Critiques of the Judiciary
Dishonest Prosecutor Receives Slap on Hand Michael Morton spent 25 years in jail for a murder he did not commit
Prosecutors who aspire to become judges climb their career ladders by winning convictions, and some let nothing stand in their way, confident that the immunity they enjoy will shield them from any missteps in their zeal to secure them. Ken Anderson, the Williamson County, Texas, district attorney who successfully prosecuted Michael Morton for the August 13, 1986 bludgeoning death of his wife, concealed three crucial pieces of evidence that would have exonerated Morton of the crime had they been disclosed at his trial. Morton was sentenced to life imprisonment on February 17, 1987, while Anderson went on to win convictions, becoming "Prosecutor of the Year" in 1995, and finally Judge of Williamson County District Court in Georgetown, Texas. He was appointed to the bench by Governor Rick Perry in 2002 and held that post until his resignation on September 24, 2013. Michael Morton spent 25 years in prison before being released on October 4, 2011, and officially exonerated December 19, 2011. On that day, Morton's attorney requested that a Court of Inquiry be formed to look into the prior actions of Judge Ken Anderson, who faced that court on February 4, 2013. Despite a plea of immunity and denials of wrongdoing, Anderson was eventually disbarred, fined $500, required to complete 500 hours of community service, and sentenced to 10 days in jail, of which he actually served only three because of good behavior a relatively light sentence considering the gravity of his misconduct. Barry Scheck, Co-Director of The Innocence Project of Yeshiva University's Cardozo School of Law, led the team of dedicated attorneys and investigators that eventually uncovered the exculpatory evidence that had been deliberately withheld both from Morton's lawyers and the trial judge. On May 16, 2013, Governor Rick Perry signed into law the "Michael Morton Act," which requires Texas prosecutors to maintain an "open file" policy for sharing documents and information with defense lawyers prior to trial. In 2015, Texas State Senator Rodney Ellis (D-Houston) proposed Senate Bill 487, which would give convicted Texans access to advanced crime-solving technology in order to acquire evidence that might be exculpatory. These relatively small steps are intended to counterbalance prosecutors who have vast investigatory resources available to them and can select with impunity the evidence they choose to present. Until dishonest prosecutors are held accountable with meaningful consequences for willful misconduct, innocent people will continue to be imprisoned, and unscrupulous prosecutors will continue to advance toward coveted judgeships.
Rampant Prosecutor Misconduct Rarely PunishedCRYSTAL SHEPEARDNovember 21, 2014
According to the National Registry of Exonerations, since 1989 nearly 1,500 people have been convicted of crimes and later exonerated. The average time served by these individuals was over nine years, with more than 100 on death row. The discovery of DNA analysis has been the key component in the reversal of these convictions. However, many of these cases got as far as they did not because of faulty evidence analysis, but because of official misconduct. It is estimated that nearly 47 percent of wrongful convictions are due to official misconduct.
When the misconduct is discovered, consequences are rarely incurred, even in the most egregious of cases.
On August 13, 1986, Michael Morton got ready for work while his three-year-old son and wife were still sleeping. Before leaving, he left a note on the bathroom mirror expressing disappointment that his wife had declined sex the previous evening, after a family celebration of his birthday at a local restaurant. Morton signed the note "I love you," and then headed to work at 5:30 a.m.
Later that morning, his wife would be found bludgeoned to death.
An investigator would discover that their three-year-old son witnessed a "monster" hurting his mommy, and that his daddy was not home. The investigator also had testimony from a neighbor about a man with a green van who had been parking for weeks behind the Morton's home, and a blood-soaked bandana would be found at a nearby construction site. Everything pointed to an intruder entering the Morton's home and killing Christine in the hours after Michael Morton had left for work.
However, the jury would never hear any of this evidence.
After refusing to call the lead investigator of the case, the defense suspected that the prosecution was hiding evidence. The prosecutor, Ken Anderson, assured that all favorable evidence had been turned over, and even provided the judge with a sealed file containing all the evidence they had collected. Except all of the evidence that proved Michael Morton's innocence did not make it into the file.
In the end, the questionable testimony of two state experts and the note Morton had left on the bathroom mirror was the evidence the prosecution used to prove their theory that he had killed his wife because he was angry she wouldn't have sex with him. In February 1987, Morton was convicted. He would spend the next 25 years in prison maintaining his innocence.
It would take the Innocence Project joining Morton's fight in 2005 before his pleas of innocence would finally be heard. Over the next seven years and several appeals, they were able to test the DNA evidence and find the actual killer, who was serving time in prison in California at the time of his identification. It was then that the Innocence Project attorneys discovered the lead investigator's report, the neighbor's statement, and the only eyewitness account from then three-year-old Eric Morton's son detailing how the monster hurt his mommy.
On October 4, 2011, Michael Morton was finally released from prison, and officially exonerated of all charges two months later.
That same year, the Texas Supreme Court ordered a Court of Inquiry into possible misconduct by the prosecuting attorney. Ken Anderson was now a judge, appointed to the bench by Gov. Rick Perry in 2002. That was just one of the many career achievements Anderson received during the 25 years that Morton was in prison, including being named "Prosecutor of the Year" in 1995.
Two years later, Anderson resigned from the bench amid the ethics and criminal investigations. He faced disbarment from the state bar, as well as charges of contempt of court, tampering with government records, and a felony charge of tampering with physical evidence. At the time of his resignation, he made no mention of the charges he faced, but had previously said he regretted the "errors of the justice system" but claimed he committed no wrongdoing.
One month later, Ken Anderson pled guilty to intentionally failing to disclose evidence and criminal contempt.
Michael Morton, 2013
From the CNN video, An Unreal Dream
It was a rare instance of prosecutor misconduct being punished. Despite what the Center for Prosecutor Integrity calls "rampant misconduct," prosecutors act with absolute immunity. This legal doctrine protects prosecutors from civil liability, even in egregious cases such as Michael Morton's. The idea was solidified by a Supreme Court decision which concluded that prosecutors, and indirectly other justice officials, needed to be free from legal culpability in order to do their jobs properly. Aside from disciplinary committee action and the occasional removal from office, prosecutors rarely pay for their grossly negligent actions.
Even with his guilty plea, Ken Anderson avoided any serious consequences. Anderson was disbarred and ordered to serve 500 hours of community service. He was also sentenced to 10 days in jail. He was released after five days, given credit for good behavior.
Michael Morton used his experience to help change the Texas judicial system. Governor Rick Perry signed the "Michael Morton Law" which changed discovery in cases. The law now requires all prosecutors to turn over all evidence and witness statements regardless if the information is material to the defendant's guilt or punishment.Copyright 2015, Care2.com, inc.
From: Crystal Shepeard, "Rampant Prosecutor Misconduct Rarely Punished," Care2, November 21, 2014, http://www.care2.com/causes/rampant-prosecutor-misconduct-rarely-punished.html, accessed 07/02/2015. Reprinted in accordance with the "fair use" provision of Title 17 U.S.C.
§ 107for a non-profit educational purpose.
The staggering number of wrongful convictions in America
One out of every 25 defendants sentenced to death in the U.S.
is later shown to be innocentSAMUEL R. GROSSJuly 24, 2015
I edit the National Registry of Exonerations, which compiles stories and data about people who were convicted of crimes in the United States and later exonerated. The cases are fascinating and important, but they wear on me: So many of them are stories of destruction and defeat.
Consider, for example, Rafael Suarez. In 1997, in Tucson, Suarez was convicted of a vicious felony assault for which another man had already pleaded guilty. Suarez's lawyer interviewed the woman who called 911 to report the incident as well as a second eyewitness. Both said that Suarez did not attack the victim and, in fact, had attempted to stop the assault. A third witness told the lawyer that he heard the victim say that he would lie in court to get Suarez convicted. None of these witnesses were called to testify at trial. Suarez was convicted and sentenced to five years.
After these facts came to light in 2000, Suarez was released. He had lost his house and his job, and his plan to become a paralegal had been derailed. His wife had divorced him, and he had lost parental rights to their three children, including one born while he was locked up. Suarez sued his former lawyer, who by then had been disbarred. He got a $1 million judgment, but the lawyer had no assets and filed for bankruptcy. Barring a miracle, Suarez will never see a penny of that judgment.
The most depressing thing about Suarez's case is how comparatively lucky he was. He was exonerated against all odds because his otherwise irresponsible lawyer had actually talked to the critical witnesses and recorded those interviews despite failing later to call them at trial.
Suarez served three years in prison for a crime he didn't commit. The average time served for the 1,625 exonerated individuals in the registry is more than nine years. Last year, three innocent murder defendants in Cleveland were exonerated 39 years after they were convicted they spent their entire adult lives in prison and even they were lucky: We know without doubt that the vast majority of innocent defendants who are convicted of crimes are never identified and cleared.
The registry receives four or five letters a week from prisoners who claim to be innocent. They're heartbreaking. Most of the writers are probably guilty, but some undoubtedly are not. We tell them that we can't help; we are a research project only, we don't represent clients or investigate claims of innocence. Fair enough, I guess, but some innocent prisoners who have been exonerated wrote hundreds of these letters before anybody took notice. How many innocent defendants have I ignored?
Innocence projects do handle these cases, or at least some of them. They receive many times more letters than we do. I've spoken with lawyers who do this work, and who have successfully exonerated dozens of defendants. Most of them have clients who remain in prison despite powerful evidence of their innocence that no court will consider. And they all know that there are countless innocent defendants hidden in the piles of pleas for help that they will never have time to investigate.
How many people are convicted of crimes they did not commit? Last year, a study I co-authored on the issue was published in the Proceedings of the National Academy of Sciences. It shows that 4.1 percent of defendants who are sentenced to death in the United States are later shown to be innocent: 1 in 25.
Death sentences are uniquely well-documented. We don't know nearly enough about other kinds of criminal cases to estimate the rate of wrongful convictions for those. The rate could be lower than for capital murders, or it could be higher. Of course, in a country with millions of criminal convictions a year and more than 2 million people behind bars, even 1 percent amounts to tens of thousands of tragic errors.
The problem may be worst at the low end of the spectrum, in misdemeanor courts where almost everybody pleads guilty. For example, in July 2014 Wassillie Gregory was charged with "harassment" of a police officer in Bethel, Alaska. The officer wrote in his report that Gregory was "clearly intoxicated" and that "I kindly tried to assist Gregory into my cruiser for protective custody when he pulled away and clawed at me with his hand."
The next step in the case would normally be the last: Gregory pleaded guilty, without the benefit of a defense lawyer. But Gregory was exonerated a year later after a surveillance video surfaced showing the officer handcuffing him and then repeatedly slamming him onto the pavement.
In the past year, 45 defendants were exonerated after pleading guilty to low-level drug crimes in Harris County, Tex. They were cleared months or years after conviction by lab tests that found no illegal drugs in the materials seized from them.
Why then did they plead guilty? As best we can tell, most were held in jail because they couldn't make bail. When they were brought to court for the first time, they were given a take-it-or-leave-it, for-today-only offer: Plead guilty and get probation, or weeks to months in jail. If they refused, they'd wait in jail for months, if not a year or more, before they got to trial and risk additional years in prison if they were convicted. That's a high price to pay for a chance to prove one's innocence.
Police officers are supposed to be suspicious and proactive, to stop, question and arrest people who might have committed crimes, or who might be about to do so. Most officers are honest, and, I am sure, they are usually right. But "most" and "usually right" are not good enough for criminal convictions. Courts judges, prosecutors, defense attorneys, sometime juries are supposed to decide criminal cases. Instead, most misdemeanor courts outsource deciding guilt or innocence to the police. It's cheaper, but you get what you pay for.
We can do better, of course for misdemeanors, for death penalty cases and for everything in between if we're willing to foot the bill. It'll cost money to achieve the quality of justice we claim to provide: to do more careful investigations, to take fewer quick guilty pleas and conduct more trials, and to make sure those trials are well done. But first we have to recognize that what we do now is not good enough.Copyright 1996-2015, The Washington Post
From: Samuel R. Gross, "The staggering number of wrongful convictions in America," The Washington Post, Opinions, July 24, 2015, https://www.washingtonpost.com/opinions/the-cost-of-convicting-the-innocent/2015/07/24/260fc3a2-1aae-11e5-93b7-5eddc056ad8a_story.html, accessed 07/29/2015. Samuel R. Gross, is a law professor at the University of Michigan and editor of the National Registry of Exonerations. Reprinted in accordance with the "fair use" provision of Title 17 U.S.C.
§ 107for a non-profit educational purpose.
Give wrongfully convicted Texans more tools to prove innocenceEDITORIAL BOARDFebruary 16, 2015
Michael Morton, who served 25 years in prison for a crime he didn't commit, could have been freed six years earlier had Williamson County judicial officials tested a bandana for DNA evidence. At that time, however, Morton had little leverage in persuading officials to test the garment.
In fact, then-Williamson County prosecutor John Bradley fought Morton's request, tying it up in court for years until a higher court intervened. State Sen. Rodney Ellis (D-Houston) is trying to fix that with Senate Bill 487.
"Michael Morton's case is a tragic reminder that when an innocent person is behind bars, the real perpetrators are free to commit other crimes as happened in his case," Ellis said. "By making small fixes to the law, we can ensure that wrongfully convicted Texans have meaningful access to advanced crime-solving technology such as touch DNA testing and DNA databases to prove their innocence and assist law enforcement in finding the actual perpetrators."
The bandana, found near but not in Morton's home, turned out to be key evidence that proved Morton's innocence in the 1986 murder of his wife, Christine Morton. When it was finally tested, the bandana was found to contain blood belonging to his wife, and skin and sweat cells that belonged to her true killer. That evidence freed Morton and sent Mark Alan Norwood to prison. The Bastrop man is serving a life sentence for Christine Morton's murder, but he also has been charged in a second homicide, which occurred in Austin 17 months after Morton's wife was killed.
The Legislature in a bipartisan move passed the Michael Morton Act in 2013 to prevent such injustices. The law addressed the most troubling aspect of the injustice that led to Morton's wrongful conviction and long imprisonment by ensuring that defendants are given access to favorable evidence before trial. Morton was denied access to such exculpatory evidence by then-Williamson County prosecutor Ken Anderson. The Ellis bill would take the next step by addressing the testing of evidence that might not appear to have a direct tie to the case but nonetheless could be crucial to finding the right perpetrator.
The Ellis bill would clear the way for judges to grant testing for crime-scene evidence that has a "reasonable likelihood" of containing DNA that could lead to exoneration. But it does not mandate that judges order such testing. To that point, it gives judges the discretion to decide the right course for testing evidence case by case.
Ellis said the bill addresses issues raised by a 2014 Texas Criminal Court of Appeals ruling to deny death row inmate Larry Swearingen's request for DNA testing on pantyhose used to strangle murder victim Melissa Trotter, because his lawyers had not established that there was biological material present on the pantyhose.
The bill has been sent to the Senate Criminal Justice Committee, where it awaits a hearing. It should get one and be sent to the floor for passage. Ellis describes the bill as a law-and-order bill. He's right. It's also true that wrongful convictions undermine public confidence in the criminal justice system. To that point, the Legislature should take whatever steps necessary to ensure that innocent people are not wrongly convicted and sent to prison as Morton was. That happens too often in Texas and other states, figures show.
Aside from Morton, 52 other Texans were proven innocent with DNA testing since 1989, according to figures from the Innocence Project, based in New York. Nationally 325 people have been proved innocent with DNA during that same period. At the same time that wrongful convictions punish the innocent, they allow the guilty to roam free in our communities and commit more crimes, as happened in the Morton case and dozens of others.
In Texas, the true criminals were identified in 21 of the exonerated cases and 160 nationally. Sadly, not before they went on to commit and be convicted of 145 additional crimes, including 77 rapes and 34 murders, all while innocent people languished in prison. That is a public safety issue. And no one understands that better than Morton, who went to the Capitol last week to urge lawmakers to fix the system.
"I may never have been able to prove my innocence under the current interpretation of the law," Morton said in a statement released last week. "The law should be clarified so that other wrongfully convicted Texans like me can prove their innocence."
Senate Bill 487 is a small but meaningful step forward in improving our criminal justice system.Copyright 2015, Cox Media Group
From: Editorial Board, "Give wrongfully convicted Texans more tools to prove innocence," Austin American-Statesman, February 16, 2015, http://www.mystatesman.com/news/news/opinion/give-wrongfully-convicted-texans-more-tools-to-pro/nkCMx/, accessed 07/30/2015. Reprinted in accordance with the "fair use" provision of Title 17 U.S.C.
§ 107for a non-profit educational purpose.
- Other members of the Innocence Project's team were Nina Morrison (Project Senior Staff Attorney), John Raley (of Raley & Bowick, Houston, Texas), and Gerry Goldstein and Cynthia Orr (both of Goldstein, Goldstein & Hilley, San Antonio, Texas). See: Innocence Project, "Former Williamson County Prosecutor Ken Anderson Enters Plea to Contempt for Misconduct in Michael Morton's Wrongful Murder Conviction," http://www.innocenceproject.org/news-events-exonerations/press-releases/former-williamson-county-prosecutor-ken-anderson-enters-plea-to-contempt-for-misconduct-in-michael-mortonac-a-ac-s-wrongful-murder-conviction, accessed 07/26/2015.
Video adapted from KTBC Austin - Fox 7 News, November 16, 2013, https://www.youtube.com/watch?v=LccQURtFPwY, accessed 08/17/2015; and The Texas Tribune, November 16, 2013, https://www.youtube.com/watch?v=tbo4cLI8L8o, accessed 08/21/2015. Reprinted in accordance with the "fair use" provision of Title 17 U.S.C.
§ 107for a non-profit educational purpose.
- Judge Kozinski speaks out on the origins and consequences of prosecutorial misconduct and the critical need for reform.
- Connick v. Thompson, 563 U.S. ____ (2011).
- Tulanelink.com, "Prosecutorial Misconduct; Glenn Ford was freed after nearly 30 years in Louisiana's Angola Penitentiary."
- Tulanelink.com, "Charles Sebesta 'Disciplined' for Prosecutorial Misconduct; Anthony Graves spent 18 years in prison, including 12 years on death row, for murders he didn't commit."
- Tulanelink.com, "Deceptive Prosecutors Ruled Immune from Accountability
(Part 2); John Thompson reflects on his 18 years in prison for a murder he didn't commit."
- Tulanelink.com, "Rampant Prosecutorial Misconduct Prosecutors who bend or even break the rules to win a conviction almost never face any punishment."
- Alex Kozinski, "Preface; Criminal Law 2.0," Ann. Rev. Crim. Proc., 44 Georgetown Law Review, 2015.
- "Qualified Immunity: Striking the Balance for Prosecutor Accountability," Center for Prosecutor Integrity, 2014.
- Josh Levs, "Innocent man: How inmate Michael Morton lost 25 years of his life," CNN, December 4, 2013, http://www.cnn.com/2013/12/04/justice/exonerated-prisoner-update-michael-morton/, accessed 07/25/2015.
- MaryLovesJustice Neal, "Ken Anderson v. Justice for Michael Morton," Legal Victories, January 4, 2014, http://legalvictories.blogspot.com/2014/01/anderson-v-justice-for-morton.html, accessed 07/26/2015.
- Austin American-Statesman, "Ken Anderson: A timeline of key events in the Williamson County prosecutor accused of wrongdoing in the Michael Morton murder investigation," http://www.mystatesman.com/interactive/news/michael-morton/ken-anderson/timeline/, accessed 07/30/2015.
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