In a case that may set nationwide precedent for punishing prosecutorial misconduct, ex-judge Ken Anderson will lose his law license and serve jail time—but will not have criminal convictions—in a settlement resolving criminal and civil charges against him. There also will be an audit of all the cases Anderson prosecuted while he was Williamson County district attorney.
Anderson faced allegations that he failed to disclose exculpatory evidence in the case against Michael Morton, who was wrongfully convicted in 1987 on charges of murdering his wife, Christine Morton.
Morton attended the Nov. 8 hearing in Williamson County’s 26th District Court, where lawyers explained the settlement.
“I said the only thing I want as a baseline is for Ken Anderson to be off the bench and for him to no longer practice law, and both of those things have happened, and more,” said Morton. “My number one motivating factor here is that what happened to me will not happen to you.”
Visiting Judge Kelly Moore found Anderson in criminal contempt of court and sentenced him to 10 days in jail, a $500 fine and 500 hours of community service. But Moore dismissed with prejudice criminal charges of misdemeanor tampering with physical evidence and felony tampering with a government record.
In the civil case, Anderson will resign his law license and the Commission for Lawyer Discipline will dismiss its disciplinary suit. Anderson already resigned as judge of the 277th District Court. [See "Former DA Ken Anderson Gets Jail Time in Michael Morton Case," texaslawyer.com, Nov. 11, 2013.]
Eric Nichols, co-counsel for Anderson, wrote in part in a statement that Anderson still believes that Morton’s conviction “resulted directly” from a medical examiner finding that Christine Morton died at 1:30 a.m., when Morton was at home.
“Regardless of the cause of the wrong result reached in the Morton trial, in light of the DNA results obtained in 2011, Mr. Anderson has consistently expressed—and continues to express to Mr. Morton and his family—his regret for Mr. Morton’s prosecution and incorrect incarceration,” wrote Nichols, a partner in Beck Redden in Austin.
But Barry Scheck, co-counsel for Morton, says he thinks that if Anderson had disclosed the exculpatory evidence, Morton would have been acquitted and law enforcement may have caught the real killer. In March, Mark Allen Norwood was convicted of murdering Christine Morton. He’s also charged with murdering Debra Masters Baker two years after Christine Morton’s murder, notes Scheck, co-director of The Innocence Project in New York.
Morton co-counsel Gerry Goldstein, said the case sends a “loud and powerful message” to prosecutors, lawyers and judges.
“This is the first time in our country’s history that a prosecutor has been found guilty of criminal contempt, will go to jail and will have himself stripped of his law license,” said Goldstein, partner in Goldstein, Goldstein & Hilley in San Antonio.
Scheck said from now on, every judge in the nation should follow a standard practice of issuing orders for prosecutors to disclose all evidence favorable to criminal defendants. If a prosecutor violated the order, he could be held in contempt.
Scheck also announced that current Williamson Count DA Jana Duty agreed to an external audit of all cases Anderson handled as DA. The Innocence Projects of New York and Texas, and the Texas Criminal Defense Lawyers Association will do the audit, he said.
Duty didn’t return a telephone call seeking comment.
Morton co-counsel Patricia Cummings, a Round Rock solo, said the Anderson audit will start with cases in which a criminal defendant is still in prison. It will also review cases in which former DA John Bradley refused to grant a criminal defendant’s request for DNA testing, as he did for six years in Morton’s case.
The DNA test in 2011 proved Morton didn’t murder his wife and revealed DNA from Norwood.
Bradley didn’t return a telephone call or an email seeking comment.
About the Case
After a court of inquiry in February, 213th District Judge Louis Sturns found that Anderson failed to disclose information from a police investigator about “a stranger’s repeated appearances in the wooded area behind the Mortons’ home” and a transcript of Morton’s mother-in-law describing Morton’s son “observing a ‘monster’ who was not his father and who hurt his mother.”
Sturns issued a show-cause order for the criminal contempt-of-court finding and issued arrest warrants for the two criminal charges.
Richard Roper, attorney pro tem for the state, said the statute of limitations was too “hard to overcome” to prosecute Anderson criminally. He said the law wasn’t designed to deal with such “outrageous conduct.”
“I think any prosecutor across the country would be incensed to know what Anderson did in the Morton case,” said Roper, partner in Thompson & Knight in Dallas and former U.S. attorney for the Northern District of Texas. “I felt like if there was ever a prosecutor in the history of our country that deserved to go to jail, it was Ken Anderson.”
In the civil case, Anderson on Nov. 12 surrendered his law license and bar card to the Texas Supreme Court, with a motion asking “that his name be dropped and deleted from the list of persons licensed to practice law.” Responding to the motion, the State Bar of Texas Chief Disciplinary Counsel alleged, among other things, that Anderson’s conduct violated disciplinary rules that say a lawyer can’t engage in conduct prejudicial to the administration of justice; a lawyer can’t knowingly make a false statement; and a prosecutor must disclose exculpatory or mitigating evidence.
Once the high court approves of Anderson’s resignation, the CFLD will dismiss its disciplinary suit.
Laura Popps, deputy counsel in the State Bar of Texas Office of Chief Disciplinary Counsel, said the settlement brings accountability.
“Ken Anderson violated the most fundamental duty of a prosecutor, which is to seek justice,” said Popps.