Saturday, October 29, 2011

Freed Convict Pushes Rare Probe of Prosecutors

Michael Morton walked out of a Texas prison this month after serving almost 25 years for a murder that DNA evidence recently linked to another man. Now, in an unusual twist, the prosecutors who helped convict Mr. Morton in 1987 are in the hot seat.

Texas's highest criminal court has given lawyers for Mr. Morton the green light to question several former prosecutors about whether they withheld crucial evidence that might have cleared him. The deposition of a former district attorney in Williamson County, north of Austin, is slated to begin Monday.

Separately, the Texas state bar, which investigates complaints about unethical behavior by lawyers and has the power to strip them of their law licenses, has taken the unusual step of opening its own probe into the prosecution. Bar officials declined to comment on the scope of the investigation.

The officials involved in the prosecution have denied any wrongdoing or have called the investigations of their actions improper.

Since 1989, at least 800 convicts nationwide have been exonerated and freed from prison, thanks in part to the greater availability of DNA evidence. In some of these cases, advocates for the wrongfully convicted have contended that prosecutorial misconduct—such as suppressing evidence or relying on false testimony—played a role.

But exonerations have rarely led to scrutiny of prosecutors, who enjoy broad immunity from civil suits and a measure of professional courtesy that discourages defense lawyers and judges from filing complaints that could lead to state bar investigations, attorneys said.

"It is a rare day that discipline is imposed on a prosecutor in Texas," said Chuck Herring, an Austin lawyer who specializes in legal ethics.

That is as it should be, said Scott Burns, executive director of the National District Attorneys Association, adding that prosecutors behave appropriately in the vast majority of cases.

If prosecutors could easily be sued or sanctioned in the rare instance of a mistake, he said, "They may then err on the side of caution in bringing charges, to the detriment of society."

John Bradley, the current district attorney in Williamson County, who wasn't involved in the Morton murder trial, said that as a general rule it sets a dangerous precedent for the bar association to second-guess prosecutors, especially about long-ago cases. "As a prosecutor, I should be worried about prosecuting cases and not covering my butt for something I did 25 years ago," he said.

But, he said, Mr. Morton's lawyers should be able to depose prosecutors and ask questions about whether they may have failed to turn over evidence. His office had agreed to allow such a probe to continue even after Mr. Morton was released from prison Oct. 4.

In the 1987 trial, the government argued that Mr. Morton bludgeoned his wife, Christine, to death out of rage because she refused to have sexual intercourse with him on his 32nd birthday.

Mr. Morton, now 57 years old, has consistently maintained his innocence. He has claimed in court papers that prosecutors suppressed evidence that would have helped him establish his claim that he was at work at the time of the murder and that his wife must have been killed by an intruder.

Mr. Morton contends that prosecutors failed to reveal evidence that a person fraudulently attempted to use his wife's missing Visa card days after the murder and that someone cashed a check bearing her apparently forged signature.

John Raley, counsel to Mr. Morton, declined to elaborate on his client's claims.

One of the prosecutors due to face questions is Ken Anderson, who is now a state-court judge in the Williamson County seat, Georgetown. He is scheduled to be deposed by Mr. Morton's lawyers on Monday. In court filings, Mr. Anderson had tried unsuccessfully to block the deposition, contending that he enjoys immunity from being sued or deposed for actions he took as a prosecutor.

Mr. Anderson has alleged that Mr. Morton's lawyers are on a fishing expedition for evidence they could then use in a civil suit against him. Mr. Raley, Mr. Morton's counsel, declined to comment on a possible civil suit.

An attorney for Mr. Anderson didn't respond to repeated requests for comment.

Original report here

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