GEORGETOWN — Williamson County State District Judge Ken Anderson sat with his back to the audience in court Tuesday as lawyers discussed how the court of inquiry examining his role in the 1987 wrongful conviction of Michael Morton ought to proceed.
"We are trying our darndest to get ready," said Eric Nichols, Anderson's lawyer and a former prosecutor with the Texas Attorney General's Office.
In court, Nichols argued that he needed increased access to the files of Morton's lawyers to determine precisely what Morton's lawyers knew and when during the 1987 trial. And he asked Tarrant County Judge Louis Sturns, who is presiding over the inquiry, to allow him to depose Morton's lawyers before the public hearing begins Dec. 10.
Sturns denied that request, saying that the purpose of the process was to allow the public to hear the case and that depositions would deprive the public of that right.
"I think it's best for testimony to be presented in open court," Sturns said.
Anderson is the subject of an unusual court proceeding that will determine whether he should face contempt of court and evidence tampering charges in the 1987 trial that sent Morton to prison for life for his wife's murder. Morton spent nearly 25 years in prison before DNA evidence revealed that he was innocent and connected another man to the crime.
Morton's lawyers, John Raley of the Houston-based law firm Raley & Bowick and Nina Morrison and Barry Scheck of the New York-based Innocence Project, requested a court of inquiry in the case after their investigation into the wrongful conviction. They allege that Anderson withheld key items of evidence that could have prevented Morton's conviction.
Anderson has strenuously denied any wrongdoing in the case, though he has apologized for the justice system's failures.
Anderson said in a deposition last year that he was certain he would have told Morton's lawyers — Bill Allison and Bill White — about evidence that pointed to their client's innocence. Nichols said that Morton's lawyers could not use the attorney-client privilege to avoid turning over evidence about what they knew and when.
"The privilege cannot be used as both a sword and a shield," Nichols said.
Among the items of evidence Morton's lawyers allege Anderson withheld is a transcript of a telephone conversation between a Williamson County Sheriff's Office deputy and Morton's mother-in-law. During that conversation, Rita Kirkpatrick told the officer that Morton's 3-year-old son told her he saw a "monster" with red gloves and a big mustache attack his mother. He said his father was not at home. Additionally, Morton's lawyers say police interviews with witnesses who reported a green van that appeared to be casing the neighborhood were not turned over. A report of Christine Morton's credit card being used after her death in San Antonio was also withheld, they allege.
Gerry Goldstein, one of Morton's lawyers, said that the team of attorneys working for Morton had provided affidavits stating they knew nothing of that evidence.
Kevin Kudlac, an attorney with the Innocence Project, said Morton's lawyers had turned over 13,000 pages of documents to Anderson. He said they were not attempting to hide any evidence but would not violate the sanctity of attorney-client privilege.
"We are not trying to hide behind a shield here, but we are trying to protect Mr. Morton's rights," Kudlac said.
The lawyers agreed to work with the law firm of Rusty Hardin, who has been appointed special prosecutor in the case to assist the judge, to determine what evidence should be disclosed to Anderson's lawyers. Hardin, a high-profile former prosecutor-turned-defense lawyer in Houston, was not in the courtroom Tuesday, but he is expected to attend the court of inquiry proceedings that begin Dec. 10.
Setting the stage for what are likely to be the arguments used to defend Anderson in the court of inquiry, Nichols said, he wanted to establish what Morton's lawyers knew about evidence that existed in 1987 that pointed to his innocence. If they knew about that evidence many years ago, the clock on the statute of limitations on the crimes alleged against Anderson may have already expired.
Nichols said he also plans to argue that the judge in 1987 did not issue an order compelling Anderson to turn over all evidence that might help bolster Morton's claims of innocence. Morton's lawyers argue that Anderson's violation of that order put him in contempt of court.
Goldstein said Anderson still committed a contemptuous act when, during the 1987 trial Judge William Lott asked whether he had evidence that pointed to Morton's innocence and he responded that he did not.
"Nothing is more contemptuous than a direct lie to a direct question made by a sitting judge," Goldstein said.
Sturns said he has blocked out a week in December for the court of inquiry but, "if it takes longer, so be it." At the end of the proceeding, Sturns is expected to issue findings that will determine whether criminal charges are filed against Anderson.
Anderson is also facing an ethics lawsuit by the State Bar of Texas for his role in the Morton case. The lawyer oversight agency alleges that Anderson deliberately withheld evidence and made false statements to the court during Morton’s 1987 trial. Anderson could be disbarred if he is found to have violated professional rules of conduct in securing the wrongful conviction.
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