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. 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.”