A state judge is trying to put an end to legal action against him that’s based on a 26-year-old murder case.
Judge Ken Anderson of the 277th District Court in Williamson County on April 19 turned himself in and then bonded out of the Williamson County jail after a court of inquiry issued two arrest warrants based on his alleged withholding of exculpatory evidence in the Michael Morton murder case.
In the court of inquiry, 213th District Judge Louis Sturns of Fort Worth found probable cause to believe that, while prosecuting the 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’s co-counsel, Beck Redden partner Eric Nichols of Austin, explains that no formal charges are pending against Anderson.
Three days later, on April 22, Anderson filed an application for writ of habeas corpus, asking the same court to void and dismiss with prejudice the "complaint" — the judge’s findings of fact and conclusion of law and probable-cause order.
Anderson argues in the writ application that the statute of limitations bars any prosecution of him for the two alleged tampering offenses.
Anderson didn’t return a telephone call seeking comment. But Nichols says, "We view the writ as being a nondiscretionary mechanism by which the criminal allegations arising out of the court of inquiry can and should be dismissed."
Andy Drumheller, who assisted attorney pro tem Rusty Hardin, says he’s not surprised that Anderson filed the writ application.
"Mr. Anderson and his attorneys have been publicly very clear that that’s the position they’ve had since before the court of inquiry was actually formed," said Drumheller.
As attorney pro tem, Hardin stepped into the role of the district attorney, who was recused during the court of inquiry. Hardin gathered evidence and advised the court.
Court of Inquiry
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.
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.
Nichols says he strongly disagrees with the court of inquiry’s 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.
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.
Anderson’s writ application says, "[I]f a complaint, on its face, shows that the offense charged is barred by limitations, a court must grant habeas corpus relief. . . . This rule is not discretionary, but mandatory."
The statute of limitations is two years for the misdemeanor charge and three years for the felony, according to the writ application, noting limitations would start running "no later than February 6, 1987."
"[A]ny time-barred charges resulting from a court of inquiry are void . . . the appropriate and mandatory result is the granting of a pretrial habeas petition declaring those charges void," says the writ application.
Because key witnesses have died and memories are faded, any criminal action "would not be consistent with the core values of due process," and attempting prosecution "would only compound the error," says the writ application.
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."