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Morton lawyers put prosecution on defense

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    Morton lawyers put prosecution on defense By _Chuck Lindell_
    Message 1 of 1 , Dec 9, 2011
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      Morton lawyers put prosecution on defense


      By _Chuck Lindell_
      (http://www.statesman.com/news/williamson/morton-lawyers-put-prosecution-on-defense-2017000.html?service=popup&authorContact=2017000&
      authorContactField=0)
      AMERICAN-STATESMAN STAFF
      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
      attendance.
      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
      Morton's prosecutors.
      "I do think that that might trigger other investigations," Scheck told the
      judge.
      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
      conviction.
      "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
      Georgetown.
      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
      murder.
      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
      appeals.
      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
      notes.
      4 pieces of evidence
      In court filings, Morton's lawyers claim that Anderson should have
      disclosed:
      • 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
      attorney's office.
      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
      about."
      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
      trial files.
      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
      investigation.
      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.
      clindell@...; 912-2569

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