Finally, Prosecutor Jailed for Evidence Tampering

Former Williamson County District Attorney Ken Anderson.

Former Williamson County District Attorney Ken Anderson.

It was a long time coming, but finally America has reached a milestone in the area of criminal justice.  In Texas, a former D.A. has made history by becoming the first prosecutor in U.S. to suffer criminal punishment for failing to turn over exculpatory evidence.

In this case, Ken Anderson— the former Williamson County D.A. who was named the 1995 Prosecutor of the Year by the State bar of Texas—was sentenced to 10 days in jail for a criminal contempt charge.  His crime was evidence tampering, hiding evidence that was favorable to Michael Morton, who was on trial for the 1986 murder of his wife.  Morton was innocent, to be sure, and Anderson violated a court order when the judge asked him whether he had any evidence that was favorable to Morton, and Anderson said no.  In fact, Anderson was aware of statements made by several key witnesses, but chose not to disclose them.

As a result of then-prosecutor Anderson’s blatant misconduct, Morton languished in prison for nearly 25 years—all for a crime he did not commit.  DNA testing made him a free man in 2011.  And yet, a little over a week in jail seems like an insult of a punishment, given the damage done to an innocent man.

Anderson, who resigned as a judge in September—a position bestowed upon him by Gov. Rick Perry—also must serve 500 hours of community service and will lose his law license.  But still, this is an unequivocal slap on the wrist for a man who willingly and deliberately destroyed another.  Nevertheless, no other prosecutor in this country has seen even a single day in jail for evidence tampering, and yet we know that many others certainly have committed the same offense.

The National Registry of Exonerations maintains a database of 1,200 exonerations and false convictions since 1989.  These men and women spent a total of 11,600 years in prison, each for an average of a decade.  Official misconduct was a contributing factor leading to wrongful convictions in 44 percent of these cases, second only to perjury or false accusations (53 percent).  And official misconduct is most common in homicide cases (58 percent on the wrongful convictions) and nonviolent crimes (55 percent).

According to a report from the Innocence Project on the first 255 DNA exoneration cases in the U.S., of the 63 cases involving civil suits or appeals dealing with prosecutorial misconduct, 21 percent led to reversals, reflecting harmful error (probably an improper judgment by the court).  These findings mirror a study by the Center of Public Integrity, which found that among 11,452 appeals alleging prosecutorial misconduct between 1970 and 2002, 2,012 (17.6 percent) resulted in reversals or remanded indictments.

While there are many honest prosecutors out there who are doing their job, some D.A.s game the system for the purposes of adding another notch to their belt, to enable them to climb the ladder and fulfill their political ambition.  For them, winning in the adversarial system of justice, apparently, is far more important than ensuring justice is served, and that only the truly guilty are punished.

Michael Morton and wife Cynthia smile in Georgetown courtroom after Ken Anderson sentencing on November 8th

Michael Morton and wife Cynthia smile in Georgetown courtroom after Ken Anderson sentencing on November 8th

Moreover, prosecutors have an ethical duty they should not take lightly.  Fort-nine states and the District of Columbia have adopted the ABA Model Rules of Professional Conduct Rule 3.8.  This rule requires prosecutors to disclose, before trial, “all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense, and, in connection with sentencing, disclose to the defense and to the tribunal all unprivileged mitigating information known to the prosecutor, except when the prosecutor is relieved of this responsibility by a protective order of the tribunal.”  Further, the order should clearly state that “willful and deliberate failure to comply is punishable by contempt.”  In addition, when a prosecutor learns of evidence pointing to the innocence of a convicted defendant, the prosecutor has a duty to disclose this information to the court.

After all, prosecutors are regarded as ministers of justice and not mere advocates.  They have an obligation to see that there is sufficient evidence to determine the guilt of defendants, and to prevent and remedy the conviction of the innocent.  All defendants deserve true justice and a fair trial where the deck is not stacked against them by an ethically challenged D.A., but far too many are denied this.

Ask John Thompson.  Thompson spent 18 years in prison—14 of them on death row, for a robbery-murder someone else committed.  He was housed in Louisiana’s infamous Angola State Penitentiary, the former slave plantation, in solitary confinement. As his seventh execution date approached, an investigator uncovered evidence of his innocence which the Orleans Parish District Attorney’s office had hidden for 15 years—a crime lab report.

After being acquitted in a retrial, Thompson sued the D.A.’s office, alleging constitutional violations—including withholding of evidence under Brady v. Maryland—and a failure to train the prosecutors in the office so as to avoid these violations.  Under Brady, “suppression by the prosecution of evidence favorable to an accused who has requested it violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.”

A jury awarded Thompson $11 million for each year he had spent on death row.  Meanwhile, the U.S. Supreme Court overturned the award.  Writing the coldblooded opinion of the court, Justice Clarence Thomas concluded that the D.A.’s office was not liable for the Brady violation committed by one of its prosecutors, a lone actor, based on Thompson’s failure-to-train theory.

There are many other victims of prosecutorial misconduct, and they are not rare exceptions.  For example, Joe D’Ambrosio spent 20 years on death row in Ohio, although there was no evidence he was at the crime scene.  A federal judge threw out his conviction after finding that prosecutors failed to turn over exculpatory evidence.

Shareef Cousin spent three years on Louisiana’s death row, wrongfully convicted at the age of 16.  A witness testified that the prosecutor told him to perjure himself on the stand and claim that Cousin bragged about the murder.  Roger Jordan, the prosecutor in the case, was disciplined as a result.

Juan Melendez was sent to Florida’s death row for nearly 18 years due to a paid informant who implicated him, and because the prosecution systematically withheld crucial evidence, including a confession from the actual murderer.  And Derrick Jamison was on death row for nearly two decades for a robbery and murder he did not commit because prosecutors denied him a fair trial.  The prosecution withheld information that an eyewitness identified two men, neither of whom was Jamison.  Further, the D.A. promised his co-defendant a lighter sentence in exchange for pointing the finger at Jamison.

David A. LoveRule 3.8 is the tool, or rather the weapon, to empower courts to deal with rogue prosecutors, those who play fast and loose with the law abuse their power by setting up innocent people.  Now, there are many honest prosecutors out there doing their job, it’s just that the corrupt ones are giving all the rest a bad name.  After all, who can trust a criminal justice system when some of its officials are engaging in criminal behavior and are allowed to go unpunished?

And perhaps it will take more unscrupulous prosecutors behind bars before society can rein in a problem which is greater than many realized.

David Love
Black Commentator

Sunday, 16 November 2013

Published by the LA Progressive on November 18, 2013
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About David A. Love

BlackCommentator.com Executive Editor, David A. Love, JD, is a lawyer and journalist based in Philadelphia, and a contributor to the Progressive Media Project, McClatchy-Tribune News Service, In These Times and Philadelphia Independent Media Center. He contributed to the book, States of Confinement: Policing, Detention, and Prisons (St. Martin's Press, 2000). Love is a former Amnesty International UK spokesperson, organized the first national police brutality conference as a staff member with the Center for Constitutional Rights, and served as a law clerk to two Black federal judges. His blog is davidalove.com.