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Anderson Appeals, Citing Statute of Limitations

UPDATED: Williamson County state district Judge Ken Anderson has filed an appeal asking a court to rule that a warrant for his arrest should be void because it violates the statute of limitations.

By Maurice Chammah, The Marshall Project
Judge Ken Anderson, l, sits at the defense table as the court of inquiry begins in Georgetown on April 19, 2013.

Updated, April 23, 11:25 a.m.:

Williamson County state district Judge Ken Anderson has filed an appeal asking a court to rule that a warrant for his arrest issued last week should be void because it violates the statute of limitations. The arrest warrant was issued by Judge Louis Sturns at the conclusion of a court of inquiry, which debated whether Anderson withheld critical evidence that led to Michael Morton's wrongful conviction. 

Anderson’s attorneys contend that even if Anderson broke a law, it is too late for him to be charged with it. The misdemeanor charge expired after two years, in 1989, and the felony charge expired after three years, in 1990, they argue, deadlines that Sturns “flatly and openly declined to address.”

“The Texas criminal justice system does not recognize the validity of time-barred criminal prosecutions in any form,” the appeal states, explaining that the point of a statute of limitations is to protect defendants whose crimes occurred too long ago to be clearly remembered by witnesses.

“As was shown abundantly at the court of inquiry hearing, key witnesses to the events at issue have died,” it notes, “and memories of all surviving participants in those court proceedings, including those of [Anderson], have faded."

Original story:  

GEORGETOWN — A judge issued an arrest warrant for former Williamson County District Attorney Ken Anderson on Friday, after finding probable cause to believe Anderson withheld critical evidence in Michael Morton's 1987 murder trial. 

Judge Louis Sturns concluded his court of inquiry by charging Anderson, who is now a state district judge, with tampering with government records (a misdemeanor), tampering with physical evidence (a felony) and failing to comply with a judge's order to turn over such evidence, for which he could be held in “contempt of court.”

The rare court of inquiry, in which arguments were made in February, was held to determine whether Anderson, a former district attorney, committed criminal misconduct during the trial that led to Morton’s wrongful murder conviction. Morton, who was in attendance for Friday’s decision, spent nearly 25 years behind bars for his wife’s murder before he was exonerated.

Sturns said that Anderson purposefully concealed evidence from Morton's defense attorneys, hiding reports that neighbors had seen a green van outside of the Mortons’ home and a phone transcript in which Morton's son was said to have told his grandmother a "monster" murdered Morton's wife.

Rusty Hardin, the special prosecutor in the court of inquiry, told reporters that Anderson would turn himself in at the Williamson County Jail on Friday afternoon, and that he would have to pay a $2,500 bond for each of three separate counts.

As for what happens next, Hardin admitted that nobody involved is sure. "We're all kind of operating on a clean slate here," he said, adding that Anderson would be "treated like anybody else."

Sturns concluded that he did not have the authority to rule on the statute of limitations — he said that matter should be judged by a trial court. Anderson's attorneys, who left before making any public comment Friday, said they would be filing an appeal.

Hardin added that the Anderson case did not signal widespread evidence of prosecutorial misconduct. "Most try to do it the right way," he said.

Addressing reporters Friday, Morton thanked “everyone involved" and said, "I'm one of the only people who has a modest understanding of what Anderson is going through." He said he hoped the legal system would be fair with Anderson. "The important thing is that there is transparency in our system, and accountability," he said. "No one is above the law."

Over five days in early February, Hardin and defense attorneys for Anderson had presented evidence regarding whether the former prosecutor had withheld critical evidence from Morton’s original trial attorneys. Earlier this week, both sides submitted briefs to the judge.

The evidence that Sturns determined was illegally withheld included a report in which neighbors told police a man in a green van had been parked near the Mortons' home and a transcript of a phone conversation in which Morton’s mother-in-law, Rita Kirkpatrick, said that the couple’s 3-year-old son, Eric, said he saw a “monster” beat his mother. Anderson contends this phone conversation would not have been admissible in court — that the boy was too young to testify — and so there was no need to share it.

A blue bandana found near the Mortons’ home and tested for DNA linked Mark Alan Norwood to the murder, and last month he was found guilty and sentenced to life in prison. Norwood has also been charged with the 1988 murder of Debra Masters Baker in Austin.

During the court of inquiry, Anderson maintained he had done nothing wrong. “I’ve beaten myself up on what could have been done different,” he told the court, “and I frankly don’t know.”

Throughout the last few months, lawmakers have responded to the Morton story by considering bills that some say would improve prosecutor accountability.  One of those is Senate Bill 825, by Sen. John Whitmire, D-Houston, and passed by the Senate last month, would extend the statute of limitations for offenses involving the suppression of evidence by prosecutors.

Senate Bill 1611, by Sens. Rodney Ellis, D-Houston, and Robert Duncan, R-Lubbock, which would explicitly require prosecutors to turn over evidence to defense lawyers in criminal cases. It passed in the Senate last week after much wrangling between defense attorneys and prosecutors, guided and encouraged by Morton and his lobbyist, Thomas Ratliff. It has been dubbed the Michael Morton Act.

Morton has praised both pieces of legislation, saying of Ellis’ bill, “Had this been in place when I was arrested, I probably wouldn't have gone to prison."

Ellis and Whitmire attended the court of inquiry's conclusion Friday. Ellis reiterated calls for an innocence commission to investigate "every time the system makes a mistake" and someone is wrongfully convicted. "There ought to be probative questions asked every time," he said.

Whitmire agreed, adding, "We shouldn't be afraid of transparency and accountability."

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