An unprecedented audit of cases handled by former judge Ken Anderson when he was Williamson County district attorney is taking shape.
“If we find a case where it looks like favorable evidence was withheld, and there’s a legal claim that might warrant overturning the conviction, it’s our intent to try to find an attorney to represent the person and try to get them relief,” said Nina Morrison, a senior staff attorney with The Innocence Project in New York.
The audit comes after Anderson settled civil and criminal cases related to his conduct while prosecuting Michael Morton, who was wrongfully convicted in 1987 of murdering his wife. [See "Former DA Gets Jail Time, Will Lose Law License, Have Work Audited," Texas Lawyer, Nov. 18, 2013, page 7.]
Anderson withheld exculpatory evidence from Morton’s trial lawyers, and the audit will determine if he withheld evidence in other cases as D.A. when he served from 1986 to 2001.
But cocounsel for Anderson, Beck Redden partner Eric Nichols of Austin, wrote in an email, “Anyone doing a fair assessment of Ken Anderson’s time as district attorney should start with an examination of the many criminal cases that were declined for prosecution during Mr. Anderson’s tenure as D.A., or dismissed following an arrest, due to the insufficiency of evidence.”
He wrote that Morton wouldn’t have been prosecuted, but a medical examiner found that Christine Morton died at 1:30 a.m., when Morton was at home.
Jennifer Laurin, a professor at The University of Texas at Austin School of Law who researches how to prevent prosecutorial error, said some prosecutors have conducted focused audits after finding prosecutor error, but this audit is broader than anything she knows.
“It’s very unusual for a district attorney’s office, in response to these sorts of incidents, to say, ‘We’d like to use this as an opportunity to learn more broadly, to correct error more broadly, and perhaps learn from what went wrong,’” said Laurin, who is helping plan the strategy for the audit.
Both Morrison, who is cocounsel for Morton, and Nick Vilbas, executive director of the Innocence Project of Texas, also said they’ve never heard of such a large-scale audit.
“It’s a pretty big deal,” Vilbas said.
The audit also will examine cases in which former Williamson County D.A. John Bradley, who succeeded Anderson, denied post-conviction DNA testing, as he did for six years in Morton’s case. The DNA in 2011 proved Morton was innocent and pointed to the real killer, who was convicted in March.
Bradley did not return a call for comment.
Williamson County D.A. Jana Duty will help identify cases that should be audited, provide files from the office and obtain law-enforcement files that might have additional material, said Morrison.
“We are enormously grateful for the district attorney’s cooperation and are moving forward one step at a time,” she said.
Duty did not return calls and an email seeking comment.
Prying Open the Past
The Innocence Project will assist with the audit, but Morrison said the bulk of the work would go to Texas lawyers, the Innocence Project of Texas and the Texas Criminal Defense Lawyers Association (TCDLA). The organizations must first choose members of the audit committee.
Morrison said Laurin and Williamson County solo Patricia Cummings are on the team. In mid-December, TCDLA also will appoint someone, said its president, Bobby Mims.
Once in place, Morrison said the audit committee will sort and prioritize the cases to review. While the prospect of reviewing 15 years of Anderson’s work is daunting, there are ways to make it manageable, such as getting referrals from criminal-defense lawyers, only reviewing convictions and starting on cases where someone is still in prison.
Morrison said she encourages criminal defense lawyers who suspected Anderson of a disclosure violation to contact the Innocence Project.
“We’re getting a lot of complaints,” she said.
Vilbas said the auditors might focus on cases that ended in conviction, reserving the first reviews for cases in which the criminal defendant is still in prison.
“Clearly, those are the ones you want to work on first,” said Vilbas.
When the audit begins, each reviewer—pro bono lawyers and volunteer law students—will comb through the files of the D.A.’s office and law enforcement to learn about all the evidence. In trying to determine whether or not something was disclosed, reviewers will compare the state’s files with what came out in court. They might also use defense lawyers’ files for the comparison, said Vilbas.
“It’s a big task, and there’s a lot of moving parts, and it’s just going to take time to sort it out because it hasn’t been done on this scale before,” he said. “As long as everyone is committed to the process—and justice—I think we’ll get where we need to get on it.”