Judge Ken Anderson, the former prosecutor who saw to the wrongful conviction of Michael Morton, said during a marathon deposition that he remembered few of the details from the 25-year-old case and that he believes he did not violate a judge's order to turn over evidence pointing to Morton's innocence.
Anderson, who is now a state district judge, was Williamson County's district attorney in 1987, when Morton was sentenced to life in prison for the murder of his wife, Christine Morton. Last month, Morton was released from prison after DNA evidence on a bandana found near the crime scene revealed that another man was likely the murderer.
But Morton's lawyers — Houston attorney John Raley with Raley & Bowick and the New York-based Innocence Project — contend it shouldn't have taken 25 years to discover that he was innocent. They are investigating whether Anderson suppressed key evidence at trial that could have implicated someone else.
Defense lawyers allege that Anderson intentionally withheld a transcript in which Christine Morton’s mother told a sheriff's investigator that the couple’s 3-year-old son, Eric, saw a "monster" who was not his father brutally attack his mother. They also claim prosecutors withheld information about Christine Morton's credit card being used and a check being cashed with her forged signature days after her death along with neighbors' reports of a man in a green van who appeared to be casing the area.
Michael Morton sat in during much of what was an often testy more than nine-hour-long deposition over two days. Barry Scheck, co-director of the Innocence Project, questioned Anderson, who defended his prosecution and maintained he did nothing wrong.
Early in the questioning, Scheck reminded Anderson of words he wrote in his 1997 book Crime in Texas. Describing the work he did as a prosecutor, Anderson wrote, "Trials are won and the truth is exposed because of detailed, painstaking preparation done before the first witness is sworn in. ... Someone has to master the hundreds of details."
In the book, last revised in 2005, Anderson also described his relationship with former Sheriff Jim Boutwell, who has since died but was in office during the Morton investigation. "Perhaps no sheriff and district attorney had a closer working relationship than Jim and I had," Anderson wrote. "We painstakingly pieced together circumstantial murder cases."
He wrote a detailed account of visiting the restaurant where Michael and Christine Morton had dinner the night before her death so that he could see for himself whether the items on the menu matched up with the undigested contents in the young mother's stomach.
Yet repeatedly in the nearly 400-page deposition, Anderson responded that he doesn't remember seeing key pieces of evidence that Morton's lawyers discovered in the district attorney's files and in the sheriff's investigation records.
In a discussion about the transcript describing Eric's "monster" sighting, Anderson said, "I don't know that I've ever seen it before the last couple of weeks."
And later, he said, "I can't remember a darn thing about that. If there was information about Eric seeing the monster ... in our possession, there is no way on God's green earth I wouldn't have told the defense about it unless we had already been talking about it."
When Scheck asked a series of questions about the use of Christine Morton's credit card, Anderson said, "If I was aware of this information and it had not been run to ground and determined to be totally without merit, there's no way I wouldn't have turned it over."
Anderson seemed to become frustrated with Scheck's repeated referral to his book. "All right, you're all hung up on that quote from the book, so I don't know how to keep responding to that. You write in a book with a little bit of liberty," he told Scheck. "It was hyperbole based on fact."
Another key dispute in the case is whether Anderson complied with an order from the trial judge to turn over investigators' reports in the Morton case. During the 1987 trial, Morton's lawyers asked Anderson to turn over evidence that could indicate their client's innocence. Judge William S. Lott, who is now dead, told the prosecutor to allow him to review the investigator's reports to determine whether there were any exculpatory materials. Only recently did Morton's lawyers discover that those key pieces of evidence — the transcript, financial transactions and neighbors' statements — were not in the file.
While Morton's lawyers contend that the judge requested all of the police reports, Anderson in his deposition said he viewed the order differently: that the judge required him only to turn over the initial reports from the investigator.
When Scheck asked whether Anderson intentionally decided not to call the lead investigator as a witness — a common practice in criminal trials — so that he wouldn't be legally obligated to turn over all of the reports to the defense, Anderson said he did not. "I only call witnesses I need," he said.
As the deposition came to an end, Anderson's patience seemed to wear thin with what he perceived as an accusatory line of questioning. "You know, Mr. Scheck, you make these statements and these accusations, and you are acting like I have done something wrong, and it just — you know, I am upset about an innocent man being convicted. I don't know how to convey that in the form of a deposition, but it is — it is highly troublesome to me. It is — I don't have the language to express my feelings about this. I think earlier I had said I was sick," he said.
Scheck asked whether Anderson was sick because he realized he did not turn over evidence the judge requested that could have led to Morton's acquittal.
"I can't imagine I did that," Anderson said. "But I can't — I can't without recollection say that ..."
A few moments later Anderson's lawyer, Mark Dietz, ended the deposition. "We are done," he said. "We are done."