Updated: Ex Morton Prosecutor Loses Testimony Fight

Updated 11:50 p.m. 10/26/11

The Texas Court of Criminal Appeals late today denied a request from former Williamson County District Attorney Ken Anderson to keep him from providing testimony in an investigation of whether his office intentionally hid information that could have prevented the wrongful conviction of Michael Morton.

The justices denied Anderson's motion without a written order.

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Updated 1:15 p.m. 10/26/11

Lawyers for Michael Morton, the state's most recent DNA exoneree, urged the Texas Court of Criminal Appeals today to reject pleas from former Williamson County District Attorney Ken Anderson to halt their investigation into whether alleged misconduct by his office led to Morton's wrongful conviction.

John Raley, Morton's pro bono attorney from the Houston law firm Raley & Bowick, wrote in motions filed today that Anderson, who originally prosecuted Morton for his wife's murder in 1987, had no standing to challenge a subpoena requiring him to answer questions under oath. He objected to Anderson's claim that the Williamson County court has no jurisdiction in the matter.

Raley wrote that Anderson, now a state district judge in Williamson County, failed to prove that his deposition would place any undue burden on him or that it would in any way invade his personal or constitutional rights.

"He certainly has no 'privacy' interest in answering basic questions, truthfully and under oath, about the performance of his official duties," Raley wrote. "But to the extent he is concerned ... he has the same considerable shield that may be invoked by any non-party witness who is called upon to give sworn testimony in a criminal matter: to decline to answer any and all specific questions(s) by invoking his Fifth Amendment right to self-incrimination."

In the motion, Raley also wrote that former Williamson County Assistant District Attorney Mike Davis, who had previously objected to answering questions under oath, is now making arrangements to do so.

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Former Williamson County District Attorney Ken Anderson, who prosecuted Michael Morton for murder in 1987, today called on the state's highest criminal court to stop an investigation into whether alleged misconduct by his office led to Morton's wrongful conviction. 

The Texas Court of Criminal Appeals officially exonerated Morton this month after DNA evidence revealed that another man was likely responsible for the 1986 killing of his wife, Christine Morton. Morton was released after spending nearly 25 years in prison.

In an 80-page motion, an attorney for Anderson — who is now a state district court judge — told the Texas Court of Criminal Appeals that the court in Williamson County has no jurisdiction over the Morton case and called on the justices to halt the inquiry underway into alleged prosecutorial misconduct on Anderson's watch and to prevent him from giving testimony in a deposition conducted by Morton's lawyers.

In a separate motion also filed today, Anderson's lawyer, Round Rock attorney Mark Dietz, called the efforts of Morton's lawyers to get Anderson to testify "an undue burden" that "causes unnecessary expense, is brought for harassment, annoyance ... and as a fishing expedition for possible future litigation."

Morton's attorneys — John Raley of the Houston law firm Raley & Bowick and lawyers at the New York-based Innocence Project — allege that the Williamson County district attorney's office intentionally withheld a transcript in which Christine Morton’s mother told a sheriff's investigator that the couple’s 3-year-old son saw a "monster" who was not his father brutally attack his mother.

The defense attorneys also claim prosecutors withheld information about Christine Morton's credit card being used and a check being cashed with her forged signature days after her death.

A two-page agreement dated Oct. 2 between current Williamson County District Attorney John Bradley and Morton's lawyers provided that Morton would be released from prison based on the DNA evidence. It also specified that after Morton's official exoneration by the Court of Criminal Appeals an investigation would continue for another 30 days into the allegations that prosecutors withheld exculpatory information. The agreement specifically called for the depositions of Anderson, former assistant prosecutor Mike Davis and former Williamson County Sheriff's Office Sgt. Don Wood, the lead investigator in the original case.

Morton's lawyers filed subpoenas to force Anderson, who was the district attorney at the time of Morton's 1987 trial, and Davis to testify and to provide documents related to the case. Anderson and Davis both filed motions to quash the subpoenas, but Bexar County Judge Sid Harle, who is overseeing the case, denied those requests. 

Don Wood did not oppose his subpoena and testified at length in a closed deposition today.

Anderson's attorney wrote in his filing with the Texas Court of Criminal Appeals that there is no basis in law for the kind of investigation Morton's lawyers are conducting. He said Anderson was not party to the agreement Bradley and Morton's lawyers signed. And even the Court of Criminal Appeals, he wrote, would not have authority to require the kind of inquest Morton's lawyers are seeking.

"Mr. Morton's writ [of habeas corpus] has been granted, he has been released from confinement, and  ... [the law] does not provide a basis for freewheeling discovery and fishing expeditions for testimony that person — whose conviction has been overturned on a writ — can hope to use someday in some other legal proceeding," Dietz wrote.

In another filing requesting a protective order preventing Anderson from attending a deposition or providing Morton's lawyers with documents, Dietz wrote that Morton's lawyers and the Innocence Project "have made it abundantly clear" that they intend to pursue claims personally against Anderson and others involved in the case.

Dietz said that the court could not compel Anderson to be deposed "without any regard for the rights that he would have to defend himself" in a lawsuit. And in such a lawsuit, he argued, Anderson would have absolute immunity for work he did in his official capacity as district attorney.

And finally, Anderson's attorney pleaded with the court, "Such discovery requests offend traditional sense of American jurisprudence and are fundamentally unfair to the deponent and serve no legitimate purpose under [the law]."