Attacking Prosecutorial Misconduct

In October, Michael Morton walked out of a Texas Courtroom after his 1987 murder conviction was overturned because of new DNA evidence pointing to another man.

But the damage was done.  Mr. Morton served nearly 25 years in prison before being released.

“Mr. Morton was the victim of serious prosecutorial misconduct that caused him to lose 25 years of his life and completely ripped apart his family.  Perhaps even more tragically, we now know that another murder might have been prevented if law enforcement had continued its investigation rather than building a false case against Mr. Morton,” said Barry Scheck, Co-Director of the Innocence Project, which is affiliated with the Benjamin N. Cardozo School of Law at Yeshiva University in New York City.  “This tragic miscarriage of justice must be fully investigated and steps must be taken to hold police and prosecutors accountable.”

A December 19, 2011 New York Times article writes, “That is no longer so unusual in Texas, where 45 inmates have been exonerated in the last decade based on DNA evidence.”

In an email in December, Mr. Morton said, “I am so thrilled to be home. Being free is quite a change from prison and the absolute liberty is a shock to my system. Clothes feel so soft, food tastes so good, and it is so nice to be able to drink coffee with my dad on the patio in the morning. I drive my mom to church every week and I’m amazed at how wonderful, nice and good people are out here.”

He added, “I’m blessed to be able to put the past behind me and reconnect with my son, who was just 3 years old when I was wrongfully convicted. He is now married with a daughter on the way and I am so very proud of him. Getting to know this young man is wonderful and I know our connection will only grow.”

However grateful Mr. Morton is, he lost 25 years of freedom from his life due to prosecutorial misconduct in this case.  But while Mr. Morton may be grateful to be released, he is also not going to take things lying down.

In a move the New York Times calls “unprecedented,” lawyers for Michael Morton plan to “file a request for a special hearing to determine whether the prosecutor broke state laws or ethics rules by withholding evidence that could have led to Mr. Morton’s acquittal 25 years ago.”

“I haven’t seen anything like this, ever,” Bennet L. Gershman, an expert on prosecutorial misconduct at Pace University in New York told the New York Times. “It’s an extraordinary legal event.”

For his part, Ken Anderson,the prosecutor on the case, who is now a state district judge, has denied any wrongdoing in this case.

Writes the Times, “Mr. Morton, who was a manager at an Austin supermarket and had no criminal history, was charged with the beating death of his wife, Christine, in 1986. He had contended that the killer must have entered their home after he left for work early in the morning.”

They add: “But Mr. Anderson convinced the jury that Mr. Morton, in a rage over his wife’s romantic rebuff the previous night – on Mr. Morton’s 32nd birthday – savagely beat her to death.”

Mr. Morton was sentenced to life in prison. Beginning in 2005, he pleaded with the court to test DNA on a blue bandanna found near his home shortly after the murder, along with other evidence.

In August, the Innocence Project announced that DNA testing on a bandana found near the Morton’s home where the murder occurred contained the blood of the victim, Christine Morton, and a male other than Morton.

According to the papers filed by the Innocence Project at the time, new DNA testing connected the male DNA on the bandana to a hair that was found at the crime scene of a Travis County murder that was conducted with a similar modus operandi after Mr. Morton was incarcerated.

In the filing, the Innocence Project charged that Mr. Morton would never have been convicted of the crime if the prosecution had turned over, as required, evidence pointing to his innocence.

Moreover, they cite, newly-discovered evidence, that was uncovered through a Public Records Act request and that was not given to the defense includes: 

• A transcript of a taped interview by the chief investigator, Sgt. Don Wood,  with the victim’s mother, where the mother says that the couple’s three-year-old child witnessed the murder and provided a chilling account of watching a man who was not his father beat Christine to death.

• A handwritten telephone message to Williamson County Sherriff’s Office (WCSO) Sgt. Wood dated two days after the murder, reporting that what appeared to be Christine Morton’s missing Visa card was recovered at the Jewel Box store in San Antonio, with a note indicating that a police officer in San Antonio would be able to identify the woman who attempted to use the card.

• A report by WCSO officer Traylor that a neighbor had “on several occasions observed a male park a green van on the street behind [the Morton’s] address, then the subject would get out and walk into the wooded area off the road.”

• An internal, typewritten WCSO message to Sgt. Wood and follow up correspondence reporting that a check made out to Christine Morton by a man named John B. Cross was cashed with Christine’s forged signature nine days after her murder. 

“The prosecution’s complete disregard for the truth in this case is stunning,” said Nina Morrison, a Senior Staff Attorney with the Innocence Project.  “Rather than try to get to the bottom of what really happened, the prosecution went to great lengths to keep evidence pointing to Mr. Morton’s innocence from his lawyers, blatantly ignoring direct orders from the judge who conducted a review of the evidence. This case and the other tragic murder that might have been prevented if the leads had been investigated will hopefully spur the Legislature to enact legislation requiring open file discovery in every case.”

Worse yet, for six years, the current DA in Williamson County, John Bradley, fought the request for DNA testing, according the Times, “based on advice from Judge Anderson, his predecessor and friend.”

It took a 2010 court order, ordering the DNA testing, to obtain the results.

According to the NY Times article, attorneys for Mr. Morton will “ask the court to determine that there is probable cause to believe that Mr. Anderson withheld reports that the judge in the 1987 trial had ordered him to turn over. “

In August of this year, a judge ordered the records unsealed and “Mr. Morton’s lawyers discovered that Mr. Anderson had provided only a fraction of the available evidence. Missing from the file was the transcript of a telephone conversation between a sheriff’s deputy and Mr. Morton’s mother-in-law in which she reported that her 3-year-old grandson had seen a ‘monster’ – who was not his father – attack and kill his mother. “

In addition, there were missing “police reports from Mr. Morton’s neighbors, who said they had seen a man in a green van repeatedly park near their home and walk into the woods behind their house. And there were even reports, also never turned over, that Mrs. Morton’s credit card had been used and a check with her forged signature cashed after her death.”

Mr. Morton’s attorney then questioned the lead sheriff’s investigator, an assistant district attorney who worked with Mr. Anderson, and the former prosecutor himself.

Reports the Times, “In their accounts, the witnesses said Mr. Anderson had firmly controlled every detail of the prosecution. In his own two-day deposition, however, Judge Anderson said he recalled few details of the case and asserted that he had done nothing wrong. He said that he had interpreted the judge’s order to disclose the reports as a narrow demand for the initial documents from the investigation and that he felt ‘sick’ over Mr. Morton’s wrongful imprisonment.”

Even if the court ends up finding that Mr. Anderson committed serious acts of misconduct, and it leads to possible action, most experts “are skeptical that Judge Anderson could face serious punishment or disbarment, even if the court were to decide that he had committed malfeasance.”

According to the NY Times, “Susan R. Klein, a professor at the University of Texas Law School who specializes in criminal issues and prosecutorial ethics, said that such actions would be ‘incredibly unusual,’ particularly after the Supreme Court’s decision this year dismissing a $14 million civil jury award against a Louisiana prosecutor, Harry Connick Sr. [father of the famous entertainer], for his failure to turn over evidence that ultimately led to an exoneration.”

While withholding material evidence intentionally can get a lawyer disbarred, Ms. Klein told the Times, “It’s extremely unlikely.”

In an editorial Wednesday morning, the Times Editorial Board wrote: “While this process is an urgent matter for Mr. Morton, it is also a test of American justice – whether a prosecutor who flouts his duty under the Constitution to disclose crucial evidence to a defendant is subject to any meaningful sanction.”

They add: “Prosecutors have enormous power in determining who is subjected to criminal punishment because they have broad discretion in deciding criminal charges. The Brady rule, established by the Supreme Court in 1963, is supposed to be an important check on that power. It requires prosecutors to disclose evidence favorable to the defendant. But their failure to comply is rarely discovered, and, even then, prosecutors are almost never punished.”

The Times argues this 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.”

But, notes the Times, “Bar associations hardly ever punish this behavior; judges seldom discipline prosecutors for such violations; and criminal sanctions are rarely imposed against prosecutors.”

They argue: “This is why the Morton inquiry is crucial. The Innocence Project report found that Mr. Anderson willfully failed to disclose police notes that another man committed the murder, concealed from the trial judge that he did not provide the full police report and advised his successor as prosecutor ‘to oppose all of Mr. Morton’s post-conviction motions for DNA testing.’ If a court confirms these findings, it must hold Mr. Anderson accountable – or it will send a message to prosecutors in Texas and elsewhere that the criminal justice system is incapable of deterring or punishing this conduct.”

On a more positive note, they report that there is a small but increasing number of prosecutors that have taken steps to prevent the type of misconduct that occurred in Mr. Morton’s case.

The Times writes, “There are, however, a small but growing number of prosecutors’ offices around the country that have systems to prevent the gross miscarriage of justice that Mr. Morton suffered. Like the New York County District Attorney’s Office, they allow open records so defendants can have a copy of almost anything in the case file, and they support having courts audit their compliance with Brady.”

All of which sounds good in the future, but does little if there are not sanctions and consequences when prosecutors withhold or destroy evidence.  Mr. Morton will never get his 25 years back, but his case can ensure that no one else has to experience the injustice that he did.

—David M. Greenwald reporting