About Time! Prosecutor Who Hid Exculpatory Evidence Will Go To Prison For Jailing Innocent Man

I think this is extremely surprising news. I hope it sets a precedent.

Today [Friday] in Texas, former prosecutor and judge Ken Anderson pled guilty to intentionally failing to disclose evidence in a case that sent an innocent man, Michael Morton, to prison for the murder of his wife. When trying the case as a prosecutor, Anderson possessed evidence that may have cleared Morton, including statements from the crime’s only eyewitness that Morton wasn’t the culprit. Anderson sat on this evidence, and then watched Morton get convicted. While Morton remained in prison for the next 25 years, Anderson’s career flourished, and he eventually became a judge.

In today’s deal, Anderson pled to criminal contempt, and will have to give up his law license, perform 500 hours of community service, and spend 10 days in jail. Anderson had already resigned in September from his position on the Texas bench.

What makes today’s plea newsworthy is not that Anderson engaged in misconduct that sent an innocent man to prison. Indeed, while most prosecutors and police officers are ethical and take their constitutional obligations seriously, government misconduct–including disclosure breaches known as Brady violations—occurs so frequently that it has become one of the chief causes of wrongful conviction.

What’s newsworthy and novel about today’s plea is that a prosecutor was actually punished in a meaningful way for his transgressions.

The State is supposed to have to prove a case against an accused person who is innocent until proven guilty. But the state also almost always has the power and the budget to do the most thorough investigation. Naturally, if someone is supposed to defend themselves from an accuser with all those resources, he has to be able to learn about that investigation. A prosecutor is free to press charges even in the face of evidence that the defense will use to attempt to convince a jury or judge that the prosecutor is wrong. But the prosecutor can’t hide parts of the investigation. The moment he does so, he has terminated the accused right to defend himself before a jury of his peers.

Of course the police can do the same kind of thing and probably do it in a way that is much harder to detect. In the case of both prosecutor and police, one’s career typically depends on a high conviction rate. This must prove very tempting. Mark Godsey, the Director of the Ohio Innocence Project (and also Carmichael Professor at the University of Cincinnati College of Law) writes,

I give speeches about the Innocence Movement, and tell stories from real cases, all around the world. No matter where I am, when I finish speaking the first question usually is, “What happened to the police/prosecutors who did this to the poor guy?” The answer is almost always, “Nothing,” or worse, “The police officer was promoted and now is the chief of his department.” The adage that the powerful go unpunished is no truer or more visible than with police officers and prosecutors in America—even when they send innocent people to prison from their misconduct.

Obviously, this needs to change. It is not obvious, despite this one victory, that it ever will. There are good prosecutors and good police officers, but they are almost at a disadvantage if corrupt co-workers don’t have to fear punishment for corrupting the process to win more convictions.