’t accept this lack of accountability and oversight for any other government entity where life and liberty are at stake, and there’s no reason we should do so for prosecutors,” he said.

Results from this study indicate that of the 65 DNA exoneration cases involving documented appeals and/or civil suits addressing prosecutorial misconduct, 31 (48%) resulted in court findings of error, with 18% of findings leading to reversals (harmful error).

While not a perfect comparison, there has been one large, nationwide study of prosecutorial misconduct. The Center of Public Integrity found that among all 11,452 documented appeals alleging some type of prosecutorial misconduct between 1970 and 2002, 2,012 appeals led to reversals or remanded indictments, indicating harmful error—a rate of 17.6%. This is nearly identical to the rate of harmful error findings of 18 % in the DNA exoneration cases.

Over the past decade, the power of judges has decreased because of sentencing guidelines and other factors, while the power of prosecutors has jumped off the charts. Bar associations have found accusations of prosecutors’ misconduct embarrassing – this is peer review with potentially career-ending authority – and difficult to prove.

But it’s possible that lawyers, at least those in Texas, will see the findings of the Court of Inquiry as a too-long-delayed wake-up call.