Ken Anderson, judge of the 277th District Court in Williamson County, on April 19 turned himself in and then bonded out of the Williamson County jail. It happened after a court issued two arrest warrants based on his alleged withholding of exculpatory evidence in a 26-year-old murder case.
The development ends a court of inquiry, in which 213th District Judge Louis Sturns of Fort Worth found probable cause to believe that, while prosecuting the Michael Morton case in 1987, Anderson committed the offenses of criminal contempt of court, misdemeanor tampering with or fabricating physical evidence, and felony tampering with government records. Sturns issued an order to show cause on the contempt finding and arrest warrants for the other offenses.
"Mr. Anderson consciously chose to impair the availability of the exculpatory evidence so that he could obtain the conviction of Mr. Morton for murder," wrote Sturns, in the Findings of Fact and Conclusions of Law in In Re Honorable Ken Anderson (A Court of Inquiry), filed in Georgetown’s 26th District Court.
Anderson, formerly the Williamson County district attorney, prosecuted Morton on charges he murdered his wife. Morton spent nearly 25 years in prison and was released in October 2011 after DNA testing proved he didn’t commit the crime.
Eric Nichols, co-counsel for Anderson, says he strongly disagrees with the findings.
"To seriously suggest that, in the State of Texas, we are going to be prosecuting people for events and circumstances occurring in discovery in 25-year-old cases, is ridiculous," says Nichols, partner in Beck Redden in Austin.
But John Raley, who represented Morton to get the DNA testing that exonerated him, says, "Judge Sturns’ rulings send a message that, when seeking justice, the truth should be brought to light rather than concealed in darkness, and that the rule of law will be followed."
Court of Inquiry
Sturns conducted an evidentiary hearing in the court of inquiry in early February.
The April 19 findings and conclusions explains that a police investigator provided Anderson with information 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 noted that the judge in the Morton trial "specifically asked Mr. Anderson if he had any information ‘favorable to the accused,’ to which Mr. Anderson replied, ‘No, sir.’ "
That representation was an "intentional false representation" and it "clearly obstructed the court," which supports a finding of criminal contempt, wrote Sturns.
Failing to disclose the evidence was tampering with physical evidence because it was "concealment of records," it was done consciously, and Anderson knew it would "impact the defense," Sturns continued.
Sturns also found that Anderson’s alleged conduct constitutes a felony offense of tampering with a government record, which requires intentionally concealing a record to "defraud or harm" someone.
"This Court cannot think of a more intentionally harmful act than a prosecutor’s conscious choice to hide mitigating evidence so as to create an uneven playing field for a defendant facing a murder charge and life sentence," wrote Sturns.
He also ruled that during a court of inquiry was not the time to raise a statute of limitations defense.
But Mark Dietz, managing shareholder in Dietz & Jarrard in Round Rock and co-counsel for Anderson, says "It’s black-letter law" that the statute of limitations would bar prosecution of both alleged criminal offenses.
Houston lawyer Rusty Hardin, of Rusty Hardin & Associates, was appointed attorney pro tem; he gathered evidence and advised the court in place of the local district attorney, who was recused. He says he served as legal adviser to the court.
"The statute doesn’t look at it as a duty to prosecute. It’s a duty to gather evidence and advise the judge."
He says he thinks the findings are good for the criminal justice system.
"What this dealt with is: On those occasions when a prosecutor does not fulfill his ethical and legal obligations, how does the system hold him accountable?" says Hardin.