Morton lawyers put prosecution on defense
By _Chuck Lindell_
Updated: 9:20 p.m. Tuesday, Dec. 6, 2011
Published: 9:18 p.m. Tuesday, Dec. 6, 2011
Combining tenacity with legal creativity, lawyers for Michael Morton are
doing something that has never been attempted in the nation's 280 previous
DNA exoneration cases: They're investigating the prosecutor who sent Morton
away for a murder he did not commit.
Armed with court-given power not typically available to defense lawyers,
Morton's legal team has pried open investigative files and forced former
Williamson County District Attorney Ken Anderson to answer questions under oath
and against his will.
The team has also combed court records and interviewed current and former
county officials to flesh out allegations that Anderson hid evidence that
could have spared Morton from serving almost 25 years in prison for the
murder of his wife, Christine.
And now we know where all this effort is headed.
On Dec. 19, Morton's lawyers will provide a written report of their
findings to District Judge Sid Harle, who took over Morton's case in August.
They'll discuss the report in open court with Morton likely to be in
And they'll conclude by asking Harle to take action against Anderson,
though what type of action is something Morton's lawyers are keeping to
themselves for the moment.
A hint, however, can be found in the transcript of an Oct. 3 hearing that
took place in Harle's chambers. Morton lawyer Barry Scheck told Harle that
they would return to his court if they found indications of misconduct by
"I do think that that might trigger other investigations," Scheck told the
Bennett Gershman, a law professor at Pace University in White Plains, N.Y.,
and the author of several books on prosecutorial ethics, said several
states have created innocence commissions to examine wrongful convictions in
hopes of avoiding future mistakes.
But Gershman said he has heard of no similar post-exoneration
investigations led by defense lawyers that seek to assign blame for a wrongful
"I just find this whole procedure extremely unusual," he said.
Breaking new ground
Anderson has personified Williamson County's tough-on-crime image during 16
years as district attorney and the past 10 years as a district judge in
Thus far, however, he's been outmatched and outmaneuvered by Morton's
lawyers: John Raley, a civil lawyer from Houston; Scheck and Nina Morrison with
the Innocence Project of New York; and Gerry Goldstein, a leading criminal
defense lawyer from San Antonio.
Admittedly making the rules as they go, Morton's lawyers began their
investigation by reaching an agreement with the current district attorney, John
Bradley, to conduct "limited discovery" to gather information — a concept
more commonly used in civil, not criminal, proceedings.
Under the agreement, reached in private the weekend before Morton was
freed, defense lawyers would issue subpoenas compelling sworn testimony from
Anderson and two others: Mike Davis, a Round Rock lawyer who helped prosecute
Morton as an assistant district attorney; and Don Wood, a retired sheriff's
deputy who conducted much of the investigation into Christine Morton's
Anderson and Davis objected, arguing that the subpoenas were an
unprecedented intrusion that improperly stretched the boundaries of Harle's power. The
judge disagreed and ordered them to testify.
Anderson next asked the state's highest court to intervene, but a unanimous
Court of Criminal Appeals dismissed the request without comment.
Wood and Davis were the first to be deposed, and from the questions asked,
it quickly became apparent that Morton's lawyers had one quarry in mind:
Anderson, who has denied any misconduct in his handling of Morton's trial and
Davis, questioned about Anderson's trial habits, described his former boss
as a meticulous, detail-oriented prosecutor who worked rigorously to master
every fact unearthed by investigators.
Davis also testified that Anderson alone would have determined what
evidence needed to be provided to Morton's trial lawyers under Brady v. Maryland,
the landmark 1963 U.S. Supreme Court decision that required prosecutors to
disclose key evidence that is favorable to defendants.
"Any murder case was Ken Anderson's baby," he said.
In a separate deposition, Wood estimated that his notes and reports from
the Morton investigation would have been about 4 inches thick and that all of
it was turned over to the sheriff and available for viewing by Anderson.
The answers provided Morton's lawyers with ammunition for Anderson's
deposition, which featured questions focusing on two main allegations: that
Anderson failed to disclose four pieces of evidence favorable to Morton and that
he violated a judge's order to turn over Wood's investigative reports and
4 pieces of evidence
In court filings, Morton's lawyers claim that Anderson should have
• The transcript of a police interview with Christine Morton's mother, Rita
Kirkpatrick, who revealed that the Mortons' 3-year-old son witnessed the
murder and said Michael Morton was not home at the time.
• A report that Christine Morton's credit card might have been used in San
Antonio two days after her death.
• Reports that a $20 check made out to Christine Morton was cashed nine
days after her death.
• A police report about suspicious behavior by an unidentified driver of a
green van who, a neighbor said, on several occasions parked and walked into
the wooded area behind the Morton house.
A condensed version of the Kirkpatrick interview and the report about the
green van were recently found in Anderson's old files at the district
In his deposition, Anderson said he did not recall discussing the
Kirkpatrick interview with Morton's trial lawyers but assumed he did because the
information was "something that you would typically tell a defense attorney
But Anderson told Scheck he believed he was under no obligation to turn
over a copy of the interview transcript because it was not admissible in
court. Three-year-olds were not competent to testify, he said, and rules against
hearsay would have kept Kirkpatrick from testifying about the conversation
with her grandson.
Scheck challenged that notion, saying the information could have opened a
new avenue of investigation for defense lawyers.
It might be left to Harle to determine whether Anderson was obligated to
turn over the Kirkpatrick transcript or whether he discussed its contents
with defense lawyers. According to court briefs filed by Morton's lawyers,
that conversation did not take place.
'Crime in Texas'
Reports mentioning the use of Christine Morton's credit card and check
after her death were found in sheriff's department records, not Anderson's
But Scheck said Anderson should have been aware of the reports and
disclosed them to defense lawyers. The information, Scheck said, would have been
essential to the defense theory that an unknown assailant killed Christine
Morton and stole her purse, which was reported missing from the Morton house.
Anderson said he did not recall ever learning about the reports but assumed
that sheriff's officers did not ignore such an important line of
Scheck responded with disbelief, asking how Anderson — reputed to be a
detail-oriented lawyer — could not have been told about the reports. Scheck
also referred repeatedly to Anderson's book, "Crime in Texas," in which he
described daily conversations with then-Sheriff Jim Boutwell, often over
coffee, during which they "painstakingly pieced together circumstantial murder
cases. We debated the next step of an investigation."
Anderson said he took literary license in describing his relationship with
Boutwell, who died in 1993.
In reality, he and Boutwell worked closely on the Morton case only during
the two weeks before trial, Anderson said.
"Jim and I may have talked about investigations, but we had a pretty firm
rule. He handled investigations. I handled prosecutions," he said.
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