Saturday, November 16, 2013

GateHouse: The outlier, a prosecutor jailed for misconduct

Matthew T. Mangino
GateHouse News Service
November 15, 2013

Last week, a Texas judge was forced to resign, give up his law license and spend 10 days in jail as part of a plea agreement.

Nearly 30 years prior to his plea, disgraced former district Judge Ken Anderson was a prosecutor in Williamson County, Texas. Back in 1986, Anderson led the prosecution of Michael Morton for the murder of his wife, Christine.

A detective with the Williamson County sheriff’s department had investigated the murder and prepared a report suggesting that Morton was not responsible for his wife’s death. Anderson went forward with the prosecution in spite of the report.

A prosecutor can disagree with the conclusions of an investigator — it happens all the time. A prosecutor cannot, however, withhold favorable evidence from a defendant.  A 1963 U.S. Supreme Court decision made it clear that Anderson was required to turn over the detective’s report to Morton’s attorneys. He didn’t and then lied to the court about the report’s existence.

Morton was convicted and spent 25 years in prison until a Texas judge took the extraordinary step of finding Morton factually innocent — releasing him from prison and dismissing the charges.

The court then turned its attention to Anderson. The Texas Supreme Court convened a special court of inquiry to look into prosecutorial misconduct. The court found Anderson guilty of contempt of court, tampering with government records and tampering with or fabricating evidence.

Anderson will spend one day in jail for every two and a half years Morton spent in prison. Where is the outrage about Anderson’s lenient treatment? Imagine if Ariel Castro had been sentenced to one day for every year his three female victims were imprisoned in his Cleveland home.

Lawmakers were clamoring for Casto’s execution — and Anderson, a trusted public servant, will spend a week and a half in jail for intentionally robbing a man of 25 years of freedom.

Claims of prosecutorial misconduct are rare and difficult to prove. Even if proven, prosecutors may remain insulated from liability. Absolute immunity protects prosecutors from liability whenever they are performing the traditional functions of a prosecutor or are engaged in activity intimately associated with the regular work of a prosecutor.

Anderson is not the first prosecutor to go to jail for withholding favorable information. In 2006, Mike Nifong the district attorney in Durham County, N.C., was forced to resign, was disbarred and sentenced to one day in jail for failing to provide DNA evidence to the lawyers representing members of the Duke University lacrosse team accused of sexual assault.

Nifong and Anderson are aberrations. John Thompson’s case is more the norm. Last year, the U.S. Supreme Court reviewed the conviction, exoneration and civil award to Thompson, a Louisiana man wrongfully convicted who spent 18 years on death row.

A civil jury found that New Orleans District Attorney Harry Connick Sr. failed to train his prosecutors on their obligations to turn over documents and awarded Thompson $14 million.
In a 5-4 opinion written by Justice Clarence Thomas, the U.S. Supreme Court reversed the verdict, finding that a single violation did not establish a pattern of misconduct.

The U.S Supreme Court has found that absolute immunity may "leave the genuinely wronged defendant without civil redress against a prosecutor whose malicious or dishonest action deprives him of liberty."

Regardless, absolute immunity is vital, “harassment by unfounded litigation would cause a deflection of the prosecutor’s energies … (or) shade his decisions instead of exercising the independence of judgment.”

More than a half century ago, Judge Learned Hand observed, “better to leave unredressed the wrongs done by dishonest officers than to subject those who try to do their duty to the constant dread of retaliation."

Obviously, Judge Hand never met Michael Morton, John Thompson or the falsely accused members of the Duke lacrosse team.

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly and George and the former district attorney for Lawrence County, Pa. You can read his blog at and follow him on Twitter at @MatthewTMangino.

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