Justice system corruption and the Ken Anderson Inquiry in Georgetown, TX Feb. 2013

What follows is an excerpt from my book “Betrayed by the Law” Betrayed by the Rule of Law”

There is currently a growing subset of our culture that transform the most normal of daily activities, gestures, and necessities into weapons to gain control over your life and cause you destruction and pain. That subset understands how to manipulate those social institutions that offer great power over an individual, like law enforcement, code enforcement, home owners associations, and local government.

How did we get here? Well, although I will expound more on this later, my initial conclusion is that this tragedy is a natural result of the imposition of Christian thinking on an entire society. Whatever moral abyss the right wants to attribute to our current social situation, they should hardly be allowed to escape the fact that we arrived at this moral depravity and malicious manipulation on their watch.

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Ken Anderson Inquiry, Williamson County, Texas, first week of February, 2013
Context: On August 13, 1986, Chris Morton was murdered in her bed by an intruder that had been casing the Morton's home for days. Prosecutor Ken Anderson had both evidence that an intruder committed the horrific crime and that it was NOT Michael Morton, Chris's husband, that committed the crime. He intentionally failed to produce that evidence to the defense team, and did not follow up on the evidence that led to the actual perpetrator. Instead, Anderson presented to the jury a wildly fabricated and uncorroborated theory that Michael Morton became enraged when his wife told him that she was too tired to have sex, beat her to death with a blunt wooden object, and then used her hand to masterbate. The jury convicted and he was sentenced to life in prison. Two years later, in a nearby town, Chris Morton's as-yet-unconvicted killer allegedly bludgeons to death another woman--his trial for this killing is in March, 2013. It is suspected that there are likely even more killings by this man.
 
Morton filed several post-conviction actions, almost all alleging that Anderson failed to produce Brady material and one describing with detail the assistant prosecutor's post-trial statements to the jury that the prosecutor had an inch thick file of material that would have been helpful to the defense. Anderson, as prosecutor, and later as a judge, led all the state's responses to Morton's post-conviction motions and writs by directly supervising and leading the responses or by serving as the sole source of "advisement" to the more recent prosecutors serving in Williamson County. At all times, Anderson opposed further testings and analysis, and never provided any response to the Brady allegations.
 
By late 2011, the Innocence Project manages to obtain DNA testing that not only proves Morton's innocence, but identifies the real killer, and Morton is exonerated.  In its attempts to obtain justice for Morton, the IP also obtains the DA's file in the 1987 trial, and learns of the favorable evidence that Ken Anderson failed to produce. The state's disciplinary body reviews the circumstances and concludes that Anderson's conduct was so egregious as to merit review by a Court of Inquiry--an exceptionally rare proceeding, to determine if criminal charges should be pursued. That proceeding was held early this February, and "explored" the evidence regarding the possible violation of three laws in Texas: Contempt of Court, Tampering with Documents, and Tampering with Physical Evidence.  
 
Among other arguments, Anderson and his team argued that:
1. the tampering charges do not apply to prosecutors, that the sheriff's reports and field notes fall within the "work-product" exception in the penal codes re: tampering, and that the legal concept of Brady material is not subject to the penal codes re: tampering;
2. the contempt of court charge only applies to a November court order to produce one specific report (with associated field notes) from one day of the entire investigation and that Anderson produced said field notes even though he can't remember doing so and there is no evidence that he did so (the sealed evidentiary envelope did not contain said field notes when opened in 2011); and
3. that it was his pattern and practice of turning over favorable evidence to the defense even though he can't remember doing so, though there is no evidence that he did so, though he admits that his "practice" was simply to read the reports to the defense by paraphrasing its contents, though both defense attorneys testified that neither actual production nor paraphrasing ever occured, and though the transcript from a pretrial hearing has Anderson describing in clear and forceful detail how he is going to prevent the defense from ever getting the sheriff's reports containing favorable evidence and containing exculpatory evidence. (Thus, the transcript made it quite clear what Anderson's practiced strategy was regarding such evidence--that not only did he not provide it, he would go to great measure to actively prevent the defense from obtaining it.)

 
A reporter attending the Inquiry stated that "they" were predicting that the Court of Inquiry judge, Judge Sturns, would conclude that a crime was committed but that the statute of limitations had run. So, for those trying to predict an outcome, here are some things to think about as alternative outcomes:
 
1.      Committed the crimes charged, but statute of limitations has run.

 This is a weak outcome, logically, because the actions that would make the foundation of the crimes are essentially concealment, and concealment tolls the statute of limitations. So, essentially, finding the first negates the second.

Also, this finding would also essentially lead to arguing/ litigating the nearly exact same issues and arguments that were litigated at the inquiry: Were Ken Anderson’s actions acts of concealment?

A defense that the documents or the information may have been readily available to the defendant because they were right there in the Sheriff’s office the entire time does not seem to hold water. After all, it took a public records request—that was, by the way, opposed by the DA’s office, who took its counsel on how to respond to the request from Anderson, until a couple of years ago to obtain release of some of the material.

 

2.       Insufficient finding of all the elements of the crimes charged, namely, the element of intent.

Essentially, the element that may be concluded unproven to the standard required in an inquiry may be the “intent to” element.

This would be an interesting conclusion, in several ways.

First, the analysis leading to it can be said to be an analysis of circumstantial evidence, which is what the underlying case was tried as—a murder case “proven” with only the presentation of circumstantial evidence.

Second, the question can be asked if this inquiry was really argued only with circumstantial evidence. In particular, was the evidence presented to argue Ken Anderson’s intent to imprperly impact  the proceedings limited to only circumstantial evidence? While Ken Anderson’s defense is sure to argue that there exists NO hard evidence of Anderson’s intent ,  this argument does not seem so certain:

      a.  Ken Anderson himself was recorded, at a pretrial hearing, admitting to a strategy

      that included obstruction of the Defense’s presentation of a defense, namely in their

      calling certain witness(s). And, that transcript shows that Anderson made the statement to

      demonstrate how he was going to prevent the production of evidence (police files, notes, 

      etc) in the murder trial. These statements by Ken Anderson himself may, in fact, be a

      confession of intent to impede a proceeding sufficient to meet the intent element of the

      Penal Code re: tampering.

 

      b.   That there were no “field notes” in the sealed envelope is actually hard evidence—this

      was a fact NOT proven indirectly, but very directly. It’s irrelevant what Ken Anderson

      asserts that he thinks he did relative to this fact—he is not able to deny that the field notes

      were NOT in the sealed envelope. And, he has not submitted any evidence to suggest that

       it is anyone else’s fault that the notes are not there. In fact, he repeatedly relies on and

       asserts Judge Lott’s meticulousness and thoroughness. This argument goes against any

      innuendo by Anderson that the omission of notes was due to any act or omission

     committed by Lott’s office.

                 c.   The record also shows that Ken Anderson had a demonstrated pattern of not turning
                 over the field notes. The Nov. pretrial transcripts show that Lott told him to do so and, yet,
                 by Feb, that transcript proves that he had not done so. (Whether Anderson wants the Nov.
                 command viewed as an “order” or not is irrelevant to the analysis of the tampering charge
                 and its element of “intent”.)
 

                 Ken Anderson did not provide any explanation as to why Lott’s requirement was not met
                 between Nov and Feb, and he did not provide any alternative theory that pointed the finger
                 at another party’s act or omission between Nov and Feb.  So, this fact is an undisputed one,
                 and supports the existence of Point b, above: That the field notes were, again, not
                 submitted to Lott for review and sealing and that this fact is solely attributed to Ken
                 Anderson’s acts.
 

In conclusion, it can be argued that there exists hard evidence of Ken Anderson’s intent to impact the proceeding below, and to do so by tampering with (causing some action upon) a file or document, and this may present Judge Sturns with difficulty concluding the inquiry with this alternative resolution. Another way of saying this is that it would seem that these “hard” facts may need to be “explained away” as somehow not having significant impact in overcoming the doubt as to whether intent was sufficiently established. 

3. The third alternative outcome is that there is insufficient evidence to overcome the immunity from liability that a prosecutor enjoys in carrying out the act of taking away another’s liberties---and maybe even his life.

This is a very crucial issue here, and Anderson himself brought it up several times in his own testimony last week via his protestations re:  “criminalizing Brady.”

In this inquiry, there’s the actual immunity provided by law (written and precedent—or lack of precedent), and the immunity afforded via practice and structure within the institution. Anderson seems to be relying on this later form of immunity to a great deal. He repeatedly attempted to rely on the argument that “it simply wasn’t the law back then” and on the argument that a prosecutor is allegedly allowed to treat law enforcement records as his own (lawyer-produced) work product. In this inquiry, it is likely that these apparent inherent and systemic flaws add another layer of “shielding” or protection from liability for one’s acts or omissions for the prosecutor, and may be the “straw that breaks the camel’s back”, so to speak.

For someone aggrieved by a prosecutor or a judge to overcome this shield called immunity, the accuser must show that, for example,  Anderson commited these acts and omissions with malice. It seems that, historically, the “malice” required to sue or convict a prosecutor  is more than “malice”, but something so egregious that it borders on sociopathic or “evil”. Was that proven here? And will it even be required? This inquiry is such a novel beast, it is very hard to predict any outcome.

Further, it is exceptionally difficult to use the prosecutor’s own world against him—the system itself is just not designed to allow others to use it to prosecute prosecutors and judges. It may be time to revisit this structure. Let’s revisit what Michael Morton himself expressed to the public shortly after his release and exoneration: This system is just not designed to fix its mistakes or shortcomings.  On his side of the courtroom, Hardin (the "prosecutor" for this inquiry) spent a lot of time establishing evidence to highlight that the time has come for some “institutional corrections”, whether through recommendations from Judge Sturns in this case, by legislation, or by case law, for example.  

And even though Anderson passionately and repeatedly acknowledged that something went horribly wrong in Morton’s case, he instead called for a neutral third party to perform a thorough investigation to find out exactly want went wrong and to fix the problem , and Anderson opposed Hardin’s argument that changes are due on the grounds that it would be an “overbalancing” that would let guilty child molesters “walk”. For the reasons presented below, I believe this position of Anderson’s maybe wholly ineffective and that Anderson’s attorneys should have never let him engage in this broader “institutional change” debate with Hardin nor present his “risk acceptance” explanation.

First, this is a position likely of little effect for Anderson to present in this inquiry, because the inquiry itself has resulted in an exceptionally thorough review and conclusion already : that the prosecutor commanded too much control.

Second, even if the problem had been found not to lie with Anderson, his position still acknowledges that something is, indeed, very wrong with this system.  So, by his own logic, some fixin’ is in order.

Third, Anderson’s explanation that he would accept wrongful convictions and life-term imprisonments of innocent defendants, does very little to support his defense that he intended to do nothing wrong. In  his response to Hardin’s questioning seeking agreement that changes are due, Anderson was very quick to argue against change using several points, but none his points seem to carry any water:

a.       Anderson argued that holding prosecutors criminally liable for acting out prosecutorial strategy would lead to a fear that would keep lawyers from becoming prosecutors;

b.      Anderson argued that changes would result in an “overbalancing” that would lead to the failure of prosecution of some that actually did commit very serious crimes, like child molestation.

c.       Anderson also argued that 2 of the 3 crimes charged in his inquiry do not apply to prosecutors.

However, much to my surprise, his lawyers let him bring evidence that discredits his own pleadings and arguments on this particular issue:

a.       In providing his background, he admitted that some very personal and idealistic motivations led him to becoming a prosecutor. However, he failed to present any evidence that future lawyers would not be similarly motivated.  In fact, the motivations he described would only be enhanced and strengthened by changes, such as “open files” requirements.  For example, his desire to “seek justice” and to “achieve the right ends” and to “protect victims” would be strengthened by changes that decreased the likelihood that innocent people would be convicted, and that decreased the risk of  letting the truly guilty continue to roam the streets and prey upon further victims.

 If “seeking justice” is your motivator to become a prosecutor, should the citizenry hope that it is true justice you seek, rather than the appearance of justice?

b.      Anderson’s defense that prosecutors are not subject to, for example, the “tampering with files” law, strikes back into the heart of the matter and begs the question asking if it’s in the interests of justice that prosecutors be held to the same standards as the rest of society, or whether they—and they alone as the Morton prosecution demonstrates is too often the case,  get to solely decide with what favorable evidence an accused gets to defend himself, and that an accused, for all practical purposes, no longer enjoys “innocence until proven guilty.”

 

c.       Anderson’s testimony regarding the overbalancing was premised on society’s willingness to “trade off” sending an innocent man to prison for life in exchange with making sure that a child molester is convicted and sent to prison.  His preferred “overbalancing” asks us to accept an exceptionally high risk of a miscarriage of justice. For example, here, it asked us to risk sending an innocent person to jail for life, effectively making an orphan out of a 3year old boy, and—and perhaps this is the most damning trade off required of Anderson’s argument, allowed a true murderer to remain free to murder others—which, in this case, is what happened. Essentially, Anderson’s preferred “overbalance” asks us to replace one form of injustice (criminal activity) with others (deprivation of rights and freedom, aiding and abetting murder, facilitating murder…). And, he asks us to do so without first attempting to achieve a more complete justice via changes in the system.

Further on this point of his, Anderson’s argument simply does not comport with the concept of “justice” that perhaps most of this citizenry think, feel, and hope define our “justice system.” It is likely that although Anderson can accept letting murderers roam free to murder others in exchange for commanding and orchestrating the conviction of an alleged child molester, the affected citizenry do not see this as acceptable, at least not without first trying to change a few rules, laws, or practices first. 

And, regardless of whether Anderson can convince an emotional public to accept this trade off, a society and its legal professionals would likely not ever be convinced that this trade off achieves justice. It is likely that, just as Hardin argued, that the majority would prefer that changes be made that include provisions, exceptions, etc. that are designed to achieve the proper convictions of both types of criminal activity.

The Morton conviction was indeed a true miscarriage of justice, proving with certainty that something went horribly wrong somewhere in his prosecution.  What Anderson needs to demonstrate is that the “horrible” and the “wrong” are not proven to have come from his acts and omissions—in other words, that he did not act with that kind of malice. Did he prove this to Judge Sturns last week?  
 

This may be the deciding factor: Can/Did Judge Sturns see, through all of Anderson’s “I don’t remember but I can’t imagine that I did NOT turn evidence over…” pleadings to conclude that not only was Anderson the “horrible” and the “wrong”, but that he was a malicious “horrible” and “wrong.” Yes, there seems to be sufficient evidence that he intended to keep evidence from the defense team, but is that malice?

Although I would argue that when something so serious as a man’s life, and when the lives of future victims of the real murderer are at stake, society  would want to impose a standard of conduct on a prosecutor that considers Anderson’s “strategy” as knowingly and maliciously deficient—I guess a kind of “malice per se”.

But, would Judge Sturns risk publishing that conclusion, even if he came to it? 

Overall Impression

With regards to the inquiry overall, it seems that Anderson’s defensive posture is a double-edged sword against Anderson. If, as he argues, something went horribly wrong in the Morton case, then he can hardly position himself, as he appears to have done here, against taking any measures that attempt to prevent that sort of problem from happening again. On the other hand, he has not provided substantive evidence, if any, that anyone else did anything wrong. So, the only logical conclusion in this inquiry would be to take measures that address Ken Anderson’s behavior in the Morton case. Herein lies the rub for Anderson. Just how “personal” will the “corrections” be? My suspicion is that they will be as personal enough to justify some sort of systemic correction, due to the following:

A. Anderson’s protestations against changes erode his assertions that he believes something somewhere went horribly wrong:

1. In fact, Anderson himself repeatedly testified that he would accept convicting an innocent man to life in prison (and letting the true murderer continue roam free and to kill) rather than “letting a child molester walk”. His acceptance of this risk is an admission that he accepts a system that is so flawed as to imprison an innocent man for life. In other words, he really does not see Morton’s conviction and sentence as a flaw or mistake, but, rather, a tolerable risk. By his statements, he is admitting that he sees it as an inherent but necessary risk. 
2.  Further, through his explanation of his tolerable and intolerable risk, he is admitting that he has concluded that the accused child molester is guilty and so the accused does not deserve the benefit of exculpatory or favorable evidence, much less to an “open file”.  Anderson’s “risk approach” essentially admits to a pretrial strategy, of child molesters, at least, that was the equivalent to a determination of guilt—which it is not.  His position is akin to him confessing that he routinely committed other ethical, professional, and constitutional violations by pursuing a strategy that assumed the defendant’s guilt, rather than his innocence.  

         Effectively, Anderson’s testimony establishes that he acted as if he was bestowed with the
         power to jump straight to “guilt” instead of to “proving guilt”. It showed that he cared too little
        about the process of using the truth to overcome his burden of proving guilt beyond a reasonable
         doubt;  or about the risk of letting the actual guilty run around free to commit more murders; or
         about justice.   One can hardly say that a prosecutor’s strategy that facilitates the murder of
         other(s) is “justice”.   

B. As for the defense that “there was no order”, well, that seems a little specious.

1. Isn’t it common knowledge among legal professionals that a judge issues orders, including written orders, and if there exists this thing called written orders, then there exists “non”-written orders that every judge expects to be followed. For example, when a judge breaks the court for recess and says “reconvene at 2”, every lawyer that is a party to the proceedings knows that they can’t show up at 2:47 to reconvene. Even though the judge doesn’t put it in writing, it’s an order, from a judge, and if treated with contempt, violating the order could lead you to having a contempt violation imposed upon you.
2. Further, “contempt of court” covers a huge swathe of conduct. I have seen a judge jail someone for rolling her eyes at her. Umm, let’s see, the importance of the judge not seeing too much of the whites of your eyes while you are talking to her, v. the importance of turning over to a defendant (an innocent man, by the way) all the evidence with which the State wants to use to send him to prison for the rest of his life….
3. Perhaps most importantly, Anderson did NOT comply with the order at all from November hearing in which it was ordered to the following February’s hearing. It is irrelevant whether Judge Lott intended that order to focus simply on Officer Woods’ report on the defendant’s statements made in August or if he intended it to encompass ALL favorable or exculpatory material—Anderson simply did not comply with it, whatever the scope of the order was. Let’s just assume, as Anderson argues, that the order only covered Woods’ reports and field notes from that one particular August day. Anderson still didn’t produce even those documents, as no field notes were produced from the date of the order to the next pretrial hearing in February. Anderson has NEVER denied this. That is non-compliance with a court order.
4. Last, it is simply too incredulous to believe that these experience and competent defense attorneys would not have made one single pre-trial motion for ALL favorable evidence and for ALL exculpatory evidence. And that’s what Anderson wants us to believe: that the defendant’s November request AND his February request was simply for one piece of evidence. That’s just ridiculous.

As it seems it was in prosecutor Ken Anderson’s district, it’s become far too common that prosecutorial “strategy”is more a strategy engaged in by public servants to use a system deeply skewed in their favor to better their reputations of “political success” and further their professional careers, than about seeking justice. This is dangerous, dangerous reasoning that should never be engaged in by a prosecutor and should never be tolerated by a society.