The State Bar of Texas is investigating actions taken by trial prosecutors in the 1987 wrongful conviction of Michael Morton, an official said Wednesday.Who is surprised that Judge Anderson doesn't want to testify under oath about why exculpatory evidence wasn't turned over to the defense? I still doubt that the State Bar will discipline any prosecutor in the case, because, as Lindell reports at the end of the story, they almost never do:
The bar took the rare step of acknowledging an ongoing disciplinary investigation because of the attention Morton's case has received since mid-August, when his lawyers announced that DNA tests showed another man killed his wife, Christine, in their Williamson County home.
Morton was freed Oct. 4 after serving almost 25 years in prison, and the state's highest criminal court later proclaimed his innocence and tossed out his murder conviction and life sentence.
"We decided, because of the high-profile nature of the thing, that we were going to tell the public that we were looking into it," Maureen Ray, with the bar's office of chief disciplinary counsel, said Wednesday.
Also Wednesday, the former district attorney who prosecuted Morton, Ken Anderson, filed a motion to quash a subpoena forcing him to testify under oath about allegations that he improperly hid evidence favorable to Morton.
Morton's lawyers are set to depose Anderson, now a district judge in Georgetown, on Oct. 26. However, through his attorney Mark Dietz, Anderson said District Judge Sid Harle lacked the jurisdiction to issue the subpoena and that he was not provided 10-day notice as required by court procedures.
The state bar rarely investigates prosecutors for cases of alleged misconduct, several lawyers involved in the grievance process said Wednesday. One problem is the lack of credible witnesses because complaints typically come from successfully prosecuted inmates.The McEachern case is the one always mentioned, but that's the only example I know of in the last decade where a Texas prosecutor was disciplined by the state bar for hiding so-called Brady material. To clarify, though, McEachern didn't hide a "paid informant's criminal past," it was actually the criminal history of an undercover gypsy cop named Tom Coleman that he failed to reveal to the defense. Still, plenty of other cases have arisen where exculpatory evidence was withheld, including in capital cases, and the state bar tends to ignore them all.
It is also "very, very rare" for the bar to follow through with sanctions against prosecutors, said Chuck Herring, an Austin lawyer who specializes in lawyer discipline cases.
"In over 25 years doing this area of law practice, I have never represented a prosecutor," Herring said. "I can remember only a very few instances of reports of prosecutors being disciplined for any violation of the rules."
One such case came in 2005, when the bar sanctioned former Swisher County District Attorney Terry McEachern for hiding information about a paid informant's criminal past to prosecute 46 people in a 1999 Tulia drug sting. McEachern was placed on a two-year probation that allowed him to continue practicing law.
Maybe, like McEachern's case, things will be different this time because of intense media scrutiny. But I'd feel more confident that the profession was capable of governing itself if it didn't take national media attention to prod them into action when Brady violations occur in criminal cases.
See an accompanying item from the Statesman editorial board. MORE: From the Wilco Watchdog.
Related Grits posts:
- Unable to squelch prosecutor misconduct allegations, John Bradley passes them off to AG
- John Bradley tries to short-circuit investigation into prosecutor misconduct in Michael Morton case
- John Bradley facing local, national criticism now that Michael Morton formally exonerated
- State Bar should sanction prosecutor from Michael Morton case but almost certainly won't
- What can the Texas Legislature do to reduce prosecutorial misconduct?