Inquiry sought for Texas prosecutor over wrongful conviction


Lawyers for a Texas man officially exonerated Monday after serving 25 years of a life sentence in connection with his wife’s murder requested a special judicial inquiry into alleged misconduct by the lead prosecutor.

After Michael Morton, 57, was released in October, his lawyers continued investigating the lead prosecutor in the case, former Williamson County Dist. Atty. Ken Anderson, now a District Court judge. On Monday, they filed a report summing up their investigation and argued that Anderson acted improperly while prosecuting Morton for the fatal 1986 beating of his wife, Christine, at their home in the Austin suburb of Georgetown.

The 144-page report, accompanied by 60 pages of exhibits, faults Anderson for refusing “to take any personal responsibility” for Morton’s wrongful conviction.


“The problem in the Morton case is not that the system failed, but that Judge Anderson did not play by the rules,” the report says.

At the hearing before District Judge Sid Harle in Georgetown, Morton’s lawyers asked the judge to establish a “court of inquiry” to examine allegations that Anderson illegally suppressed evidence that could have undercut the prosecution’s case by failing to provide documents requested by Morton’s trial judge.

Harle said he would take the request under advisement and invited Anderson’s lawyers to file a response.

After the hearing, Morton celebrated before a crowd of reporters. “Revenge is a natural instinct, but it’s not my goal here,” he said. “Just accountability.”

Barry Scheck, co-founder of the Innocence Project and one of Morton’s lawyers, said the lawyers hope the case sets a precedent.

“We are really hoping there will be hearings and not just in Texas, but across the country to get a remedy to this problem,” Scheck said, “to make sure this never happens to anybody else again.”

Eric Nichols, an Austin attorney who represented Anderson at Monday’s hearing, called the portrayal of his conduct “one-sided.” He noted that Anderson had apologized to Morton publicly and recognized that, given the DNA analysis that was unavailable at the time of the trial, Morton’s conviction was wrong.

However, Nichols said, “Anderson stands firm in his belief that the prosecution and trial were handled ethically and appropriately.”

Last month, Anderson called a news conference to say he was sorry “for the system’s failure,” but denied any misconduct.

State law allows Harle to ask that a “court of inquiry” be convened if he determines there is probable cause that a state law has been broken. Normally, his request would go to the district’s presiding judge, but that judge has already recused himself, meaning the request would probably go to the state Supreme Court.

Once a judge is selected to handle the inquiry, the local district or county attorney assists, examining witnesses and evidence.

If the inquiry finds Anderson committed serious misconduct, it could lead to disciplinary action by the state bar and possibly criminal prosecution.

After Morton’s release, the State Bar of Texas began examining how prosecutors handled the case, a spokeswoman said, but no findings had been released Monday.

Susan Klein, a law professor at the University of Texas at Austin, said it would be “incredibly unusual” for Anderson to face prosecution or even discipline.

Robert Owen, a visiting clinical professor of law at Northwestern University who has served as co-director of the Capital Punishment Center at the University of Texas at Austin, said he has seen a few “court of inquiry” cases and although it is unlikely Morton’s prosecutor will be punished, there are still lessons to be learned.

“One lesson that defense lawyers should draw from it is that you should never stop demanding exculpatory evidence,” Owen said.

The Supreme Court, in the landmark Brady vs. Maryland ruling in 1963, said prosecutors have a duty to share exculpatory evidence that indicates a defendant is not guilty.

One way to prevent prosecutors from withholding such evidence is “open file” discovery policies.

North Carolina was among the first states to enact open-file legislation in 2004 after several death row inmates were exonerated, in part due to evidence that prosecutors had withheld.

California, like Texas, does not have a statewide open-file policy, according to Loyola Law School professor Laurie Levenson.

Last year, a Texas state committee convened to prevent wrongful convictions urged legislators to pass an open-file law, noting that of the state’s first 39 DNA exonerations, seven involved evidence suppression or other prosecutorial misconduct.

A spokeswoman for Gov. Rick Perry said he supported the recommendation, and state Sen. Rodney Ellis said his office was drafting legislation he planned to propose that would institute a statewide open-file policy.