"A few minutes later, somebody asked Anderson about talk that he might resign from the bench. Somehow, that question led him back to what he had not been thinking about — the death penalty.
"I hadn't heard that speculation," he said about resigning. "And frankly I don't want to talk about me right now. What happened shouldn't have happened. I mean it's inconceivable that this happened."
Let me interrupt to note that it is not inconceivable. Our criminal justice system, for all its successes, errs. It does so because it depends on humans, a species renowned for fallibility, even under best intentions. And, in cases like this one, errors can be corrected when new scientific techniques become available."
KEN HERMAN; THE STATESMAN;
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BACKGROUND: (Michael) Morton was the victim of serious prosecutorial misconduct that caused him to lose 25 years of his life and completely ripped apart his family. Perhaps even more tragically, we now know that another murder might have been prevented if law enforcement had continued its investigation rather than building a false case against Mr. Morton,” said Barry Scheck, Co-Director of the Innocence Project, which is affiliated with Cardozo School of Law. “This tragic miscarriage of justice must be fully investigated and steps must be taken to hold police and prosecutors accountable.” In August, the Innocence Project announced that DNA testing on a bandana found near the Morton’s home where the murder occurred contained the blood of the victim, Christine Morton, and a male other than Morton. According to the papers filed by the Innocence Project yesterday, new DNA testing has connected the male DNA on the bandana to a hair that was found at the crime scene of a Travis County murder that was conducted with a similar modus operandi after Morton was incarcerated. Morton always maintained that the murder was committed by a third-party intruder. In the filing, the Innocence Project charges that Morton would never have been convicted of the crime if the prosecution had turned over as required evidence pointing to his innocence. Newly discovered evidence that was uncovered through a Public Records Act request that was not given to the defense includes: • A transcript of a taped interview by the chief investigator, Sgt. Don Wood, with the victim’s mother where the mother says that the couple’s three-year-old child witnessed the murder and provided a chilling account of watching a man who was not his father beat Christine to death. • A handwritten telephone message to Williamson County Sherriff’s Office (WCSO) Sgt. Wood dated two days after the murder reporting that what appeared to be Christine Morton’s missing Visa card was recovered at the Jewel Box store in San Antonio, with a note indicating that a police officer in San Antonio would be able to identify the woman who attempted to use the card. • A report by WCSO officer Traylor that a neighbor had “on several occasions observed a male park a green van on the street behind [the Morton’s] address, then the subject would get out and walk into the wooded area off the road.” • An internal, typewritten WCSO message to Sgt. Wood and follow up correspondence reporting that a check made out to Christine Morton by a man named John B. Cross was cashed with Christine’s forged signature nine days after her murder. The Innocence Project. (Morton's lawyers contend the Williamson County District Attorney at the time, Ken Anderson, withheld evidence that would have exonerated Morton. Lawyers have questioned Anderson, now a district judge, and others involved in the case to determine if there was misconduct involved. That process continues)
"GEORGETOWN — The century-old Williamson County Courthouse never has hosted anything quite like the Wednesday scene featuring District Judge Ken Anderson," the Statesman commentary by Ken Herman published on November 17, 2011 under the heading, "Morton case an important reminder of the fallibility of our legal system," begins.
"Through him, the county where tough justice is meted out admitted it messed up in sending Michael Morton to prison," the commentary continues.
""In hindsight, the verdict was wrong," Anderson said outside the courthouse where Morton, recently freed after 25 years in prison, was convicted in 1987. "Mr. Morton was, and is, innocent of murdering his wife."
Anderson looked down at his text three times as he said this: "As district attorney at the time, and as woefully inadequate as I realize it is, I want to formally apologize for the system's failure to Mr. Morton and to every other person adversely affected by this verdict."
But, he added, "in my heart I know there was no misconduct whatsoever." Ongoing investigations will judge the accuracy of that statement.
Though the Morton case was not a capital case, it offers an important reminder about the death penalty in that it screams about the fallibility of our criminal justice system.
Fallibility, combined with the finality of execution, is something to ponder.
"Judge," I asked Anderson, "how does a case like this impact how you feel about the death penalty?"
"I've been thinking about a lot of things," he replied, "but I haven't had a chance to think about that yet."
I hope he has a chance to do that.
After Anderson avoided my follow-up question about fallibility and finality, the news conference returned to questions about the Morton case.
A few minutes later, somebody asked Anderson about talk that he might resign from the bench. Somehow, that question led him back to what he had not been thinking about — the death penalty.
"I hadn't heard that speculation," he said about resigning. "And frankly I don't want to talk about me right now. What happened shouldn't have happened. I mean it's inconceivable that this happened."
Let me interrupt to note that it is not inconceivable. Our criminal justice system, for all its successes, errs. It does so because it depends on humans, a species renowned for fallibility, even under best intentions. And, in cases like this one, errors can be corrected when new scientific techniques become available.
Back to Anderson: "And I really want to apologize to (Morton) and everybody else who this affected. The system failed, and it shouldn't fail."
It shouldn't. But it does. We correct as best we can when it does. Prison gates swing open. Payments are made. The options are greatly limited if we execute an innocent person.
Something about Anderson's acknowledgment of failure in the Morton case returned him to the topic he hasn't had a chance to think about yet.
"And back to your question," he said, looking my way, "I suppose the system is fallible. But it's the system we have. And it's the system we've had for a long time."
It does not have to be the system we always will have.
I support the concept of the death penalty. I believe there are people who forfeit their right to live as a result of heinous acts they commit. And I'll support the use of the death penalty when we can excise failure from our criminal justice system. Until then, fallibility and finality add up to a convincing argument against the death penalty in action, if not in concept.
Anderson touched on failure and recourse as he wrapped up by saying he is "beating myself up" and is "absolutely sick" about the Morton case.
"And I'm apologizing for the system's failure. But, you know, there is nothing adequate to do (for Morton). In their wisdom, the Legislature has provided a compensation system. Before they had that, he probably wouldn't have been compensated at all. He's free to reject that, of course, and file a civil rights suit. But the Legislature actually had a pretty good plan there when they came up with the compensation program."
And what program do we have for when system failure leaves nobody for whom we can swing open a prison gate and write a check?"
The commentary can be found at:http://www.statesman.com/news/local/morton-case-an-important-reminder-of-the-fallibility-1976900.html
PUBLISHER'S NOTE: The Toronto Star, my previous employer for more than twenty incredible years, has put considerable effort into exposing the harm caused by Dr. Charles Smith and his protectors - and into pushing for reform of Ontario's forensic pediatric pathology system. The Star has a "topic" section which focuses on recent stories related to Dr. Charles Smith. It can be found at:
http://www.thestar.com/topic/charlessmith
Information on "The Charles Smith Blog Award"- and its nomination process - can be found at:
http://smithforensic.blogspot.com/2011/05/charles-smith-blog-award-nominations.html
Harold Levy: Publisher; The Charles Smith Blog; hlevy15@gmail.com;
