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Freethought San Marcos: A column

by LAMAR W. HANKINS

As most readers likely know, Michael Morton was exonerated of the killing of his wife Christine after serving 25 years in prison because key evidence of his innocence was withheld by the District Attorney who prosecuted him. The focus on the corrupt acts of former Williamson County District Attorney (and later District Judge) Ken Anderson in the Michael Morton case is certainly justified, but it hides from public view some of the worst injustices of the criminal justice system. It is a system that does not deliver justice for all, or even most, of those charged with crimes, nor to crime victims either.

Anderson is the poster boy for a system that panders to the most base antagonisms of human nature. His political career as both district attorney and district judge was grounded on a “get tough on crime” policy that appealed to the need for revenge felt by everyone at one time or another. Who doesn’t want criminals to pay for their crimes? But prosecutors and judges who seek to work out their own personality problems by being as harsh as the law allows – or allows them to get away with – do a disservice to the notion of justice.

The Texas Code of Criminal Procedure prescribes the role of prosecuting attorneys:

“It shall be the primary duty of all prosecuting attorneys, including any special prosecutors, 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.”

These are noble goals, but they often get lost in the real world of an adversary system, where the individual accused, usually without adequate resources, faces off against the vast powers of the government.

For every authoritarian, callous, manipulative, self-centered district attorney, there are an equal number of judges who fit that same description. One common career path, the one taken by Anderson, is to go from being a prosecutor to being a judge. Often, but fortunately not always, such officials begin to regard all people charged with crimes as the slime of the earth.

Rational human beings recognize that misconduct, the violation of society’s norms, can and will be done, to a greater or lesser degree, by everyone. Judging people for their bad behavior requires sober reflection and a dispassionate perspective. That’s not what we get from “law and order” officials.

To be clear, I’m not arguing that people who commit crimes shouldn’t be dealt with appropriately. Society needs to be protected from some people. Some people are so depraved that they can never live among others without endangering them. But when a prosecutor puts a conviction ahead of justice, we get the kind of results that occurred in the Morton case.

Had Anderson not deliberately (he offered a shortened version of a report of the investigation) withheld two pieces of vital evidence from both the judge and the defense attorneys in the case, police would have continued to seek the real killer of Morton’s wife Christine, and another woman likely would not have died

This is the key information Anderson withheld that was not included in the short version of the report he gave the judge for review, but was in the full report:

• The Mortons’ 3-year-old son had witnessed the murder and described the attacker as a monster, not his father who he said was not home at the time, and this information was typed up and found in the DA’s file.

• The police had taken reports of suspicious behavior about an unidentified driver of a green van who had parked near the Morton house and walked into the wooded area behind it on several occasions before the murder.

Mark Allen Norwood, now convicted of killing Morton’s wife, Christine, killed Debra Masters Baker two years later. That outcome of Anderson’s “get tough on crime” attitude should weigh on the conscience of Anderson even more than the 25 years Michael Morton served in prison, assuming that Anderson has a conscience.

And the Morton case may not be isolated, one-time misconduct by Anderson. To find out, a review of all of Anderson’s prosecutions over 16 years (as well as those of his successor, John Bradley, who blocked DNA testing of evidence in the Morton case for six years) will be conducted by the current Williamson County District Attorney, Jana Duty, and by the Texas Criminal Defense Lawyers Association, the Innocence Project of Texas, and Innocence Project of New York, which was co-founded by Barry Scheck. Scheck’s view is, “When you have individuals like Ken Anderson who engage in misconduct, such people tend to be serial offenders.”

Equally important in the Anderson case is that there is virtually no way for prosecutors to be held accountable for their misconduct under current law. Anderson was sentenced to ten days in jail for contempt of court for lying about the existence of exculpatory evidence to the now-deceased District Judge Bill Lott, who presided over Morton’s conviction. Special prosecutor Richard Roper, appointed to pursue charges against Anderson after a court of inquiry had concluded its work, dismissed criminal charges for felony tampering with evidence and related matters, as part of a plea agreement that also resulted in Anderson surrendering his law license.

Courts have long held that prosecutors are immune from civil suits no matter how egregious their misconduct, so the only penalties for Anderson’s dishonesty are that he will give up ten days of his life to the Williamson County Jail, lose his license to practice law, give up his district judgeship (from which he had previously resigned), pay a $500 fine, and provide 500 hours of community service over five years – that’s twelve and a half 40-hour work weeks. If those 500 hours were to be spent cleaning the jail’s toilets, I might feel that a modicum of justice has been served in this case. But under the present system, this is all we get. Apparently, Anderson will be entitled to his retirement benefits for his 26 years as a corrupt public servant.

In response to the travesty of justice created by Anderson, the Texas Legislature earlier this year enacted a new law that has been called the Michael Morton Act, which will take effect January 1, 2014. It requires disclosure to defendants of all police reports and witness statements, regardless of what the prosecutor thinks about their relevance to the guilt or the punishment of the defendant. This is a step beyond the requirements in place for the last fifty years that compel prosecutors to hand over to defendants any evidence that is “material either to guilt or to punishment.” This effort to extend the Supreme Court mandate in the case Brady v. Maryland is laudable, but it still relies on honest prosecutors to be effective, and it does not provide recourse against dishonest prosecutors who hide or destroy exculpatory evidence.

Many prosecutors have had an “open file” policy for years and have not been prevented thereby from seeing that justice is done. But prosecutors like Anderson and his successor Bradley are the kind who focus only on their win-loss record, as if they were owners of a sports franchise. To its credit, the Texas District & County Attorneys Association supported the new disclosure law.

One current prosecutor identified the problem accurately in comments he made during an online discussion of the Michael Morton Act, which he opposed:

“What I would want, more than having a prosecutor who has an open file policy, is a prosecutor who has an open mind, who looks at the facts seriously, and does not hide exculpatory evidence he has. The fact that a prosecutor has an open file policy does not prove he has the above qualities, or that he is above hiding exculpatory evidence, nor does the fact that he has a closed file policy prove he does not have those qualities. Having an open file policy does not mean you are a good person. It just means you have an open file policy.”

Our criminal justice system requires honest participants. But the corrupt attitude of many (and I hasten to add, not all) prosecutors and the virtual immunity from accountability they routinely enjoy does not tell the whole story about what is wrong with the criminal justice system. While Morton’s trial lawyers and the attorneys with the Innocence Projects did stellar work, the day-to-day functioning of the criminal justice system relies heavily on court-appointed lawyers, many of whom don’t do their jobs adequately, are underfunded, and are given limited resources to prepare for trial. The deficiencies in that system will be the focus of a future column.

© Lamar W. Hankins, Freethought San Marcos

LAMAR W. HANKINS is a former San Marcos city attorney.