Group Files Report on Its Investigation Into the Misconduct that Caused His Wrongful Conviction
Contact: Paul Cates, 212/364-5346, cell 917-566-1294
(Austin, TX; December 19, 2011) — The Innocence Project submitted a report to a Texas court today calling for Michael Morton to be exonerated for the 1987 murder of his wife and asking the court to recommend a Court of Inquiry to investigate possible misconduct committed by Ken Anderson, the former Williamson County District Attorney who prosecuted Morton.
“Prosecutors are not above the law, and in the papers filed today, we lay out why the Texas courts should convene a Court of Inquiry to investigate the conduct by then District Attorney Ken Anderson that contributed to Mr. Morton’s wrongful conviction and 25 year imprisonment,” said Barry Scheck, Co-Director of the Innocence Project, which is affiliated with Cardozo School of Law. “We recognize that these are serious allegations, and we believe that the former prosecutor should have his day in court and be afforded a fair opportunity to be heard. But we also believe that there is evidence that intentional misconduct was committed that led to Mr. Morton’s wrongful conviction.”
The report filed today calls for a Court of Inquiry, a unique Texas legal procedure that can be initiated by a judge, to investigate whether Anderson committed wrongdoing by refusing to turn over to the trial court as ordered evidence pointing to Morton’s innocence. Although Morton always maintained that his wife’s murder was committed by a third party intruder, the report points to the depositions of key witnesses and other evidence to show that Anderson did not turn over the transcript of the victim’s mother telling lead investigator Sgt. Don Wood that Morton’s 3-year-old son told her that Morton was not the attacker, a message to Wood dated two days after the murder reporting that what appears to be the victim’s Visa card was recovered at store in San Antonio, a report from a neighbor observing someone staking out the Morton’s house before the murder and a report saying that a check made out to the victim was cashed with a forged signature nine days after her murder.
The Innocence Project uncovered this exculpatory material through a Public Records Act request and subsequent litigation. According to depositions, Morton’s trial attorneys suspected all along that the prosecution was in possession of evidence pointing to Morton’s innocence because of the prosecution’s unusual decision not to call its lead investigator Sgt. Don Wood at trial. The defense raised these concerns with the trial judge who, court records show, ordered Anderson to turn over Sgt. Wood’s reports so that he could make sure there was no Brady material in them. (Brady v. Maryland is the U.S. Supreme Court case outlining prosecutor’s constitutional duty to disclose to the defense any material pointing to the defendant’s innocence.) Although Anderson has repeatedly claimed to have no recollection of any discovery issues in the Morton case, Anderson claimed for the first time in his deposition that his current understanding of the trial judge’s order was that he turn over only a limited set of reports by Wood dealing with Morton’s initial statements at the crime scene. This explanation contradicts all other participants’ understanding of the judge’s order and the judge’s own handwritten notes on the pre-trial hearing docket which state: “Court to conduct in camera [in chambers] inspection of report of officer Don Wood in connection with D[efendant’]s Brady motion.”
Similarly, the Court of Appeals also believed that Anderson turned over all the materials when denying Morton’s appeal, noting in its written decision that the file presumably contained “all” of Wood’s reports and notes. All of the other prosecutors who have handled the case over the last two decades (including present District Attorney John Bradley and his current and former Assistant District Attorneys) have stated that they also read the court order to have required disclosure of all of Sgt. Wood’s reports and notes.
As the report notes, Anderson not only failed to turn over the materials, but he also failed to correct the appeals court’s assumption that he had turned over the material. After he became a judge, he continued to advise Bradley about the case. A statement filed today from Bradley shows that although he consulted with Anderson about the case, Anderson never informed him that there was evidence pointing to Morton’s innocence that had not been turned over to the defense or the trial judge for Brady review. Bradley also states that if Anderson had told him that these materials were not previously disclosed, he would have immediately corrected the record and provided them to Morton’s lawyers, because of the materials’ exculpatory content and their relevance to the DNA testing that Morton had been seeking since 2005.
“At the press conference that the former District Attorney called to explain his side of the story, he failed to take any responsibility for his actions in this case, claiming instead that ‘the system failed’,” said Morton co-counsel John Raley, with the law firm of Raley & Bowick in Houston. “Mr. Morton and his family are not the only ones who suffered here. The DNA of the suspected real perpetrator of Christine Morton’s murder has also been found at the scene of the nearly identical murder of Debra Baker that occurred two years later. It’s simply not enough to say the system failed. We need the Texas courts to thoroughly investigate this matter to see that justice is done.”
In addition to calling for the Court of Inquiry, the report calls for the court to forward this report and any subsequent findings of law or fact to the State Bar of Texas, which has already announced that it is conducting an investigation into possible misconduct, and to the State Commission on Judicial Conduct, which is charged with investigating judicial misconduct. Finally, the Report notes certain policy reforms that the Texas Legislature and other appropriate agencies may wish to consider, in order to minimize the risk that this kind of exculpatory evidence will be wrongfully withheld in future cases.
“Our investigation calls out for strong action by the state to help prevent this type of injustice from reoccurring,” said Nina Morrison, Senior Staff Attorney with the Innocence Project. “Giving prosecutors the sole discretion to decide what evidence they must disclose to defendants clearly doesn’t work in all cases. We need laws that guarantee defense lawyers access to all evidence that may point to innocence.”
Policy recommendations included in the report include:
• Urge the Texas Legislature to convene hearings to develop measures for making prosecutors respect their constitutional obligations to turn over to criminal defendants all evidence pointing to their innocence.
• Urge the Texas Legislature to convene hearings toward enacting “open file” discovery, which would simplify disclosure procedures, helping to ensure that defense attorneys have access to all exculpatory material.
• Adopt American Bar Association Model Rules of Professional Responsibility 3.8(g) and (h) that would require a prosecutor to turn over any evidence pointing to innocence he or she become aware of post-conviction and to take action to clear the defendant if there is clear evidence of the defendant’s innocence.
• Conduct an independent audit of past cases prosecuted by Anderson to determine if there are other cases where defendants were withheld evidence pointing to their innocence.
The report was filed in Williamson County today. Morton and his legal team will attend a hearing before Judge Sid Harle at the Williamson County court house at 1:30 PM CST.
Morton is represented by Scheck and Morrison at the Innocence Project, John Raley with Raley & Bowick in Houston, TX, and Gerry Goldstein and Cynthia Orr with Goldstein, Goldstein & Hilley in San Antonio, TX.