On the left is Michael Morton, his wife, and their child before the 1987 murder, in the middle is Michael Morton today, and on the left is Judge Ken Anderson, the prosecutor in the Morton case.

READ MORE ABOUT MICHAEL MORTON HERE

For 30 years, Ken Anderson was the face of law and order.  A highly respected district attorney who asked the court for the toughest punishments and for a decade as the tough sentence judge.  Anderson was also known in the Texas community as a man who cares for children.  He often was noted for his school talks about the justice system and the danger of drugs.  Judge Anderson was well-known for a specific case in Texas, the case of Michael Morton.  Morton spent almost 25 years in prison for murdering his wife.  Everyone had thought the right guy was arrested and convicted and Ken Anderson became a hero.  But there was something wrong with the picture.  Michael Morton was innocent regardless of who believed him and he got lucky enough to be able to prove it.  Just two months ago, the real murderer of Morton’s wife was convicted, Mark Alan Norwood was found guilty and sentenced to life in prison (the same sentence Morton had gotten).
26 years after the bludgeoning death of Christine Morton, her real killer, the “monster” their young son described to police when he witnessed the murder, was brought to justice on capital murder charges.  Norwood’s DNA was found at the Morton crime scene.  On top of that, according to testimony, Norwood had sold a stolen .45 Colt taken from the Morton home that night to his former boss.  The jury, by request of the State, never learned that Michael Morton was wrongfully convicted previously.  Norwood has also been indicted for the murder of Debra Masters Baker.  This murder happened after Michael Morton was convicted.  Now Judge Anderson faces civil and criminal legal issues related to his most famous case.

The State Bar conducted a 10-month investigation after a grievance was filed against Anderson in the case.  The State Bar of Texas is suing a former prosecutor who is now a state district judge, accusing him of withholding memos and other written evidence in the case of a man who served nearly 25 years in prison of his life sentence for a murder 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, just north of Austin, Texas.  A disciplinary panel for the state lawyers’ association contended in a lawsuit filed earlier…that Anderson, now a judge in the Central Texas county, knew about the evidence but didn’t disclose it to Morton’s lawyers.

“Before, during and after the 1987 trial, (Anderson) knew of the existence of several pieces of evidence and withheld same from defense counsel,” according to the lawsuit, which also serves as a disciplinary petition.

Anderson’s attorney said he and his client “respectfully disagree” with the bar’s claims. “Incorrect allegations that were first made by attorneys representing Mr. Morton have unraveled over time and will continue to do so,” attorney Eric Nichols said. “We will defend against these allegations in the public forum of a court of law.”  John Raley, an attorney for Morton, said he was confident Anderson would “be held accountable.”  The Texas Supreme Court appointed a judge whose judicial territory is 350 miles west of Williamson County to oversee the case.  If Anderson is found liable in this lawsuit, the judge or jury can decide a penalty ranging from public reprimand to disbarment.  According to the bar’s lawsuit, Anderson violated professional conduct rules by withholding five items. They include:

  1. 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;
  2. A phone message to the investigator that the victim’s credit card was recovered in San Antonio;
  3. A sheriff’s department report from neighbors describing a man parking a van on the street behind the Mortons’ home several times before the August 1986 killing.
  4. The transcript of a taped interview between the investigator and Morton’s mother-in-law;
  5. 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.”

Ken Anderson responded to the lawsuit saying that he violated state ethics in the 1987 prosecution of Michael Morton by saying that he regrets the errors of the justice system, but he did not commit any wrongdoing in his prosecution.  He denied all claims against him and asserted that the claims are prohibited under the statute of limitations.  His conduct, the State Bar commission wrote, violated five of the state’s disciplinary rules of professional conduct.  The rules do come with a statute of limitations.  According to Texas Bar statutes, No attorney licensed to practice law in Texas may be disciplined for Professional Misconduct occurring more than four years before the time when the allegation of Professional Misconduct is brought to the attention of the Office of Chief Disciplinary Counsel, except in cases in which disbarment or suspension is compulsory.”  The statute of limitations doesn’t begin to run in cases of concealment — like what is alleged in the Morton case — until the alleged misconduct “is discovered or should have been discovered.”

Kim Bueno, spokeswoman for the State Bar, said the agency had no comment on the pending litigation, but she added, “We remain confident in the merits of the disciplinary action…”

CRIMINAL CHARGES

The Court of Inquiry into Ken Anderson was based upon an 1876 Texas law that provides the courts the ability to investigate when there is probable cause that “an offense has been committed against the laws of this State.”  The law is used to investigate wrongful convictions in Texas, but this is the first case in which it was used to investigate prosecutorial misconduct.

“I don’t want revenge. I don’t want anything ill for Judge Anderson. I don’t.  But I also realize that there are consequences for our actions, and that there needs to be accountability. Without that, every single thing falls apart…Your honor, I don’t know all the ins and outs of the legal system and what’s ahead, but I ask that you do what needs to be done, but at the same time be gentle with Judge Anderson,” Michael Morton said in his testimony at a hearing earlier this year.

The prosecutor appointed to the inquiry was Rusty Hardin, Texas’ legendary Houston DA “one of the most feared death penalty prosecutors”.  Anderson testified at the inquiry, defending his actions, discounting the importance of the inquiry, speaking sarcastically, and casting himself as the victim of the media.  He also admitted to having no independent memory of handing over the evidence to defense attorneys, but claimed that he did so.  He defiantly told the prosecutor that he had no recollection of the boy saying he witnessed the murder, but he doesn’t put credence in what children say.  After that hearing, former Williamson County District Attorney Ken Anderson was booked into jail before being released on $7,500 bail after District Judge Louis Sturns determined that there was probable cause to support charges that Anderson, now a judge, violated state law and acted in contempt of court by lying to the trial judge to win a conviction in a murder case.

“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,” Sturns said.

His ruling represented a rare first step toward a potential prosecution of an ex-prosecutor.  He is charged with tampering with physical evidence, concealing documents to impair the availability of evidence, and tampering with a government record.  Sturns issued a separate show-cause order requiring Anderson to appear in court to defend a criminal contempt citation, for which he could be sentenced to a maximum $500 fine and six months in jail if he is convicted.  Williamson County District Attorney Jana Duty said Friday that she will ask the state attorney general’s office to act as prosecutor.  Duty said she was concerned about a conflict of interest because three of her prosecutors are assigned to Anderson’s court, which presides over one-third of the criminal cases filed in the county.  Anderson’s lawyer, Eric Nichols, said his client will appeal on statute-of-limitations grounds and he also believes that the court went beyond its scope of authority.  Anderson, who was appointed to the district court bench by Gov. Rick Perry in 2002 was named the State Bar “Prosecutor of the Year” in 1995.  Ken Anderson’s term ends in 2014, it is unclear if he will run again.  Anderson was one of the most celebrated district attorneys in Williamson County for 16 years.  The Morton case helped to propel his career in the public eye.  State law does not require Anderson to step down from the bench while a case is pending.

When Judge Sturns read his findings, Michael Morton cried.

“It was surprisingly emotional. It was a real sense of vindication, an agreement from the state” that Anderson engaged in misconduct, Morton said. “I used to be a ward of the state. They owned me. So this is a special way of saying, You were right, and we were wrong.”

“You had a very difficult ordeal, and you’ve shown a spirit of forgiveness that I find very, very remarkable,” Sturns said. “Obviously, you were the victim…”

RARE INDICTMENT AGAINST PROSECUTORIAL MISCONDUCT

Judge Sturns actions have shaken Ken Anderson’s colleagues and friends, but also have gone against the long and ugly history of prosecutorial misconduct and absolute immunity.  Even when prosecutors engage in strikingly unethical behavior, they are rarely sanctioned for it.  Prosecutors and defense lawyers disagree on whether prosecutorial misconduct is widespread, or instead limited to isolated transgressions by inexperienced or overzealous prosecutors.  While revelations of misconduct might result in people being freed from prison or granted new trials, action is almost never taken.  According to ProPublica research, prosecutors are punished for fraudulent actions against innocent citizens only 3% of the time in New York.  Take for instance the case of a Queens man.

He was wrongfully convicted in the rape of his 4-year-old daughter.  The prosecution had evidence that no sexual assault had taken place at all, yet the man spent 2 years in prison.  His conviction was overturned and the judge ruled that the prosecutors had committed what was “tantamount to fraud.”   What happened to the prosecutor?  She got a raise and became the head of her department.  A study by the Northern California Innocence Project found that in 600 cases of prosecutorial misconduct only 6 cases resulted in prosecutorial discipline (or 1% of the time).  In California, “prosecutors continue to engage in misconduct, sometimes multiple times, almost always without consequence.”  In Virginia, four murder convictions were overturned within one year based upon prosecutorial misconduct.  No prosecutors were sanctioned.

During the Morton case, Anderson put on an emotional case.  He even cried in court when graphically describing what he said Morton had done.  The prosecution’s theory was that Morton had become enraged after his wife denied him in bed on his birthday.  He stated that Morton had masturbated on his dead wife (based upon no evidence at all).  The jury took less than 2 hours to wrongfully convicted Morton.  It is hard to overstate the absolute oddity and uniqueness of this case against a prosecutor’s wrongful actions.  One way to explain it is to look at a case in which there is evidence that police and prosecutors actually made up evidence.  Edward Lee Elmore was recently released after his conviction was overturned for the sexual assault and murder of a 75-year-old woman.  He had been sentenced to death.  In his case, the Fourth Circuit Court of Appeals, after 30 years of his incarceration, issued their opinion, 194 pages of scathing criticism of the State of South Carolina’s handling of the case.  There was “persuasive evidence,” the court held, that investigators “were outright dishonest,” and that they “lied” about scientific evidence.  The judgment was rendered almost 2 years ago, but all police and prosecutors involved haven’t even faced an investigation into their actions.

LATEST

Just a few days ago, the Texas Bar argued that a trial set for September 30th, in the civil lawsuit against Ken Anderson, need not happen.  They have motioned for the judge to rule in their favor in summary judgment against former Williamson County District Attorney Ken Anderson.  They want the judge to rule that Ken Anderson committed prosecutorial misconduct when he withheld evidence in the 1987 wrongful conviction of Michael Morton.  Such a ruling would allow the State Bar, which oversees lawyer discipline, to proceed directly to a state district court hearing on sanctions.

RELATED:  Michael Morton  | Timeline of Events in Michael Morton’s Wrongful Conviction  | A Tough Prosecutor Finds His Certitude Shaken by a Prisoner’s Exoneration  | Read about Nina Morrison’s Work on the Michael Morton Case  | The Sun:  Michael Morton Series

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