Prosecutor goes to jail - is it enough?

The saga of former District Judge Ken Anderson may finally be coming to a close. He appeared in Court yesterday (November 8) and pursuant to a plea agreement was sentenced to 10 days in jail, fined $500 and ordered to perform 500 hours of community service. He also surrendered his law license. All of this was a result of his role in the wrongful conviction of Michael Morton, who served 25 years in prison before he was finally released.

Despite what appears to be an extremely lenient sentence you shouldn't lose sight of the historic nature of this case; it is the first time a prosecutor has been prosecuted for his role in the prosecution of a case. It was also one of the few times a prosecutor was disciplined by the State Bar, and resulted in changes to how the Bar will handle such grievances in the future.

Even though a lot of good has come out of this, the reaction of most people has been predictable. Most of the comments on social media have pointed out the disparity between the sentence Anderson has to serve, and the 25 years Michael Morton had to serve. There's some appeal to that argument, especially when you think about the argument Anderson - and those working for him - probably made thousands of times. The standard argument in murder cases goes something like this - this person took a life, so justice requires that he be sentenced to life. Similar arguments are also made in cases where a victim has suffered serious, life changing injuries. If you follow that logic, anything less than 25 years is a slap on the wrist.

One thing that stuck out to me was that Anderson entered a "nolo contendre" plea. That plea is sometimes called a "no contest" plea, which means you don't contest that the State has enough evidence to convict you. I don't know what the policy in Williamson County is, but in McLennan County the judges usually won't accept nolo contendre pleas - at least in felony cases. I wonder if the former Judge Anderson had the same policy.

Plea negotiations usually follow a fairly predictable  path. The prosecutor points out how the bad the crime is, and what type of impact it has had on the victim. When it applies, they also point out aggravating facts - e.g. a parent's special relationship to a child, or in this case the judge's special position of trust. The defense lawyer will point out any weaknesses in the State's case. They also try to humanize their client; in some cases you can point out the punishment that has already been exacted. In this case that would include Anderson's loss of job, reputation, and ability to pursue his career. They probably also pointed out his age, which means a lengthy sentence could effectively be a life sentence. Some prosecutors seriously consider such evidence, while others could care less. Fortunately for Mr. Anderson the special prosecutor apparently took all those factors into consideration. I wonder how often he gave similar consideration to the defendants he prosecuted.

In addition to the changes that have already been implemented, I'm hoping for a  more subtle - and important - change. Most prosecutors refuse to recognize defendants as people; they certainly refuse to recognize them as people similar to them. They refuse to believe they could ever be in that situation - you frequently hear comments such as "no one is responsible but them", or "they made their choice", without recognizing that choices are seldom black and white. Maybe seeing one of their own become a criminal defendant will cause them to re-think their attitudes. You can always hope.

Walter Reaves
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Criminal Defense Attorney Walter Reaves has been practicing law for over 30 years.
1 Comments
I believe that Michael is actually a better man than former judge Ken Anderson when he (MM) ask the sitting judge to do what he had to do but to "be gentle" on Mr. Anderson. It's takes a lot of soul searching to forgive someone who was responsible for sending you to prison for 25 years. The state of texas, as well as other states, have convicted innocent people many times in the past, but hopefully these wrongful convictions will lessen because of the prosecution of Ken Anderson. I am thankful for attorneys like Barry Sheck, Peter Neufeld, John Raley and Mr. Reaves who believe that some people have been wrongfully convicted and fight the fight for their client(s). I am EXTREMELY tenacious when it comes to supporting my husband, of whom I believe is actually innocent like Michael Morton and will eventually be proven so. Like Mr. Morton said, IT COULD BE YOU next. We are Michael Morton.
by P. LaRue December 12, 2013 at 11:35 PM
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