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 Brady “worst 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.