Pushback by Morton prosecutors prevent exposure of 25-year old secrets on withheld evidence

I know Grits readers will be shocked to learn that the prosecutors who secured the false conviction against Michael Morton in Williamson County are fighting to keep from giving depositions as to how and why exculpatory material in the case was never turned over to the defense. Reports Chuck Lindell at the Austin Statesman:

The former prosecutors who tried Morton for murder in 1987 — District Judge Ken Anderson and Round Rock lawyer Mike Davis — have filed motions in state District Court in Williamson County to quash subpoenas issued last week by Morton's lawyers.

The subpoenas were part of a negotiated agreement with District Attorney John Bradley, who was not involved in Morton's prosecution, allowing defense lawyers to investigate allegations that Anderson and Davis hid evidence pointing toward Morton's innocence.

But because details of that agreement were hidden in sealed court files, outsiders could only speculate about what form Morton's investigation would take — until Anderson and Davis filed their motions and included copies of their subpoenas.

In addition to testifying next week, Tuesday for Davis and Wednesday for Anderson, the subpoenas direct them to produce all documents — including letters, notes, diaries, calendars, faxes and recently sent electronic messages — that "in any way" involve Morton.

In their motions to quash, Anderson and Davis argue that Morton's lawyers lack the authority to issue subpoenas and that District Judge Sid Harle, who is handling the Morton case, lacks the jurisdiction to enforce the orders to testify by deposition.

The Texas Tribune has additional coverage including links to the briefs (see pdfs here and here), and the Williamson County Sun has compiled all their coverage here.  Both Anderson and Davis claim that, despite the agreement between John Bradley and Morton's attorneys specifically allowing for Morton's legal team to hold depositions interrogating evidence of prosecutor misconduct, there is no legal authority for seeking the depositions, hoping the courts will split legal hairs to avoid them testifying under oath. Davis said he was sorry offered to speak with Morton's attorneys privately but neither man is willing to give sworn testimony. (With that apology and $4 Morton could buy himself one of those fancy coffees at Starbucks.)

Basically Anderson and Davis' argument is that, while the district court had authority to order such depositions, the case is now before the Court of Criminal Appeals and thus Morton has no standing to seek depositions under a district court order. Morton's attorneys responded in a reply brief (pdf) that::

The parties agreed that Mr. Morton had the right to avail himself of that procedure, and thereafter entered into a proposed agreement, which they sought to have approved and entered by this Court, to conduct more limited discovery under art. 11.07 in exchange for certain other agreed findings and Mr. Morton's immediate release from custody on a signature bond. Specifically, the parties agreed and proposed to this Court that in conjunction with the entry of an order adopting the parties' Findings of Fact and Conclusions of Law as to Claim One (actual innocence), the Court would also order the parties to conduct certain discovery. This discovery includes, but is not limited to, the sworn, videotaped depositions of the two Movants.

So Williamson County DA John Bradley agreed to expedite the Morton's release because of the proof-positive DNA evidence, but agreed in a (presently sealed) court order that to allow Morton's legal team to pursue the prosecutorial misconduct issues using discovery power afforded under the writ process at the district court level. Moreover, "This agreement was made in express consideration for Mr. Morton's waiver of his statutory right to conduct far more extensive discovery on the issues pending in his application for a writ of habeas corpus, as was noted both in chambers and in open court." When Bradley tried to prematurely end that investigation by finalizing the CCA case before that agreement ended, Morton's attorneys objected and he withdrew his motion.

This desperate bobbing and weaving to avoid testifying under oath reminds me in some ways of the Todd Willingham case, where prosecutors used technical jurisdictional arguments to shut down inquiries into flawed arson science in the courtroom and at the Forensic Science Commission. Now supposedly Morton's attorneys can't investigate so-called "Brady" violations - the withholding of exculpatory evidence - even with a court order, supposedly, because of similar jurisdictional concerns. So if prosecutors can't prove that they're right on the merits, clearly the go-to backup plan is to claim nobody has the right to investigate the issue in the first place.

John Bradley said he encouraged Anderson and Davis to comply with the supboenas, but also this week Mr. Bradley himself refused to turn over materials relevant to the prosecutorial misconduct investigation by Morton's lawyers. Reported the Williamson County Sun:

District Attorney John Bradley pledged his cooperation with their investigation into possible misconduct as part of the agreement to release Mr. Morton from prison.

But defense attorneys said in a Thursday motion that Mr. Bradley has not provided them with all the documents they’ve requested, specifically prosecutors’ personal notes on the case.

The district attorney informed them that his office reviewed those documents and found nothing relevant to the allegations against Mr. Anderson and Mr. Davis. He has refused to hand over the files so Morton’s attorneys can personally review them.

And in a potential bombshell, his attorneys also claimed that “persons acting at Mr. Bradley’s behest” may have already gathered admissions of wrongdoing from the prosecutors and investigators accused of official misconduct.

Despite Mr. Bradley’s pledge to cooperate in the investigation, he has not shared that information, but offered to have his office review the files again for relevant material, the motion said.

Morton’s attorneys requested that Judge Harle, who is overseeing the investigation, force the district attorney to turn over the documents.

“This proposal is an inadequate substitute for full disclosure,” attorneys said in the motion. “The public’s interest in the orderly and complete administration of the discovery process is understandably high.”

Wilco Watchdog believes that "The legal wrangling and stall tactics are quite telling. If Davis and Anderson have nothing to hide, why not appear in deposition and answer questions? If John Bradley has nothing to hide for his involvement over the past six years, why not turn over all documents to Morton’s attorneys so all information is available for a proper and thorough investigation?"

Normally I'm not a big fan of the "if you have nothing to hide" argument, however we're not talking about private conduct but actions undertaken on the public's behalf that led to a great injustice. Anyway, this is part of a broader pattern.  Just as Bradley did in the arson investigation surrounding the Todd Willingham case, we see him slow-walking the Morton investigation, hoping to stall it long enough for him to kill it, same as he did fighting the DNA-testing of the bloody bandana for years. Can it be that nobody, anywhere, in Mr. Bradley's view has jurisdiction to investigate the causes of false convictions? This schtick is getting old.

Related Grits posts:

• Stare bar will investigate prosecutor misconduct in Michael Morton case
• 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?