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<div class="timestamp">November 12, 2012</div>
<h1>A Texas Prosecutor Faces Justice</h1>
<h6 class="byline">By
<span><span>JOE NOCERA</span></span></h6>
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<p>
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. </p>
<p>
He is <a href="http://www.wilco.org/CountyDepartments/DistrictCourts/277thDistrictCourt/tabid/478/language/en-US/Default.aspx">Ken Anderson</a>,
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 title="Part 1" href="http://www.texasmonthly.com/2012-11-01/feature2.php">a brilliant two-part</a> <a title="Part 2" href="http://www.texasmonthly.com/2012-12-01/feature2.php">series in Texas Monthly</a>,
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.” </p>
<p>
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. </p>
<p>
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. </p>
<p>
But he was. In October 2011, after 25 years in prison, Morton was set free. Nine years earlier, <a href="http://www.innocenceproject.org/">the Innocence Project</a>,
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 <a href="http://www.texastribune.org/texas-dept-criminal-justice/michael-morton/williamson-county-grand-jury-indicts-mark-norwood/">pointed to a man</a> who had subsequently <a href="http://www.texastribune.org/texas-dept-criminal-justice/michael-morton/mark-norwood-faces-grand-jury-second-austin-murder/">killed another woman</a>. </p>
<p>
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 href="http://www.newyorker.com/reporting/2009/09/07/090907fa_fact_grann">a staple of journalism</a>. (Colloff herself <a href="http://www.texasmonthly.com/2011-01-01/feature2.php">has written about two other such prisoners</a>
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. </p>
<p>
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,” <a href="http://www.tedxsanantonio.com/speakers/2010-speaker-lineup/sam-millsap/">he said in a talk</a> he gave a few years ago. </p>
<p>
Very few prosecutors, however, are willing to admit they’ve made errors.
They fight efforts to reopen cases. “They want finality,” said <a href="http://www.cardozo.yu.edu/MemberContentDisplay.aspx?ccmd=ContentDisplay&ucmd=UserDisplay&userid=10578">Ellen Yaroshefsky, a professor at Cardozo School of Law</a>.
The standard for introducing evidence postconviction is that it has to
be strong enough to have changed the result. It rarely is. </p>
<p>
Some prosecutors have another incentive: hiding misconduct. Brandon
Garrett, who teaches law at the University of Virginia and has written a
book, “<a href="http://www.hup.harvard.edu/catalog.php?isbn=9780674058705">Convicting the Innocent</a>,” about exonerations, told me that in almost every case, prosecutorial misconduct is involved. </p>
<p>
What makes the Morton case unusual is that, thanks to the Innocence Project’s re-investigation, Ken Anderson will soon <a href="http://www.texastribune.org/texas-dept-criminal-justice/michael-morton/texplainer-what-court-inquiry/">go before a Texas Court of Inquiry</a>.
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. </p>
<p>
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, <a href="http://www.tmdailypost.com/article/criminal-justice/why-john-bradley-lost">was resoundingly defeated</a>. </p>
<p>
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.” </p>
<p>
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. </p>
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