Posts Tagged ‘Judge Ken Anderson’

Turns out former prosecutor and ex-judge Ken Anderson only ended up serving a mere 5 days of a 10-day sentence for contempt of court in connection with the wrongful prosecution of an innocent man, Michael Morton. As though a 10-day sentence for tampering with evidence; helping hide exculpatory evidence; and engaging in prosecutorial misconduct was too much.

According to a spokesman for the Williamson County, Texas sheriff’s office, his term was reduced for good behavior.  See “How Ken Anderson was released after only five days in jail.”

So thanks to my calculator mastery, I can now amend my report that The time served by the former jurist actually amounted to just 0.0547% of the almost 9,125 days Morton spent in prison. Or as Heraclitus once wrote, “If it were not for injustice, men would not know justice.”

Soft sentence spin.

Still, I wonder if University of Cincinnati law professor and Ohio Innocence Project Director Mark Godsey is as triumphantly satisfied as he was when he spun the soft sentence and wrote “a prosecutor was actually punished in a meaningful way for his transgressions.” I guess it depends on how you define “meaningful.”

But at least Judge Anderson still has 500 hours of community service and a $500 fine. See “For the First Time Ever, a Prosecutor Will Go to Jail for Wrongfully convicting an innocent man.”

However, take heart that because you’re not supposed to mess with Texas, be happy that notwithstanding Judge Anderson’s light punishment for ruining another man’s life — that at least Texas has tough penalties for serious littering. Under Penal Code § 12.35, serious littering can get you not more than 2 years or less than 180 days in jail and a fine not to exceed $10,000.

Meanwhile back with the javelinas.

And back on the prosecutorial ranch in Arizona — where the javelinas and prosecutors roam, as previously reported, Maricopa County Attorney Bill Montgomery had opposed changes to the ethical rules governing post-conviction prosecutorial obligations. Along with other prosecutors, he believed there’s “no convincing evidence that Arizona has a ‘problem’ of wrongful convictions” or that “prosecutors have failed to take corrective action when appropriate.” 

Grunting and squealing aside — the rule was amended and becomes effective in Arizona on January 1, 2014. See “Ariz. prosecutors must now reveal evidence of convicts’ innocence” and http://www.azcourts.gov/Portals/20/2013%20Rules%20Nov/R110033.pdf


Photo Credits:”I woke up looking this good,” by Evil Erin at Flickr via Creative Commons-license requiring attribution;”Don’t Mess with Texas,” by Jamie at Flickr via Creative Commons-license requiring attribution;”javelinas,” by U.S. Fish and Wildlife… at Flickr via Creative Commons-license requiring attribution.


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People 7442That Texas State Judge who as a Williamson County D.A. oversaw the 1987 wrongful murder conviction of Michael Morton and who was then subsequently charged with deliberately withholding evidence and making false statements just got sentenced this afternoon.

Judge Ken Anderson

With a 1-day credit for time served, Judge Ken Anderson will on December 2nd begin serving 9 days in jail and also pay a $500 fine. In addition, he’ll have to do 500 hours of community service.

If he’d gone to trial and been convicted of felony evidence-tampering, Anderson could have been sentenced to as much as 10 years. But thanks to his comprehensive settlement, instead of serving less than half of what Morton spent in prison, upon his release Anderson will look forward to a cushy retirement thanks to his 27 combined years of ‘public service’ — 16 as a D.A. and 11 as a state judge.

But 10 days in jail when compared to almost 9,125 days — or 0.1095% of the 25 years wrongfully served by Michael Morton — well pick your favorite acronym for this travesty and you won’t be wrong if you file this plea deal under “W.T.F,” “B.S.” “H.S.S” or if you just call the whole thing ‘bullshitastic.”

And oh yeah, as part of this sweet deal, Anderson surrenders his law license to settle the civil suit filed by the Texas Bar, which had charged him with prosecutorial misconduct in the Morton case.

But deal or no deal, Anderson continues saying he committed no wrongdoing in the prosecution of Michael Morton. Also see “ExDA takes plea in wrongful conviction case.”

And just last month, a clueless wag at the Austin American-Statesman prematurely extolled “the system flawed but triumphant.” Lauding the replacement of Judge Anderson by another jurist, he hailed “a system where failures can happen. But it is also a system where failures can be recognized and addressed. A system where amends – however belated – can be made. Flawed though it no doubt is, the system worked.” Yeah — rrrriiiigggghhhhtttt.

Graciously and far more generously than merited, following the sentencing, Michael Morton told the assembled press, “It’s a good day. I said the only thing that I want, as a baseline, is Ken Anderson to be off the bench and no longer practicing law — and both of those things happened, and more.”

But after serving almost a quarter century in prison, he’s nobody’s Pollyanna. His miscarriage of justice was only finally corrected when DNA evidence exonerated him and he was freed on October 4, 2011. So knowing first-hand how things actually work in practice, he also acknowledged, “This is as much accountability as our system can give us at this time.”

My cynical heart.

So damn if I wasn’t prognosticatingly accurate a year ago posting “be still my cynical heart” as I continued expressing doubt Williamson County Judge Ken Anderson would get anything more than “a censorious wrist-slap with a feather-duster.” And the year before, I’d even posted the discipline odds were ‘slim to none’ in the Texas State Bar’s misconduct inquiry. I only wish I’d been wrong.

But then as Terry Pratchett once wrote, “If there was anything that depressed him more than his own cynicism, it was that quite often it still wasn’t as cynical as real life.”

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Here’s a switch, last week Brian Schowalter, a criminal defense lawyer in Durango, Colorado was on the receiving end of a grand jury indictment brought by the district attorney who alleged Schowalter had refused to turn over evidence to the prosecution.

I know nothing about the merits of the case against Schowalter but in a show of support 10 criminal defense lawyers did sit behind the accused at his court appearance on Tuesday, August 13th. And Schowalter’s defense lawyer called the charge “outrageous” while a local colleague added, “It sends a chill through attorneys when they see the district attorney will not only grieve you, but he will use whatever criminal power he’s got to get his way in a case.”

Ham sandwich and short hairs.

File:Ham sandwich.jpgIsn’t this rich? Forget for the moment that after the grand jury indictment, Schowalter must have felt like that chewed-up indictable ham sandwich.

Here we have the otherwise unheard of instance of a defense lawyer accused of supposedly withholding evidence — when it’s something that at least to me, seems more likely to occur at the hands of prosecutors — not defendant’s counsel.

https://i0.wp.com/upload.wikimedia.org/wikipedia/commons/thumb/7/77/Daumier_dimanche_au_musee.jpg/582px-Daumier_dimanche_au_musee.jpgAs George Carlin once said, “Not only do I not know what’s going on, I wouldn’t know what to do about it if I did.”

In any event, it appears that prosecutors are increasingly being outed for playing fast and loose with the Brady Rule — the unanimous U.S. Supreme Court ruling declaring prosecutors’ have a constitutional obligation to turn over exculpatory evidence to the defense. Also see “A Fair Trial Remedy for Brady Violations – Yale Law Journal.”

File:Wenceslas Hollar - Man with short hair and gown tied at neck (State 1).jpgThe difference here is that unlike that Durango defense lawyer facing a felony charge, prosecutors are rarely brought up by the short hairs for ethical lapses or prosecutorial misconduct.

What me worry?

And it’s not because of any halos either, even though some prosecutors do think they’re better than everyone else at self-policing.

File:Alfred E. Neumann.jpgAnd besides, a lot of them don’t think there’s a problem with the current ethical regimen. Or as Sam Goldwyn famously said about himself, prosecutors may admit to not always being right — but they’re never wrong.

So where’s the problem?1

Meantime, don’t worry about any supposed infrequent ‘lapses’ that cost the wrongfully convicted years behind bars. The easiest outrage to bear is always somebody else’s.

taco bell employee licking shellsWhat’s more, as some D.A.s contend, it’s not like defense attorneys aren’t also above misbehaving — since they’re “unhampered by any special ethical responsibilities to be fair or to seek the truth, and they know for certain that their actions will never be reviewed as part of a claim of “misconduct.” But for a different look, see “The Legal Profession’s Failure to Discipline Unethical Prosecutors.”

All the same, it’s still headline news when prosecutors are atypically brought up on charges, including most recently that notorious Texas former prosecutor turned jurist, Judge Ken Anderson and the case of Michael Morton. Such was the notoriety of the Morton case that it became both springboard and linchpin to passage of the Michael Morton Act, the DA accountability legislation that Governor Rick Perry signed into law this past May

Prosecutorial misconduct.

The problem of misconduct is not as uncommon as you’d like to think. But it’s the lack of prosecutor accountability that appalls.

File:Himmelsstürmer staunen.JPGUnaccountable? How about a New York Times story about New York prosecutors also reporting that “In California, ‘prosecutors continue to engage in misconduct, sometimes multiple times, almost always without consequence,’ according to a study by the Northern California Innocence Project and Santa Clara University School of Law. In some 600 cases in which courts found there had been prosecutorial misconduct, the study found, only six times did the State Bar discipline the prosecutor.”2

Or take, for example, an investigation by ProPublica, an independent investigative news organization, that found 30 cases in New York over the past 10 years where convictions had been overturned because of prosecutorial misconduct — but where only once was a prosecutor subject to disbarment, censure or suspension. Also see Out of Order When Prosecutors Cross the Line.”

boy in coat and hat sticking tongue outIndeed, in April of this year, came news that Del Norte County, California District Attorney Jon Michael Alexander reportedly became the state’s first sitting prosecutor to face disciplinary charges. See the Opinion.

But at least here in Arizona, any proposed changes to the ethical status quo governing prosecutors are according to some prosecutors, “a solution in need of a problem.” Which reminds me of course of what Ted Turner used to say, “If I only had a little humility, I’d be perfect.”


[1] For almost two years now, the Arizona Supreme Court has been weighing a proposal to amend Rule 42, ER 3.8, Rules of the Arizona Supreme Court, that would further clarify prosecutorial obligations concerning when they know of new evidence establishing a reasonable likelihood that a convicted defendant did not commit the offense and to examine the circumstances when a prosecutor has a duty to disclose, a duty to investigate, and a duty to do something to remedy the conviction of an innocent person. Generally, the prosecutorial bar is opposed to any changes. See, for instance, Prosecution Ethics: A Post-Conviction Duty Pro-Con – Lawyers

[2] Also see “Prosecutors Shouldn’t Be Hiding Evidence From Defendants …” and “Tainted Trials, Stolen Justice: Study reveals questionable conduct by attorneys” and “Court Findings of Prosecutorial Misconduct Claims in Post-Conviction Appeals and Civil Suits Among the First 255 DNA Exoneration Cases.”


Photo Credits:”surprise,” by Mary at Flickr via Creative Commons-license requiring attribution; “ham sandwich,” by Fancy steve via Wikimedia Commons under  the Creative Commons Attribution-Share Alike 3.0 Unported license;”disgusting,” by John Lambert Pearson at Flickr via Creative Commons-license requiring attribution; Dimanche au musee by Honoré Daumier at Wikimedia Commons, public domain; Man with short hair and gown tied at neck by Wenceslaus Hollar at Wikimedia Commons, public domain; A postcard with the public domain “me worry?” face that later inspired Mad magazine‘s Alfred E. Neuman, author unknown, Wikipedia Commons, public domain;Taco Bell Worker Licking Shells, via Facebook; Freilandtheater Käthe und Helene by Stefan Doering at Wikimedia Commons, public domain.

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Unsurprisingly and predictably, a year after that video showed Texas Judge William Adams beating his disabled daughter, he’s been reinstated.

After a year’s paid leave at $146,304 per year or what anybody else might uncharitably call a paid vacation, Judge Adams is back and his daughter, Hillary, who suffers from cerebral palsy, will instead have to find her only solace in having inflicted on her dad, her own brand of viral video retributive justice — and not the permanent bench ban she and her mother had hoped — for the tough-loving jurist.

Expressing sadness at his reinstatement, Hillary’s mother said,“I had really hoped the judicial review process would work. I had really wanted to see the public protected.”

Judge Adams, however, will no longer preside over the physical domestic abuse cases that was previously his bailiwick. And the Texas Department of Family and Protective Services will no longer present him with cases involving violence against children.

The judge, however, will suffer the unwelcome if minor affront of a 1.6% cut in pay starting next year.

Earlier this year, he learned that instead of a 2% cost-of-living adjustment that other employees will enjoy, the Aransas County, Texas commissioners had voted to cut his 2013 salary to $144,000.

In addition, Judge Adams will come up for reelection in 2 years when one supposes a restive electorate may decide to give him a more complete haircut than just a 365-day holiday at taxpayer expense.

Prematurely cynical re. Judge Ken Anderson?

Judge Ken Anderson

But at least as concerns that other Texas judge, the Honorable Ken Anderson, who also made national news this year, it turns out my cynicism might have been premature when I posted, “The Michael Morton case. Discipline odds are ‘slim to none’ in misconduct inquiry.”

I say “might” because — be still my cynical heart — notwithstanding the specter of possible state bar discipline, I nonetheless still doubt that anything short of a censorious wrist-slap with a feather-duster will be administered. I’m merely calling them as I see them for as George Bernard Shaw said, “The power of accurate observation is commonly called cynicism by those who have not got it.”

This past October 30, 2012, Judge Ken Anderson faced a court of inquiry. And for those unfamiliar with the essential facts, DNA evidence freed Michael Morton last year — but only after he’d served 25 years of a sentence following his wrongful conviction for his wife’s murder. Also see “Michael Morton and another recurring inquiry into alleged prosecutorial misconduct.”

The case was so shocking and the alleged misconduct so egregious that even the Texas State Bar couldn’t ignore it. And so they got into the act earlier last month when the Bar’s Disciplinary Council filed a disciplinary petition against the ex-prosecutor and now sitting judge alleging that when he was a prosecutor, Judge Anderson knew about the existence of potentially exculpatory evidence and withheld it from defense counsel. See “State Bar says Anderson hid evidence in Morton case.”

Judge Anderson and his legal team, of course, filed their obligatory responses and have continued to object to the misconduct inquiry on various grounds from immunity to elapsed statute of limitations.

But in spite of the embarrassing publicity, the time, the expense and the aggravation of mounting a vigorous defense, I imagine there’s comfort the respondent can gain from the reality that in Texas like most everywhere else, discipline of prosecutors remains a rare thing — like a two-hole bowling ball, a meat-abhorring lion or a football-hating monkey.


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The New York Times Editorial Page weighed in this morning onJustice and Prosecutorial Misconduct,” which was all about the Texas case of Michael Morton. The Innocence Project rightfully deserves a lot of credit for getting Morton exonerated. He was recently released after being wrongly incarcerated for 25 years.

I just blogged about “Michael Morton and another recurring inquiry into alleged prosecutorial misconduct” and how Morton’s lawyers turned up problems with critical evidence that was withheld in the original trial and which – had it been shared – might have kept Morton from rotting in prison for a quarter century.

At the original trial, Williamson County D.A. Ken Anderson was front and center and given the facts that have now turned up, Morton’s lawyers have filed pleadings asking for an investigation into Ken Anderson’s conduct as District Attorney. The thing is, though, that Ken Anderson is now District Judge Ken Anderson.

Nevertheless, Morton’s lawyers want the Texas State Bar and the State Commission on Judicial Conduct to review whether any laws were broken and more significantly, if Judge Anderson ought to be removed from the bench and disbarred.

As the Times editorialized, “The Innocence Project’s report makes a compelling case that Mr. Anderson, now a state judge, disobeyed “a direct order from the trial court to produce the exculpatory police reports from the lead investigator” in the case.”

Although I’m gladdened the newspaper is giving Morton’s case wide play, the Times is simply beating the same figurative dead horse that should have long ago been pulverized to glue.
When – oh when – will prosecutors be held accountable? As the newspaper rightly points out, prosecutorial violations are rarely punished by state bars or judges. And criminal sanctions? Fuggedaboutit!
                                                                                                                                                                               So notwithstanding the unheard of efforts of Morton’s lawyers, I would set the chances of any discipline ever being meted out by either the Texas Bar or the judicial conduct disciplinarians as “slim to none.”
                                                                                                                                                                                  I know. Call me cynical. But as famed Los Angeles radio sportscaster Jim Healy used to say about such long odds,“And slim is in intensive care.”
Photo Credit: Horse by DuBoixMorguefile at morguefile.com

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Woman covering her eyes uid 1

“Don’t believe everything you read in the Austin American-Statesman,” Texas Governor and Republican hopeful Rick Perry told Fox News‘ Neil Cavuto as he blasted the Austin American-Statesman at last Thursday’s final GOP candidates debate before Iowa’s January 3rd caucuses. Perry’s slam was in response to Cavuto’s question about Perry’s time as Texas agriculture commissioner and “a loan guarantee program that, as the Austin American-Statesman reported at the time, had so many defaults that the state had to stop guaranteeing bank loans to start-ups in the agribusiness, and eventually bailed out the program with the taxpayer money.”

Judges Gavel

I don’t know about any loan program or whether extra circumspection’s required when reading the Austin American-Statesman. But I do know that the Austin, Texas newspaper has been carrying news stories about something far worse in Texas. And it has nothing to do with Perry.

It’s the injustice visited upon Michael Morton, wrongfully convicted in 1987 of murdering his wife, Christine, and who is scheduled to be officially exonerated today after some 25 years in prison. He was released last October. See Michael Morton case | Austin Legal – Statesman.com and Alberta Phillips’ Op-Ed, Sadly, justice for Michael Morton 25 years too late – Statesman.com.

The news story has also made the national wires and is being carried by all the major news outlets, suggesting that notwithstanding its purportedly credibility-challenged source, heed should be taken.

Despite “Brady,” a recurring problem.

Several years ago, I was so infuriated after reading “the litany of legal outrages” in John Grisham’s nonfiction story of police and prosecutorial abuses attendant the wrongful conviction of Ron Williamson, “The Innocent Man: Murder and Injustice in a Small Town,” that I bought extra copies of Grisham’s book to give away to friends. This was after first having urged them to read it.

For those happily sanguine in their belief in a fair criminal justice system and the presumption of innocence, read Grisham’s book about what happened to Ron Williamson in Ada, Texas.

And according to The Innocence Project, the problem may extend beyond a small Texas town, as “More people have been freed through DNA testing in Texas than in any other state in the country, and these exonerations have revealed deep flaws in the state’s criminal justice system.” See “Innocence Blog: Reducing Wrongful Convictions in Texas.”

Michael Morton.

As though more corroboration was necessary, there’s the case of Michael Morton, the former grocery store clerk who served almost a quarter century’s worth of a life sentence. The truth will yet out but as of now, it appears Morton should have never been convicted had a prominent prosecutor and now county judge, Ken Anderson, and then prosecutor Mike Davis, now a private practice lawyer, and current District Attorney John Bradley shared potentially exculpatory evidence with the defense – – – as required under Brady v. Maryland 373 U. S. 83.

But then this is a recurring problem not only in Texas but elsewhere like the case of Connick v. Thompson, which I blogged about at No proof of “deliberate indifference” as prosecutorial bacon is saved by high court.” As the Connick case bore out, however, to bring prosecutors to account remains tougher than passing a stone.
Nonetheless, grievances have been filed in the Morton case alleging violation of ethics rules by the Texas Coalition on Lawyer Accountability against the three former or current Williamson County prosecutors involved in the Morton case.
The Texas State Bar is being asked to discipline the trial prosecutors. They cite news reports that Anderson and Davis violated their prosecutorial duty by failing to provide Morton’s trial lawyers with exculpatory evidence. And they further contend that Morton’s time in prison was needlessly prolonged by six more years due to Bradley’s opposition to DNA tests requested by Morton’s legal team. Bradley, Anderson and Davis have repeatedly denied taking any improprieties. See Ken Anderson grievance with narrative and exhibits and “Exonerated of Murder, Texan Seeks Inquiry on Prosecutor.”

Judge Anderson has also apologized for “the system’s failure” but not for anything he did. “In my heart, I know there was no misconduct whatsoever,” he said.

Meanwhile, Morton tries to rebuild his life. One report,Court affirms Morton’s innocence,” says that following his release, he spent an hour in the backyard of his parents’ home just watching the squirrels at play.



Photo Credits: “Ouch, Kidney Stones Suck,” by Terry Martin, iPhone Developer, at http://www.tzmartin.com and via Creative Commons-licensed content requiring attribution and share alike distribution at Flickr.

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