Former prosecutor and judge Ken Anderson pled guilty in Texas to intentionally failing to disclose evidence in a case that sent Michael Morton to prison for the alleged murder of Morton’s wife. Morton was innocent. Morton spent 25 years in prison for a crime he didn’t commit. Anderson, who, among other things, intentionally concealed an eyewitness statement that Morton was not the murderer. Anderson rose through the ranks as a prosecutor and eventually became a judge as Morton sat in prison.
Anderson resigned from the bench in September and was sentenced to 10 days in jail in November. As part of the plea agreement he was forced to give up his bar card. Is 10 days enough for a glaring Brady violation? One that imprisoned an innocent man for 25 years? No. But its a start. Discovery violations happen. They happen all the time. Every criminal defense lawyer knows this. Its one thing for a case agent or even a prosecutor to forget about evidence, especially in large, complex cases where the volume of discovery is overwhelming. It is quite another thing when discovery violations are knowing and intentional.
Rogue cops and prosecutors routinely suppress exculpatory evidence. I’ve sat at counsel table and listened to law enforcement officers lie under oath. One of them had the audacity to wink at me as he lied because he thought I couldn’t prove he was lying. Little did he know about the witnesses the cops didn’t interview who were waiting in the hall to testify after he got off the stand. Where’s that cop today? Probably on patrol. By now he’s probably gotten a promotion or two. At least my client didn’t get convicted.
I can think of other cases where cops and prosecutors didn’t turn over clearly exculpatory evidence. Evidence that proved a government witness was lying. Evidence the defense found because of hard work. But how much have we, criminal defense lawyers missed? Missed because we didn’t know where to look. Missed because the evidence was so obscure no amount of hard work would have uncovered it? A recent study in Arizona found prosecutorial misconduct present in almost one-quarter of capital cases in Arizona. That’s 25%. The Arizona Republic concluded:
There seldom are consequences for prosecutors, regardless of whether the miscarriage of justice occurred because of ineptness or misconduct. In fact, they are often congratulated.
Criminal defense attorneys, law professors, and judges all over the country have been calling for changes to the system. In 2010 the Northern California Innocence Project published a study on prosecutorial misconduct in California. While there was more than 700 proven instances of misconduct none of the prosecutors were ever punished. In fact, in most of the cases, courts decided the prosecutors misconduct did not result in an unfair trial to the defendant. Criminal defense lawyers wonder how this can be.
How can the cops and the prosecutors cheat and it not result in unfairness to the defendant?