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Reversal of Fortune: A Prosecutor on Trial

In the world of abusive prosecutors – where evidence can be withheld or invented in the name of winning convictions and without fear of punishment – Ken Anderson stands out: Anderson, a Texas prosecutor who abused his authority to help send an innocent man to prison for decades, now faces 10 years behind bars for his misconduct.

Ken Anderson defends himself at a Court of Inquiry investigation in Georgetown, Texas, on Feb. 8, 2013. Anderson, a Texas prosecutor who abused his authority to help send an innocent man to prison for decades, now faces 10 years behind bars for his misconduct. (Ricardo Brazziell, Statesman.com/AP Photo)

For 30 years, Ken Anderson was the face of law enforcement in Williamson County, Texas, first as a bearded district attorney asking the court for tough sentences, and for the last 10 years handing those kinds of sentences out as a judge.

Earlier this month, his beard gone, his hair white, Anderson, noted for his talks to school children about the criminal justice system and the dangers of drugs, walked into the courthouse again, this time as a defendant. He had come to turn himself in, be fingerprinted, photographed and post $2,500 bail. A few hours earlier a judge had ordered his arrest.

Not for drunk driving or speeding, or any other of the pedestrian crimes that sometimes fell public officials. Instead, Anderson was the rarest of defendants, a prosecutor criminally charged for his role in having helped send an innocent man to prison.

In one of Anderson's most notorious murder cases — the conviction of Michael Morton for killing his wife — he withheld critical evidence that would have been essential to Morton's defense.

Morton spent 25 years in prison before gaining his release. Anderson, once named the Texas Prosecutor of the Year, now faces 10 years in prison for his part in Morton's wrongful conviction.

The judge who oversaw a Court of Inquiry investigation of Anderson's conduct did not spare the former prosecutor.

"The court cannot think of a more intentionally harmful act than a prosecutor's choice to hide mitigating evidence so as to create an uneven playing field for a defendant facing a murder charge and a life sentence," said Judge Louis Sturns.

Anderson's lawyer has filed an appeal, arguing that the statute of limitations bars any action.

In Williamson County, the charges have shaken Anderson's friends and colleagues.

But Judge Sturns's action is even more remarkable when set against the long and often ugly history of prosecutorial misconduct. Even when prosecutors engage in strikingly unethical behavior, they are rarely sanctioned for it, much less criminally charged.

George Kendall, a veteran defense lawyer who has specialized in death penalty prosecutions, called the Anderson case "unprecedented."

Prosecutors and defense lawyers disagree on whether prosecutorial misconduct is widespread, or instead limited to isolated transgressions by inexperienced or overzealous prosecutors.

However, one thing is abundantly clear: While revelations of misconduct might result in people being freed from prison or granted new trials, action is almost never taken against the offending prosecutors.

An investigation by ProPublica found 30 cases in New York in recent years where convictions had been overturned because of prosecutorial misconduct. Yet in only one instance was a prosecutor punished in any meaningful way.

In fact, many of the New York prosecutors found to have withheld evidence and accepted false testimony were promoted, or received raises, even after courts overturned convictions because of their misconduct.

In one case, a Queens man was sent to prison for raping his 4-year-old daughter even though the prosecutor had evidence showing the child hadn't been sexually abused. After spending nearly two years in prison, the man's conviction was overturned. A judge later ruled that what the prosecutor had done was "tantamount to fraud." But after the conviction was overturned, the prosecutor received a raise and became head of a department where she oversaw and guided young assistant district attorneys.

In California, "prosecutors continue to engage in misconduct, sometimes multiple times, almost always without consequence," according to a study by the Northern California Innocence Project and Santa Clara University School of Law. In some 600 cases in which courts found there had been prosecutorial misconduct, the study found, only six times did the State Bar discipline the prosecutor

In Virginia, four murder convictions have been overturned within the last year because of prosecutorial misconduct, according to The Open File, a website launched last year "to monitor prosecutorial misconduct and accountability." None of the prosecutors have been sanctioned.

Twenty-six years ago in Texas, Michael Morton was charged with bludgeoning his wife to death with a club while she lay on the couple's waterbed.

During Morton's trial, Anderson put on an emotional case, shedding tears in court and graphically depicting Morton's alleged crimes. His theory of the case was that Morton had become enraged after his wife had denied him sex the previous night, which had been his birthday. For good measure, Anderson told the jury that Morton had masturbated on his dead wife before he headed off to work as a manager at the nearby supermarket.

The jury deliberated less than two hours before finding Morton guilty; he was sentenced to life in prison.

It is now charged that Anderson won his conviction corruptly, failing to comply with the law as laid down by the United States Supreme Court: Anderson had withheld from Morton's lawyers documents that indicated their client was innocent.

Anderson failed to turn over the transcript of an interview in which Morton's young son told his grandmother that a "monster" had killed his mother and that his father had not been at home, and a police report that a green van had been seen near the home and that a strange man had walked into the woods behind the house around the time of the murder.

Morton had been in jail 15 years when one of his trial lawyers contacted Barry Scheck, who had used his fame and money from the O.J. Simpson trial to expand the work and visibility of the Innocence Project. Scheck assigned the case to Nina Morrison, a bright, tenacious young lawyer then new to the office, but who has in the last decade secured the release of more than a dozen men from prison based on DNA testing.

The Innocence Project works with local lawyers, and Morton was fortunate that John Raley, a highly regarded civil litigator in Houston, agreed to represent him pro bono.

Morton's new lawyers quickly moved to request DNA testing on a bloody bandana that had been found at a construction site 100 yards from Morton's house. The state resisted, and a court denied the request; but Morrison persisted, and eventually a court ordered DNA testing.

The bandana was found to contain the blood of Morton's wife and the DNA of an unknown individual. That individual was later identified as Mark Alan Norwood, whose DNA was found in a national database; he was convicted of the murder and sentenced to life in prison last month.

DNA testing was not as advanced at the time of Morton's trial, and there was no serious criticism of Anderson for not having considered the bandana more carefully. But that was not the end of the case

Using the state's public records act, Morrison had sought documents from the district attorney's office. After years of litigation, what she obtained was explosive.

Foremost among the documents was an eight-page transcript of an interview of the victim's mother by a police officer, an account that suggested Morton could not have been the killer. There was also a sheriff's report about the strange man seen in the neighborhood around the time of the killing.

Anderson had kept all of this from the defense. With Morton out of prison, and fully exonerated, his lawyers might have stopped there. But they pushed on.

An obscure 1876 Texas law provides for a Court of Inquiry when there is probable cause to believe that "an offense has been committed against the laws of this State." Such courts have been used to investigate cases of wrongful convictions, but never allegations of prosecutorial misconduct.

Morton's lawyers persuaded a judge that this was a proper case for a Court of Inquiry. Their legal arguments were buttressed no doubt by the extraordinary public attention paid to the Morton case: Pamela Colloff had authored a two-part series, "The Innocent Man," which appeared in The Texas Monthly; there had been an editorial in The New York Times; 60 Minutes and National Public Radio had also weighed in.

Appointed as the special prosecutor for the Court of Inquiry was Rusty Hardin, who had been a legendary Houston district attorney — "one of the most feared death penalty prosecutors in Texas," says George Kendall.

During the hearing before Judge Sturns in February, Anderson, 60, was grilled for several hours by Hardin. Anderson defiantly defended his actions, "discounted the importance of the inquiry itself, struck a sarcastic tone, and cast himself as the victim of a 'media frenzy,'" Colloff reported.

He also suffered memory lapses. He routinely turned over all evidence to the defense that he was required to, he testified. But he had "no independent memory" of having given the defense the interview in which Morton's young son told his grandmother that a monster had killed his mother.

How could Anderson not remember a statement by a child seeing his mother killed? Hardin demanded to know.

"I have no recollection of it," Anderson repeated. Besides, he said, he'd put no credence in what a little boy said.

It is hard to overstate the uniqueness of the inquiry into the prosecutor's actions in the Morton case, and the subsequent legal action against Anderson.

One way to appreciate its novelty is to recall the South Carolina case of Edward Lee Elmore. A semi-literate African-American, Elmore was convicted and sentenced to death for the sexual assault and murder of a 75-year-old white woman.

In Elmore's case, the prosecution didn't just withhold critical information from the defense. There is reason to believe that the police and investigators concocted evidence, and that they committed perjury.

For instance, at Elmore's trial, officers testified that more than 40 of Elmore's pubic hairs had been found on the bed where he was alleged to have sexually assaulted the victim.

But the claims, as well as others involving what was once presented as scientific evidence of Elmore's guilt, ultimately crumbled upon re-examination. And some potentially exculpatory evidence was withheld from Elmore's lawyer.

Elmore was approaching 30 years in prison — more than half his life — when the Fourth Circuit Court of Appeals issued an opinion. It is striking for its length — 194 pages — but even more so for the majority's scathing criticism of the state's handling of the case. There was "persuasive evidence," the court held, that investigators "were outright dishonest," and that they "lied about" some of their investigative findings at the time of Elmore's trial.

That judgment was rendered more than 18 months ago, and Elmore was released shortly afterward. But there is no indication of any investigation into the police or prosecutors involved in the case.

Raymond Bonner, a lawyer and former New York Times reporter, is the author of "Anatomy of Injustice: A Murder Case Gone Wrong."

BEST NEWS I’VE HEARD ALL DAY!  Amazed that in Texas, of all places, an honest judge has been found.  Let’s hear it for Judge Sturns, who has done a major mitzvah. 

Considering that…

“In the long and often ugly history of prosecutorial misconduct. Even when prosecutors engage in strikingly unethical behavior, they are rarely sanctioned for it, much less criminally charged. “

...it almost makes you wish there WAS a heaven and hell, so Anderson could suffer in the appropriate place, while Elmore enoyed the afterlife in a better place than where Anderson made him waste a good chunk of his life.

Enlightening article. The subject recalls the case of the Central Park Five; five teenagers whose lives were unalterably changed and forever tainted with false convictions by New York Prosecutor Elizabeth Lederer. =Lederer used evidence during the trial concocted by the arresting officers and confessions coerced from the defendants by police.I hope Lederer is brought to face this dreadful misconduct.

FINALLY BRAVE AND SMART JUDGE THAT HAD THE COURAGE TO BE HONEST AND DO THE RIGHT THINGS, IN A TIME WHERE
ALMOST ANY AND ALL JUDGES WILL LOOK THE OTHER WAY

David C. Jones

April 29, 2013, 6:56 p.m.

In reading ““prosecutors continue to engage in misconduct, sometimes multiple times, almost always without consequence,” I initially mis-read the sentence. I read “...almost always without consequence,” as “almost always without conscience!” A freudian slip, no doubt. How very true it is!

Barrie Collins

April 29, 2013, 8:24 p.m.

Staggering, racism and blatant incompetence, I pity the victims having to suffer degrading prison sentences, they should be financially compensated using funds from the proceeds of the offending prosecutor’s wealth and property.
Far too much privilege is awarded these legal morons.

While this is a depressing tale, it is good that sunshine is being brought upon a sordid topic kept in the dark for far too long.

It is important that prosecution officers be held accountable for malfeasance in their duties.  This situation is exacerbated by these following factors:

a ) strident demands by the public and the media upon top officials to immediately solve crimes against persons,
b ) inept &/or corrupt and overworked crime lab technicians,
c ) the tendency to blame the usual suspects with screwed up lives, who might be innocent of these specific charges,
d ) overworked and poorly supported public defenders whose only hope of survival of a tsunami of cases is to get clients to plead out early.

If you are intrigued by the Michael Morton/Ken Anderson case, you should read the great two piece work in Texas Monthly on the case.

Separately, in an overwhelmingly similar case, noted novelist John Grisham has a fantastic non-fiction work “The Innocent Man” who was persecuted and prosecuted in much the same fashion as was Michael Morton.

Any society which provides a sense of impunity for its prosecutors who fail to toe the line on sharing exculpatory evidence is destined for decline.

The next time that I am called to serve on a capital murder jury pool, these cases will come to mind, and I will be most exacting in my decisions.

I have voted for a guilty verdict in the past in a gruesome capital murder trial, and would do it again if the facts warrant that verdict.

At the same time, I am fully aware that we have two systems of criminal justice in this country.  It is rare for the very wealthy to ever spend time behind bars even for the most egregious felony crimes.

dormand wrote:

“I have voted for a guilty verdict in the past in a gruesome capital murder trial, and would do it again if the facts warrant that verdict.

At the same time, I am fully aware that we have two systems of criminal justice in this country.  It is rare for the very wealthy to ever spend time behind bars even for the most egregious felony crimes.”

Methinks you do contradict yourself.  How did you know that the person you were willing to kill was really guilty, given the “gruesome” misconduct of so many amoral prosecutors..

jim terwiliger

April 30, 2013, 8:43 a.m.

He should be hung in front of the courthouse

The court cannot think of a more intentionally harmful act…

I’m as on-board for the story as the next person, but wouldn’t you think that the most intentionally harmful act pull more than a ten-year prison sentence?  I mean, it’s not nothing, but you can get more than that for mail fraud or drug possession.

Also, due to the rarity of this sort of case, someone really should ask the question of who benefits from ousting this guy?  Did he cross a politician?  Is someone gunning for his job?  Let’s be honest, when a group of powerful men turn on one of their own, they’re usually not out for justice.

Why only 10 years? His treachery and malice robbed an innocent person of 25 years of his life. A QUARTER CENTURY, GONE.

He should serve AT LEAST that amount of time.

Gerald Unger

May 1, 2013, 7:55 p.m.

It’s all about “procedure.” We all know that any Defendant is guilty until proven otherwise. A recent arson case where after 14 years the Defendant was found innocent, sums it up nest-the prosecutor refused to agree to his release because ”  he could have done it.” We’ve lost sight of the Constiution, relying instead on Judge made law.  But some of us are still “fighting the good fight.”

Mr. Anderson deserves to be locked in a prison cell with Mr. Morton for 10 minutes prior to his 10 year incarceration beginning.

yes, some of us ARE still fighting the good fight.

FREEBYRONCASE.COM

His sentence is a slap on the hand. But now he can FEEL what it is like. Love the idea him being in the same cell.

I think that an investigation should be launched on some of the federal prosecutors here in Illinois as well, too many young men are getting life sentences for minor offenses, state cases are being turned into federal cases to insure stiffer penalties, there is just too much misconduct and too many people of authority turning their heads!

Steve Sharer

May 5, 2013, 2:27 a.m.

If you think this is obscene, in 1992 12-year-old Shanda Sharer was kidnapped, tortured and burned alive. They caught the girls who did this and they WERE guilty. But now religious prison orgs want them set free, (actually got one set free named Hope Rippey)
WHY? Because they converted to Christianity and should be forgiven. In the meantime Indiana prisons are overflowing with non-violent offender that must serve their entire sentence, mostly for pot. Sooo. The religious right thinks pot is worst than murdering a 12-yr-old.

Texas will execute its 500th inmate in the three decades since it reinstated the death penalty and ushered in the modern era of capital punishment. One question we must ask, were any of these his?

William Keen

May 8, 2013, 5:49 p.m.

I too find the prosecution of ONE-OF-THEIR-OWN to be very strange!

My personal investigation has found that there isn’t ONE individual incarcerated in TEXAS LAWFULLY!  Of course, I haven’t checked each one so there might be ONE!

DUE PROCESS OF LAW is only an empty phrase in TEXAS.  There isn’t one part of the code of Criminal Procedure that the STATE doesn’t violate in nearly EVERY CASE.

The 3 most telling events are tied together by one act:  when arrested without warrant (Article 14) or with warrant (Article 15) you are to be taken WITHOUT UNNECESSARY DELAY before a magistrate in that county or a neighboring county.  There must be one available 24/7 by Texas Law.

INSTEAD - - the alleged LEO (law enforcement officer) will take you to a jail facility where you will be stripped, searched, fingerprinted, and incarcerated until THEY decide to produce a “magistrate” who will NOT investigate the case, they only parrot the cop and set a bail.

You will then be returned to lockup or released on bail (never do they allow you to challenge the cop) without a Commitment Order (Article 16).  This simple document would have prevented several injustices; namely, it requires that a date be set for trial BEFORE incarceration!  That would have eliminated the requirement for the “Speedy Trial Act” that the Supreme Court found so onerous that they simply threw it out!

In TEXAS you can sit in jail for years without being tried since there is no requirement for anyone in the government to force the issue.  They generally will hold an innocent victim until they surrender to the inevitable and plead “NO CONTEST” and take a Deferred Adjudication Probation (with Community Time) just to be able to get away from the criminal running the jails.

Without a doubt, the largest single GANG in TEXAS are the LEO wantabees, those in uniform who fail to comply with Texas Constitution Article 16 Section 1 before putting on the uniform & gun.

The second largest, but more prolific, GANG is the TEXAS STATE BAR Association; Texas Constitution Article 1 Section 26 PROHIBITS all monopolies! ! !  Specifically relating to commercial enterprises.

The TEXAS STATE BAR was created to prohibit anyone other than BAR members from Practicing Law Without A License.

There is NO LAW in TEXAS!

Sgt. Dale Baranoski

May 9, 2013, 7:31 p.m.

What happens when your State is small enough that the entire legal system is corrupt?

https://sites.google.com/site/corruptionmatrix/

I truly appreciate your work.  However, your question belies the statement that I made; Texas ‘HAS NO LAW’! 

It matters NOT the size of the area nor the quantity of people residing there; what matters, is the KNOWLEDGE LEVEL of those people and their willingness to work to keep control of their government.

Actually, the “UNITED STATES” is the result of the “Civil War” when Lincoln destroyed the Constitution.  The unconscionable acts of the Northerners forced the Southern Congressmen to leave their seats which required that there be another general election to re-instate the Constitution for the united States (whomever was left).  Instead, Lincoln had the military arrest them and force them to return to Congress.

Since 1861, those who ran the government KNEW the truth and created the UNITED STATES as a corporate entity with only RULES not law!

This is why such things as: 1) the ‘Missing 13th Amendment’, 2) the un-ratified Amendments following the 13th, 3) the pretend ‘Statehood’ of Ohio, Texas, Alaska, California, Hawaii, etc., 4) the encroachment of the Feds into ever facet fo State’s Rights, and COUNTLESS other criminal acts, have occurred.

TEXAS has cities that have massive “police departments” in place without any lawful authorization to exist!  I have only checked 7 but NONE of them are lawful: Arlington, Garland, Mesquite, Richardson, Huntsville, Clear Lake Shores, and Dallas.

All of this is due to the simple lack of DUE PROCESS OF LAW!

Few are those who care enough to check the Constitutions and fewer still have even looked at the City Charters.

Texas requires “Separation of Powers” for all officers in Article 1 Section 2.  This one Law prohibits attorneys from occupying offices in either the Legislative or Executive Branches of ANY/ ALL levels of government in Texas.

Ten Years.He should have much of the Texas judiciary and ninety percent of the legislators accompany him!

I say when the statue of limitations is no longer in play vigilante justice must come to the fray.

The War Cometh.

Are you ready for when it does?

This is but one of the reasons that I am totally opposed to capital punishment.  In regard to Mr. Anderson he’s getting off light with a 10 year sentence (and probably out in five).  He should serve the same time that Mr. Morton served; 25 years.  BTW the $2,500 bail posted is ridiculously low.

This article is part of an ongoing investigation:
Out of Order

Out of Order: When Prosecutors Cross the Line

New York City prosecutors who abuse their authority almost never see their careers damaged.

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