Judge Ken Anderson: A Judge With An Ethical Obligation To Resign

Ken Anderson

Regret isn’t enough.

Ken Anderson has been a Williamson County (Texas) district judge since 2002, but in 1987  he was the district attorney who prosecuted Michael Morton for fatally beating his wife to death. Morton was convicted and served 25 years in prison before DNA tests proved he was innocent. (This is yet another triumph of The Innocence Project.) Another man has been arrested for the murder of Morton’s wife Christine, as well as a second woman he allegedly killed in similar fashion while Morton was behind bars.

Last week, a five day hearing examined Judge Anderson regarding his conduct in the case, in a special court of inquiry to determine whether he engaged in criminal wrongdoing as well as unethical prosecution. Among the questions raised was why Anderson never divulged to Morton’s defense team a police report that Morton’s neighbors had said that they saw a suspicious man walking into the woods behind the Morton home shortly before the murder, and why Morton’s three-year-old son’s statement that “a monster,” not his father, beat the child’s mother to death was similarly withheld. On the stand enduring five hours of questioning, a tearful Anderson could only say that he didn’t remember not turning over the evidence to the defense, while defense attorneys adamantly insisted that they never received it. The hearing also revealed that Anderson kept his lead investigator from testifying at trial, when his testimony would have ensured that the child’s statement and the report about the stranger were raised in court, as well as allowing defense attorneys to cross-examine the investigator regarding his peculiar theory of the case.The theory, which was subsequently endorsed by DA Anderson, was that Morton become homicidal after his wife fell asleep when he sought to have sex with her, and donned his scuba wet suit so his son wouldn’t know it was him beating her to death.

Late in the hearing, Anderson’s attorney asked him to explain to Morton how he felt, and the beleaguered judge said: “I apologize that the system screwed up. It obviously screwed up. And I beat myself up on what could have been done differently, and I frankly don’t know.” Morton has a different interpretation, telling reporters, “I think we saw someone who is still struggling with denial and anger, a man who has spent at least three decades in power who for the first time is having to answer for his actions.”

I don’t know whether Anderson intentionally withheld evidence in the process of prosecuting Michael Morton, because he thought Morton was guilty, whether he just made a series of mistakes, or whether, as he says, the system failed. I do know that he is ethically obligated to step down as a judge. His credibility, fairness, competence, commitment to justice, integrity and trustworthiness have all been called into question by the inquiry, as well as the unavoidable fact that he prosecuted an innocent man who went to prison for a quarter of a century, and while he was there, the real murderer may have killed again. The justice system cannot have a judge ruling on people’s lives who has something like that on his record and conscience. I wouldn’t want my fate to rest with such a judge, and as a lawyer, I wouldn’t want my client’s fate to be determined by such a judge either.

If Judge Anderson wants to prove his commitment to justice, he should accept responsibility for the horrible miscarriage of it he played a central role in bringing about, and bolster faith in it by  removing from the justice system a judge who can no longer maintain the public’s trust: himself.

RELATED NOTE: Fark really needs to remove its flat-out untrue characterization of the case, for it is unfair to Judge Anderson as well as its readers. The funny-headlines-to-real-stories site, a terrific source for ethics-related incidents, falsely labelled this one “If you’re a prosecutor in Texas, and you hide DNA evidence to convict an innocent man of murdering his wife allowing the actual murderer to go free, then we’ll promote you to Judge.” There is no allegation that Anderson hid DNA evidence—the technology didn’t even exist when Morton was originally convicted. Nor was he “promoted to judge” because he hid such evidence, or because he hid any evidence at all: when Anderson became a judge in 2002, Morton was still in prison and considered guilty. Even for a humor site, this is perilously close to defamation, an intentional and reckless falsehood with malicious intent. Fark often twists the real story slightly to make a joke, but this crosses lines that shouldn’t be crossed.

________________________________

Pointer: Fark

Sources: My San Antonio 1, My San Antonio 2, My San Antonio 3

Graphic: Amazon AWS

 

21 thoughts on “Judge Ken Anderson: A Judge With An Ethical Obligation To Resign

  1. Is there any reason why the rules can’t be changed so that the DA has to give a fully indexed evidence list to the defence, who can then see whatever evidence they want?

  2. Discovery in criminal cases in Virginia is a joke. You get the defendant’s statement to the police and any scientific reports, documents and photos. No witness list, much less witness statements. Money is much more important in Virginia than freedom, because you have more discovery rights in a $50 civil case than in a capital murder one. The state bar council is working on amending this, but the prosecutors are fighting it. The same prosecutors who think that “exculpatory evidence” is a quaint, but unrealistic, concept.

    • You get the defendant’s statement to the police and any scientific reports, documents and photos. No witness list, much less witness statements. Money is much more important in Virginia than freedom, because you have more discovery rights in a $50 civil case than in a capital murder one.

      Is there a Virginia Supreme Court ruling affirming such things?

  3. In an earlier post , you supported strict liability, and you explained what it was.

    Negligence will be defined as “if the wrong person gets a hold of the gun or guns, the owner is negligent, no matter what measures he or she took to prevent it”—that is, strict liability.

    Sending innocent people to prison ought to be a strict liability capital offense. It should not matter if prosecutors followed every rule and made every good faith effort to avoid the result- only the result should be relevant in determining guilt.

    We need to get tough, just like we need to get tough on people who allow their guns to be used in crimes.

    • Not for prosecutors. You can’t have a prosecutor worried that a good faith prosecution that turns out to be wrong will subject the prosecutor to civil or criminal penalties. If there is proof of intentional unjust treatment, yes–send them to jail. But the standard has to allow for error.

      • Not for prosecutors. You can’t have a prosecutor worried that a good faith prosecution that turns out to be wrong will subject the prosecutor to civil or criminal penalties. If there is proof of intentional unjust treatment, yes–send them to jail. But the standard has to allow for error.

        And yet, you objected to a standard that allowed for error with respect to keeping arms- a fundamental right.

        I do not know about you, but government officials should be held to a higher, not lower, standard of conduct that the general population. Your idea in that other post would have gun owners exercising their fundamental right worried that a good-faith effort to store their arms safely, even going so far as to have ” the gun completely disassembled in a bank safe guarded by a fire-breathing dragon” (your exact words) would subject them to “civil or criminal penalties” (again, your exact words). If we do not tolerate any standard of error for the general population, we should not do so for government officials who would prosecute laws just like the one you suggested in that earlier post.

        • These are two different kinds of situations. Strict liability when having possession of an inherently dangerous instrumentality like a gun or a grizzly bear is not remotely similar to strict liability for the performance of a professional duty. We want prosecutors to be zealous, and not forced to be timid in fear that if a lab tech messes up, the DA will be sued into poverty or sent to jail. Standards are appropriate and should be high; requiring infallibility, however, is not a standard, it’s scapegoating, and bad public policy.

          • Strict liability when having possession of an inherently dangerous instrumentality like a gun or a grizzly bear is not remotely similar to strict liability for the performance of a professional duty.

            A gun is not an inherently dangerous instrumentality.

            They do not shoot themselves.

            Standards are appropriate and should be high; requiring infallibility, however, is not a standard, it’s scapegoating, and bad public policy.

            And yet, you would scapegoat gun owners.

            We want prosecutors to be zealous, and not forced to be timid in fear that if a lab tech messes up, the DA will be sued into poverty or sent to jail.

            They do not have enough zealotry in avoiding mistakes.

            • A bit of sophistry there, Michael—strict liability with wild beats applies when someone sticks their hand in the cage. Nitro doesn’t explode itself either, but leaving it around to me mishandled is still strict liability. Holding gun-owners responsible for negligently allowing their guns to be stolen or used by unauthorized people isn’t scapegoating at all—they have the ability to avoid the result. Prosecutors are only one link in the chain. And in the vast majority of cases and with the vast majority of prosecutors, they balance their zealotry well. Do you want to punish the police, the juries, the defense attorneys, the witnesses and the judges too? They are often at least as culpable as the prosecutors.

              Bar discipline committees need to disbar more prosecutors for clear misconduct. That’s the main missing remedy, and it would be easy to implement.

              • . Holding gun-owners responsible for negligently allowing their guns to be stolen or used by unauthorized people isn’t scapegoating at all—they have the ability to avoid the result.

                How do they avoid the result?

                A bit of sophistry there, Michael—strict liability with wild beasts applies when someone sticks their hand in the cage.

                It does, but that is grounds for an assumption of risk defense.
                http://www.shsu.edu/~klett/CH%206%20NEW%20PRODUCT%20LIABILITY%20NEGLIGENCE.htm

                    • I’m saying it doesn’t apply to strict liability regarding gun owners. The victims—and subsequently plaintiffs— of a stolen gun obviously didn’t assume the risk. A child who takes a gun can’t assume the risk. I suppose it might get the gun owner off the hood when someone steals the gun and shoots himself with it. Assumption of the risk applies to the individual who knowingly uses a dangerous product. The analogy with animals would be someone who goes on your property, releases your dragon and uses it to broil a school. The victims didn’t assume the risk.

              • The sophistry is your suggestion for strict liability for gun owners. You went beyond just “reasonable care” and want to hold gun owners responsible regardless of the actions of others.

                Why not hold people accountable in the DA case? Sorry, it is parallel. Lab tech is dishonest? Too bad, apply strict liability, just like you want for gun owners.

                At least be honest, what you seek is a chilling effect where gun owners would be dissuaded from having them at all.

                • I don’t want a chilling effect, and I’m not anti-gun. I’d be happy to see provisions added to minimize chilling effects, such as applying strict liability under specific, well-defined, non-ambiguous circumstances. If I want to have an AK 47, I should be able to have one, but if I keep it in the house and have a mentally disturbed son who takes it and shoots up a nursery, I should be libel for damages, and there should be no way out of it. Recall that the Sandy Hook shooting was the context for my suggestion. It’s not enough that we try to force gun merchants from allowing guns to fall into the hands of criminals, fools and maniacs—the legitimate gun purchasers should be held responsible for playing their part too. Instead, we listen to drum beats to kill the gun manufacturing industry, like we are killing tobacco. Once guns are legally transferred to merchants, owners, the manufacturer is blameless. He made a tool, that’s all.

                  Should strict liability apply when an unethical newspaper tells the world you own a gun, and a criminal stages a home invasion, steals it, and uses it to shoot up Penn Station? No. Of course not.

                  Saying that “guns aren’t dangerous,” however, is an insult to all logic and observation.

          • Strict liability resulting in their handling of the case, then. If someone else screwed up, they’re fine. If they screwed up, even unintentionally, then they’re done. If they failed to pass information to the defense or ignored information, then they should be done. No “harmless error”. No “I didn’t think it was relevant”.

            Standards are appropriate and should be high; requiring infallibility, however, is not a standard, it’s scapegoating, and bad public policy.

            Standards for Prosecutors are NOT high in practice. In word they are, but the qualified immunity applies to even atrocious conduct. Remember this: http://reason.com/blog/2011/03/29/supreme-court-firms-up-state-i?

            Even a prosecutor who intentionally doesn’t turn over clear exculpatory evidence (and who can’t even explain the Brady rule) cannot be sued. He would have to be trained to ignore the Brady rule first.

  4. Pingback: Prosecutorial Failure? - Pilant's Business Ethics

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