Two suggestions, one radical, one modest, on prosecutorial reform

I ran across two additional, suggested approaches to reduce prosecutorial misconduct: First, here's an interesting idea for prosecutorial reform: Separate conflicting prosecutorial functions.

No one likes to be inspected. Naturally, prosecutors facing trials will be tempted to mobilize the leverage that extra years of incarceration provide to avoid the inspection stage altogether by forcing pleas.

In  Missouri v. Frye the Court  took belated note of this fact, recognizing a right to counsel in plea bargaining in part  because “longer sentences exist on the books largely for bargaining purposes."

“This often results in individuals who accept a plea bargain receiving shorter sentences than other individuals who are less morally culpable but take a chance and go to trial.” the Court continued.

Each year of incarceration that your prosecutor is now deploying to avoid trial inspection costs at least $40,000, and the money comes from the Corrections Commissioner’s budget, not from the prosecutor’s.

Each year in jail amounts to a $40,000 unfunded mandate, and it forces trade-offs in expenditures for education, for health, and for everything else. That isn’t the prosecutor’s problem: he has a blank check which buys as much leverage as he likes.

He can spend your money to avoid his trials.

The proposed "Swiftian" solution: To "divide American prosecutors into two separate and independent offices." The office responsible for trying cases would be dissociated from

an office of solicitors, who handle the misdemeanors, prepare the serious cases and determine how many years of incarceration the taxpayers will fund to punish, incapacitate, and rehabilitate each offender.

If they can dispose of a case for the price they’ve set, they will dispose of the case. If they can’t, they will pass it on to the second office, an office of barristers, who try the felony cases in court when they have to be tried.

For my part, if we're considering such radical reform, I might suggest instead (or perhaps in addition to) following the lead of the British Crown Prosecution Service, where attorneys may serve as prosecutors one day and defense lawyers the next. To me, the problem is not the prosecutorial function so much as an entrenched prosecutorial culture and mindset that leads to tunnel vision and politicized justice.

Second, a reader saw a past Grits post suggesting prosecutorial misconduct reforms including requiring judges to name prosecutors in orders when there are Brady violations or other misconduct. This reader sensibly suggested pursuing a bill that would "Require the clerk - not the judges -to insert on all orders the names and State Bar Card Numbers of all prosecutors and defense lawyers." Our friend continued, "In civil cases, the lawyer who drafts an agreed motion and/or agreed order does this anyway, so it won't be a stranger to anyone in any county clerks' office or district clerks' office." Excellent point.

Scheck: Better remedies needed on prosecutor misconduct

Barry Scheck of the national Innocence Project (with whom, in the interest of disclosure, my employers are affiliated through the national Innocence Network) has an  op-ed in the Austin Statesman today titled, "Errant prosecutors seldom held to account." Wrote Scheck, "as a recent article in the Yale Online Law Review thoroughly documents, our system rarely disciplines, much less brings criminal charges against, prosecutors who have engaged in acts of intentional misconduct. Far too often, prosecutors, who wield enormous power over our lives, aren't investigated at all, even for intentional misconduct that has led to a wrongful conviction, much less 'harmless' intentional misconduct in cases in which the defendant was guilty."

Incidentally, the Yale Online Law Review essay Scheck mentioned is an especially effective discussion of prosecutorial misconduct and its oversight, or the lack thereof. Here's a sample from their description of the dilemma:

What little evidence we do have indicates that prosecutorial misconduct is a serious problem. A 2003 study by the Center for Public Integrity, for instance, found over two thousand appellate cases since 1970 in which prosecutorial misconduct led to dismissals, sentence reductions, or reversals. Another study of all American capital convictions between 1973 and 1995 revealed that state post-conviction courts found “prosecutorial suppression of evidence that the defendant is innocent or does not deserve the death penalty” in one in six cases where the conviction was reversed. Other scholars and journalists have also documented widespread prosecutorial misconduct throughout the United States.

Available statistics significantly underreport the extent of prosecutorial misconduct, not only because of the empirical challenges discussed above, but also because courts have embraced a “harmless error” standard when reviewing criminal convictions. In order to win a reversal, a defendant must not only prove misconduct, but must also show that the misconduct substantially prejudiced the outcome of his or her trial. Courts can therefore avoid making a finding of misconduct altogether by finding that the alleged error, even if proven, was harmless. By reducing the likelihood of reversal, the harmless error standard substantially weakens one of the primary deterrents to prosecutorial misconduct. Knowing that “minor” misconduct is unlikely to jeopardize a conviction on appeal, prosecutors may be more likely to bend the rules in the pursuit of victory.

There is an obvious need for an effective check on prosecutorial misconduct. Yet, as this Essay will show, no such check currently exists. (Citations omitted.)

Returning to Scheck's column, he recited some Texas data Grits has adumbrated in the past, then asked, "What can be done to reform the system? One remedy, civil litigation, is increasingly unavailable. Last year, the U.S. Supreme Court in Connick v. Thompson severely limited the ability of wrongfully convicted plaintiffs to hold a district attorney's office accountable for intentional acts of misconduct by line prosecutors."

Arguing to limit the absolute immunity from civil liability presently afforded prosecutors, Scheck added, "While we all agree that prosecutors juggle enormous responsibilities and should not be gratuitously second-guessed, it's worth noting that no other profession with so much power over life and death enjoys anywhere near this level of immunity from civil liability for intentional misconduct — not doctors, not other lawyers, not police officers, not teachers, not construction workers, not farmers." He then echoes a point made by UT law prof Jennifer Laurin that the external controls the courts say should substitute for civil liability are largely dysfunctional:

What about internal systems that the district attorney groups claim will prevent misconduct? With a handful of exceptions — primarily offices that have "conviction integrity units" designed to address miscarriages of justice and misconduct — most prosecutors do not have written internal guidelines for differentiating between error and misconduct, audits of old cases handled by line prosecutors and supervisors who commit acts of misconduct, or processes for doing root-cause analysis when there is significant finding of error or misconduct by courts — quality assurance and control protections we routinely require in hospitals, financial institutions and factories.

Similarly, relying on judicial monitoring and reporting of misconduct has been a failure. In California, where judges are required by law to report prosecutorial misconduct to the State Bar when it results in reversal of a conviction, a study by the Veritas Initiative shows that over a 10-year period involving 159 reversals, not one case was referred by judges to the State Bar.

The column closed suggesting a few other possible remedies for prosecutorial misconduct besides expanded civil liability: "Solutions discussed include developing better internal systems to deal with misconduct, greater oversight from the disciplinary arms of state bar associations, better reporting of misconduct from judges with better systems for dealing with their complaints, and the creation of an independent state agency with the authority and resources to investigate allegations of prosecutorial misconduct."

MORE: The Statesman paired Scheck's op ed with one from Shannon Edmonds of the prosecutors' association, who argues that "Prosecutors rarely go wrong, should not be hindered."

See related Grits posts:

• Oddsmaker: When judge finds willful Brady violation, what are chances state bar will discipline?
• Blackwell: Texas state bar 'not set up to oversee prosecutors'
• Michael Morton, John Thompson highlight prosecutor misconduct forum
• Study: Prosecutor misconduct in Texas rarely disciplined
• Transcript of interview with Prof. Jennifer Laurin on prosecutorial oversight
• Professor Jennifer Laurin previews forum on prosecutorial misconduct
• Why aren't prosecutors held accountable when courts find knowing misconduct? 
• Eliminate judge-made immunity for prosecutor misconduct
• SCOTUS seems indifferent to prosecutorial misconduct
• Legislature should limit immunity for sleazebag prosecutors like Charles Sebesta
• A 'perverse' position on prosecutors fabricating evidence ... from the Obama Administration
• Prosecutors seldom disciplined for misconduct; can they be held liable in civil court?
• Prosecutors ask SCOTUS for 'absolute immunity' when fabricating evidence
• Prosecutorial hubris, entitlement, on display in recent cases
• Improving prosecutorial accountability
• What sanctions for prosecutors who cheat to win?
• What can the Texas Legislature do to reduce prosecutorial misconduct?

Oddsmaker: When judge finds willful Brady violation, what are chances state bar will discipline?

Here's your chance to play oddsmaker.

A judge in Denton County says two prosecutors withheld evidence and committed prosecutorial misconduct, banning the pair from his courtroom for the offense. Reported the Denton Record-Chronicle ("Two banned from Burgess' court," April 7):

A state district judge has banned two assistant district attorneys assigned to his courtroom from returning, ruling that they committed prosecutorial misconduct and don’t have “the innate intellect of a fifth-grader.”

Bill Schultz and Forest Beadle were working as family violence prosecutors, trying Silvano Uriostegui on a charge of aggravated assault with a deadly weapon in the 158th District courtroom of Judge Steve Burgess. After Burgess’ March 2 ruling that they willfully withheld exculpatory evidence from the defense — evidence that would have helped in his defense — Schultz was moved to the district attorney’s civil division and Beadle was moved into the 16th District Court.

Both men declined comment, citing policy to refer questions to the first assistant district attorney, who acts as spokeswoman for the department.

District Attorney Paul Johnson has defended the two prosecutors, and Jamie Beck, first assistant district attorney, said they were not disciplined but rather  counseled on the law as it pertains to the sections the judge ruled they violated during that trial. She said they would be required to take remedial courses in issues surrounding exculpatory evidence.

The prosecutors did not inform defense counsel that their star eyewitness had not, as earlier represented, positively identified the defendant, her husband, instead referring to the suspect as "he or she" and declaring she never saw a face.

The Record-Chronicle adds that the situation - though not a formal grievance - has been forwarded to the state bar:

Texas Disciplinary Rules of Professional Conduct provide that such conduct as the two prosecutors were found to have committed should be reported to the disciplinary council of the State Bar of Texas. Johnson, in a three-page letter to the council, wrote that he was satisfying that requirement but that he was not submitting a grievance against [prosecutors Bill] Schultz and [Forrest] Beadle. He defended their actions, stating that they did not intentionally withhold evidence.

If the conclusion of the Record-Chronicle account accurately portrays it, Judge Burgess sounds furious over the incident:

In his ruling on the writ of habeas corpus, the judge was detailed in his criticism of the way the evidence was handled.

“My jaw dropped to the ground when Mrs. Uriostegui testified the way that she did,” Burgess said in his ruling. “I was shocked. And for the state to actually know this and not disclose it, the only good thing I can say from this miserable hearing is at least Forrest Beadle told the truth and was not evasive and was straightforward. I don’t particularly like his answers, but he at least was honest.”

Burgess apparently was referring to notes Beadle made during the hearing that were subpoenaed by Amador that Amador was making another “[expletive] Brady motion.”

Burgess said that he could not fathom how someone who had been to law school and had practiced as long as Schultz and Beadle could not know they were violating rules of exculpatory evidence.

“And how disingenuous it is to get up here and testify that you don’t think that it’s Brady that the victim can’t identify by face or by anything other than smell and a boot who the attacker is ... ,” he said. “I’m going to have to ban both Mr. Beadle and Mr. Schultz from my courtroom. They’re not allowed to appear in this courtroom until I rule otherwise.”

Burgess said that it was particularly sad that the actions of the prosecutors robbed Maria Uriostegui of justice for the injuries she suffered. He found that the prosecutors goaded the defense into entering a plea bargain to avoid an acquittal in the case.

“A woman that was knifed nine times in the gut and elsewhere doesn’t get justice because nobody can read Brady, understand Brady, or has the innate intellect of a fifth-grader,” the judge said.

See the rest of the Record-Chronicle story for more detail.

My question: Given that the only prosecutor in memory publicly sanctioned by the state bar was Terry McEachern from the infamous Tulia drug stings - and that a recent survey of prosecutor misconduct findings by Texas appellate courts found no examples resulting in public state bar discipline - what are the odds the state bar publicly sanctions either or both of these prosecutors?

For my part, even if every jot and tittle of the judge's criticism is accurate, I couldn't go higher than 5% and would have a hard time justifying that number. Terry McEachern was disciplined because in that one case lightning struck, national and even international media honed in on the tiny South Plains community, and the activities he'd concealed of his undercover officer, Tom Coleman, were too well documented to ignore (largely thanks to mi amigos Nate Blakeslee and Jeff Blackburn, to give credit where it's due). So much attention had been drawn to the case IMO that the state bar disciplinary committee felt they would discredit themselves if they didn't act. But the system shouldn't require the case to be the subject of a 60 Minutes segment or a BBC documentary before the state bar mandarins decide to rein in rogue prosecutors. As a starting point, when judges tell them prosecutorial misconduct is going on in their courtroom and the elected DA's response is to move alleged Brady violator to another court, that should send up enough red flags to warrant a fuller investigation, even if the prosecutors' boss didn't submit a formal grievance.

Michael Morton, John Thompson highlight prosecutor misconduct forum

It was a privilege to meet exonerees Michael Morton and John Thompson in person at yesterday's UT law school event on prosecutorial oversight. It's an incredible honor that my job with the Innocence Project of Texas affords me the chance to meet so many exonerees, and I'm always especially humbled by those like Thompson who've endured this sort of life tragedy and react by attempting to improve the system that betrayed him. He struck me as an energetic reformer and a good guy.

Though both men have endured unspeakable nightmares, in Mr. Thompson's case the courts added insult to injury. Louisiana doesn't have a compensation law for exonerees like we passed in Texas. So after he was framed by the New Orleans DA's office, spent 18 years in prison (14 on death row), then was exonerated thanks to DNA and exculpatory evidence concealed at his first trial, Mr. Thompson filed a federal civil rights suit, winning a $14 million verdict which was affirmed by the Fifth Circuit, only to have it overturned by the US Supreme Court in Connick v. Thompson last year. (See Prof. Jennifer Laurin's description for more detail.) That compensation law is one thing Texas does right compared to other states.

The event was informative, but I also agree with local attorney Don Dickson who sat next to me and wrote on Facebook that "The presentation itself was kinda discouraging. It's very clear that the difficulty of addressing prosecutorial misconduct is surpassed only by the difficulty in discovering it in the first place." That's particularly true of so-called Brady violations, or failures to disclose exculpatory evidence, where the defense and judges cannot as a practical matter know what prosecutors have hidden from them. Of course, I do think there are things that can be done legislatively to retard if not eliminate prosecutorial misconduct, but in the wake of Connick v. Thompson, the existing landscape on oversight of prosecutors is pretty bleak.

I'll write up my own notes from the event over the weekend, but here's some of the initial MSM coverage from yesterday's forum, most of which so far has focused on Michael Morton's case as opposed to the broader issues, as well as a two-part interview with Michael Morton in the Austin Statesman:

• KXAN-TV: Morton talks prosecutor accountability
• KVUE-TV: Exoneree Michael Morton shares his story at UT
• MyFoxAustin: Michael Morton speaks at UT law school
• MYFoxAustin: Interview with Jennifer Laurin 
• Daily Texan: UT Law hosts forum to discuss prosecutorial oversight
• Austin Statesman: Morton describes painful fight for freedom, how he started anew
  
• Austin Statesman: Morton can look back on pain and prison but lives in peace
  
• Austin Statesman: Michael Morton video interview parts one and two.

The Texas Tribune and the Austin Chronicle should also have coverage before long, since Brandi Grissom and Jordan Smith were both at the event; I'll link to those when they're up.

Special prosecutor in Michael Morton court of inquiry is Rusty Hardin

The stakes for Williamson County District Judge Ken Anderson just got a lot higher with this news, via the Texas Tribune:

Houston criminal defense lawyer Rusty Hardin will be the special prosecutor in the court of inquiry looking into possible misconduct in the case of Michael Morton, who was wrongfully convicted in 1987 of bludgeoning his wife to death.

This won't be Hardin's first high-profile case. The former Harris County prosecutor has represented Roger Clemens, J. Howard Marshall's estate in the Anna Nicole Smith lawsuit, and, during the Enron scandal, accounting firm Arthur Andersen.

Tarrant County state district Judge Louis Sturns will lead a court of inquiry to investigate allegations of criminal prosecutorial misconduct against former Williamson County District Attorney Ken Anderson, who saw to the wrongful murder conviction of Michael Morton. 

Hardin is a major-league legal talent, a respected crime victims' advocate, and a man widely recognized as one of the top criminal-law attorneys in Texas. If Judge Anderson wasn't taking the Court of Inquiry process seriously before - and that's been my sense - you can bet your bottom dollar he is now. As Patti Hart at the Houston Chronicle pointed out, "A former Harris County prosecutor, Hardin is no stranger to taking on public officials. In 2009, he represented a woman who accused former U.S. District Judge Samuel Kent of sexual harassment. Kent was impeached and sent to prison." This Court of Inquiry is shaping up to be quite a dramatic event.

MORE: From Pam Colloff at Texas Monthly.

Plea deals without open files turn off ignition on adversarial system's truth-seeking engine

An exchange between judge and defendant during a guilty plea out of Williamson County in a remarkable, 33-year old murder case caught Grits' attention.

Benny Tijerina was sentenced to concurrent 40 year sentences in Williamson and McLennan counties for the crimes, though he claims and a victim's mother agrees that another man was the shooter (the prosecutor claimed to have jailhouse informants who say otherwise). Anyway, as cold cases solved by DNA go, this was at once both a remarkable and increasingly a routine event.

What caught Grits' eye was an exchange recorded at the end of the Austin Statesman story: "After he was sentenced, Tijerina asked [Judge] Carnes why he hadn't been allowed to see any of the evidence against him in the case. Carnes said that was standard and that Tijerina would only have seen the evidence if the case had gone to trial."

That's true as far as it goes under the US Supreme Court's Brady v. Maryland ruling, but it's also a "standard" that shifts in Texas county by county at the whim of the local elected prosecutor. In Tarrant County, for example, defense attorneys have access to prosecutor files - electronically, no less - even in cases that result in plea agreements. In El Paso, too, DA Jaime Esparza told a conference at the Task Force on Indigent Defense that his office allows defense counsel to get access to case files within 24 hours, noting that it facilitated more routine cases getting disposed of within three days or less, reduced jail costs, overcrowding and liability, relieved court dockets, and even freed up space in the jail that's now leased out to house federal inmates and make extra money.

We live under a justice system where 98% of cases result in plea bargains instead of trials. Under the Williamson County rule, in the overwhelming majority of cases nobody outside the prosecutor's office ever actually vets the evidence before a sentence is dispensed. If the adversarial system is a truth seeking engine, in 98% of felony cases the engine's ignition switch remains locked in the "off" position under that "standard."

According to the Texas Office of Court Administration's annual report (pdf), "Less than two percent of all criminal cases (excluding transfers and motions to revoke probation) went to trial in 2010" in district (felony) courts. Just 3,633 felony cases in FY 2010 went to either jury or bench trials, says OCA. So in the overwhelming majority of cases, under the Williamson County system, the defense never sees the evidence.

I have no knowledge of the case beyond this report from the Statesman and don't argue with the sentence(s), but that exchange between defendant and judge about what is "standard" in Williamson County - and too many other Texas courtrooms - should raise alarm. The same sort of prosecutorial gamesmanship takes place in more routine cases all the way down to the misdemeanor level. Make Grits philosopher-king and I'd prefer that, as in El Paso and Tarrant, both sides had full access to the police investigation as early in the process as possible. Clearly some DAs - like Williamson's John Bradley - just won't do that unless they're required, so in the interests of justice the Legislature should make them.

Judge: Court of inquiry to proceed investigating prosecutor misconduct in Williamson County

Remarkable! Judge Sid Harle has recommended a Court of Inquiry (see more background on this unique, Texas proceeding) regarding whether then-Williamson County DA Ken Anderson (today a District Judge) broke any laws by concealing evidence in the Michael Morton murder case 26 years ago. See:

• Your News Now Austin: Judge orders court of inquiry to gauge Anderson's misconduct
• Austin Statesman: Former district attorney should face court of inquiry in Morton prosecution, judge says
• Austin Chronicle: Ken Anderson should face court of inquiry in Morton case
• Houston Chronicle: Judge recommends inquiry into wrongful conviction
• KXAN-TV: Yes on court of inquiry in Morton case
• LA Times: Texas judge orders inquiry into wrongful conviction case
• KVUE-TV: Former prosecutor in Morton case now to face his day in court
• Texas Tribune: Judge asks for court of inquiry into Morton prosecutor
• Innocence Blog: Texas judge recommends court of inquiry on prosecutorial misconduct in Morton case
• Wilco Watchdog: Court of Inquiry to be held on Morton wrongful conviction

For much more detailed background on the allegations which led to the decision, see the report (144-page pdf) from Morton's defense team alleging prosecutorial misconduct based on their unusual, court-approved post-exoneration investigation.

Dallas DA defies court order, refuses to reveal police criminal histories

The Dallas DA last week refused to comply with a court order to turn over criminal histories of police officers, the Dallas News reports this morning (behind paywall), resulting in a contempt order and a contentious appeal:

The Dallas County district attorney’s office is battling a judge over whether prosecutors should routinely research and disclose the criminal histories of police officers who testify.

Criminal Court Judge Julia Hayes has on at least two occasions in recent weeks ordered prosecutors to determine the criminal background histories of police officers testifying in her misdemeanor court so that the information can be shared with defense attorneys. The district attorney’s office has refused, saying the law forbids handing over the information.

Hayes ordered a prosecutor held in contempt for refusing to comply with her order. In response, the DA’s office on Friday petitioned the 5th District Court of Appeals in Dallas to compel Hayes to withdraw the order about the records of officers.

Hayes, a Democrat in her first term, and public defender Elizabeth Perry, who is representing a defendant charged with family violence, declined to comment.

Defense attorneys say they worry that the law allows prosecutors to hide the background of police officers.

Defense attorney J. Michael Price II said that prosecutors already run the records of civilian witnesses and jurors and that he doesn’t see a difference in including officers.

“I think truthfully, they don’t want to run them because they don’t want to be in the position of finding that dozens of officers or more may have criminal backgrounds,” Price said.

The DA's Office, though, says the feds won't allow them to perform such searches:

A September 2001 letter from the U.S. Justice Department that prosecutors attached to their petition said that producing the records — even under a court order — violates federal law because it is an invasion of privacy. The letter was written to the Texas Department of Public Safety after a court order requested similar information in another Texas county.

The letter says that there is a difference if a criminal history already exists in the prosecutor’s case file. But the courts cannot compel prosecutors to create the information.

 I must confess, when we're talking about information in possession of the state, I don't see much difference in whether the info is in a database or in the prosecutor's file. It's well-established law that the state may commit a "Brady" violation, for example, even if law-enforcement never shared the information with prosecutors. And if it's true (as I'm almost sure is the case) that prosecutors run criminal histories of other witnesses, I don't particularly understand why police witnesses should get a pass.

Also, it's interesting that the letter in question is from September 2001, since almost immediately after that the feds began scaling back privacy restrictions and allowing much more widespread sharing of data among law enforcement in the wake of the 9/11 attacks. And I'm surprised, if the DA's position is accurate, that there's not a prior appellate case on point  as opposed to some decade-old administrative memo.

Should police officers' criminal history be revealed to defense attorneys? If not, why not? And what criteria might distinguish police from other witnesses for whom prosecutors routinely run criminal histories?

Williamson County prosecutors playing defense

Williamson County District Judge Ken Anderson, reports Chuck Lindell at the Austin Statesman, filed a brief with the court which "accused [exoneree Michael] Morton's lawyers of employing falsehoods, incomplete facts and an incorrect reading of trial records to accuse Anderson of hiding evidence that could have spared Morton from a receiving a life sentence for a crime he did not commit." See Anderson’s brief here (pdf) and accompanying exhibits here (pdf).

Meanwhile Williamson County DA John Bradley is reportedly out blockwalking for his campaign, just as Wilco Watchdog has discovered the internet treasure trove that is the incumbent's collection of 7,500+ posts at the Texas District and County Attorneys Association's user forum, posting a comparison of Bradley's public media statements about disclosing exculpatory evidence with his running commentary among friends on the TDCAA site. My favorite bit: In a brilliant moment of understatement, one forum user responded to Bradley's authoritative disdain for handing over exculpatory evidence with the observation, “The contention that there is no constitutional obligation to turn over exculpatory evidence when the defendant pleads guilty seems highly dubious.” Dubious, indeed! Regrettably, the blogger doesn't provide permalinks for the quotes, though I'd read most or all of it before. See the full Watchdog post for more.

For those who haven't seen it, if you're a regular Grits reader and are interested in the topics this blog covers, I encourage reading the TDCAA forum purely for its entertainment value, as evidenced by the quotes pulled out by the Watchdog. (Their site appears to be inexplicably down, hopefully not in order to expunge years of dialogue as a result of the Watchdog's post!) A lot of interesting discussions happen at the TDCAA user forum on subjects I don't see addressed anywhere else, for good and sometimes for ill. One caveat: Before ever quoting the forum, as the Watchdog did, always get a screen shot or cut and paste the string into a separate document. Mr. Bradley in particular, but other forum participants, too, have been known to change or delete comments when they were cited in the media.

The primary battle for Williamson County DA this year is shaping up to be a real hoot!

See related Grits posts:

• As predicted: State bar dismisses grievance against John Bradley from Morton case
• Justice and Prosecutorial Misconduct
• Triumph or Tragedy? Drawing meaning from the Michael Morton exoneration
• Roundup: Coverage of prosecutorial misconduct in the Michael Morton case
• Holding judges accountable for past misconduct: William Adams and Ken Anderson
• Roundup of Williamson County prosecutorial misconduct fiasco
• On the road to Damascus: The conversion of John Bradley
• Editorials: Weak state bar has failed in oversight role on prosecutor misconduct
• Bradley, Anderson engaged in 'heated discussion' after Michael Morton exoneration
• CYA meetings helped prosecutors, investigator prep for critical depositions
• Nuther Brady violation from Williamson DA's office
• Current, former prosecutors in Williamson, Harris Counties forced to testify about alleged misconduct
• Pushback by prosecutors prevent exposure of 25-year old secrets in Morton case 
• 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

Exculpatory forensics not disclosed to defense in capital salt poisoning case

Via Food Safety News, Pam Colloff at Texas Monthly has a new story out this month about Hannah Overton, sentenced to life without parole for allegedly poisoning her child with large quantities of salt, questioning the conviction based on forensic evidence about stomach contents that wasn't turned over to the defense:

Dr. Michael Moritz, clinical director of pediatric nephrology at Children's Hospital in Pittsburg, is a specialist in children's kidney diseases. According to Texas Monthly, he published a seminal paper on salt poisoning in 2007.

Moritz was brought in when Cynthia Orr, Overton's appellate attorney discovered the records of Burd's stomach contents not previously disclosed to the defense. They showed salt levels were not elevated with the boy arrived at the urgent care clinic.

In his earlier research, Moritz found children who accidentally ingest too much salt often fit a narrow profile, living in the foster system or being from abusive homes, and suffering from a disorder known as pica.

While Burd was depicted by Texas prosecutors as being a "normal" four-year-old boy, TM's Pamela Colloff provides extensive biographical details on the Overtons and the foster boy they wanted to adopt that tell otherwise. Andrew's adoption supervisor suspected the boy had pica, an eating disorder.

It involves eating largely non-nutritive substances, sometime including clay or chalk or other materials.

Moritz said the stomach contents report is evidence no murder was committed.  "If someone was trying to murder Andrew, they would have restrained him and prevented him from drinking water, " Moritz's affidavit says.  "The very dilute gastric sodium contents suggest...that he had unrestricted access to water."

Moritz goes on to say: "There is not a single piece of evidence which suggests that Hannah Overton salt-poisoned Andrew."  He says it is far more likely Andrew "salt-poisoned himself."

Currently again on appeal to the Texas Court of Criminal Appeals, Overton's conviction was made possible by jury instructions.  It made no difference whether Overton forced the boy to eat salt or he did it on his own and she failed to get him timely medical attention.

Read Colloff's whole story here.

As predicted: State bar dismisses grievance against John Bradley from Morton case

Grits is shocked, shocked I tell you that the state bar announced it has dismissed the ethics complaint filed against Williamson County DA John Bradley stemming from alleged prosecutorial misconduct in Michael Morton's false conviction, a development the Austin Statesman reported today. Except ... oh yeah ... Grits predicted earlier the state bar "almost certainly" wouldn't do anything. As pointed out then, "The State Bar didn't even discipline a [former] DA or judge from Collin County after the prosecutor admitted in a deposition they'd been sleeping together during a capital murder trial." If that won't get a prosecutor sanctioned, how could one expect action stemming from the Michael Morton exoneration?

I'm not a lawyer, but to me Bradley calling in all the prosecutors involved for a meeting to review evidence before their depositions (unbeknownst at the time to Morton's attorneys) struck me as straight up evidence tampering, giving the alleged perpetrators an opportunity to get on the same page and get their story straight while muddying independent recollections. The state bar, though, apparently said that was okay by them.

Granted, the complaint against Judge Ken Anderson may be stronger on the merits, if potentially hindered by a statute of limitations, but Bradley's politically convenient, belated, and half-hearted mea culpa doesn't mitigate the fact that he fought for years to keep Judge Anderson's misconduct from being exposed, mocking Mr. Morton's innocence claims while obstructing every possible avenue for proving them. If that wasn't technically unethical according to state bar rules, it certainly was heartless and fundamentally antithetical to the prosecutor's oath to seek justice, not convictions.

Examples like this have convinced your correspondent that the Legislature must find some way to beef up sanctions for prosecutorial misconduct and/or implement preventive procedures, e.g., mandating open prosecution files. The courts won't do it, and it's wholly evident the legal profession is incapable of policing itself on questions of prosecutorial misconduct.

See related Grits posts:

• Justice and Prosecutorial Misconduct
• Triumph or Tragedy? Drawing meaning from the Michael Morton exoneration
• Roundup: Coverage of prosecutorial misconduct in the Michael Morton case
• Holding judges accountable for past misconduct: William Adams and Ken Anderson
• Roundup of Williamson County prosecutorial misconduct fiasco
• On the road to Damascus: The conversion of John Bradley
• Editorials: Weak state bar has failed in oversight role on prosecutor misconduct
• Bradley, Anderson engaged in 'heated discussion' after Michael Morton exoneration
• CYA meetings helped prosecutors, investigator prep for critical depositions
• Nuther Brady violation from Williamson DA's office
• Current, former prosecutors in Williamson, Harris Counties forced to testify about alleged misconduct
• Pushback by prosecutors prevent exposure of 25-year old secrets in Morton case 
• 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

 And more generally on the subject of prosecutorial misconduct:

• Why aren't prosecutors held accountable when courts find knowing misconduct? 
• Eliminate judge-made immunity for prosecutor misconduct
• SCOTUS seems indifferent to prosecutorial misconduct
• Legislature should limit immunity for sleazebag prosecutors like Charles Sebesta
• A 'perverse' position on prosecutors fabricating evidence ... from the Obama Administration
• Prosecutors seldom disciplined for misconduct; can they be held liable in civil court?
• Prosecutors ask SCOTUS for 'absolute immunity' when fabricating evidence
• Prosecutorial hubris, entitlement, on display in recent cases
• Improving prosecutorial accountability
• What sanctions for prosecutors who cheat to win?
• What can the Texas Legislature do to reduce prosecutorial misconduct?

See also the report (pdf) by Morton's attorneys on proseuctorial misconduct in the case and a deposition (pdf) of Bradley former appellate chief who worked on the Morton case, current Williamson County Court at Law Judge Doug Arnold.

MORE: From Simple Justice where, reacting to this case, Scott Greenfield accused the Texas state bar and Supreme Court Justice Clarence Thomas of "horseradish vision."

'Justice and Prosecutorial Misconduct'

Today's New York Times includes a staff editorial focused on Judge Ken Anderson's role in Michael Morton's false conviction out of Williamson County. Opined the Times, "While this process is an urgent matter for Mr. Morton, it is also a test of American justice — whether a prosecutor who flouts his duty under the Constitution to disclose crucial evidence to a defendant is subject to any meaningful sanction." They acknowledge, though, that it's a test that's been long-ago, many-times failed, as "bar associations hardly ever punish this behavior; judges seldom discipline prosecutors for such violations; and criminal sanctions are rarely imposed against prosecutors."

The Times recommends that "Courts should more closely supervise prosecutors by using pretrial conferences  where prosecutors must say what they are disclosing under the Brady rule and what they are withholding. Prosecutors must understand that they will be held accountable — with strong criminal sanctions — when they violate their constitutional duties." Criminal sanctions, to me, though, are mostly pointless because there's no one except the DA's offices themselves with jurisdiction to prosecute such cases and no incentive for them to do so aggressively. OTOH, I like the pretrial conference idea, and will henceforth add that to the grab bag of suggested legislative solutions which Grits has been compiling on the subject.

'Beyond DNA': Innocence focus in Dallas shifting to non-DNA cases

There's an excellent piece in the Dallas Observer this week (Dec. 29) by Leslie Minora titled "Beyond DNA, Difficult Tests for the Justice System," which brings readers up to speed on a pair of non-DNA exonerations in Dallas this year and the future of innocence cases. Particularly troubling was the case of Dale Duke, who accepted a no-contest plea on a 1992 sexual assault he always denied in order to stay out of prison, but

In an Orwellian twist, prosecutors brought Duke back to court in 1997 and claimed he did not complete the treatment program. In effect, Duke violated the terms of his probation by not admitting to a crime he didn't commit. Duke took a Tuesday off work as a customer-service assistant at Eckerd to appear in court. He never returned to that job. The judge revoked his probation and saddled him with a 20-year prison sentence.

Watkins' Conviction Integrity Unit found corroborating evidence for Duke's innocence claims in their files that had never been turned over to the defense, which was the basis for overturning his case. The judge ruled that, with the evidence prosecutors concealed back in 1992, no reasonable jury would have convicted him. Though four of the 17 exonerations under DA Craig Watkins have been non-DNA cases, former public defender

Michelle Moore worries that the unit's gears are sticking and cases that could be moving forward more quickly are stalled. "I think I see the tendency now to be overly cautious and it's to the detriment of the innocent man," she says.

"I get that sometimes it's not as clear-cut as a simple DNA test, because that's a gold standard, but there are cases ... where there should be some things happening," she says, though she wouldn't mention any specifically, fearing they would take even longer. "[Russell Wilson] is a very well respected attorney; he's the nicest man on the planet. I just want to see more action," Moore says.

Granted, she concedes the system would naturally slow down as the DNA cases thin out and the question of guilt or innocence becomes thornier and more subjective. "I'll be honest with you: We took the easiest cases first, the ones we could prove definitely by DNA testing," Moore says, but she's still concerned that the Conviction Integrity Unit is simply not visiting prisoners, administering polygraphs and calling victims as expediently as it once did.

Grits has said in the past that non-DNA case are "the future of the innocence movement," and this article aptly explains why. DNA exonerees, Minora points out:

occupy a troubling time in criminal justice history. Their arrests, and the arrests of nearly all of the Dallas County exonerees, occurred from the early 1980s to the early 1990s. In this decade-long window, DNA samples were collected because blood-type testing was available, but the samples were not tested with the technological acumen that's been developed since.

Starting in the mid-1990s, the testing of DNA evidence became standard protocol, meaning the number of incarcerated people who can be exonerated by previously untested DNA evidence is finite, with few exceptions.

Tis true. In most older cases, DNA either wasn't collected or wasn't kept, and it only exists in the first place in around 10% of violent crimes. In essence, DNA provided the equivalent a statistical sampling of innocence cases and a unique window into their causes.

"Now we've shown that there are wrongful convictions, so now our conversation can be extended to eyewitness identification, investigative techniques, even prosecutorial misconduct, the culture of district attorney's offices ... and our failure to live up to the code of criminal procedure," seeking not only convictions, but justice, Watkins says.

Williamson County DA John Bradley raised his head out of his electoral foxhole long enough to put a devilish spin on the quest for non-DNA exonerations. He:

said as more DNA cases are resolved and there are fewer of them, organizations like the Innocence Project must take on new kinds of cases. "We have an Innocence Project, therefore there must be innocent people," he says, leading up to his point that "just as we sometimes wrongfully convict a person, sometimes we wrongfully exonerate a person."

Ironically, given that Mr. Bradley is commenting on it, in the near term, prosecutorial misconduct - particularly withholding exculpatory evidence, as notoriously occurred in the Michael Morton case on his predecessor's watch - may be the quickest route to exoneration. That's what got Mr. Duke out.

Besides so-called "Brady violations," though, the concern was expressed by others, IMO accurately, that "DNA evidence may have raised the bar to a level too often unattainable by cases without it." Certainly there are still categories of non-DNA cases to mine for valid innocence claims. An examination of arson cases by my employers at the Innocence Project of Texas and the state fire marshal, initiated at the recommendation of the Forensic Science Commission, could discover false convictions based on flawed forensics testimony. Nobody has thoroughly vetted (nor to my knowledge, even identified) the 2,000 or so cases where former Fort Bend Sheriff's Deputy Keith Pikett claimed to have used his dogs in "scent lineups." And there are other similarly discrete categories of cases to explore.

But looming over all such cases, and indeed, though unstated, over this entire article, was a decision by the hard-line wing of the Texas Court of Criminal Appeals this summer in Ex Parte Robbins, in which the court overtly realized fears that DNA "raised the bar" for exoneration too high. Particularly in cases centered around bad forensics, the Legislature will likely need to adjust the habeas statutes for anyone to actually make use of them in junk science cases.

So I agree, the future of the innocence movement must inevitably move "beyond DNA," and on the policy side in Texas where I work, it has, with the passage of eyewitness ID legislation and requiring corroboration for confidential informants, in particular. But those are front-end fixes. On the back end, access to DNA testing has been expanded and the Lege has provided compensation for exonerees. But after Ex Parte Robbins, there likely needs to be a separate legislative fix before the courts will be able or willing to act on significant numbers of non-DNA "actual innocence" habeas corpus claims - particularly regarding junk science, from arson cases to dog-sniffs - however valid or compelling.

Holding Texas judges accountable for past misconduct: William Adams and Ken Anderson

Quite a few readers contacted Grits a couple of weeks ago asking if I planned to comment on the Aransas County family law judge who was videotaped beating the living crap out of his then-16 year old daughter for illegally downloading music. She made the video in 2004 before releasing it in retaliation earlier this month when he threatened to cut her off financially (revenge, unlike grits, is best served cold). Grits refrained, mainly because the topic was being widely discussed by others more effectively than anything I could have said, and I had nothing in particular to add to what was mostly a family-law discussion. (Besides, 3+ million people had seen the YouTube clip before I did; it hardly needed my promotion.) The video was horrendous, nearly unwatchable, far exceeding any acceptable fatherly punishment to surpass the threshhold to "abuse." But the statute of limitations had run out, the daughter is now 23 and no longer lives with her father, and most attorneys who've looked at the question, including the local DA, agreed there's no way to turn it into a criminal matter.

Even so, I was fascinated to learn via CNN that the State Commission on Judicial Conduct is not only investigating the old abuse allegations but has convinced the judge to accept a paid suspension while it does so:

Judge William Adams, who made national headlines after the release of a 2004 video of him beating his then-teenage daughter, has been suspended by the Texas Supreme Court.

Adams, while not admitting guilt or wrongdoing, agreed to the suspension. He will be paid during the suspension.

The judge's lawyer, William Dudley, said his client proposed the suspension motion with input from the state Commission on Judicial Conduct, which is investigating the incident. Adams already was on voluntary leave, Dudley said in a statement to CNN.

See the order (pdf) and the commission's public statement (pdf) in Judge Adams' case, and the commission's rules (pdf) for disciplining or removing judges. What interests Grits in particular are possible parallels to Williamson County District Judge Ken Anderson, the prosecutor in the Michael Morton case who 25 years ago apparently hid exculpatory evidence from both the defense and the court to convict an innocent man, allowing the guilty one to remain living free in Bastrop County for the intervening decades. Just as the statute of limitations has run out on any possible offenses in the video from Adams' years-ago incident, the statute or limitations on any prosecutorial misconduct in the 25-year old Morton case have also likely expired. But if the Commission on Judicial Conduct can investigate Judge Adams over old abuse allegations, and even facilitate his suspension while they do so, why can't or won't they do the same for Judge Anderson in Williamson County?

I've been told privately that, even though the statute of limitations on Adams' conduct may have expired, there's an argument to be made that the commission could pursue him under its constitutional authority to discipline judges who engage in "willful or persistent conduct that is clearly inconsistent with the proper performance of his duties or casts public discredit upon the judiciary or administration of justice." A family law judge who engaged in that kind of behavior in his own family life, the argument goes, willfully engaged in behavior that cast discredit on the judiciary.

Similarly, assuming withholding exculpatory evidence from the judge was a willful act (instead of an act of extreme, near-unfathomable incompetence), it's hard to argue that Judge Anderson's recently-revealed shortcomings aren't "inconsistent with the proper performance of his duties or casts public discredit upon the judiciary." If the Commission on Judicial Conduct found a hook to justify intervention on older charges in Adams' case, Judge Anderson's should be similarly fair game.

Ken Anderson hid evidence and misled the judge in perhaps the biggest trial of his prosecutorial career. His alleged misconduct was primarily responsible for a false conviction which ranks among the worst injustices in the state's history, threatening to elevate him to Mike-Nifong status in the pantheon of convict-at-any-cost prosecutors willing to cheat to win. He's an embarrassment to his county and his profession - yet he still sits on the bench in a Williamson County District Court, dispensing what passes for "justice" in that jurisdiction. Why? Anderson's past misdeeds weren't violent but they discredit any claim he might make to integrity or impartiality on the bench in much the way that Judge Adams' tumultuous family life discredits his family-law credentials.

Grits suspects Anderson himself has insufficient capacity for self-reflection or shame to himself contemplate stepping down; his failure to accept responsibility - apologizing for "the system" but insisting he himself was blameless - surely demonstrates that. But if the Commission can find a hook to go after Judge Adams regarding years-old charges, they should find a way to do the same thing in Williamson County. Much as with Judge Adams, every day Anderson remains on the bench taints and demeans not just the integrity of Texas' judiciary but the entire legal profession.

Opportunity for activism
Speaking of the Commission on Judicial Conduct, they're up for Sunset review along with TDCJ and the Board of Pardons and Paroles, and you can see their self-evaluation report here (pdf). (More soon analyzing that document.) Anyone frustrated with the impotence of judicial oversight in Texas should view the Sunset process as an excellent chance to suggest improvements to the process.

A Significant Ruling

Ted Oberg at Channel 13 did a report tonight on County Court at Law # 1 Judge Paula Goodhart granting a Writ filed Defense Attorney Brent Mayr in a B.A.T. Van case.

The long story short is that Brent took a case to trial earlier this year where his client was charged with D.W.I. and the results of an intoxilyzer from a B.A.T. Van were used in the trial.  The client was convicted and Brent filed this Writ on the grounds that the Harris County District Attorney's Office failed to turn over exculpatory evidence to him regarding the reliability of the vans.  In essence, the allegations of the Writ were Prosecutorial Misconduct that resulted in his client not receiving a fair trial.

Judge Goodhart granting the Writ is tremendously significant, because that means that she felt the facts of the case supported what Brent said in his Writ -- the Harris County District Attorney's Office withheld exculpatory evidence.  Regardless of what happens with the 185th Grand Jury, we now have an official ruling from a court that Pat Lykos' gang is definitely not shooting straight when it comes to the Rules of Evidence.

As I was thinking about the significance of this Writ being granted, it jogged my memory to an incident that had occurred earlier on in the Lykos Administration.  Apparently, allegations of withholding evidence favorable to a client isn't something exclusive to B.A.T. vans.

If you will recall, back in October of 2009, a hearing was conducted in a Child Abuse case where a Judge found that the District Attorney's Office had withheld Brady (exculpatory) material in trial.  At that point, although the Judge made the ruling, it was found to be "harmless" error because the trial was still proceeding.  Little ever became of the issue after the trial.

But another one of the similarities that I recalled from the 2009 trial was the role of a Whistleblower.

In the Child Abuse case, a Harris County D.A. paralegal named Kim Flores confirmed that exculpatory evidence had been withheld.  Ms. Flores suffered the same fate that Amanda Culbertson is currently going through.

Rather than be rewarded for bringing to light the D.A.'s Office's errors, she got fired (after she had turned in her resignation letter).

She wrote about it on the blog back in 2009.

At some point, I'm hoping that the folks around this county are going to take notice of the Lykosian method of dealing with Brady violations.  It is worth noting that thus far, there has been no statement from Lykos or her Council of Geniuses that condemn the hiding of exculpatory evidence.

At a minimum, I suppose that Kim Flores and Amanda Culbertson can at least start a support group for each other.

Bradley, Anderson engaged in 'heated' discussion following Michael Morton DNA exoneration

"On the day that the Texas Third Court of Criminal Appeals declared Michael Morton innocent," we learn at Wilco Watchdog, Williamson County "District Attorney John Bradley and Judge Ken Anderson (the first-chair prosecutor in the Michael Morton murder case) had a heated 'discussion' that could be heard through the walls of Anderson's office."

These and other enlightening details were revealed in the deposition of Mike Davis (pdf), second-chair at Michael Morton's false conviction 25 years ago, has been made public. Initial accounts sound like he threw his old boss Ken Anderson, now a Williamson County District Judge, under the bus. Again from the Watchdog, "Davis said he was 'shocked' that Anderson fought to keep from Morton's lawyers the statements made by Morton to investigators and that Anderson did NOT have an 'open file policy' involving case records." Here's an excerpt from the Texas Tribune's initial coverage filling in a little more detail:

Davis, who left the district attorney's office just days after the Morton case ended, said Anderson had a close working relationship with then-Sheriff Jim Boutwell. And he said Anderson prided himself on knowing all the details of cases that he tried, describing him as "a control guy" when it came to his investigations.

The transcript and other information, Davis said, should have been turned over to the judge and to Morton's attorneys. When he learned about the DNA evidence that exonerated Morton, Davis said he went to Anderson's office and confronted him about whether he had concealed the transcript outlining details of the attack young Eric Morton witnessed. "And he says, 'We turned it over,'" Davis said.

Davis also described a scene that unfolded in the Williamson County courthouse on the day that the Texas Court of Criminal Appeals exonerated Morton. Davis was in Anderson's courtroom, and he said current District Attorney John Bradley arrived and insisted on a meeting with Davis and Anderson in a back room. Anderson wanted to meet with Bradley alone, Davis said, and the two went into a separate room. "And Judge Anderson and Mr. Bradley had a discussion which was pretty loud," Davis said. "I could hear raised voices, but I couldn't tell what they were saying."

Davis contended he had no knowledge that anything was withheld from Morton's lawyers, and that he was disturbed to learn that information was allegedly supressed. "It troubles me greatly," Davis said.

Skimming the deposition (pdf), it looks like Davis put everything on Anderson, saying all murder prosecutions were his "baby," that decisions about what to disclose to the defense were totally Anderson's, describing him as a "control guy." Davis added that he was "surprised" by some of the things Anderson fought to prevent releasing, including the defendants own statements.  When Morton's attorney, Gerry Goldstein, ran through the list of withheld evidence later discovered in various sheriff and prosecutor files, Davis said in every case he believed it should have been turned over to the defense. The Williamson County Sun coverage quotes Davis as saying, " Mr. Anderson and I are not friends."

Add to this news the fact that Bradley later met with Judge Anderson, Davis' attorney and the amnemonic lead investigator in the case Don Wood to go over the evidence in detail prior to their depositions, and we're starting to get a more complete picture of the behind the scenes tensions playing out among these long-time political and professional allies as a result of Michael Morton's exoneration. I'm looking forward to reading Ken Anderson's deposition next week; unless he exhibits from the same amnesiac affliction suffered by Sgt. Wood, it promises to be a doozy.

MORE: From the Austin Statesman, the Texas Tribune, the Wilco Watchdog, and the Williamson County Sun.

UPDATE: The suspect in Christine Morton's murder identified through DNA has been publicly identified.

See prior, related Grits posts:

• CYA meetings helped prosecutors, investigator prep for critical depositions
• Nuther Brady violation from Williamson DA's office
• Current, former prosecutors in Williamson, Harris Counties forced to testify about alleged misconduct
• Pushback by prosecutors prevent exposure of 25-year old secrets in Morton case 
• 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?

CYA meetings helped Morton prosecutors, investigator prep for critical depositions

The plot has certainly thickened in the Michael Morton DNA exoneration out of Williamson County, with more evidence arising that prosecutors withheld evidence at the original trial and misrepresented forensic testimony by the medical examiner in their closing arguments. Further, it appears that all the key players convened last month at least twice in the wake of Morton's release to get their stories straight before they were deposed by Morton's attorneys.

According to the sworn deposition of former sergeant and Williamson County Sheriff's Office special investigator Don Wood, reports the blog Wilco Watchdog,  "There were two meetings convened by District Attorney John Bradley in October of 2011, during the time when Morton was being released from prison, apparently for the purpose of figuring out what happened regarding the evidence in preparation for any subsequent investigation. Wood attended both meetings, and John Bradley, Ken Anderson, and Mike Davis' attorney were present at the second meeting." Questions the Watchdog:

With impending depositions looming for Wood, Davis and Anderson, why would John Bradley call a meeting to get all the key players together around a table covered with documents if not to try to “refresh” everyone's memories around a common theme?  And who really called the meeting?  Did Bradley call it at the behest of Anderson or Davis?  And if Bradley truly was “investigating” the matter as he publicly proclaimed, why would he do it in such a way that he met with everybody at the same time in order to resolve conflicts in their memories? Why not interrogate people individually in order to ferret out inconsistencies and get to the real truth, the way a true and objective investigator would do it? ...

The Rosetta Stone which unlocks the real purpose within that second meeting involving Bradley, Wood, Anderson, Jernigan and Davis' attorney is really nothing more than common sense.  Why coordinate stories in a round-table discussion which was anything other than a real investigation?  If it wasn't an investigation, was it simply a document-organizing and coaching session?  The onus now falls squarely on Bradley to explain why he handled his “investigation” in this venue of communal cooperation and memory restoration.

The more serious issue to be addressed regarding this second meeting involves the known certainty that oncoming depositions would occur, and whether or not this synchronization of memories amounted to witness tampering.

Those are the exact the right questions to be asking. The meetings sound a lot more like CYA sessions than part of any "investigation." The Watchdog culled additional evidence from Wood's deposition indicating that prosecutors manipulated their trial strategy to avoid having to disclose exculpatory evidence in Wood's files:

Wood says he didn't find out he wasn't going to testify at the trial until two hours before it was scheduled to start and that Sheriff Jim Boutwell was to testify in his place. Wood said he reviewed with Boutwell all the evidence he had provided in the case. In the deposition, a major point is made regarding the fact that if Woods had testified, all of the documents he had generated would have to be turned over to the defense.

Three key pieces of evidence—the transcript of the recording about three-year-old Eric Morton's witness account of the murder, the message about the use of Christine Morton's credit card for a $1,000 purchase in San Antonio after her death, and the report of the green van parked behind the murder scene—were known to Wood, who says that the documentation regarding all of those items would have been entered into the case file in the records of the sheriff's department.

Extraordinary. To be clear, Wood himself didn't say he didn't testify to avoid turning over his notes. Skimming his testimony, Wood, who is 72, claimed to remember virtually nothing about the case, nor the two meetings with the DA's office last month. Frankly I'm amazed Wood could remember his route home from the deposition if his memory is really as bad as he portrayed. But that's unsurprising given the prep meetings with the DA's office. Unless you're willing to divulge overt misconduct in the case, "I don't remember" is about the only safe answer to many of the questions being asked. I bet Judge Anderson's and Mr. Davis' memories turn out to be similarly impaired.

Equally interesting was testimony from former Travis County medical examiner Robert Bayardo, who in the past has said he never took notes during autopsies for fear that defense counsel might subpoena them. Bayardo said he'd been "very much disturbed" when, during closing arguments, Ken Anderson argued that medical science firmly established Christine Morton's time of death as before Mr. Morton went to work that day. Adds the Watchdog, "This piece of now-discredited evidence was one of the most significant factors contributing to the jury's guilty verdict for Michael Morton." Bayardo "very much" agreed that "statements by the prosecutor on closing argument that contradict your very express testimony are not in any way a reasonable inference that can be made from [his] testimony."

On one hand, it's a bit hard to take testimony from either man seriously. Bayardo clearly wasn't concerned enough at the time to speak up about prosecutors' false inferences from his testimony, but now we're supposed to believe he was "very much" alarmed when it happened. Similarly, Mr. Wood could identify no medical reason his memory might be so shoddy, and could remember specific details about a recent vacation in Missouri, but claimed to remember almost nothing about the case or the two meetings with the DA's office last month. Frankly I don't buy it. Even so, between his testimony and Bayardo's a clearer picture is emerging of exactly how Michael Morton's false conviction occurred. I can't wait to see Anderson and Davis' deposition transcripts, which should shed much more light on key questions only hinted at by these two witnesses.

MORE:

• See Wilco Watchdog's detailed explication of Wood and Bayardo's depositions. 
• See Don Wood deposition by clicking here.
• See Dr. Bayardo sworn statement by clicking here.
• (UPDATE) More from Wilco Watchdog: And nothing but the truth? The John Bradley Revelation

Latest Dallas exoneration stems from recantation, withheld evidence

The Dallas News reports today (behind paywall) of yet another exoneration out of Dallas - this time based on  a years-ago recantation by the alleged victim and withheld exculpatory evidence. Wrote Jennifer Emily:

A man who went to prison rather than falsely admit that he was a child molester was freed Friday morning after 14 years behind bars.

State District Judge Susan Hawk said it was “unjust” that he had remained behind bars for years after his stepdaughter admitted she’d lied about the abuse.

Dale Lincoln Duke’s stepdaughter had recanted her claim of abuse in 1992, but at judge at that time apparently didn’t believe her. It was recently learned that the Dallas County District Attorney's office had withheld evidence during Duke’s trial which showed that the child's grandmother thought the child was lying.

After Duke plead no contest to the aggravated sexual assault charges, he was placed on probation, but sent to prison when he didn't admit to the abuse as part of his therapy. Duke, now 60, said Friday that he refused to confess to a crime he didn’t commit because the Bible says, “Do not bear false witness.” ...

The girl first recanted in 1998, but a judge who is no longer on the bench refused to release Duke. Then, in March, the DA's office discovered in their files a note saying that the child's grandmother believed the abuse allegation was false and that the girl's aunt had encouraged the lie.

In most Texas counties this would never have come to light. It's only happening in Dallas because DA Craig Watkins established his "Conviction Integrity Unit" to review old cases. Count this episode as yet another argument why there needs to be some mechanism for holding prosecutors accountable when they withhold exculpatory evidence. Congrats to Duke, his attorney Robert Udashen, and to Watkins' office for having the rare courage to expose errors instead of cover them up.