Updated: Anderson Inquiry Continues With Former Asst District Attorney
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Updated 9:00 a.m., Feb. 6:
Wednesday, the third day of the court of inquiry examining Judge Ken Anderson's role in the wrongful conviction of Michael Morton begins with the testimony of Williamson County Court at Law Judge Doug Arnold. Before becoming a judge, Arnold worked in the Williamson County district attorney's office from 1998 until 2010.
Arnold was deposed by Morton's lawyers in Nov. 2011. He is expected to testify today, as he did in his deposition, about Anderson's strategy in trial to not call an investigating officer. The strategy was to avoid the so-called "Gaskin" rule that requires prosecutors to turn over reports to the defense when they call a witness to testify. Morton's lawyers allege that Anderson deliberately did not call the lead investigator in his case to avoid giving the defense team reports that might have indicated his innocence.
Later today, we will hear testimony from Morton's trial lawyers in 1987, Bill Allison and Bill White, who have said Anderson failed to give them the critical evidence in the case.
Scroll to the bottom of this story to follow along with the liveblog of the continuing court action.
Updated 7:30 p.m., Feb. 5:
A former employee of Williamson County state district Judge Ken Anderson said Tuesday that in 1987, her boss, then the prosecutor, leaned up against a door jam in the historic Williamson County Courthouse, crossed his arms and said, "The kid thinks a monster killed his mother."
Kim Gardner, a former assistant district attorney who worked under Anderson, said she was shocked when she read in the newspaper that Michael Morton had been exonerated. She was also “blown away” by allegations that Anderson withheld evidence that indicated Morton’s 3-year-old son, Eric, saw a “monster” murder his mother. Anderson, she said, knew that Eric had said he saw a monster, not his father commit the murder, and had discussed a trial strategy to explain that what the little boy had seen was really his father dressed in a skin diving suit. "I was blown away when this article came out, absolutely blown away," she said.
Gardner’s testimony highlighted the second day of a rare court of inquiry that will determine whether Anderson should face criminal charges for his role in Morton’s wrongful conviction. Morton spent nearly 25 years wrongly imprisoned for his wife’s murder and was released in 2011 after DNA evidence cleared him.
Morton’s lawyers allege that Anderson deliberately withheld critical information that could have prevented the wrongful conviction and led to the real killer. The question before the court of inquiry is whether Anderson violated a judge’s order to turn over evidence in the case. Anderson’s lawyers argue that he did not violate the judge’s order and that the statute of limitations has expired on any alleged violations.
Most of Tuesday was taken up by the airing of an eight-hour deposition of Anderson that Innocence Project co-founder Barry Scheck conducted in October and November of 2011. The video of the often-testy exchange between Anderson and Scheck played on a screen in front of Tarrant County state district Judge Louis Sturns, who is overseeing the proceedings. In the courtroom, Anderson watched without expression, occasionally jotting notes on a yellow sticky pad and then putting the paper in his suit jacket pocket.
The video testimony of Anderson was a stark contrast with that of Gardner. In the deposition, Anderson says repeatedly that he has little recollection of what he did during Morton’s trial in 1987. “Well, I have no real memory of 25 years ago what my strategy was,” he said at one point.
Gardner, however, recalled that Anderson discussed a key piece of information that Morton’s lawyers say they never received. Morton’s lawyers, shortly before he was released from prison, discovered in the sheriff and district attorney files a transcript in which Morton’s mother-in-law tells a sheriff’s deputy that the couple’s 3-year-old son saw a monster kill his mother. The boy said his father wasn’t home.
Repeatedly during the deposition, Anderson said that he could not remember specific items of evidence like the transcript in his file. Scheck made several references to Anderson’s 1997 book, Crime in Texas, in which the former prosecutor wrote that he had to master hundreds of details and that he painstakingly pieced together cases with the sheriff. But Anderson said he had little memory of the high-profile murder trial.
Leaving the court for the day, Morton said he found Anderson’s deposition upsetting.
“There are a lot of good prosecutors out there. Ms. Gardner is one,” he said. “I still want answers.”
Gardner, who now lives on a ranch south of San Antonio, said the case stood out in her memory.
“It was a big deal,” she said. “Some nice woman had got her head beat in in a very nice neighborhood in Williamson County.”
She remembered a conversation before the trial in the district attorney’s office in which Anderson discussed that Eric saw a monster kill his mother.
Anderson, she said, speculated that Morton had worn his diving suit as a disguise during the murder and that's why there was no blood on his clothing.
"I recall thinking that this theory, a guy killing his wife in front of his 3-year-old son in a skin diving suit, was pretty strange," Gardner read from an affidavit she provided to the court.
Gardner said she liked Anderson and was unhappy about testifying in the case, because she was grateful to him. And she said Morton’s lawyers regularly came into Anderson’s office and spoke to him behind closed doors, where she would not have known what they discussed.
The point of Anderson’s conversation about Eric seeing the monster, Gardner said, was not to keep that information away from Morton’s lawyers but to determine whether the boy’s statements could be used at trial. He was too young to testify, and if his grandmother talked about what Eric said on the stand, it would be considered hearsay. She said the prosecutors in the office agreed the boy’s statements wouldn’t be admissible.
But during his videotaped deposition, Anderson said he had little memory of the evidence in response to questions from Scheck about the transcript and the skin diving suit and whether any of that should have been disclosed to Morton’s lawyers.
“I've tried to familiarize myself with the case, but I have no idea what the skin diving suit had to do with anything,” Anderson said.
The videotaped exchange between Scheck and Anderson focused on what evidence the prosecutor knew about, when he knew about it and why he didn’t turn over items to the judge or to Morton’s lawyers. Throughout, the veteran attorneys become agitated with one another.
Anderson becomes frustrated with allegations that he deliberately withheld information that should have been turned over because he wanted to win the case.
“I don’t think that’s what happened,” Anderson says in the deposition. He says that if he knew about information that would have been favorable to Morton, he would have told Morton’s lawyers. He says he gave the judge the limited evidence that he was ordered to turn over. And he says he was convinced of Morton’s guilt because the medical examiner placed Christine Morton’s time of death before her husband left for work combined with other circumstantial evidence.
Scheck becomes exasperated because he says that Anderson is not responding to questions, can’t remember seemingly basic events and won’t say whether legal precedents would have required him to turn over evidence to Morton’s lawyers.
As the deposition played, Anderson’s lawyers objected a handful of times, arguing that portions of the deposition were not relevant to the question at stake in the court of inquiry. Sturns overruled the objections.
The court of inquiry will resume at 9 a.m. Wednesday with testimony from Judge Doug Arnold, a former Williamson County prosecutor, and Bill Allison and Bill White, Morton's original trial lawyers.
Updated, Tues., Feb. 5, 8:15 a.m.: Day two of the court of inquiry that will detemine whether Williamson County state district Judge Ken Anderson faces criminal charges in the wrongful conviction of Michael Morton will begin with the airing of an eight-hour deposition of the former prosecutor that was taken last year by the Innocence Project.
In the deposition, the transcripts of which have been public for some time, Anderson repeatedly describes how he cannot recall much of what transpired during the Morton trial in 1987. He also says that he believes he would have told Morton's lawyers about evidence in the case that may have helped to prove his innocence initially and prevent the quarter-century the former grocery store manager spent in prison. In the video, Anderson sits behind a large three-ring binder and a stack of case documents. Behind him is a blue backdrop, and across from him are Barry Scheck, co-founder of the Innocence Project, and Morton, among others.
Here's a link to the Tribune story about the deposition, and PDFs of the transcript. Scroll to the bottom of this story to read the continuing liveblog of Tuesday's court action.
Original story: GEORGETOWN — On the first day of Williamson County state district Judge Ken Anderson's court of inquiry Monday, Michael Morton spent more than five hours on the witness stand, getting emotional at times as he hashed over the mistakes that led to his wrongful murder conviction and almost 25 years in prison.
“Going through all of that again was difficult, but necessary," Morton said before leaving the court. "I’m glad the process has finally started.”
Anderson, the former prosecutor who secured Morton’s conviction, is the subject of a rare court of inquiry that could lead to criminal charges. Morton and his lawyers allege that Anderson withheld critical information during the 1987 trial that sent him to prison for life for his wife’s murder. Anderson and his lawyers say that the prosecutor committed no wrongdoing in the case, that the judge in the case was ordered to only disclose a limited amount of information and that the statute of limitations on any alleged violations has expired.
Some of the most emotional testimony came early in the day when Hardin asked Morton about the nearly 25 years he spent in prison.
“Brutal," Morton said. "I always said that I never liked it, but after a couple of decades I got used to it."
Anderson appeared to stare straight ahead and not look at Morton.
"I got used to lack of privacy, restriction of movement, violence," Morton continued and teared up, "the lack of seeing my son, the million and one little things that you take for granted — that you can't imagine — clothes that are comfortable, people that are honest, food that tastes good, a bed to sleep in."
Rusty Hardin, the appointed attorney pro tem in the case, asked Morton what his reaction was when he learned that the district attorney may have withheld evidence that could have helped him avoid those years in prison.
"I was stunned. All those years, the primary thing that kept hitting me was why. What purpose?" Morton said. "What motivation?"
Anderson’s lawyers, including Eric Nichols and Mark Dietz, worked to establish that Morton’s lawyers with the Innocence Project were using the highly charged case to accomplish their own ends and that the evidence was not sufficient to show that Anderson deliberately withheld information that could have helped Morton’s case.
“You, of all people, have no interest in seeing someone prosecuted on insufficient evidence is that correct?" Nichols asked Morton, finishing his questions.
Much of Monday's testimony focused on two items of evidence that Morton and his lawyers allege were withheld from the former grocery store manager’s lawyers during his trial: a credit card and a check.
In the report to the court requesting the court of inquiry, Morton’s lawyers alleged that prosecutors withheld five critical items. Among them was a check made out to Christine Morton that they alleged had been cashed with her forged signature after her death. They also alleged that her credit card was used fraudulently at a jewelry store in San Antonio days after she was murdered. Since that time, Morton’s lawyers discovered that the check was deposited by Morton and that his wife’s purse with the credit cards in it was never stolen.
Hardin said that it doesn’t matter whether the information eventually turned out not to be helpful to Morton’s case. The information should have been turned over to his lawyers so they could have determined that themselves.
“The file is replete with stuff they should have let the defense attorneys have to decide whether they were things that were helpful to have," Hardin said. He also described three additional reports, which were previously unknown, that he said also should have been tendered to Morton’s lawyers. He said the documents show the defense had a practice of withholding items.
"The fox doesn’t get to guard the hen house, and that’s what I’m seeking to prove here," Hardin said.
Hardin asked why Morton was not consumed with bitterness.
"Grace of God. I don’t want revenge. I don’t want anything ill for Judge Anderson," he said, turning directly to Anderson. "I don’t. But I also realize that there are consequences for our actions, and there needs to be accountability, because without that every single thing falls apart."
Hardin asked Morton to tell Judge Louis Sturns, who was appointed to oversee the proceedings, what he wants from the court of inquiry.
Morton faced Sturns: "I ask that you do what needs to be done but at same time to be gentle with Judge Anderson."
The court of inquiry continues on Tuesday, when Hardin said he plans to play for the court an eight-hour deposition of Anderson.
For more details, see the liveblog below. And check back Tuesday for more highlights from the court of inquiry as it continues.
Liveblog
Debra Masters Baker's family members are in the court as well, including her husband Phillip Baker, her daughter Caitlin Baker and her sister Lisa Masters Conn.
State Sen. Rodney Ellis, D-Houston, who is chairman of the Innocence Project board, is here to observe the proceedings.
And Eric Nichols and Mark Dietz, representing Anderson, are in the courtroom.
When he went to pick up his son Eric at the babysitter's house after work, he wasn't there.
"I immediately just picked up the sitter's phone and called home," he said, adding that Sheriff Boutwell answered the phone at his house and told him to come home immediately.
"I was telling myself, 'Well, they have to ask these questions to eliminate me as suspect and get on with investigation."
Hardin asks how he felt about later being described as having an inappropriate response. Morton looks at the judge:
"You never really know what you're going to do until you're there. The of a loss spouse is probably the most horrible thing can happen to you as far as losing a loved one," he said. "I felt as if I was collapsing back inside myself and people were sort of moving away. I was mechanically talking and acting. I guess it was just survival instinct. Others have said I had amazing ability to compartmentalize."
Hardin asked if he killed his wife.
"No sir," he said
Morton says he told his lawyers that he thought Eric had seen something.
"It's my memory that the gist of everything was, as intriguing as this was, may be it's not something we can use at trial."
Now, Hardin and Morton are reading the transcript of the conversation in which Morton's mother-in-law told sheriff's investigator Don Wood about Eric telling her that he saw a "monster" kill his mother. Hardin is reading the part of Rita Kirkpatrick. Morton is reading the part of Don Wood.
"No sir, it’s a complete shock to me," Morton says.
Hardin: "Were you ever told your mother in law had told police your son had said that you were not there at time of murder?"
Morton: "No sir."
Hardin: "Did your lawyers indicate that they knew Eric had told his grandmother that you were not there at the time of the murder?"
Morton: "Never."
"I don't think this is a matter we need to get into at this time," Nichols says.
He says the lawyers should be cognizant of the ongoing other criminal matters, presumably the case against Norwood.
Hardin says he doesn't need to be lectured about how the court works.
"The horror of what happened to this man is a relevant matter," he says.
His questions, he says, are meant to determine whether Eric ever told Morton about what he saw of the crime.
Sturns says he understands another proceeding, but also the court of inquiry has a great deal of latitude. "With that I'm going to ask you continue and your objections will be noted for the record," Sturns says.
It's becoming more apparent that this hearing could get very heated between Nichols and Hardin, both seasoned, aggressive former prosecutors.
"I don’t believe there's any evidence at this point in time as to when that document was placed in the district attorney’s file," Nichols said.
"We’ll seek to help him answer that question," Hardin said.
"Brutal," Morton said. "I always said that I never liked it but after couple decades I got used to it."
Anderson, with his back to the audience appeared to stare straight ahead and not look at Morton.
"I got used to lack of privacy, restriction of movement, violence," Morton continued and began to tear up, "the lack of seeing my son, the million and one little things that you take for granted — that you can't imagine —clothes that are comfortable, people that are honest, food that tastes good, a bed to sleep in."
Hardin asked Morton what his reaction was when he learned of the evidence that may have helped him that his attorneys say Anderson withheld.
"I was stunned. All those years the primary thing that kept hitting me was why. What purpose?" Morton pressed his lips together, getting tearful again."What motivation?"
Hardin asked why Morton was not consumed with bitterness.
"Grace of God. I don’t want revenge. I don’t want anything ill for Judge Anderson," he said, turning directly to Anderson. "I don’t. But I also realize that there are consequences for our actions, and there needs to be accountability because without that every single thing falls apart."
Hardin asked Morton to tell Judge Sturns what he wants from the court of inquiry. Morton turned to face Sturns: "I ask that you do what needs to be done but at same time to be gentle with Judge Anderson."
"Brutal," Morton said. "I always said that I never liked it but after couple decades I got used to it."
Anderson, with his back to the audience appeared to stare straight ahead and not look at Morton.
"I got used to lack of privacy, restriction of movement, violence," Morton continued and began to tear up, "the lack of seeing my son, the million and one little things that you take for granted — that you can't imagine —clothes that are comfortable, people that are honest, food that tastes good, a bed to sleep in."
Hardin asked Morton what his reaction was when he learned of the evidence that may have helped him that his attorneys say Anderson withheld.
"I was stunned. All those years the primary thing that kept hitting me was why. What purpose?" Morton pressed his lips together, getting tearful again."What motivation?"
Hardin asked why Morton was not consumed with bitterness.
"Grace of God. I don’t want revenge. I don’t want anything ill for Judge Anderson," he said, turning directly to Anderson. "I don’t. But I also realize that there are consequences for our actions, and there needs to be accountability because without that every single thing falls apart."
Hardin asked Morton to tell Judge Sturns what he wants from the court of inquiry. Morton turned to face Sturns: "I ask that you do what needs to be done but at same time to be gentle with Judge Anderson."
"They told me. I didn’t tell them it was stolen. I believed what they told me," Morton says.
"This is where, under normal circumstances, I would end my questioning," Nichols said, adding that he had asked everything relevant to the court of inquiry, but he says he must continue in response to the questioning that Hardin did.
"I would like to ask a few more questions," Nichols says.
He continues: "Just as everyone else in this courtroom been struck with you, who you are and how you reacted to this. Everyone is struck by that," he says, pausing. "In line with what you've discussed with Mr. Hardin about your approach to these issues, despite everything you’ve been through, I believe I've heard you say publicly there are people much more motivated than you are to proceed with allegations against Mr. Anderson?"
He asked if that would include the Innocence Project.
"It would include those, yes sir," Morton said.
After that allegation was made, it was discovered that the check was signed and deposited by Morton. He said he did not find out that the writing on the back of the check was his until after the allegations were made by the Innocence Project.
Lisa Tanner, the assistant Texas attorney general who is prosecuting Mark Norwood, discovered the check and showed the deposit slip and signature on the back to Morton. He said he had an "aha!" moment and realized it was he who signed and deposited the check.
"We know today, do we not, that this is not a bombshell," Nichols said.
After making a point about the difficulty of recalling events 25 years old, Nichols continued, "Not ascribing any fault to you, is this a situation where your memory of what happened at the time was not sufficient to allow you to recollect that this check was one that you yourself had deposited?"
Morton says he never saw these items before, not at his trial and not since.
But the photos show that Williamson County officials likely knew that her wallet had not been stolen. Nichols says that the wallet, instead of being stolen, was taken from the crime scene by Department of Public Safety investigators. The evidence defies the Innocence Project's theory that officers failed to follow up on a tip that Christine Morton's credit card was stolen and used after her death because they had so narrowly focused on her husband as the suspect. It also sheds light on why a sheriff's office investigator wrote "course, we know better" in response to a tip that Christine Morton's purse may have been stolen
"Everybody was very concerned about Eric, so everybody was very concerned about getting him therapy," Morton said. "They were terreified what he might have seen or if anything might have happened to him."
Finishing up his questions with Morton, he recalled what the exoneree has said many times in public about not wanting Anderson's head on a stick and not wanting revenge for his wrongful conviction.
"You, of all people, have no interest in seeing someone prosecuted on insufficient evidence is that correct?" Nichols said, finishing his questions.
"The defense has the right to pursue potential Brady material whether the government believes it (is exculpatory) or not," Hardin said to Morton."Do you think it unreasonable that the state would have given you that information for you to check out for yourself?"
Morton says,"I would have hoped they'd have been required to."
Hardin explains to the judge that the reports contain more items that should have been turned over to defense lawyers at the trial.
"The file is replete with stuff they should have let the defense attorneys have to decide whether they were things that were helpful to have," Hardin says.
He says it shows the defense had a practice of withholding items.
"The fox doesn’t get to guard the hen house, and that’s what I’m seeking to prove here," Hardin says.
Morton was excused from the stand at about 4 p.m. after a few final questions from Hardin. He said that the fact that Anderson's lawyers were complaining about two items in the case was like "the child who kills his parents and complains about being an orphan."
The whole reason the Innocence Project and others who represented Morton turned out to be wrong about whether the check and the credit card were used fraudulently after Christine Morton's death was because, he said, Anderson didn't turn over information for the defense to investigate in the first place.
Now, current district attorney Jana Duty, who has been on the job 33 days after taking over from John Bradley, is on the stand. Morton's case played a major role in her win over Bradley in last year's election. Bradley followed Anderson into office and had objected to DNA testing in Morton's case for about six years.
During the questioning, Anderson swivels back and forth in his chair and generally makes few facial expressions as Scheck shows him documents and asks questions about them.
"I haven't seen these in the better part of 20 years," he says. "It's hard to know what my practice was 25 years ago."
It's an arduous line of questioning in which Anderson has trouble remembering when he found out about the claims, when he found out about DNA testing that would result in Morton's exoneration and what his reaction was.
He said he first learned about either the DNA or the Brady claims while he was on vacation in Colorado, when former district attorney John Bradley called him.
"He was giving me information. I wasn’t really wanting to hear information when I was on vacation," Anderson says.
After returning to Georgetown, Anderson says, he began reviewing portions of the trial transcript and the offense reports in the case.
"I was taking it seriously to the point where I was trying to light up my brain cells trying to remember," he says.
He said he quickly came to the conclusion he couldn't recall what had happened 25 years ago.
"At some point I would have told somebody in the district attorney's office that I have absolutely no recollection from 25 years ago of what I did or didn’t do in discovery," he says. "I reached that opinion the first time I started thinking about it. And I have tried to refresh my memory ever since."
It was only after Norwood's DNA was connected to the 1988 murder of Debra Masters Baker in Austin, he said, that he "started taking it much more serious," he says. "Up to that point, I didn’t think this was going anywhere, and the Brady allegations didn’t concern me."
Late in September 2011, shortly before Morton's Oct. 4, 2011 release from prison, Anderson says, "It became good grief he's innocent."
He can't recall how he informed them, but he says he is sure he would have told Morton's lawyers in 1987 about Eric's statement to his grandmother about having seen the monster who murdered his mother.
"Theres no way on God's green earth I didn’t tell them about it or we all were talking about it," he says.
Anderson is careful in responding not to use the term Brady.
"We have 50 years of cases interpreting what Brady means, and you and I could disagree about that all day," he says.
Anderson says his interpretation of that law is that it requires only that the prosecutor turn over evidence that would be admissible in court. The testimony of 3-year-old Eric in 1987, he said, would not have been admitted.
But Anderson says that his own policy of sharing information with defense lawyers was more expansive than Brady. He also said that he was certain he would have shared information about what Eric said to Morton's lawyers because he believes it was exculpatory.
"I would not have given them a transcript," he says. "I would have given them an oral report or something that Eric said a monster killed his mother."
He repeatedly says "there's no way on God's green earth" he wouldn't have told Morton's lawyers about it.
Anderson appears irritated by Scheck's relentless questions about when he knew about items in the file and what he told others about whether he had turned over evidence Judge William Lott asked for in 1987.
"I cannot focus on a two-and-a-half-day period out of this nine-month stretch we’ve gone through and tell you what I told them during that day," he says, exasperated.
Scheck is getting frustrated with what he seems to feel are answers that are not responsive to his questions.
"Are you telling us," Scheck's voice rises, "someone from the district attorney's office did not say to you, 'Hey, Ken what did you produce in camera?'"
During the video deposition, Scheck asks Anderson about his book Crime in Texas and a section where he writes about painstakingly piecing together crimes over coffee at the L&M Café. The restaurant, which was in Georgetown's square on Austin Street, is since closed.
"It's such a hard thing to think we actually ate the food there," Anderson said with a slight smile.
The audience, with many locals, giggled.
Anderson says he took some "literary license" with that description. He says he had a firm rule to keep separate his prosecutions from Boutwell's investigations.
"He was in charge of investiations and there wasn’t anybody going to get in Sheriff Boutwell's way when it came to investigations," Anderson says.
She said the prosecutors strategized about how they planned to reconcile their case against Morton with Eric's report that a monster had committed the murder.
She specifically recalled that Anderson and Davis discussed that Morton had committed the murder, but his son did not recognize him because he wore a scuba diving suit as a disguise.
"Some nice woman had got her head beat in in a very nice neighborhood in Williamson County," she said. "It was a big deal. It just was."
She said testifying against her old boss is hard for her because she likes him and feels grateful to him.
She's now reading from the affidavit that she provided in 2011.
She wrote that It was clear from what Anderson described that Eric had said the monster was not his father.
"I remember asking well, 'Gee, can that be used in the trial?'" she said.
The answer was no, because he was not a competent witness and it was hearsay.
It was her impression that Anderson just made the decision he wouldn't use the information at the trial.
Anderson speculated that Morton was wearing his diving suit and that's why there was no blood on his clothing.
"I recall thinking that this theory, a guy killing his wife in front of his 3 year old son in a skin diving suit was pretty strange," she read from the affidavit.
She said she remembers the case because it was early in her career.
"I was under the belief Mr. Morton committed the murder," she said.
"I just remember seeing them come in — Bill with all of his frizzy hair — come in and shut the door," she says. "I was a very young, eager prosecutor. I wanted to know what was going on and what they were talking about and how it all went."
Gardner said she was shocked when she read in the newspaper about Morton's exoneration and the allegations that evidence was withheld.
"I was blown away when this article came out, absolutely blown away," she says. "I never thought this would happen."
The conversation, she said, focused on whether the child's testimony or what he had said to his grandmother could be used at trial. Their conclusion was that it wouldn't be admissible because Eric was too young, and his grandmother couldn't testify about what the child said because that would be hearsay.
The Innocence Project co-founder is asking Anderson about the transcript of the conversation between Sgt. Don Wood and Rita Kirkpatrick about what Eric had seen when his mother was murdered.
During that conversation, Wood suggested to Kirkpatrick that Eric thought he saw a monster because his father, Morton, was dressed in a skin diving suit as a disguise.
Scheck asks if police were unable to find any evidence, such as blood, that indicated the skin diving suit had been used in the crime whether that information should have been revealed to Morton's lawyers.
"I don't remember what the skin diving suit had to do with anything," Anderson says. "I don't know what that would have to do with the case."
Anderson says in the video that he has no specific recollection of any evidence in the case.
"So much of this doesn’t have anything to do with this," Fitzpatrick says.
Judge Sturns, as he has each previous time, overrules the objection.
The video resumes and during the heated exchange, Anderson looks across the room to where Morton was sitting during the deposition and says to Scheck, "Your client is getting upset."
Morton, who can't be seen on camera, says, "I'm fine. I'm cool."
"No, he's not," Anderson says.
Someone else off camera explains that Morton has left the room, and another of Morton's lawyers, John Raley, says that he didn't want to distract the judge.
Scheck continually asks Anderson whether evidence in the case should have been disclosed under Brady.
Anderson says that he doesn't agree that Brady would require him to turn over the physical reports to Morton's lawyers. But, he says again and again, that it would have been his policy to tell the lawyers about the existence of such evidence.
"Any Brady question is a mixed question of law and facts," Anderson says. Later he adds, "It's the stuff I routinely would have given them."
He was a prosecutor in Harris and Williamson counties for 16 years before becoming a judge. He was hired in 1998 in Williamson County by Ken Anderson, and then he continued to work in the prosecutor's office under district attorney John Bradley.
“In the past on at least more than one occasion he had not called the lead investigator in the case,” Arnold said. He added that his decision had to do with the "Gaskin" rule. "If you don’t call that witness, the other side doesn’t get access or can't at least then get access to those reports.”
Under questioning from Anderson's lawyer Mark Dietz, Arnold explains why he agreed to be deposed by Morton's lawyers.
"I felt horrible for Mr. Morton, and I felt like I owed it to him to go tell them about my involvement," he said.
He further points out that the law doesn't require prosecutors, under Brady, to tender evidence that would be inadmissible. Here, the point is that Anderson believed that Eric's testimony would be inadmissible because he was too young to testify in court and his grandmother couldn't have testified about what he said because that would be considered hearsay.
Dietz also suggested that Morton's lawyers could have called the lead investigator to the stand and then gotten his investigative reports.
As Hardin read through the court exchange, the lawyers in the courtroom gasped, seemingly taken aback by the lengths to which Anderson appeared to go to keep information from Morton's defense team.
Hardin harkened to a statement that Anderson made repeatedly in his deposition, that there was "no way on God's green earth" he wouldn't have shared information that pointed to Morton's innocence with the defense team.
"Is that fair on God’s green earth?” Hardin asked Arnold about the pre-trial exchange in which Anderson threatened to strike his own witness before allowing her to turn over notes.
“No,” Arnold said.
Smith was exonerated by DNA of the rape conviction that sent him to prison 1987. He was exonerated in 2006 and had served nearly 20 years in prison.
"I did expect there would be more than what was in the file," she said.
Hardin asked if she knew whether that was her boss, then-district attorney John Bradley's opinion as well.
Nichols, Anderson's lawyer objected to her speculating about Bradley's opinion. The judge asked whether Hardin plans to call Bradley as a witness.
Nichols said if Hardin doesn't call Bradley, he will.
Nichols is continually objecting that answering the question would be pure speculation.
Sturns overrules.
"It's hard to answer that," Jernigan said."We're here to decide whether those materials were turned over or not."
Hardin asked her to assume his set of facts, that the evidence was withheld, and then asked whether she would have been comfortable as a prosecutor arguing against his release.
"I would have not have been comfortable arguing against [his release] arguing your set of facts," she said.
Jernigan said she was shocked to learn that the DNA on the blue bandana was connected to the Austin murder of Debra Masters Baker in 1988.
"This is certainly the most complicated and truly out of the ordinary case, so I was sort of reeling through the whole thing," she said.
She described Anderson's reaction to the news of the DNA test results as "very dry."
"He’s very nice but sometimes his reaction to things, he’s just very dry," she said.
Hardin asks him how it went getting discovery in the Morton case from Anderson.
"Not well," he said. "It was sort of a no discovery case."
White says he never knew about the transcript of the phone call in which Rita Kirkpatrick told Sgt. Wood about Eric seeing the monster kill his mother. He said Anderson did not tell him about it and he was not provided access to police reports.
He was also never told about the green van with a man who walked behind the Morton's home. Hardin asked what significance that evidence would have had to Morton's defense. That information, White said, would have been the most helpful, because it explained unidentified footprints and fingerprints found in the back yard, on doors and on the blue suitcase that was found on Christine Morton's corpse.
"Obviously, it gave meat to the bones of the defense in the case," White said. "It supported it." White said was under the impression at trial that Christine Morton's purse had been stolen until just recently.
But actually, that purse wasn't stolen. DPS had taken it into evidence. And that purse had been admitted during the trial. Despite that, Anderson had told the jury during his opening remarks that the purse had been stolen.
Rusty reads from the transcript of the gruesome opening remarks that Anderson gave in trial, where the prosecutor described how Morton had brutally beaten his wife in a sex crazed rage.
"On his way to work, he disposed of the purse, the gun and the murder weapon," Anderson told the jury in the opening remarks. (Someone in the audience gasps as Hardin reads the transcript.)
"How in the world is a defense lawyer supposed to figure out the purse is something that he should be going into when prosecutor himself said the purse was stolen?" Hardin said. "Maybe you could put some this stuff together if somebody would have told you what the evidence was."
He says he is certain he was unaware there was a recorded conversation.
If he had known that Sgt. Woods had recorded a conversation with Kirkpatrick about what Eric saw, he said he could have tried to use that in court.
"We sure would have tried. It would put a whole different context, a whole different light on the case," White says.
That information, along with knowledge about the man in the green van who appeared to case the home, he says, "would have made the defense. Nobody knows what would have happened if we had it. But we didn’t."
Anderson argues it was one small bit of information, just what Morton had told investigators the day of the murder.
Hardin asks White what his impression was of what Lott told Anderson to produce.
"The complete reports, everything that Don Woods had done in the case, his written reports, there were oral notations … certainly the tape recoding between he and Kirkpatrick and anything else that would be potentially exculpatory," White says.
"Didn’t you tell Mike Davis I don’t remember shinola about this case?" he asked.
"No, I don't recall that," White said.
The questions now are focused on whether the statements White is making now about what happened during the 1987 trial are based on his own memories or if they're based on information fed to him by the Innocence Project and Patricia Cummings, one of Morton's lawyers.
He asked White why he didn't interview Morton's son Eric after his client told him that the boy had seen a man with a big belly in the shower with a blue-purple shirt. And why they didn't ask family members or the boy's therapist about what he had said.
"We made the decision that we weren’t going to put on a 3 year old in this kind of case," he said. "We thought it was just bad, bad tactics."
Fitzpatrick asked White why the defense did not pursue the whereabouts of credit cards in Christine Morton's purse. Although Anderson had said in opening statements that the purse was stolen, other evidence lists that were provided to defense lawyers showed that police had the purse.
"We thought the thing was stolen," White said.
The defense lawyer also said that Anderson did not tell Morton's attorneys about evidence in his file.
"We may have gone into his office and he may have closed the door. To say that he talked about the case would be a gross exaggeration," White said. "He gave us physical evidence."
When Hardin resumed questioning of White, he had few queries.
"All these things get solved, don’t they, if the state would just reveal the information for you to run down," Hardin said.
"That's correct," White said
He tells Hardin that he is 100 percent certain that Anderson did not tell the defense team about the Kirkpatrick transcript or the police reports about the man in the green van who appeared to case the Morton home.
"I think we very well could have gotten it admitted before the jury on law enforcement bias of Don Wood," Allison says. "It was a critical piece of evidence when I look at it 25 years later."
Like White, Allison says the report a man in a green van casing the house would have also been crucial.
"This evidence is completely consistent with the defense theory of the unknown intruder, random violence, and inconsistent with the prosecution theory that Michael killed Christine," he says.
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