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Texas ex-prosecutor’s sentence sends warning on wrongful convictions

Published: Sunday, Dec. 29, 2013 9:00 a.m. CDT

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HOUSTON — Williamson County District Attorney Ken Anderson had risen to a district judge by the time a special investigation was launched this year to scrutinize a murder he had prosecuted in 1987.

A judge determined that Anderson intentionally withheld evidence that resulted in the wrongful conviction of Michael Morton. Morton served 25 years in prison for the murder of his wife before DNA tests exonerated him and another man was convicted of the crime.

Anderson agreed to serve nine days in jail, resign from the bench and surrender his law license.

The proceeding has raised the possibility of more prosecutorial misconduct investigations in Texas.

Anderson was penalized after a “court of inquiry,” a unique Texas proceeding that allows a judge to determine whether prosecutors broke the law and, if so, to charge them.

Although it’s been on the books in Texas since 1965, the court of inquiry had typically been used to hold elected officials accountable. But the Morton case may change that.

“I am guardedly optimistic that we’ll see more courts of inquiry,” said Jeff Blackburn, founder of the Innocence Project of Texas, which helped free Morton.

State Sen. Rodney Ellis, a Democrat who attended Anderson’s court of inquiry, said the proceeding “sends out a message to prosecutors around the country that if you don’t play by the rules, you will be held accountable.”

Texas legislators passed a law this year extending the deadline for filing misconduct grievances from four years after the offense to four years after a wrongfully convicted prisoner is released.

Lawyers can also petition judges to convene courts of inquiry, as they did in Morton’s case.

The State Bar of Texas is considering half a dozen other complaints filed against prosecutors this year, according to lawyers.

The state bar does not disclose information about pending complaints and just started using a new case management system in January that allows it to track grievances filed against prosecutors.

Blackburn led the last court of inquiry in 2009 on behalf of Timothy Cole, an Army veteran and college student who died in jail before DNA tests could overturn his 1986 rape conviction. Cole’s prosecutor was not charged, but the court of inquiry led to Cole’s posthumous exoneration, Blackburn said.

The stakes are high in Texas, he said. The state has executed 508 prisoners since lethal injection began in 1982, including 16 this year, according to the Texas Department of Criminal Justice. That’s twice as many executions as the next few states in the national ranking, according to the Death Penalty Information Center.

Prosecutorial misconduct has become a concern to advocates for wrongfully convicted people nationwide as only about a third of the nation’s 1,269 exonerations have been linked to DNA, according to the National Registry of Exonerations, which advocates consider to be the most complete figures.

The remainder were attributed to a variety of factors, including ineffective assistance of counsel, faulty eyewitness identification, coerced confessions — and prosecutorial misconduct.

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An Innocence Project study last year found 91 cases of prosecutorial errors in Texas from 2004 to 2008; in 19 cases, courts found the errors “harmful” and reversed the convictions.

In response, the Texas District and County Attorneys Association issued a report stating that all but six of the 91 cases involved “minor trial error,” that “appellate courts deemed harmless” — not prosecutorial misconduct.

“It’s being overrepresented as any mistake a prosecutor makes, however trivial,” said Robert Kepple, executive director of the association. In many cases, Kepple said, prosecutors committed unintentional errors.

This year, Texas legislators passed the Michael Morton Act, which requires prosecutors to share evidence favorable to the defense, a procedure known as an “open-file” policy. Kepple said the new law and training under way by the association should help limit prosecutorial misconduct and errors.

“Prosecutors have really had a gut check on this in the last few years,” he said, adding that the Anderson case was, “a cautionary tale.”

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