McLennan District Attorney wants more staff, budget to assure he is not subject to punishment for violation of the Michael Morton law
“The kid thinks a monster killed his mother.” – then Assistant DA Ken Anderson, speaking of Michael Morton’s son Eric, according to an assistant, Kim Gardner, who worked for Anderson in 1987
Waco – The little boy told his grandmother, and then gave an investigator a statement that proved he saw the killer take his mother’s life with a two-by-four. He described him as a “monster” with “red hands” – his way of saying the killer’s hands were stained with his mother’s blood.
But jurors never had a chance to hear the child’s testimony because attorneys for the Innocence Project proved in a “Court of Inquiry” ordered by the Texas Supreme Court that Ken Anderson knowingly lied to the judge in the 1987 murder trial of Michael Morton when he said he had no further evidence to present in the case.
The child’s exculpatory statement could have prevented Morton from serving nearly 25 years in the Texas penitentiary for the murder of his wife, an act he did not commit.
A Williamson County Judge ordered Anderson to serve 10 days behind bars at the county jail, pay a $500 fine, surrender his law license, and perform 500 hours of community service following his conviction for criminal contempt of court, tampering with evidence, and tampering with government records.
He was released from jail after 5 days because of his good behavior behind bars. He had previously resigned his elected office as a Criminal District Judge.
In a grueling two days of depositions, Anderson repeatedly claimed he did not remember knowing of the exculpatory evidence he neglected to turn over to the defense. One may read the transcripts of the testimony by clicking on these files:
https://static.texastribune.org/media/documents/0702_Morton_KenAndersonDepositionVol1_103111.pdf
https://static.texastribune.org/media/documents/KenAnderson11.11.11DepoVol.2.pdf
If Abel Reyna has said it in public once, he’s said it a hundred times.
“I don’t want to look at the front page of the paper 20 years from now and see my picture with a headline that says the District Attorney is charging me with a violation of the Michael Morton Act.”
He has declined to prosecute cases based on certain indictments, refused to present others to the Grand Jury, and generally made noises about how difficult it is to know what is and is not to be redacted or witheld from the public record.
The complex issues arise from the Legislature’s enactment of the Michael Morton Act, SB 1611, in 2013. The act amended the Texas Code of Criminal Procedure’s rules of discovery in Section 2 of Art. 39.14.
When the new law took effect on January 1, 2014, it completely nullified a previous policy of allowing each District Attorney’s office in jurisdictions in 254 Texas counties to set their own policies as to how and when discovery of the witnesses and evidence to be used against a defendant will be discovered.
According to a determination by the State Bar’s Ethics Committee handed down in November, 2014, the previous mix and match rule is “obsolete because the act requires an ‘open file policy by all Texas prosecutors without requiring defendants or their lawyers to agree to any restrictions on their use of materials in the file except as provided by this act.”
The only items exempted are prosecutors’ work product and “other information (such as information about victims and children) that is made confidential by law.”
When the Legislature recently acted to automatically seal all juvenile records unless prosecutors find a reason to keep certain parts of them public, McLennan Criminal District Attorney Abel Reyna was quick to let the Commissioners’ Court know in a budget workshop that he needs more staff and larger budget to help him make those determinations.
He said the same thing he’s said repeatedly since 2014 about not wanting to go to jail and lose his law license at some future date because it has been determined in a disciplinary tribunal that he witheld information on discovery that would have tended to exculpate the accused had it been turned over to the defense.
His reasoning is that there are numerous state agencies who make decisions about what is and is not proper to be disclosed that are based on other than solid legal determinations. Makes no difference, he told Commissioners. He’s still liable for the oversight – even at a point decades in the future.
One may hear an edited recording of Reyna’s remarks by clicking here: