Texas Judge Calls for Investigation of Prosecutor

Michael Morton is the latest of 45 Texas inmates exonerated of murder convictions based on new DNA evidence.  But Morton’s case may finally draw some lines against prosecutorial misconduct in the criminal justice system.  According to

What is unprecedented is the move planned by lawyers for the man, Michael Morton: they are expected to file a request for a special hearing to determine whether the prosecutor broke state laws or ethics rules by withholding evidence that could have led to Mr. Morton’s acquittal 25 years ago.

“I haven’t seen anything like this, ever,” said Bennet L. Gershman, an expert on prosecutorial misconduct at Pace University in New York. “It’s an extraordinary legal event.”

In 2010, however, a Texas court ordered the DNA testing, and the results showed that Mrs. Morton’s blood on the bandanna was mixed with the DNA of another man: Mark A. Norwood, a felon with a long criminal history who lived about 12 miles from the Mortons at the time of the murder. By then, Mr. Morton had spent nearly 25 years in prison.

What’s striking about the case is that more prosecutors are held responsible for withholding evidence which may help free a defendant.  In this case, the trial judge ordered the prosecutors to turn over any evidence that might favor Mr. Morton’s innocence to his lawyers.  But Ken Anderson, then the prosecutor, now a state judge, handed only a small fraction of what his office had collected in its investigation.

Missing from the file was the transcript of a telephone conversation between a sheriff’s deputy and Mr. Morton’s mother-in-law in which she reported that her 3-year-old grandson had seen a “monster” — who was not his father — attack and kill his mother.

Also missing were police reports from Mr. Morton’s neighbors, who said they had seen a man in a green van repeatedly park near their home and walk into the woods behind their house. And there were even reports, also never turned over, that Mrs. Morton’s credit card had been used and a check with her forged signature cashed after her death.

The current judge is allowing Morton’s lawyers investigate whether Anderson can be criminally charged with malfeasance.  But here’s the clinker:

Experts, however, are skeptical that Judge Anderson could face serious punishment or disbarment, even if the court were to decide that he had committed malfeasance. Susan R. Klein, a professor at the University of Texas Law School who specializes in criminal issues and prosecutorial ethics, said that such actions would be “incredibly unusual,” particularly after the Supreme Court’s decision this year against a Louisiana prosecutor, Harry Connick Sr., for his failure to turn over evidence that ultimately led to an exoneration.

Any lawyers out there? Why aren’t more prosecutors charged in these types of cases?


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