Is “Actually Punished” Enough?

There are many “stakeholders” in the criminal justice system, from criminal defense lawyers to the innocent who spent 25 years in prison awaiting the day someone would realize they didn’t belong there.  To the outside world, we look pretty much alike, we’re the outliers who care about the accused, the criminals and wrongfully convicted alike, and their constitutional rights.

You can tell which team we’re on because we use phrases like “constitutional rights” instead of technicalities.  So it’s fair to assume that when something big happens, we all take the same position, the same view of it, whether for better or worse.  Not always.

Ken Anderson, the bad one, was responsible for Michael Morton spending 25 years of his life wrongfully imprisoned.  It wasn’t an accident.  While Morton sat in a cell, Anderson sat on a bench.  People called Anderson “your honor,” and people called Morton by a number. It was wrong.

When trying the case as a prosecutor, Anderson possessed evidence that may have cleared Morton, including statements from the crime’s only eyewitness that Morton wasn’t the culprit.  Anderson sat on this evidence, and then watched Morton get convicted.  While Morton remained in prison for the next 25 years, Anderson’s career flourished, and he eventually became a judge.

But Morton is now free and Anderson will face the consequences of his actions.  To write this line is something astounding. Prosecutors don’t face consequences.  There are a list of reasons why, some good and most bad, but they are better protected than bald eagles.  Yet, this time, with this former prosecutor, former judge, former government official who decided to withhold evidence to secure the conviction of an innocent man, there will be consequences.

In today’s deal, Anderson pled to criminal contempt, and will have to give up his law license, perform 500 hours of community service, and spend 10 days in jail.   Anderson had already resigned in September from his position on the Texas bench.

Is this cause for celebration? Ten days in jail, when Morton spent 25 years?  Will he be eating at the guard’s table or will he be tossed in the hole?  Five hundred hours of community service, for a man who supposedly dedicated his career to public service?  Will he get a fluorescent vest and a stick with a nail on the end, or maybe a seat in a climate controlled office where he can dispense his accumulated wisdom to the poor?

Some applaud this outcome.

What makes today’s plea newsworthy is not that Anderson engaged in misconduct that sent an innocent man to prison.  Indeed, while most prosecutors and police officers are ethical and take their constitutional obligations seriously, government misconduct–including disclosure breaches known as Brady violations–occurs so frequently that it has become one of the chief causes of wrongful conviction. (Emphasis added to required disclaimer number 43.)

What’s newsworthy and novel about today’s plea is that a prosecutor was actually punished in a meaningful way for his transgressions.

Was Anderson “actually punished in a meaningful way?”  Mark Godsey of the Ohio Innocence Project thinks so.  There is no question that any accountability for a Brady violation is a big thing.  I’ve called Bradyworst joke ever played by  William O. Douglas.”  To not only catch a violation, but to do something about it is nothing short of miraculous.  The Supreme Court once had a chance to do something about it, but it enjoyed Harry Connick, Jr.’s, music too much.

Some see the “consequences” to Ken Anderson as “tepid.”  Compared to the harm done to Michael Morton, can ten days in jail be considered “meaningful”?  On the other hand, if the punishment was counted in years rather than days, would that impact the potential of prosecuting a former prosecutor for his wrongs?  And what of the incentive system for prosecutors to be fearless? After all, the rationalizations used to justify concealment of Brady make far more sense to prosecutors than they do to us.

The consequences for Ken Anderson are, indeed, tepid.  At the same time, it is, indeed, meaningful that consequences, any consequences, are being imposed.  The question of how harsh the consequences should be is best judged in relation to the purposes any consequences serve, general deterrence being foremost among them.

Will this ten day jail, 500 hour community service, sentence make other prosecutors think to themselves, “no way I’m not disclosing Brady. I don’t want to get Nifonged Andersoned”?  It strikes me that it will fall into the same hole as others who do wrong: it’s not the sentence, but the expectation of getting away with it.

Any consequences, from disbarment to prison, will seem severe to a prosecutor who believes he’s just doing his job keeping criminals off the street to protect the children.  But long before the notion of consequences enters their mind, prosecutors have to believe they might get caught.

The Michael Morton case remains an outlier. That Ken Anderson, after his distinguished career on the bench, wasn’t shielded for his actions is an outlier. The reason we’re debating the impact of his consequences is that it’s so ridiculously rare as to make front page news.

For now, we can debate whether the sentence Ken Anderson will serve is sufficient for the harm he did to Michael Morton.  But the real debate won’t happen until ten line prosecutors a year face consequences for Brady concealment.  When that happens, we can argue whether ten days in jail does the trick.  Until then, Ken Anderson is just a new punchline to Wild Bill Douglas’ joke, and the rest of the prosecutors will continue to bury Brady with impunity.

20 comments on “Is “Actually Punished” Enough?

  1. RKTlaw

    I know everyone has their own war story, but at the conclusion of the State’s case in a death penalty trial a couple years back, my co-counsel and I stumbled upon the fact that the prosecution had failed to turn over 1,800 pages of discovery to us. Eighteen hundred. After voir dire on the matter, it was pretty damn clear the DA was either lying or a moron. The judge, after agonizing about it over night, sanctioned the State by declaring a mistrial and taking the death penalty off the table for any retrial. He also took great pains to note in his order that it had “clearly” been a simple error in communication between the prosecution and law enforcement. That was it. The State had tried to have my client executed and withheld 1800 pages of discovery and the best we got was “oops”.

        1. RKTlaw

          Yep. One of their last witnesses was federal law enforcement (there was a fed drug conspiracy investigation going on at the same time). He mentioned something on cross about a report. Co-counsel and I looked at each other immediately because we both realized we had no such report. It was not a throwaway question, because I don’t just ask questions on cross for the hell of it, but it was not my main focus on cross of the witness. It just came out. But to your point, if that hadn’t happened, that box of 1800 docs is still sitting in storage.

  2. John Neff

    The emperical evidence suggests that the probability of incarceration is inversely proportional to status.

  3. REvers

    It’s a start. Not much of one, but a start nonetheless. It’s helping to move, if only slightly, the concept of consequences for cheating prosecutors out of the ” totally unthinkable” column.

    I do note, though, that so far it seems that consequences typically only attach to former prosecutors, Nifong notwithstanding. I don’t have a complete list so that could be wrong, though.

  4. Nigel Declan

    Unfortunately, it seem that even in the rare occasions that prosecutors or former prosecutors are found by the court to be guilty and guilty to an extent warranting a severe punishment, the (Rhode Island policeman) Edward M. Krawetz conundrum might well arise. Assuming a court is willing to impose a severe sentence on paper for misconduct, it may be unwilling to actually impose non-trivial prison time, as this would involve putting the convicted individual into the same facility filled with people who might not take kindly to former prosecutors whose job involved sending people to prison.

  5. ExCop-LawStudent

    It’s not being talked about much, but one of the reasons he was allowed to plea is the difficulty in pursuing the criminal charges.

    He was tagged with Tampering with Physical Evidence, a 3d degree felony. The statute of limitations on that is only three years, and had long since run. Tex. Code of Crim. P. Ann. art. 12.01.

    Williamson pled to a contempt of court charge based on his denial of any other evidence to the judge in 1987.

    1. SHG Post author

      If the concern were the sentence per se, this would be relevant. Rather, the concern is the ramifications, the social significance, of the sentence that a former prosecutor, former judge received for his Brady concealment that cost a man 25 years.

      1. ExCop-LawStudent

        I don’t disagree (if I understand you correctly), but how are going to make the sentence relevant to the 25 years that Morton served? We only have the existing law to work with, and all of these have limitations which prevent realistic punishment. Even federal charges would fail (7 years on 18 U.S.C. 242 violations).

        1. SHG Post author

          What made this sentence dubious was not that there was a means of making it somehow proportional to the 25 years, but that it was such an insignificant period of incarceration. To the extent there is proportionality, it’s relative, and in a relative sense, ten days is just trivial.

  6. Alex Bunin

    I am not one who thinks that victims should always get to dictate punishment because they are often too emotionally involved to be objective. However, when it is clear the victim is rational and caring enough to seek justice, and nothing more, I think their views should be strongly considered. Michael Morton is satisfied justice was done, and therefore so do I.

    1. SHG Post author

      Retribution is one factor to be considered, which is all about the victim. Deterrence is another, which really has nothing to do with the victim.

        1. Michael

          You don’t think punishment is a deterrent? Really? Don’t get me wrong, increasing the length of the sentence for a given crime does not necessarily increase the deterrent value of the punishment, and the threat of punishment is a greater deterrent to some would-be criminals than to others. But the idea that punishment does not deter at all is silly. And deterrence is most effective on people who have a great deal to lose if they are convicted of a crime and disgraced – like prosecutors.

          1. SHG Post author

            I think he was speaking to general deterrence as a concept. In this case, it’s somewhat unique, since prosecutors who engage in Brady concealment are historically excused, forgiven, rationalized or at worst shamed. So to the extent there is a deterrent at all, this would be the case where it matters.

  7. Thomas R. Griffith

    Sir, thank you for picking this up and running with it. I was hoping to see someone like yourself address the Judicial Oversight amendment passing due to him being a friggin judge and all (another first ever for Texas).

    If Mr. Morton’s F#%K-Story was devoid of DNA (and / or not Death Row related) he’d simply did his time, got out and sadly learn that he doesn’t qualify for assistance like the majority of us, Anderson would still be half naked in a black robe and everyone’s attention would be on the exonerated & the exoneratables.

    On a happier note: A few days prior to (utilizing) abusing the plea bargain system one last time, “The Despicable Due” – (Anderson & O’Brien) where spotted near their derailed Railroading Train, fly fishing in the Trinity River. Ewwwe. River Rats reported hearing O’Brien saying – “Kenning, I’m sorry you feel wronged by the criminal justice system”, “You can always get a gig teaching CEU classes at the TDCAA.” Thanks.

    *Oh, don’t drop the soap Andy, the floor is a killing zone. Ewwwwe. *And what Robb Fickman said times ten.

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