Drama Erupts as Anderson Court of Inquiry Nears Its End
/https://static.texastribune.org/media/images/2013/02/06/txtrib-AndersonCourt-CCR002.jpg)
A day punctuated by histrionics and anguish in the courtroom was capped off Thursday with at times confounding testimony from Judge Ken Anderson's protege, co-author and friend, former Williamson County District Attorney John Bradley. The ex-prosecutor backed away from previous damning statements he made about his former boss's role in Michael Morton's wrongful conviction, and on the stand said Anderson had not violated a judge's order to turn over evidence in the 1987 trial.
"Mr. Anderson had very high ethical standards," Bradley said. "The decisions I saw him make were always highly ethical."
Anderson, the former prosecutor who is now a state district judge, is the subject of a court of inquiry that is examining whether he committed a crime in 1987 when he did not turn over evidence to the judge who oversaw the trial that sent Morton to prison for life for his wife's murder. Morton was exonerated in 2011 after DNA evidence proved he was innocent and implicated another man. Morton's lawyers allege that Anderson was required to turn over critical evidence that could have led to the grocery store manager's acquittal in 1987. Anderson and his lawyers insist that the judge only ordered the disclosure of one report, which was produced.
As Rusty Hardin, a former Harris County prosecutor and the appointed attorney pro-tem charged with presenting evidence in the court of inquiry, wrapped up his evidence on Thursday, one of Morton's lawyers and the jury foreman from the 1987 trial testified.
Some of the most emotional testimony of the day came when Hardin asked Bill Allison, one of Morton's trial lawyers, how he felt about Morton's conviction over the last 25 years until his exoneration in 2011. The aging lawyer, with gray, curly hair and a large silver mustache, teared up as he responded.
"An innocent man had been convicted and his son taken away from him by the state, and it was just something I had an obligation as Michael's original lawyer to pursue as best I could," Allison said. "I had felt for a really long time that maybe I had really let Michael down somehow."
Mark Landrum, the jury foreman who was 26 at the time of the trial, told the court that some of the withheld evidence could have dramatically affected the jury's decision. They didn't see a transcript in which Morton's mother-in-law told a sheriff's investigator that Michael and Christine Morton's 3-year-old son had seen his mother's murder. They also didn't see a police report in which neighbors reported seeing a man in a green van who appeared to be casing the family's home. That evidence, he said, would have bolstered Morton's lawyers' theory that an intruder killed his wife.
"It would have been very helpful," Landrum said. "I wish I would have been given the opportunity to know this when we were making our decision."
He also explained how Mike Davis, the assistant district attorney, told jurors after the trial that there was evidence they hadn't seen. Landrum said his impression from Davis was that the additional evidence would have affirmed Morton's guilt.
The next time Landrum heard about the Morton case, he said, was when a reporter called him asking about DNA evidence that might indicate he had helped convict an innocent man. He called John Bradley, then the district attorney, and asked whether the jury had in fact convicted an innocent man.
"'Michael is a desperate man grasping at straws,'” Landrum said was Bradley's response.
One of the most theatrical moments of the day came as Hardin wrapped up his presentation of evidence. Anderson's lawyers argued that they wanted to keep out of the case a deposition of Sgt. Don Wood. They said the former officer had been too ill to give the testimony when he was deposed in 2011.
"I do find it fairly ironic," Hardin said. "Once again, we are talking about excluding from the light of day relevant testimony in the case of a man wrongly convicted for 25 years."
Eric Nichols, Anderson's lawyer, slammed his hand loudly on the table and demanded that the judge stop Hardin's constant speeches and advocacy. Sturns overruled and asked Hardin if he would like to continue.
"I'd love to continue as long as I get that kind of response," Hardin said jokingly, causing the audience to erupt in laughter and Nichols to launch into a speech, saying Hardin's actions were precisely why courts of inquiry have been criticized as "political circuses."
"These constant speeches, the playing to the cameras," Nichols railed, "is not what a court of inquiry is supposed to be."
The day finished up with Bradley on the stand. In a December 2011 affidavit, and in a November 2011 interview with The Texas Tribune, Bradley said he had concluded that his former boss had violated the judge's order by not turning over all the investigators' reports in Morton's case. On the stand Thursday, Bradley said he had since changed his mind after reviewing the judge's notes and more records from the case. He said the judge made no such order.
Bradley contended that Barry Scheck of the Innocence Project, one of Morton's lawyers, had drafted the affidavit he signed in 2011. The words in the affidavit, Bradley said, were Scheck's, not his. And Bradley said the statements in the affidavit were "true and correct" but not "true and accurate."
"I didn’t have a lot of control over this," said Bradley, the longtime DA and former Texas Forensic Science Commission chairman known for his hard-nosed approach. "It was going to be his statement not mine."
Bradley said that when he signed the affidavit, he didn't have access to handwritten file notes made by the trial judge. Since then, he said, he compared those notes with the trial record and came to the same conclusion that his former boss and friend Anderson had drawn: that the judge only asked for an investigator's report from the day on which Christine Morton was murdered.
Hardin, however, pointed out that the judge's notes had been available to Bradley more than a month before he signed the affidavit he was now contradicting.
Hardin also asked whether Bradley had given a recent lecture in which he taught about a strategy in which prosecutors could avoid giving defense lawyers police reports by simply not calling them as witnesses — a strategy Morton's lawyers contend that Anderson employed to avoid turning over evidence.
"I don’t have a specific memory of teaching it, no," Bradley said. "I cannot express a firm statement of fact that I have or have not done it."
Hardin suggested Bradley was using clever language to avoid answering the question.
"If you’re trying to suggest I'm lying, you’re way out of line," Bradley said.
Hardin sat down and passed the witness.
The court action will conclude on Friday. Hardin said he would suggest to the judge that he take all the evidence from the inquiry proceedings this week under advisement, order each side to submit briefs and then hold oral arguments at a later date.
Court reconvenes Friday at 8 a.m. along with the liveblog below. To read the detailed blow-by-blow from Thursday, click here. The details of the action from Monday through Wednesday are here. To view a cast of the characters in the court of inquiry, download the PDF in the upper left corner of this page.
Liveblog
Nichols asked how he felt about what happened in the Michael Morton case.
"It's my worst nightmare," he said.
Anderson said he started out as a district attorney hoping to get experience and become a defense attorney.
"I just thought that defense attorneys wore the white hats," he said.
But, during his work in the district attorney's office under former Williamson County DA Ed Walsh, he came to enjoy prosecuting, and "I discovered something called victims," he said.
As he continued talking about the importance of treating victims with respect and according them rights, Anderson became emotional. His voice cracked and he shook his head to regain his composure. Victims, he said, were one of the main reasons he wanted to be district attorney, the position to which he was appointed in 1985.
"At that time victims were a piece of evidence. They had no rights," he said."We treated victims exactly like we would have wanted if the roles were reversed."
He becomes emotional, his voice raising and beginning to crack, he starts pounding the the table with his hand.
"We had a lot to be proud of and we still do," he said. "The office I ran was professional, it was competent. We did things right. We got it right as much as we humanly could."
"I have gone through that record 'til I'm blue in the face," he said. "There is nothing in the record that even remotely says that."
"That was an accusation that didn’t even make any sense," Anderson said of the credit card fraud. "It was ludicrous on its face to think [Morton] wouldn’t have access to credit card bills and know whether there were any unauthorized credit card bills."
Anderson turned toward the front row bench where Morton was seated with his fiance and mother.
"I know what me and my family have been through in the last 18 months, and it's hell," he said, voice cracking. "And it doesn’t even register in the same ballpark as what you went through Mr. Morton, so I don't know that I can say I feel your pain but I have a pretty darn good idea how horrible what we've gone through for 18 months has been with false accusations and everything else and what happened to you is so much worse than that. I can't imagine what you're feeling.
"And you have been incredibly gracious in your attitude towards me. And I don't have words. I really don't. I have apologized that the system screwed up. It obviously screwed up and I've beaten myself up on what could have been done different, and I frankly don't know."
The court immediately broke and in a brief interview with Morton after the Anderson remarks, the exoneree said he was taken off guard by the judge's statement.
"I wasn't prepared for it," Morton said. "I'm not sure he has a complete grasp of what this is all about emotionally and personally."
Morton said he had moved to a spot in the courtroom where he could make eye contact with the judge during his testimony. He said he didn't hear an apology in Anderson's words.
"I'm imperfect and I didn't hear one," he said. Gathering his composure, Morton inhaled and said, "I'm waiting for the conclusion of this to see how I can wrap this all up inside of myself."
"I wish I had given them everything," Anderson said. "I wish I had not been a very good prosecutor. I wish he had been acquitted."
"Let's assume this is the last court of inquiry in the state of Texas," Hardin said.
Anderson interjected: "That would be a blessed day."
He went on to lament how much money he's had to spend defending himself.
"I had to spend the money to hire lawyers. And I worked my entire life, and now they have it," he said.
"It doesn’t scream out Brady, but it is something I would tell them about," Anderson says.
He explains that Brady is a complex combination of law and circumstances.
"That is a complex situation, and it ultimately depends on what the prosecutor knew and what his professional judgment was," Anderson says.
They also have an exchange about whether lawmakers should require prosecutors to have open file policies. Anderson says the tragic case should not result in a wholesale change in the way the adversarial justice system works.
Hardin asks, whether he thinks it would fair and would not harm the pursuit of justice if prosecutors opened their files to the defense.
In response, Anderson says that he would not be able to prosecute a case again "given what happened to me in this case."
"I probably wouldn’t be a good prosecutor anymore because I'm going to be handing you everything," Anderson says.
"Why wouldn't that make you a hell of a prosecutor," Hardin asks.
"I would probably hand you everything, and you would probably beat the heck out me and some guilty guy would probably go free," Anderson says.
Anderson insists, although he says he can't specifically recall, that he would have told Bill Allison and Bill White, Morton's lawyers about those items of evidence.
"They’re not even in the ballpark of being Brady," Anderson says, adding that they have no way to know now what he told them either. Anderson's voice rises and he is becoming visibly upset, "Bill Allison and Bill White remember absolutely nothing except they say I told them something."
He get's louder, almost yelling. "That’s why we have a statute of limitations, and in this case that expired 20 however many years ago, 23 years ago."
Hardin asks "What question were you answering just?"
"Oh, I was just making stuff up," Anderson said, sarcastically.
That's the portion in the transcripts that has largely been the reason for the State Bar of Texas to civil file a lawsuit against Anderson. The bar claims that he committed professional misconduct when he said that, accusing him of lying to the judge.
Again, Anderson becomes defiant and angry, arguing that the statute of limitations has expired and that the claims are based on an inaccurate reading of the "cold transcripts."
He again explains why he thinks the materials in his file were not Brady material.
"Maybe we do need to take a break judge," he said, turning to Judge Sturns."Could I stand up and stretch?"
The discussion between Anderson and Hardin is awkward and strained. Anderson at times gets sarcastic. At one point, Anderson attempted to make a joke about a regular theme of this court of inquiry, which is that the normal rules of procedure don't apply to it.
"There are no rules," he said, turning to smile at Judge Sturns. "Judge Sturns didn’t laugh, I was kind of hoping he would."
In introducing another question, Hardin told the judge he wasn't accusing him of anything.
"I like that one phrase: you’re not accusing me of doing anything illegal," he said. "Can we just stop there?"
Anderson is also upset about repeated reports in the media about the credit card that has since been shown to not be exculpatory evidence.
He says he doesn't have any "warm feelings" about those who cited the credit card evidence and isn't "too excited about the green van report, either."
"Everybody should know I told [Morton's lawyers] about it," he said, exasperated.
"You have been a lawyer how long? You would forget something like this? That you have evidence of a man you're trying for murder, that his son, 3 and a half year old son, is telling his grandmother daddy isn’t there and describes all these circumstances of his mother being murdered and you would forget that?" Hardin asks incredulously.
"I don’t have any independent recollection of any of these details from 26 years ago," Anderson says.
Hardin points out that Sgt. Wood in his deposition recalled that information even though he is over 70 and has had several strokes.
"Even Mr. wood does. How could you not?" Hardin asks. "How could a former prosecutor who cares so deeply about children not rember anything about a child seeing his mother killed in a case that he prosecuted. How could that be? Help me out?"
Even if he had seen it, Anderson says he might have regarded the transcript as the words of a "traumatized" little boy.
"He was a traumatized 3-year-old child. You can't attach any significance to anything he says at that point," Anderson says.
But, Hardin points out that all the details Eric described - the wood used in the murder, the blue suitcase, the basket - all were accurate details from the crime scene.
"Why in the world wouldn’t you want to try to investigate based on what this little boy said?" Hardin asked.
"You’d have to ask Sheriff Boutwell about that," he said.
“I don’t think you have any idea how much stress I’ve been under this week,” he says. "I've had to deal with my family. I have had to put people back together again. This has not been a stress free week for me.”
Hardin goes on to ask whether Anderson was aware of the transcript and whether it should have been produced.
"I cant imagine I didn’t tell them about Eric seeing a monster and it wasn’t his father in some form or fashion," he said. "We would have been talking about such things."
"Is it something I routeinly and customarily would give, yes," he says, his voice rising after explaining again that he doesn't believe the evidence was Brady material. "I cannot conceive of a situation where I would not have given it to them."
Anderson adds, "No prosecutor could go back 26 years after the fact and say, 'I can swear to an absolute certainty,' or what did Allison say? 100 percent."
Nichols shows articles from 1986 in the Austin American-Statesman, before the trial, in which people discuss that Eric may have seen the crime.
In an Aug. 14, 1986 article, Sheriff Boutwell says the child may have seen something.
A Sept. 26, 1986 article says that Eric told other family members that he heard his mother call out from a different room. The child “might have seen someone,” Morton told the newspaper. He added, "I don’t know if you can count on anything he is saying right now.”
Nichols also shows a police report indicating officers tried to talk to Eric about what he had seen.
"I was hoping for more," he said. "I think we saw someone who is still struggling with denial and anger."
Morton said his impression was that Anderson doesn't accept any responsibility for the miscarriage of justice in his case.
Morton said throughout the week there had been several "exercises in self control," including a few today.
Morton said it was clear to him from Anderson's testimony today that it was the first time after three decades in a position of power that the judge had had to answer for his actions. And he said he was confident in Judge Sturns' handling of the case.
"I'm going to trust him to do the right thing," Morton said.
Mark Dietz, a lawyer for Anderson, told reporters that there was really much more to say after the week's testimony.
"We believe this judge will make a fair decision based on all of the evidence," he said.
Texas Tribune donors or members may be quoted or mentioned in our stories, or may be the subject of them. For a complete list of contributors, click here.
Information about the authors
/https://static.texastribune.org/media/profiles/grissom-brandi.jpg)
Learn about The Texas Tribune’s policies, including our partnership with The Trust Project to increase transparency in news.