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Rampant Prosecutor Misconduct Rarely Punished

Since 1989 nearly 1,500 people have been convicted of crimes and later exonerated.

Judge and former prosecutor Ken Anderson talks about the wrongful conviction of Michael Morton. (Screen grab via The Texas Tribune / YouTube)

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.

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.

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