Saturday, November 26, 2011

Judge Ken Anderson still can’t tell the truth about the Morton case

The following opinion by Lamar Hankins was published in the San Marcos Mercury on November 21, 2011.

Former Williamson County District Attorney Ken Anderson, now a Williamson County District Judge, who wrongfully secured the conviction of Michael Morton 25 years ago for killing his wife Christine, has apologized in a press conference held a few days ago. Anderson’s apology appears taken right out of the Politics 101 Manual–admit that a mistake was made, but explain the mistake away. The first problem with his apology, however, is that he began it with telling a lie.

Anderson said, “Twenty-five years ago, Michael Morton was convicted of murdering his wife in this very courthouse. The jury’s verdict was based on the evidence as we knew it at the time.” Thanks to the work of the Innocence Project, we now know that the evidence Anderson had available to him at the time of trial, but Morton’s defense attorneys did not have, included a statement made by Morton’s three-year old son to his grandmother that a “monster” with a mustache killed his mother, not Morton. Had defense attorneys been given this information, which Anderson was required by law to reveal, Morton might not have been convicted. Anderson violated his sworn duty to reveal that information.

In addition, Anderson knew that a check to Christine Morton had been cashed nine days after her murder by someone who forged Christine’s signature, but Anderson withheld this evidence from defense attorneys. Anderson violated his sworn duty to reveal that information.

And there was evidence that someone had used Christine Morton’s credit card in San Antonio after she was killed, but Anderson failed to tell defense attorneys, and no law enforcement agency apparently followed up on this information after it was received by the Williamson County Sheriff’s Office (WCSO). Anderson violated his sworn duty to reveal that information.

One final piece of nondisclosed evidence that Anderson knew about or should have known about was a report by a neighbor that around the time of Christine Morton’s murder, he had seen a suspicious person park a green van behind the Mortons’ house on several occasions and walk into the adjacent wooded area. A second neighbor also had information about this suspicious person. Anderson violated his sworn duty to reveal that information.

The Texas Code of Criminal procedure provides that “It shall be the primary duty of all prosecuting attorneys,. . . not to convict, but to see that justice is done. They shall not suppress facts or secrete witnesses capable of establishing the innocence of the accused.” In 1963, the US Supreme Court held in Brady v. Maryland that “the suppression by the prosecution of evidence favorable to an accused . . . violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” Furthermore, Article I, Section 19 of the Texas Constitution gives an accused the same rights recognized in the Brady decision.

And the prosecution has a duty to learn of and disclose the exculpatory evidence in the possession of all members of the prosecution team, which includes the police, other law enforcement agencies, such as the WCSO, and other investigators working with or on behalf of the state. In 1985, the US Supreme Court held that evidence is material “if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceedings would have been different.”

All of the withheld evidence would have met that standard. We know this because immediately after the trial the assistant prosecutor in Morton’s case, Mike Davis, told some of the trial jurors after the trial that the state had failed to disclose some “investigatory materials to the defense.” Davis said that if the defense had gotten the materials, it would have been able to raise even more doubt than it did about Morton’s guilt. (See the Motion for New Trial filed on March 17, 1987, by defense attorney William P. Allison.)

While a bandanna with blood and hair fibers on it was found near the Mortons’ house during the investigation, it provided no help to Morton because DNA testing was in its infancy, but Anderson is using the earlier absence of DNA evidence as a smoke-screen to hide his malfeasance, claiming that this new evidence is all that matters in showing Morton’s innocence. Judge Anderson now wants to pretend that he did nothing wrong and should be forgiven for securing a wrongful conviction, but he fought a subpoena to give testimony under oath for weeks, exhausting all appeals before being compelled to answer questions posed by Morton’s post-conviction attorneys, who represent the Innocence Project. Morton was released from prison a few weeks ago after the DNA evidence on the bandanna implicated another man in his wife’s murder.

This past week, the Austin American-Statesman reported: “On Nov. 9, Williamson County sheriff’s officers charged Mark Norwood, a Bastrop dishwasher and former carpet installer, with the murder of Christine Morton. DNA tests conducted last summer found Norwood’s DNA on a bandanna that had been collected from a construction site behind the Morton home the day after the murder. Tests on the cloth were inconclusive in 1986, but the recent DNA tests confirmed that the bandanna also contained Christine Morton’s blood and one of her hairs. Norwood also is a suspect in the 1988 Austin murder of Debra Masters Baker. Like Morton, Baker had been beaten to death in her bed. No charges have been filed in the Baker case, which had remained unsolved.”

Judge Anderson says he believes that 25 years ago he complied with the requirements then in place to disclose evidence that might tend to show the innocence of Morton. After refreshing his memory by reviewing the files that he compiled then, Anderson said, “I believe that the state’s prosecution team complied with all orders from the court and with the law on pretrial discovery and disclosures as it existed in 1987.” Once again, Anderson will not admit the essential wrong-doing that he committed while serving as Williamson County District Attorney.

If Anderson continues to insist that he did nothing wrong 25 years ago, he further diminishes the reputation of another Williamson County district judge, the late Judge Bill Lott, who presided over the Morton trial. Anderson claims that he submitted to Judge Lott files that were not given to the defense for Judge Lott’s review to determine whether they included exculpatory evidence. Judge Lott did not find any exculpatory evidence in the files. If Anderson gave Judge Lott any of the exculpatory evidence discussed above, and Lott ruled it was not exculpatory, he is implicated in this on-going cover-up, as well.

There is nothing new in Anderson’s conduct. For anyone who has spent much time working in what is mistakenly called “the criminal justice system,” misconduct by prosecutors is not only common, but widely known. While prosecutors love to tell jurors that they have a duty to see that justice is done, what they really like to do is convict people of crimes. The less scrupulous ones don’t care about what is termed “exculpatory evidence.” Anderson was one of that kind of prosecutor. He helped build the reputation of the Williamson County District Attorney’s office as a hard-nosed, “hang’em high” fiefdom, destitute of actual justice.

I have known prosecutors who bragged that the milk of human kindness did not flow through their veins. I have seen prosecutors who worked out their own sociopathic tendencies by being as hard, mean, and indifferent to human welfare as the most callous criminal. In fact, prosecuting is one of the professions where sociopathic behavior is regularly rewarded by advancement in the profession and sometimes by election to the position of District Attorney.

Fortunately, not all District Attorneys and prosecutors take out their own personality defects through their work. There are many hard-working, diligent prosecutors who primarily seek justice, not convictions, but Williamson County in recent decades has not produced too many of this kind. Judge Anderson and the current occupant of his former position, John Bradley, have done a disservice to the notion of justice. Bradley fought even the testing of the DNA evidence in Morton’s case until he had exhausted all avenues of interposition.

During this same period, Bradley served as Gov. Rick Perry’s minion as the head of the Texas Forensic Science Commission in an attempt to keep evidence of Cameron Todd Willingham’s wrongful conviction and execution from being officially acknowledged. Bradley now claims to have had a Damascus Road experience and to be a changed man, following only the path of righteousness as a prosecutor. I’ll believe that when Willingham comes back to life.

The average citizen does not know the level of corruption that can exist in a system such as the Williamson County District Attorney’s office. When a prosecutor is working in a courtroom with a prosecutor-friendly judge, there is nothing that can be done in the prosecution of a defendant that is too extreme. Many defense attorneys are too timid to vigorously defend their clients in such a hostile environment. I have known attorneys who have gone from being prosecutors to defense attorneys and vice versa, and those who have gone from being prosecutors or defense attorneys to being District Attorneys or judges. Most of them do so with integrity and faithfulness to the highest ideals of the profession.

Unfortunately, Ken Anderson and John Bradley do not represent this latter group. They have been comfortable with ignoring the requirements of the law, judicial decisions, and the ethical code they are sworn to uphold, which provides that “The prosecutor in a criminal case shall . . . make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense.”

Whatever Ken Anderson says now, the record shows that he failed in his legal and ethical duties in the Morton case. It was a personal moral failure, a professional failure, and a failure to do justice to Michael Morton, Christine Morton, the Mortons’ young son, the entire Morton family, the actual murderer of Christine Morton and Debra Baker, the citizens of Williamson County and the State of Texas, and to the system of justice that Americans believe makes us special among nations. Maybe our system is not so special after all.

USDOJ's "Public Integrity" Unit

On October 27, 2008, Alaska Senator Ted Stevens, a pillar of the Senate for 40 years, was convicted of a seven-felony string of corruption charges -- found guilty of accepting a bonanza of home renovations and fancy trimmings from an oil executive and then lying about it. The conviction came just in time to cost him re-election. After all, who has more credibility, a convicted felon or an elite team of prosecutors brought together to ensure that elected officials maintain the highest level of integrity? As it turns out, it's the felon who is more credible. The hot-shot "Public Integrity" prosecutors hid evidence of Sen. Stevens' innocence in order to get a conviction. They acted no more honorably than cheating prosecutors all over the country, the kind that distraught citizens turn to the "Public Integrity" Unit to rein in.

Sentor Stevens was exonerated more than a year before he died in a plane crash on August 9, 2010. Six weeks later, Nicholas Marsh, one of the "Public Integrity" prosecutors, committed suicide. The official investigation of the USDOJ prosecutors continued at a snail's pace, and appears to be wrapping up with evidence of criminal misconduct that will go unpunished. Below are some highlights of the investigation, food for thought that leads inexorably to the question, If they can do this to a ranking U.S. Senator, what do they do to regular citizens?

December 23, 2008. A special agent with the FBI is accusing government prosecutors in the Ted Stevens case of intentionally withholding exculpatory evidence from Stevens' lawyers and scheming to conceal a witness from the defense team. Did the government cheat to convict the Senator?

February 14, 2009. An angry federal judge held Justice Department lawyers in contempt yesterday for failing to deliver documents to former senator Ted Stevens's legal team, as he had ordered. "That was a court order," U.S. District Judge Emmet G. Sullivan bellowed. "That wasn't a request. I didn't ask for them out of the kindness of your hearts. . . . Isn't the Department of Justice taking court orders seriously these days?" Judges rarely hold prosecutors in contempt. They're following in Mike Nifong's footsteps.

November 21, 2011. The lawyer investigating allegations of misconduct in the investigation and prosecution of the late Alaska Senator Ted Stevens is not recommending that any of the government's lawyers face criminal charges. Still, the special prosecutor's report, filed in the chambers of U.S. District Judge Emmet Sullivan, revealed "systemic concealment" of favorable information that would have corroborated the former Republicans senator’s defense that he did not knowingly file false Senate financial disclosure forms. They're getting off a lot lighter than their victim did.

Saturday, November 05, 2011

Buying and selling judges

The following editorial was published by the Washington Post on November 5, 2011.

FOR THOSE who believe that judges should be bought, sold and marketed like any other product, the 2009-10 election cycle brought welcome developments. Special-interest groups from both the left and right inundated judicial campaigns across the country with record levels of cash. These groups — dominated by lawyers, lobbyists, businesses and political parties — independently spent a combined $11.5 million, or nearly one-third of the $38 million spent on these campaigns.

The money is question is a pittance compared to the sums spent by groups and candidates for political office, but its impact is profound. Campaigns become demonstrably nastier as the level of outside group involvement increases. Outside groups, for example, were responsible for funding three out of every four attack ads aired during the 2009-10 judicial election campaign season.

These are but a few of the disturbing findings in a recent report by Justice at Stake Campaign, the Brennan Center for Justice and the National Institute on Money in State Politics — a trio of public-interest groups that follow judicial elections closely. The revelations once more affirm the need to discard the election of judges.

Total spending in judicial campaigns dipped during 2009-10, typical for for off-year elections. But the incursion and influence of special interests grew. Just 10 outside groups accounted for nearly 40 percent of the spending nationwide. Lawyers and lobbyists provided the most direct contributions to candidates, funneling $8.5 million to judicial campaigns. They were followed by business groups and political parties, with $6.2 million and $3.5 million, respectively.

Unopposed retention elections — in which voters give a thumbs up or thumbs down to sitting judges — no longer insulate jurists from the most pernicious political elements. National spending on these elections between 2000 and 2009 amounted to just over $2 million, but they attracted nearly $5 million just during the 2009-10 cycle. National interest groups poured hundreds of thousands of dollars into the successful campaign to unseat three Iowa Supreme Court justices who joined a decision recognizing same-sex marriage. The message was clear: Render decisions that rile the public and risk the loss of your seat.

This is precisely the problem with judicial elections. Judges should not have to worry about pleasing political constituencies — whether they are business groups, unions or those who support a particular definition of marriage. Judges in many circumstances are meant to be a check against these forces and the unconstitutional excesses of the elected bodies. The notion of impartial justice for all is obliterated when judges are forced to think like politicians and to curry favor with monied interests just to keep their jobs.