Barbara Shelly

November 11, 2013

From Texas, a warning for prosecutors who cheat defendants

The overturning of Ryan Ferguson’s murder conviction highlighted the lack of accountability for prosecutors who violate statutes and the canons of their profession in order to sway juries. And then it happened. Accountability, sort of. In Texas, no less.
Last week, after Ryan Ferguson’s murder conviction was overturned because the prosecution withheld important evidence from the defense, I wrote about

the lack of accountability for prosecutors who violate statutes and the canons of their profession in order to sway juries.

And then it happened. Accountability, sort of. In Texas, no less.

On Friday

news broke

that a former prosecutor was sentenced to ten days in jail, a $500 fine, 500 hours of community service and disbarment because of his actions related to a 1987 murder trial. Ken Anderson put together a case that resulted in a murder conviction and life sentence against Michael Morton, whose wife was found beaten to death in the couple’s home.

Anderson gave Morton’s lawyers only a few documents to work with, despite a judge’s order to turn over any evidence that might work in the defendant’s behalf. Among the material the defense never saw was a transcript of a phone conversation during which the murdered woman’s 3-year-old son said “a monster” entered the house and killed his mother, and the monster was not his dad. Much later, Morton’s supporters would learn that Anderson had discussed that information with associates, and even talked about claiming that Morton had donned a wet suit when he killed his wife, should information about the child’s remarks surface at trial.

The prosecution also chose not to reveal interviews with neighbors who said they had seen a green van around the murdered woman’s house several times before the crime.

In 2010, DNA testing exonerated Michael Morton and the State Bar of Texas began an investigation into Anderson’s conduct that led to charges and a sentencing. By that time, though, Morton had spent nearly 25 years in prison. The little boy who saw the monster kill his mom had also been deprived of a life with his father.

And Anderson? He became a judge in 2002, stepping down only when the state bar began turning up the heat.

Given all that, 10 days in jail seems ridiculously light. (The judge gave Anderson one day for time already served, so it’s actually a nine-day sentence.)

It is at least something, however. And it may be the first time on record that a prosecutor actually received jail time for misconduct in office.

Based on telephone calls and emails I’ve received over the past few days, it seems that a lot of people who have followed the Ferguson case are angry at the former Boone County prosecutor, Kevin Crane, who withheld evidence that could have played a significant role in Ferguson’s trial. Basically, it’s evidence that would have cast doubt on the testimony of the lone eyewitness who said he saw Ferguson and another defendant in the parking lot nearby where former Columbia Daily Tribune sports editor Kent Heitholt was murdered in 2001. Prosecutors produced no physical evidence.

Crane, who is now a Boone County judge, said in a

2012 court hearing

that he still believed Ferguson and his friend were guilty.

I don’t think we know enough about what went on in Crane’s office as he put the Ferguson case together. But, based on

this opinion

by a Missouri appeals court panel, the Missouri Bar should take a look at what happened, much as the Texas Bar did. The Missouri Bar also should investigate recent overturned cases that were prosecuted by Kenny Hulshof, a former assistant state attorney general who went on to serve six terms in Congress.

On the front end, as The New York Times noted in

an editorial over the weekend, judges should issue a standard written order reminded prosecutors they are ethically bound to turn over all potentially exculpatory evidence, under penalty of contempt charges if they don’t. It’s past time for courts at all levels to start treating prosecutorial misconduct as a serious and all-too-frequent problem.

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