Last week’s arrest of Ken Anderson, a sitting district court judge, on 26-year-old allegations of prosecutorial misconduct was an exclamation point in Michael Morton’s quest to seek justice for the wrongful conviction that cost him a quarter-century of freedom.
But before the misconduct allegations can advance, they will have to survive a legal challenge from Anderson’s lawyers, who argue that any crimes — even if they could be proven — are too old to prosecute.
District Judge Louis Sturns, who presided over a court of inquiry into the Morton prosecution, found reason to believe that Anderson broke two state laws and committed criminal contempt of court by intentionally hiding evidence when, as Williamson County district attorney, he prosecuted Morton for murder in 1987.
Sturns dismissed arguments that the statute of limitations on the offenses had run out at least 23 years ago, saying the deadlines did not apply because state law on courts of inquiry do not mention time limits.
The time to raise the limitations defense, Sturns said at Friday’s hearing, would be after the arrest warrant was issued — which is what Anderson lawyer Eric Nichols promised to do on appeal.
Statutes of limitations are intended to preserve the integrity of the legal system by protecting against faded memories, degraded evidence, witness deaths and other scourges of time.
And indeed, Nichols has argued, Anderson has had difficulty defending himself because he remembers little of his prosecution of Morton, from how he prepared for trial to how he handled the appeals.
Sturns, however, found a way around Anderson’s balky memory by highlighting two details presented to the court of inquiry during hearings in February:
• Anderson’s handwritten pretrial notes referred to a booklet containing all pertinent investigative reports that had been prepared by the sheriff’s office. Those reports included a typed police interview revealing that the Mortons’ 3-year-old son witnessed his mother’s murder by a “monster,” identified important details of the crime scene and said Michael Morton was not home at the time.
• Kimberly Gardner, an assistant district attorney from 1986-88, testified that in a conversation before Morton’s trial, Anderson said: “The kid thinks a monster killed his mother.” Anderson also discussed other details mentioned in the transcript, she said.
The notes and Gardner’s testimony, Sturns said, “demonstrate a thorough review of evidence from the sheriff’s department.”
“Mr. Anderson’s failure to release the police records in question was no mistake,” Sturns concluded. “Anderson consciously chose to impair (the defense) so that he could obtain the conviction of Mr. Morton for murder.”
Nichols also complained about the difficulty of defending Anderson after the death of a key figure in the case: Judge William Lott, who presided over the Morton trial.
At the urging of Morton’s lawyers before trial, Lott ordered Anderson to submit evidence so he could review it for information favorable to the defendant.
Sturns ruled that Lott ordered all notes and reports from the lead investigator, which would have revealed helpful evidence that Lott would have been required to turn over to the defense. Instead, Anderson submitted only a five-page report detailing the first day of the investigation into Christine Morton’s murder.
Nichols has said that without the judge available to testify, Sturns was left trying to divine Lott’s intentions by reviewing a quarter-century old, potentially incomplete trial transcript. But Nichols also argued that a careful reading of that transcript revealed that Lott wanted to see only the report that Anderson submitted for review.
Sturns disagreed, issuing arrest warrants for:
• Tampering with physical evidence, a felony punishable by up to 10 years in prison, for concealing documents to impair their availability as evidence.
• Tampering with a government record, a misdemeanor that carries up to a year in jail, for concealing official reports.
Sturns also ordered Anderson to appear in court on an unspecified date to answer the criminal contempt of court charge, punishable by a $500 fine and up to six months in jail.
The statute of limitations is three years for the felony, two years for the misdemeanor, and two to four years for the contempt violation, though Morton’s lawyers have argued that there is no deadline on charges of criminal contempt.
Morton’s lawyers also argued that limitations can generally be extended in cases of “ongoing fraudulent concealment” that keep violations from being discovered. Anderson’s acts to hide evidence could not be discovered until DNA evidence showed another man killed Christine Morton, prompting a deeper look into the investigation and prosecution, they say.
Sturns did not rule on the limitations arguments presented to him, but he did note that “Anderson’s actions kept the police records secret for more than 25 years.”
However, another court will decide the merits of Anderson’s appeal. A Fort Worth judge, Sturns’ role in the case has ended.