Judge Ken Anderson Sued by State Bar, Former DA John Anderson wants to be “Special”
By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair
Former prosecutors involved in the horrific injustice did to Michael Morton in the name of the State of Texas are back in the news.
Current Williamson County Judge Ken Anderson, the former prosecutor who deliberately concealed evidence that sent the innocent Morton to the Texas prison system where he remained for a quarter of a century for the 1986 murder of his wife, is now being sued by the State Bar of Texas. In an October 19, 2012 post on The Huffington Post, Michael Graczyk said a disciplinary panel for the legal watch dog group is suing the criminal district court judge for “withholding memos and other written evidence” in connection with its inquiry into the Morton case.
“Before, during and after the 1987 trial, [Anderson] knew of the existence of several pieces of evidence and withheld same from defense counsel,” the lawsuit charged.
Eric Nichols, Anderson’s attorney, was quick to cautiously and “respectfully disagree” with the misconduct charges leveled by the disciplinary panel. “Incorrect allegations that were first made by attorneys representing Mr. Morton have unraveled over time and will continue to do so,” Nichols said. “We will defend against these allegations in the public forum of a court of law.”
Let us put this issue in context. What has not unraveled is that Judge Anderson, then a prosecutor, concealed significant exculpatory evidence which tragically resulted in the conviction of an innocent man but, according to the judge’s attorney, Morton’s attorneys are somehow responsible for the current “injustice” being imposed on the judge. Alright, good to have that cleared up.
John Raley, one of the attorneys representing Morton, dismissed Nichols’s assertion, saying he is confident that Anderson will “be held accountable.” If not, it will not be for lacking of trying by Raley who is responsible for the first-ever “court of inquiry” to be convened in Texas to hear a prosecutorial misconduct case
The State Bar lawsuit is very fact-specific. It charges that Anderson withheld “five items” of evidence that contributed to Morton’s wrongful conviction. They were:
- A memo of the lead investigator for the Williamson County’s sheriff’s department concerning a “tip” that a check made out to Morton’s wife had been cashed nine days after her death.
- A telephone message by the same investigator that Morton’s wife’s credit card was recovered in San Antonio.
- A report to the sheriff’s department by neighbors of the Morton’s that they saw a man park a van on a street behind the couple’s house several times before the wife’s August 1986 murder.
- A transcript of an interview between the sheriff’s investigator and Morton’s mother-in-law, as well as a condensed transcript of that interview, during which the victim’s mother told investigators that Morton’s three-year-old son told her that he witnessed his mother’s murder, provided details about the crime, said an intruder killed his mother, and said his father was not at home when his mother was killed.
The thrust of the State Bar’s lawsuit is that by having knowledge of this significant exculpatory evidence, and by not disclosing it to Morton’s defense attorney, Anderson violated the rules of professional conduct. In fact, beyond the egregious concealment of this obviously exculpatory evidence, the lawsuit charges that Anderson “affirmatively told the trial court that he had no evidence favorable to the accused. That statement was false.”
Anderson, who was appointed to the bench in 2002 by Gov. Rick Perry, faces both civil and criminal liability in the Morton case. If convicted of the alleged misconduct, it would be a humbling fall from grace for Anderson who was named “Prosecutor of the Year” in 1995 by the same State Bar trying to bring him to account for that misconduct. The judge has tried to minimize his exposure to the charges of unethical misconduct by publicly stating he regretted what the Texas Tribune described as “errors of the criminal justice system in Morton’s case.”
It was worse than “errors.” It was a travesty of justice—and this brings us to the second significant player in the Morton case: John Bradley, former District Attorney of Williamson County and a close personal friend and professional colleague of Judge Anderson. A law-and-order hip-shooter, Bradley gained national recognition in 2009 when Gov. Perry stripped Austin attorney Sam Bassett from his chairmanship of the Texas Forensic Science Commission and replaced him with Bradley. At the time the Commission was involved in a determined effort to find out if Gov. Perry had allowed an innocent man, Cameron Todd Willingham, to be executed in 2004. It was widely speculated that Bradley, a political ally of Perry who had been appointed to prominent legal positions by the governor, was given the Commission’s chairmanship to stymie efforts by the New York-based Innocence Project to establish Willingham’s innocence—something that would have politically hurt the governor’s in his contentious reelection bid. Bradley not only thwarted the Innocence Project efforts but immediately put in place procedures and regulations that would prevent future efforts by Willingham supporters, or anyone else supporting the innocence of a convicted person, from establishing innocence through the Commission.
At the time of his Commission appointment, Bradley had established a history of opposing innocence claims pushed by the Innocence Project. In 2005, Innocence Project attorneys, along with John Raley, began efforts to have a bloody bandana found by investigators at a construction site near the Morton residence DNA tested. Bradley not only opposed those efforts but openly mocked them. Finally, in January 2010, the Third District Court of Appeals—just four months after Bradley’s political ascension to the Forensic Science Commission chairmanship—intervened and ordered Bradley to permit the DNA testing. In June 2011, DNA tests not only revealed the blood and hair from Morton’s wife on the bandana but DNA material of another individual who now stands accused in the murder of another woman in Austin in 1987—just months after he is suspected of killing Morton’s wife.
In 2011, the Texas Court of Criminally Appeals declared that Morton was “actually innocent” of the murder of his wife. It was a striking rebuke of Bradley’s stubborn six-year crusade to keep an innocent man in prison—even though his office during that same period offered Morton a “deal” to plead guilty and walk free if he would simply abandon his efforts to establish his innocence. Morton turned the “deal” down, insisting he would continue his innocence fight.
Bradley faced a tough re-election bid earlier this year. The Morton case, and the district attorney’s handling of the case, was the primary issue in the campaign. At the end of the day, Williamson County voters this past May told Bradley to pack his bags at the DA’s office and get on the down the road with whatever is left of his professional life.
But, wait, this is Texas. Voters should not be allowed to send a political ally of the governor packing into the sunset in professional disgrace. Even before physically leaving the District Attorney’s office, Bradley is attempting to get back on the public dole by applying for a position to head the Texas Special Prosecution Unit—a state agency charged with the responsibility of prosecuting crimes in the state’s adult and juvenile’s facilities and which is in charge of the civil commitments of sexual predators. This is an audacious move considering that the Republican-dominated Texas Senate last year refused to confirm Bradley’s 2009 appointment to the Forensic Science Commission and probably would not look favorably on any special prosecutor appointment.
The Tribune recently reported (Oct. 19) that Bradley was interviewed for the special prosecutor’s position by Navarro County District Attorney Lowell Thompson—the man who inherited the Willingham case and who strenuously opposed all efforts by the Innocence Project to posthumously establish Willingham’s innocence. That certainly gave the district attorney a common bond with Bradley. The board that will make the final decision in the special prosecutor’s appointment is comprised of district attorneys in the counties where adult and juvenile facilities are located. Their decision is expected in December.
Bradley has since publicly stated he was humbled by the Morton case and regrets his actions opposing DNA testing in the case. This public apology notwithstanding, the public attention given to Bradley’s application for the special prosecutor’s position may well have doomed whatever chance he had at the political plum.
“He applied for the job,” Thompson told the media, walking back the significance of Bradley’s application. “It wasn’t like he was recruited.”
Thompson was clearly trying to distance himself from Bradley and their common prosecutorial alliance in the Willingham case.
“It’s not just anybody that could get it, Thompson said. “I don’t even know if I’d get an interview.”
Thompson added that the main factors his board will consider are “experience and qualifications.”
Bradley obviously has “experience and qualifications” in spades in fighting inmates he believes are guilty of committing crimes. It is safe to assume he would relish an opportunity to prosecute inmates who commit crimes in the prison setting, especially those committed against prison staff, and to place “sexual predators” in “civil commitment.”
And Bradley may yet get the job. The district attorneys who appoint the special prosecutor have a history of using questionable people involved in investigating crimes in the Texas prison system. Take A.P. Merillat, for example. The New York Timesreported recently that Merillat, who has been an investigator with the Special Prosecution Unit for two decades, has been responsible for sending at least 15 murderers to death row based on his “expert” testimony about violence committed by inmates serving life sentences in the Texas prison system. A factor Texas jurors must consider in death penalty cases is the “future dangerousness” of defendants seeking a lesser life sentence in lieu of a death sentence.
The Texas Court of Criminal Appeals over the past two years has been forced to reduce two death sentences to life imprisonment because Merillat provided jurors with false information about the threat of violence in the state’s prison system. The Times reported that Merillat came to the attention of Texas prosecutors after he published “Future Danger” training manual for the prosecutors. Merillat was quoted as saying that he became an “expert” hired gun for prosecutors because “I got to the point where I was seeing defense lawyers bring in so-called experts for large amounts of money. Jurors were hanging their false information.”
“False information”! Can you believe that?
In at least two death penalty cases the criminal court of appeals determined that Merillat himself had given “false testimony” to jurors “by testifying that a convicted capital murderer would have more freedom in prison than would ever be possible,” the Times said.
Still, Merillat says he feels his reputation has been “unfairly jeopardized” by the court. “I am currently attempting to rebuild my reputation for honor and integrity that was so unjustifiably destroyed by our own Court of Criminal Appeals,” the Special Prosecution Unit investigator said.
Just last year Merillat told a Travis County jury hearing a capital murder case that “I see the ugliness of the prison system that is not very well known. Visitors have been harmed by inmates in the visitation areas. One of our prosecutors was stabbed in the stomach before he got his law degree.”
Merillat joins a league of other Texas “future dangerousness” experts who have been discredited because of their erroneous predictions about the future harm murderers in capital cases would pose if spared the death penalty: James Grigson (more commonly known as “Dr. Death”), Richard Coons and George Denkowski. Merillat’s conduct parallels that of these three disgraced experts.
However, not everyone agrees. Longtime Randall County District Attorney James Farren said he had always found Mr. Merillat to be “professional, competent and very knowledgeable.”
Given the company he will keep, we dare say that former district attorney Bradley is uniquely qualified to handle the position of special prosecutor at the Texas Special Prosecution Unit, especially where he can supervise and work with the likewise uniquely qualified special investigator Merillat. Only in Texas.