[Vision2020] A Texas Prosecutor Faces Justice

[Art Deco]

  [image: The New York Times] <http://www.nytimes.com/>

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November 12, 2012
A Texas Prosecutor Faces Justice By JOE NOCERA

In just about a month from now, Texas will witness a rare event: a former
prosecutor is going to be held to account for alleged prosecutorial
misconduct.

He is Ken Anderson<http://www.wilco.org/CountyDepartments/DistrictCourts/277thDistrictCourt/tabid/478/language/en-US/Default.aspx>,
who for nearly 17 years was the district attorney in Williamson County, a
fast-growing suburb of Austin. (In 2002, Gov. Rick Perry made him a
district judge.) As Pamela Colloff writes, in a brilliant
two-part<http://www.texasmonthly.com/2012-11-01/feature2.php> series
in Texas Monthly <http://www.texasmonthly.com/2012-12-01/feature2.php>,
Anderson was the kind of prosecutor who “routinely asked for, and won,
harsh sentences and fought to keep offenders in prison long after they
became eligible for parole.”

One of Anderson’s most high-profile prosecutions was of a man named Michael
Morton. In 1987, Anderson prosecuted him for a heinous crime: His wife,
Christine, was bludgeoned to death. Morton was then in his early 30s, with
a 3-year-old son and a job at Safeway. He had never been in trouble. Yet
the Williamson County sheriff, Jim Boutwell, from whom Anderson took his
cues, was convinced that Morton had committed the crime.

Evidence that could be used against him — such as a plaintive note Morton
wrote to his wife after she fell asleep when he was hoping to have sex —
was highlighted. Evidence that suggested his innocence — most importantly,
a blood-stained bandana discovered near Morton’s house — was ignored. Worst
of all, Anderson’s office hid from the defense some crucial evidence that
would undoubtedly have caused the jury to find Morton not guilty. By the
time Morton was sentenced — to life — only his parents and a single
co-worker believed he was innocent.

But he was. In October 2011, after 25 years in prison, Morton was set free.
Nine years earlier, the Innocence Project <http://www.innocenceproject.org/>,
which works on behalf of people who have been wrongly prosecuted, got
involved in Morton’s case. After years of legal wrangling, they got hold of
the hidden evidence, and a court agreed to allow DNA testing on the bloody
bandana. The DNA test not only absolved Morton, but pointed to a
man<http://www.texastribune.org/texas-dept-criminal-justice/michael-morton/williamson-county-grand-jury-indicts-mark-norwood/>who
had subsequently killed
another woman<http://www.texastribune.org/texas-dept-criminal-justice/michael-morton/mark-norwood-faces-grand-jury-second-austin-murder/>.


Colloff’s articles are gripping and powerful, but they’re not as unusual as
they ought to be. Stories about innocent people wrongly imprisoned are a
staple of journalism<http://www.newyorker.com/reporting/2009/09/07/090907fa_fact_grann>.
(Colloff herself has written about two other such
prisoners<http://www.texasmonthly.com/2011-01-01/feature2.php>in
Texas.) Barry Scheck, the co-founder of the Innocence Project, told me
that the group has gotten 300 people exonerated, mostly by using
sophisticated DNA testing.

Sam Millsap, a former Texas prosecutor, now crusades against the death
penalty because a man he prosecuted — on the basis of a single eyewitness —
was put to death. He later learned that the witness had been wrong. “I’d
love to be able to tell you I am the only former elected prosecutor in the
country who finds himself in the position of having to admit an error in
judgment that may have led to the execution of an innocent man, but I know
I am not,” he said in a
talk<http://www.tedxsanantonio.com/speakers/2010-speaker-lineup/sam-millsap/>he
gave a few years ago.

Very few prosecutors, however, are willing to admit they’ve made errors.
They fight efforts to reopen cases. “They want finality,” said Ellen
Yaroshefsky, a professor at Cardozo School of
Law<http://www.cardozo.yu.edu/MemberContentDisplay.aspx?ccmd=ContentDisplay&ucmd=UserDisplay&userid=10578>.
The standard for introducing evidence postconviction is that it has to be
strong enough to have changed the result. It rarely is.

Some prosecutors have another incentive: hiding misconduct. Brandon
Garrett, who teaches law at the University of Virginia and has written a
book, “Convicting the
Innocent<http://www.hup.harvard.edu/catalog.php?isbn=9780674058705>,”
about exonerations, told me that in almost every case, prosecutorial
misconduct is involved.

What makes the Morton case unusual is that, thanks to the Innocence
Project’s re-investigation, Ken Anderson will soon go before a Texas Court
of Inquiry<http://www.texastribune.org/texas-dept-criminal-justice/michael-morton/texplainer-what-court-inquiry/>.
If the court believes that Anderson’s alleged misconduct rises to the level
of a crime, it could refer the matter to a grand jury. But the Court of
Inquiry exists only in Texas, and is almost never used even there.

In truth, Anderson isn’t the only Williamson County prosecutor who faced
consequences as a result of the Morton case. His successor, John Bradley,
was the one who had fought for years against the DNA testing of the
bandana. Seven months after Morton was set free, Bradley, who had always
been a shoo-in for re-election as district attorney, was resoundingly
defeated<http://www.tmdailypost.com/article/criminal-justice/why-john-bradley-lost>.


When I spoke to him the other day, he told me that he now believes he had
been wrong to fight so hard against the DNA testing. “We shouldn’t set up
barriers to the introduction of new evidence,” he said. Although it would
mean more work for prosecutors, Bradley now believes that examining
important new evidence is “a legitimate and acceptable cost to doing
business in the criminal justice system.”

Bradley will leave office soon. He told me he was going to start a law
practice specializing in appellate work. Here’s hoping he argues some
appeals for the wrongly imprisoned.




-- 
Art Deco (Wayne A. Fox)
art.deco.studios at gmail.com
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