Whitmire Bill Aims to Increase Prosecutor Accountability

Taking a lesson from the high-profile exoneration of Michael Morton, state Sen. John Whitmire, D-Houston, filed a bill Tuesday that aims to ensure more accountability for prosecutors who are accused of withholding evidence that results in a wrongful conviction.

"It's an effort to have accountability and transparency and to make the system more fair," Whitmire said, adding that he believes the measure will pass.

Senate Bill 825 would extend the statute of limitations for offenses involving evidence suppression by district attorneys. Under current law, the four-year statute of limitations begins ticking on such offenses when they occur. Whitmire's proposal would begin the clock on the statute of limitations at the time a wrongfully convicted defendant is released from prison. 

"That’s when have they have the best access to representation," Whitmire said, "versus when they're locked up for years upon years wrongfully." 

Polk County district attorney Lee Hon, president of the Texas District and County Attorneys Association, said most prosecutors would likely not oppose Whitmire's bill.

"Texas prosecutors are willing to discuss adjustments to the bar grievance statute of limitations where Brady violations are implicated," Hon wrote in an email. "We understand that given the nature of the non-disclosure, discovery of a Brady violation might sometimes be hard to find. At the same time, the reason that you have statutes of limitations for both criminal offenses and civil causes of action is that there comes a point in time when the ability of the person accused of the violation to defend the claim becomes significantly compromised due to the passage of time." 

Whitmire said the bill was inspired by the Morton case. Morton was convicted in 1987 of murdering his wife in their North Austin home and was sentenced to life in prison. He served nearly 25 years before DNA evidence led to his exoneration in 2011. In the investigation of his wrongful conviction, Morton's lawyers say they discovered that the prosecutor, Ken Anderson, who is now a state district judge in Williamson County, had withheld critical evidence. Anderson has denied allegations of wrongdoing.

The items that Morton's lawyers say were withheld include a transcript of a phone call in which Morton’s mother-in-law recounted to police a conversation with her 3-year-old grandson, who said he saw a “monster” beat his mother to death. He said his father was not at home at the time. Morton's lawyers also found reports from neighbors who told police that they saw a man in a green van parked near the Mortons' home several times before the crime. 

During a rare court of inquiry hearing this month, a judge heard evidence about Anderson's role in the wrongful conviction. The judge is set to decide this spring whether Anderson should face criminal charges. In emotional and indignant testimony, Anderson argued that he would have told Morton's lawyers about that information, but that he was not required to turn it over. Further, he argued that the statute of limitations for any such offenses has long expired. 

The State Bar of Texas has also filed a disciplinary case against Anderson, alleging that he deliberately withheld evidence and made false statements to the court during the trial that led to Morton’s wrongful conviction.

Anderson's lawyers said in court filings that the Texas State Bar’s claims that the former district attorney violated state ethics rules in the 1987 prosecution of Michael Morton are barred by the statute of limitations.

A lawyer for Anderson declined to comment for this story. A State Bar of Texas spokeswoman said she would provide comment after reviewing the proposal.

Morton, who was in the courtroom for the court of inquiry proceedings, said Whitmire's proposal was an important step to ensure that justice, though delayed, is served.

"As long as somebody is in prison as a result of fraudulent or illegal activity from an over-zealous prosecutor, they shouldn't have their ability to have their day in court taken from them," Morton said in a statement.