Investigation of Intentional Prosecutorial Misconduct by Williamson County DA’s Office
By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair
In the 1980s Michael Morton was wrongfully, and unjustly, convicted of the murder of his wife (here and here). To say that prosecutorial misconduct was the primary reason for Morton’s conviction would be the proverbial understatement. This past October Williamson County District Judge Sid Harle ordered Morton released from the Texas prison system where he had been confined the previous 24 years. Morton’s release was triggered by DNA evidence that exonerated him for his wife’s murder. Williamson County District Attorney John Bradley, who has never been a champion of seeing innocent men freed, fought tooth ‘n nail to keep the DNA evidence in Morton’s case from being tested, despite the that the district attorney’s files contained compelling evidence beyond the DNA evidence that Morton was innocent. It has been widely speculated that Bradley not only “slow played” the DNA evidence tests but withheld the other evidence supporting Morton’s claim of innocence to protect his longstanding legal associate and friend Williamson County District Judge Ken Anderson, who was the lead prosecutor in the Morton case and the primary target of prosecutorial misconduct charges—charges so serious that the Texas State Bar has announced it has undertaken an disciplinary investigation into Anderson’s conduct in the Morton case.
Days after Judge Harle ordered Morton released from custody, the Texas Court of Criminal Appeals upheld the order and officially declared Morton innocent. In the wake of these stunning developments, Bradley, Anderson, and Mike Davis, another prosecutor in the Morton case, issued tepid apologies and expressions of regret about the horrific injustice Morton suffered because of their official actions, or lack thereof. But that did not seem enough (and rightly so) to Houston attorney John Raley, who represented Morton pro bono through much of the innocence effort, nor to the New York-based Innocence Project which waged a six-year effort to get the exonerating DNA evidence tested. They requested that Judge Harle convene a “court of inquiry” to examine the prosecutorial misconduct allegations leveled against Anderson and determine whether the offenses of Contempt of Court, Fabricating With or Tampering with Physical Evidence and Tampering with Government records.
The Austin Statesman reported on February 16 that Judge Harle granted Morton’s lawyers request because there was sufficient probable to believe Anderson had : 1) “Anderson failed to submit a complete set of investigative documents to Morton’s trial judge, William Lott, despite being ordered to do so by the judge”; 2) “During Morton’s trial and in appeals after his conviction, Anderson failed to correct the mistaken impression that he had complied with Lott’s order”; and 3) “Anderson failed to honor his legal obligation to disclose favorable evidence to Morton’s lawyers before the trial began and ‘falsely represented to the defense and the district court on the eve of trial that the state had no favorable evidence to disclose’.”
But what is a “court of inquiry?”
A “court of inquiry” is a criminal proceeding authorized by and whose proceedings are governed by Chapter 52 of the Texas Code of Criminal Procedure—Arts. 52.01-52.09. Art. 51.01(a) provides that upon a finding of probable cause that an offense had been committed, a district judge acting as a magistrate may request that the presiding judge of the administrative judicial district appoint a district judge to commence a court of inquiry. A judge in a court of inquiry may summon and examine witnesses, and based on his fact-finding, Art. 52.08 require the judge to “issue a warrant” for the arrest of the offender just as if a criminal complaint had been made and filed—and Chapter 52 does not provide an appeal remedy from the judge’s decision to charge.
That said, it should be pointed out that courts of inquiry have a troubled and abusive history in Texas jurisprudence, as recognized by the Texas Court of Criminal Appeals in Eagle Printing Co. v. Delaney in 1984. More than two decades earlier a Harris County court of appeals in McClelland v. Briscoe said the procedures utilized in courts of inquiry were “shocking and … at variance with our conception of the minimum requirements of fair play, within the meaning of due process law.” The constitutional criticism was not been confined to state courts. In 1965, the U.S. Supreme Court in Martin v. State noted there are “grave constitutional questions” involved in conducting courts of inquiry; and the Fifth Circuit Court of Appeals in Martin v. Beto expressed similar constitutional reservations, noting that these proceedings offer little protection for the “unjustly accused” but plenty of “opportunity for abuse of power”—and that courts of inquiry cases generally garner media attention impacting the fairness of what one judge said was a “carnival proceeding.”
The Texas Court of Criminal Appeals in 1964 in Ex parte Smithexpressed the same constitutional concerns associated with courts of inquiry at the time: 1) denying accused the right to counsel; 2) refusing to inform the accused of the nature of the accusations against him; and 3) prohibiting the accused from presenting a defense, such as cross examining adverse witnesses or calling favorable witnesses. The state’s courts of appeal were of like mind. For example, the Court of Appeals in Jones v. Westergren addressed a mandamus petition in which the relator claimed the judge who called for the court of inquiry was “interested in the outcome of the proceeding;” in effect, an accuser not subject to cross-examination.
These constitutional abuses prompted judges statewide to call for legislative reform of courts of inquiry and at least one committee of the State Bar called for their abolishment altogether, as pointed out by the Texas Court of Criminal Appeals in 1984 in Eagle Printing Co. v. Delaney.
Justice Puryear, in dissent in In re Thompson, picks up the courts of inquiry history there:
“In response to these concerns, the legislature enacted chapter 52 of the code of criminal procedure and expressly set out the manner in which courts of inquiry may be invoked, the limited and narrow function of courts of inquiry, and the rights and responsibilities of those involved in calling, presiding over, and attending a court of inquiry … Notably, the legislature limited the officials who may convene a court of inquiry to district judges.
“As originally enacted, chapter 52 allowed a district judge who ‘has good cause to believe that an offense has been committed’ to convene a court of inquiry and to ‘summon and examine any witness in relation thereto’ … In addition, the original version of chapter 52 also exhaustively set out the manner in which evidence may be taken at a court of inquiry (through testimony, by deposition, or by affidavit) and the rights of witnesses, including the right to have counsel present and the right to cross-examine “any of the witnesses” called.
Furthermore, chapter 52 empowered the judge presiding over a court of inquiry to subpoena witnesses, to compel testimony and the production of evidence, and to hold witnesses in contempt … In light of the potential for misuse of the court-of-inquiry process, the legislature also imposed additional safeguards, including that all evidence and testimony taken during a court of inquiry be transcribed and that the proceedings ‘be open to the public’ … Finally, the legislature empowered a judge presiding over a court of inquiry to issue an arrest warrant if he ultimately concluded that ‘an offense has been committed.’
“Recognizing that even the new statutory provisions presented opportunities for abuse, the legislature has repeatedly amended the statutes governing courts of inquiry and has added additional safeguards to mitigate potential problems. Significantly, the legislature imposed a multi-step process that must be complied with before a court of inquiry may be held and further limited the individuals who may properly serve over a court of inquiry.
“Under the new statutes, if a district court judge, acting as a magistrate, has probable cause to believe that an offense has been committed,’ he may request ‘that the presiding judge of the administrative judicial district appoint a district judge to commence a Court of Inquiry.’ In other words, it is only after the presiding judge of the administrative judicial district assigns the case to a district court judge that a court of inquiry is invoked, meaning that the district judge who makes the initial determination regarding probable cause is not conducting a court of inquiry. Moreover, the judge initially involved in the probable-cause-to-believe determination is statutorily prohibited from presiding over a subsequently called court of inquiry.
“Although the original version of chapter 52 authorized a judge making the initial probable-cause determination to convene a hearing, summon and examine witnesses, and ultimately employ any of the powers bestowed on judges presiding over courts of inquiry, the current version of the statute divested those powers from judges making the initial determination. Under the current enactment, a judge making the initial probable-cause determination is only authorized to perform the following two acts: issue an affidavit specifying ‘the substantial facts establishing probable cause that a specific offense has been committed’ and refer the matter to ‘the presiding judge of the administrative judicial district.’ It is only after the presiding judge of the district assigns the case to a district judge that the assigned judge is imbued with the various powers and duties listed in the statutory provisions governing courts of inquiry, including the ability to hold hearings, admit evidence, compel testimony, and issue subpoenas and contempt orders.
“The full import of the legislature’s decision to distinguish between a district judge who is presiding over a court of inquiry and a district judge involved in the initial probable-cause determination is not entirely clear. The legislature seems to have established a system in which a district judge, while acting as a magistrate, may receive information from the community and then based on the information received, determine whether probable exists to believe that an offense has occurred. What is readily apparent, however, that is the legislature deliberately chose to limit the role and power of judges conducting the initial determination and to reserve the powers identified in chapter 52 of the code of criminal procedure to those judges who have been assigned to preside over a court of inquiry. In other words, although a judge involved in the probable-cause determination may receive information from the public, he may not compel the production of evidence, call witnesses to testify, or conduct a hearing on the matter. In light of the serious problems that have been associated with courts of inquiry and in light of the steps taken by the legislature to ameliorate those concerns, it would be illogical to assume that the legislature intended through its most recent amendment to broaden the power of a judge engaged in the initial probable-cause determination to the unrestrained and unchecked levels that so plagued counts of inquiry held prior to the enactment of chapter 52.”
In the Thompson case, the relatives of Cameron Todd Willingham, whom many believe was wrongfully convicted in 1992 and unjustly executed in the Texas death house in 2004, filed a petition for a court of inquiry under Chapter 52. Willingham was convicted in Corsicana, Navarro County. State District Judge Charlie Baird, who sits in Travis County, agreed to conduct a court of inquiry to determine if Willingham had been wrongfully convicted. Navarro County District Attorney R. Lowell Thompson, who originally prosecuted Willingham, filed a motion demanding Judge Baird recuse himself from the case because of bias. Judge Baird declined to rule on the motion, saying Thompson lacked standing to challenge the proceedings. Thompson filed a mandamus petition with the Court of Criminal Appeals to compel Judge Baird to follow the recusal procedures outlined in the Texas Rules of Civil Procedure. The appeals court sided with Thompson, remanding the case back to Judge Baird with strong instructions that he conduct a recusal hearing in compliance with the Rules of Civil Procedure. The case died there.
We have serious reservations about both the nature and efficacy of courts of inquiry. They originated in the spirit of “witch hunts” designed to destroy an individual’s reputation and good name—more often than not, for pernicious political reasons—without affording the accused even a measure of due process. Even their current format, as outlined in Chapter 52, has serious due process drawbacks, most notably the lack of an appeal remedy against an adverse ruling from a court of inquiry.
Our other serious reservation about courts of inquiry, as exampled in the Willingham case, is that they have often been used as a vehicle to promote personal vendettas or partisan issues. We have little, or no doubt, that Cameron Todd Willingham was wrongfully convicted and that he was innocent when executed. Philosophically we agree with Judge Baird’s position and applaud his efforts. We also have little, or no doubt, that Judge Anderson engaged in “prosecutorial misconduct” in the Michael Morton case. Again, we agree with the political position of those seeking the court of inquiry. But is the Court of Inquiry the best way to address these particular wrongs?
The requests for courts of inquiry in both the Willingham and Anderson cases were designed to generate media attention about an unjust social issue; namely, the wrongful conviction of innocent people by a flawed criminal justice system, a social issue with which we share much sympathy. Unfortunately, given the sweeping immunity prosecutors have been given, which has continued to increase in scope over the years, the court of inquiry may be the only way to proceed at this time. However, accountability for prosecutorial misconduct must eventually be addressed by the State Bar and the Legislature.
A Commission on Wrongful Convictions should be created and vested with the authority to recommend that appropriate criminal or disciplinary sanctions be taken against rogue prosecutors. A court of inquiry is not a proper vehicle for making such claims or achieving real accountability. They are wrought with opportunity for abuse of power, political maneuvering and unjust results, the current vestiges of procedural due process in Chapter 52 notwithstanding. This is especially so when all the judges involved in the inquiry process are from the same political party. In this case they all are Republicans, which is hardly a solid stroke for the public’s perception of a fair and just investigation.
We can only hope that this inquiry will be vigorous, complete and transparent.
Further, we hope that all the findings of the court of inquiry will be passed along to the State Bar and the proper prosecutor’s office with recommendations to action. With the continual stream of wrongfully convictions coming to light, it is high time that intentional prosecutorial misconduct no longer be encouraged or tolerated. The only way to end what appears to be a blatant pattern of prosecutorial misconduct is through tough disciplinary action and criminal prosecution, a real form of accountability that is sorely missing from the current criminal justice system.
By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair
John Floyd is Board Certified in Criminal Law by the Texas Board of Legal Specialization
CHAPTER 52 OF THE TEXAS CODE OF CRIMINAL PROCEDURE
Art. 52.01. Courts of Inquiry Conducted by District Judges
(a) When a judge of any district court of this state, acting in his capacity as magistrate, has probable cause to believe that an offense has been committed against the laws of this state, he may request that the presiding judge of the administrative judicial district appoint a district judge to commence a Court of Inquiry. The judge, who shall be appointed in accordance with Subsection (b), may summon and examine any witness in relation to the offense in accordance with the rules hereinafter provided, which procedure is defined as a “Court of Inquiry”.
(b) (1) Before requesting the presiding judge to appoint a district judge to commence a Court of Inquiry, a judge must enter into the minutes of his court a sworn affidavit stating the substantial facts establishing probable cause that a specific offense has been committed against the laws of this state.
(2) After the affidavit has been entered into the minutes of his court and a copy filed with the district clerk, the judge shall request the presiding judge of the administrative judicial district in which the affidavit is filed to appoint a judge to commence the Court of Inquiry. The judge appointed to commence the Court of Inquiry shall issue a written order commencing the Court of Inquiry and stating its scope. The presiding judge shall not name the judge who requests the Court of Inquiry to preside over the Court of Inquiry.
(c) The district or county attorney of the district or county in which the Court of Inquiry is held shall assist the district judge in conducting the Court of Inquiry. The attorney shall examine witnesses and evidence admitted before the court to determine if an offense has been committed and shall render other assistance to the judge as is necessary in the proceeding.
(d) If the Court of Inquiry pertains to the activities of the district or county attorney or to the attorney’s office, deputies, or employees, or if the attorney is otherwise disqualified in the proceeding, the judge shall appoint one attorney pro tem to assist in the proceeding. In any other circumstance, the judge may appoint an attorney pro tem to assist in the proceeding.
(e) If more than one Court of Inquiry is commenced which pertains to the activities of a state governmental entity or public servant thereof, then, upon motion of the state governmental entity or public servant, made to the presiding judge or judges of the administrative judicial region or regions where the Courts of Inquiry have been commenced, the presiding judge or judges shall transfer the Courts of Inquiry to the presiding administrative judge of Travis County. The presiding administrative judge of Travis County shall consolidate the Courts of Inquiry for further proceedings and shall assign a district judge to preside over the consolidated Courts of Inquiry.
Art. 52.02. Evidence; Deposition; Affidavits
At the hearing at a Court of Inquiry, evidence may be taken orally or by deposition, or, in the discretion of the judge, by affidavit. If affidavits are admitted, any witness against whom they may bear has the right to propound written interrogatories to the affiants or to file answering affidavits. The judge in hearing such evidence, at his discretion, may conclude not to sustain objections to all or to any portion of the evidence taken nor exclude same; but any of the witnesses or attorneys engaged in taking the testimony may have any objections they make recorded with the testimony and reserved for the action of any court in which such evidence is thereafter sought to be admitted, but such court is not confined to objections made at the taking of the testimony at the Court of Inquiry. Without restricting the foregoing, the judge may allow the introduction of any documentary or real evidence which he deems reliable, and the testimony adduced before any grand jury.
Art. 52.03. Subpoenas
The judge or his clerk has power to issue subpoenas which may be served within the same territorial limits as subpoenas issued in felony prosecutions or to summon witnesses before grand juries in this state.
Art. 52.04. Rights of Witnesses
(a) All witnesses testifying in any Court of Inquiry have the same rights as to testifying as do defendants in felony prosecutions in this state. Before any witness is sworn to testify in any Court of Inquiry, he shall be instructed by the judge that he is entitled to counsel; that he cannot be forced to testify against himself; and that such testimony may be taken down and used against him in a later trial or trials ensuing from the instant Court of Inquiry. Any witness or his counsel has the right to fully cross-examine any of the witnesses whose testimony bears in any manner against him.
(b) If the Court of Inquiry pertains to the activities of a state governmental entity or its officers or employees, the officers and employees of that state governmental entity shall be indemnified for attorney’s fees incurred as a result of exercising the employees’ or officers’ right to counsel under Subsection (a) if:
(1) the officer or employee is found not guilty after a trial or appeal or the complaint, information, or indictment is dismissed without a plea of guilty or nolo contendere being entered; and
(2) the judge commencing the Court of Inquiry, or the judge to whom the Court of Inquiry was transferred pursuant to Article 52.01(e), determines that the complaint, information, or indictment presented against the person was dismissed because:
(A) the presentment was made on mistake, false information, or other similar basis, indicating absence of probable cause to believe, at the time of dismissal, the person committed the offense; or
(B) the complaint, information, or indictment was void.
(c) The county in which the affidavit under Article 52.01 was filed shall be responsible for any attorney’s fees awarded under Subsection (b).
Art. 52.05. Witness Must Testify
A person may be compelled to give testimony or produce evidence when legally called upon to do so at any Court of Inquiry; however, if any person refuses or declines to testify or produce evidence on the ground that it may incriminate him under laws of this state, then the judge may, in his discretion, compel such person to testify or produce evidence but the person shall not be prosecuted or subjected to any penalty or forfeiture for, or on account of, any transaction, matter or thing concerning which he may be compelled to testify or produce evidence at such Court of Inquiry.
Art. 52.06. Contempt
Contempt of court in a Court of Inquiry may be punished by a fine not exceeding One Hundred Dollars ($ 100.00) and any witness refusing to testify may be attached and imprisoned until he does testify.
Art. 52.07. Stenographic Record; Public Hearing
All evidence taken at a Court of Inquiry shall be transcribed by the court reporter and all proceedings shall be open to the public.
Art. 52.08. Criminal Prosecutions
If it appear from a Court of Inquiry or any testimony adduced therein, that an offense has been committed, the Judge shall issue a warrant for the arrest of the offender as if complaint had been made and filed.
Art. 52.09. Costs and Attorney’s Fees
(a) All costs incurred in conducting a Court of Inquiry, including compensation of an attorney pro tem, shall be borne by the county in which said Court of Inquiry is conducted; provided, however, that where the Attorney General of Texas has submitted a request in writing to the judge for the holding of such Court of Inquiry, then and in that event the costs shall be borne by the State of Texas and shall be taxed to the attorney general and paid in the same manner and from the same funds as other court costs.
(b) Assistance by a county or district attorney to a Court of Inquiry is a duty of the attorney’s office, and the attorney may not receive a fee for the service. A county is not liable for attorney’s fees claimed for assistance in a Court of Inquiry by any attorney other than an attorney pro tem appointed under Article 52.01(d) of this code.
(c) An attorney pro tem appointed under Article 52.01(d) of this code is entitled to compensation in the same manner as an attorney pro tem appointed under Article 2.07 of this code. The district judge shall set the compensation of the attorney pro tem based on the sworn testimony of the attorney or other evidence that is given in open court.