Commentary: Prosecutorial misconduct

The Fort Worth Star-TelegramFebruary 27, 2012 

What happened to Michael Morton should never happen to any human being anywhere, especially in a country where the word justice is righteously regarded as a major pillar of our democratic republic.

He should never have been charged with a crime, much less indicted, convicted and sentenced to life in prison.

Thanks be to God and an organization called the Innocence Project, Morton was officially exonerated in December on charges of killing his wife in 1986, but not before he had spent 25 years in the Texas prison system.

In a statement to the court after charges were formally dismissed, Morton said, "Thank God this wasn't a capital case."

Indeed, otherwise he would likely have been executed before we learned of his innocence.

But Morton's case, one of 289 DNA-related exonerations in the country and more than 40 in Texas in the last 10 years, shines a glaring light on a more chilling and sinister issue involving criminal prosecutions, particularly in the Lone Star State.

His lawyers contend that Morton wasn't just a victim of mistaken identity, but a casualty of prosecutorial misconduct. Specifically they allege that the prosecutor in the case, Ken Anderson, who was then the Williamson County district attorney, deliberately withheld evidence that pointed to Morton's innocence.

A judge had ordered that concealed police reports be presented to him at trial but, as shown through unsealed records at a court in August, Anderson had delivered very few pieces of the evidence. Included in the previously undisclosed material were statements by Morton's mother-in-law to a sheriff's deputy that Morton's 3-year-old son said he saw another man -- "a monster" -- beating his mother.

Anderson is now a state district judge in Williamson County, just north of Austin. When in 2005 Morton began asking for DNA testing in his case, the current district attorney, John Bradley, refused on the advice of Anderson, according to the Texas Tribune. Five years later, another Texas court ordered the testing, which resulted in linking another man, Mark A. Norwood, to the killing.

Norwood was indicted on the charge this month.

Morton's case has also resulted in a rare event involving prosecutors accused of misconduct. State District Judge Sid Harle in Bexar County ruled Feb. 10 that there is probable cause to believe Anderson violated state criminal law by failing to turn over evidence that Harle called "highly favorable" to Morton for use in his trial and subsequent appeal.

The judge recommended that Texas Supreme Court Chief Justice Wallace Jefferson appoint a court of inquiry to determine whether Anderson was guilty of prosecutorial misconduct. Last week Jefferson selected state District Judge Louis Sturns of Tarrant County to lead such an inquiry.

This is an important move forward, for it indicates that prosecutors -- as they often tell defendants -- must be held accountable for their actions.

"As Mr. Morton's case so painfully illustrates, tragic consequences can result when prosecutors put aside their ethical obligations in their zeal to win convictions, yet far too often their misdeeds go unpunished," Barry Scheck, co-director of the Innocence Project, said in a statement.

Scheck is correct on two counts: Some prosecutors put more emphasis on winning a case than serving justice, and those who do are rarely penalized for their actions. Perhaps this court of inquiry will set a precedent and put others on notice that such conduct will no longer be tolerated in Texas.

This is not to say there should be witch-hunts in state courthouses, or that prosecutors or judges who make honest mistakes should be destroyed. It is to say that those who have taken an oath to uphold the law must be held responsible when they break it, especially when it brings irreparable harm to another individual.

In Sturns, Anderson will have a fair, reputable and reasoned jurist who will carefully study all the facts and not rush to judgment. When he releases his findings they will be based on the law, not emotion or outside influences.

He will truly seek to administer justice, something Morton didn't receive until he spent 25 years behind bars for a crime he did not commit.

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