A Pinch of Poison, an Ounce of Protection or a Pound of Cure?

Justiceby Gene Howington, Guest Blogger

From Mike Nifong’s mishandling of the Duke LaCrosse case (which led to his disbarment) to the Oklahoma Supreme Court refusing to disbar Robert Bradley Miller for withholding evidence in capital cases and issuing false subpoenas to Angela Corey’s questionable prosecution of the Trayvon Martin shooting (which seemingly had little or no consequences to Corey whatsoever), stories of prosecutorial misconduct are nothing new to this forum. As always, such malfeasance can be driven by a number of factors – political considerations, public and media pressure, laziness, incompetence, and blind professional ambition to name a few. Regardless of the reasons underlying these kind of cases, the salient point is that such bad behavior on the part of prosecutors undermines the credibility of and the faith of the public in the criminal justice system.

This brings us to the case currently in the news of former Texas prosecutor Ken Anderson.

The former Williamson County District Attorney and Judge (appointed by Rick Perry) agreed to a plea deal for criminal contempt of court for failing to turn over exculpatory evidence in the 1987 murder trial of Michael Morton, later exonerated when the conviction was overturned in 2011. Anderson will pay a $500 fine, perform 500 hours of community service work, spend 10 days in jail and lose his license to practice law. As part of the plea deal, charges of tampering with evidence – which carried a potential penalty of 10 years in prison – were dropped.  Is this sufficient punishment for willfully and wrongly sending a man to prison for 24 years? Does this kind of plea further erode public faith in the accountability of those responsible for running the criminal justice system? While this case is being trumpeted as “precedent shattering”, is it really? What can we do about this kind of systemic error?

Is this sufficient punishment for willfully and wrongly sending a man to prison for 24 years?  Anderson willfully withheld exculpatory evidence, namely that that witnesses reported seeing a man park a green van nearby and walk into the woods near the Morton’s house and that Morton’s 3-year-old son specifically said Morton wasn’t at the scene. Anderson’s criminal malfeasance was only undone after DNA evidence proved another man was responsible for the 1986 beating death of Morton’s wife, Debra Jan Baker.  I don’t think that the punishment even comes close to the damage Anderson’s willful criminal misconduct inflicted on Michael Morton.  Whether or not this is mitigated by damages in a future civil suit remains to be seen.  That being said, money is cold comfort for wrongfully depriving a man of one third to one quarter of his life expectancy and the freedom to be in the life of his child and other family.

Does this kind of plea further erode public faith in the accountability of those responsible for running the criminal justice system?  I suspect that if Anderson hadn’t been a DA and Judge, that he wouldn’t have gotten such a lenient plea deal either.  This comparative slap on the wrist sends the wrong message to both citizens and members of the bar alike.  The potential ten year prison term he faced if prosecuted for tampering with evidence charges seems a more equitable punishment from a not only fair and accurate charge in itself but a charge that should/could have arguably included an obstruction of justice charge. This kind of clear favoritism cannot do anything but erode public confidence in the criminal justice system even if it does mark the first time a prosecutor has received criminal sanction for such prosecutorial misconduct.

While this case is being trumpeted as “precedent shattering”, is it really? No. “Less revolutionary than evolutionary” is probably a better description.  So is “long over due” and “insufficient as deterrent” and “inadequate and inequitable remedy for harm inflicted”.

What can we do about this kind of systemic error? There is an option that has been discussed in this blog before albeit in usually in negative and critical terms: mandatory minimum sentencing.  The criticisms against mandatory minimum sentencing are mostly if not completely valid. They remove judicial discretion, impose penalties harsher than the circumstances might merit, and feed into the disastrous monstrosity that is the for-profit prison industry. These are all bad things. However, consider that mandatory minimum sentencing is a tool. While it may be an inappropriate tool to use in most cases, this present case isn’t like most cases.  The key element getting short shrift here is that at the core of his malfeasance, Anderson has abused a public trust invested by his former office as District Attorney.  He didn’t just betray Michael Morton. He betrayed every citizen in his jurisdiction. It has been my musing for some considerable time that while mandatory minimum sentencing is a wrong tool in general that when it is a matter of a betrayal of public trust by a public official or any officer of the court that mandatory minimum sentencing just might be the perfect tool to act as a sufficient deterrent to keep public officials from being so willing to abuse their office and/or position. Consider such sentencing in these kinds of cases as roughly analogous to aggravating circumstances in capital murder cases. Consider that betrayal of public trust damages not just individual plaintiffs but the entire system – not just law enforcement and the judiciary.

When a person sworn to uphold a pubic trust by the nature of their position betrays that trust, isn’t that an aggravating circumstance that merits the fullest penalty of law possible simply because of the widespread systemic harm such betrayals create?

Should plea deals in such instances even be permissible?

Is the Anderson case an example of another pinch of poison killing citizen faith in the criminal justice system?

Is this plea solution providing sufficient deterrent to other prosecutors to prevent such criminal malfeasance in the future, an ounce of protection? Is such protection this minimal deterrent affords preferable to the pound of cure that could be mandatory minimum sentencing for cases involving willful and/or criminal malfeasance of public office and/or violation of a public trust?

Or do we need a pound of cure in the form of mandatory minimum sentencing for public officials found guilty of crimes involving the betray of the public trust inherent to their office?

What do you think?

Source(s): NBCNews.com (1, 2)

~submitted by Gene Howington, Guest Blogger

30 thoughts on “A Pinch of Poison, an Ounce of Protection or a Pound of Cure?

  1. The problem with trying to get the voters energized about prosecutorial misconduct, police brutality and misconduct is that the public is constantly bombarded with propaganda that these individuals are heroes even when they flagrantly and knowingly break the law, violate the Constituion and persecute the totally innocent. The illusion is that this conduct is “keeping” us safe. It is most assuredly not! It is in fact putting us all at risk. It doesn’t take much,as we have seen in this very blog, for a police office to shoot and kill a defenseless citizen or for a prosecutor to gin up charges that would make a law student cringe.

    Prosecutors and police officers should be, at a minimum, held to the same standard as the rest of us, if not a higher one, when it comes to their professional behavior. The impact their abuses of power have on the system and the public’s respect for the system is most assuredly an important reason that 10 days is jail, community service and a lost license is nothing more than a slap on the wrist.

    A man spends 24 years in jail for a crime he did not commit because of prosecutorial misconduct but bankers aren’t even being investigated let alone sent to jail. Their corporations pay their fines and gets a tax deduction for it! And politicians wonder why voters are disillusioned ……

  2. Thank you Gene for focusing on a topic that has long concerned me and presenting it with clarity. While I too generally am skeptical about mandatory minimum sentencing, in this case I would have loved to see it come into play. The whole plea bargain mentality has actually corrupted rather than ensured justice.

    What strikes me about this case is that prosecutors so often focus on the horrors of the crime and the need for “closure” so that the victims can move on. Fair enough, but then where is the “closure” for Michael Morton who spent 24 years in prison, for a crime he didn’t commit, because of Anderson’s deception. What was done to Mr. Morton was the equivalent of a violent rape, or other horrendous crime and should have been prosecuted as such. Anderson should have had more than a few years to experience the prison life his actions condemned Mr. Morton to suffer.

  3. Gene,
    As we all know, this is anything but a new phenomenon. I know one prosecutor in Mississippi who sent an innocent woman to prison for ten years. The district attorney and everyone else knew the boyfriend of the dead girl killed her, how he killed her, and why. She had just told him she was pregnant, which didn’t exactly fit his career plans. However, he had a lawyer even before the news was out that she was dead. He refused to cooperate or be interviewed in any way. The roommate (my client) had been to the dentist and was full of pain medicine that night. The college football team could have had a scrimmage in that dorm room and she would not have waked up. She never had a lawyer and was interrogated the next morning while she was still goofy from being full of morphine. At any rate, she was convicted simply because it was easier than going after the real killer.

    She spent ten years in prison, but when she got out she talked to the Innocence Project and tried to get the undergarments the dead girl had been wearing sent to a lab for DNA testing. After many delaying tactics by the DAs office, the underpants were finally produced for the lab. There was no DNA on them. They had been washed, and the lab suspected the washing had been recent.

  4. As always OS you have the issue in a nutshell. What is the character flaw or warped thinking process that needs to be identified and with wealth and connections brushed aside mandated to be eliminated from prosecution, defense and especially judges from top to bottom? I can’t talk with anyone but what they have total disgust with the people who have clawed their way to the top of the heap in the “Courthouse Gang”

  5. While we should respect judges, they deserve primary fault for creating this culture – where too many (not all) judges have forgotten their top duty is to be “Guardians of the Constitution” – not an arm of an Executive Branch agency (federal, state, local).

    Judges seem to no longer enforce the Exclusionary Rule, suppression hearing or the “Fruit of the Poisonous Tree Doctrine” – based on centuries of common law and jurisprudence.

  6. “… bad behavior on the part of …

    That echoes through all of the guest posts.

    Sounds like a cultural defect.

    “… undermines the credibility of and, ergo, the faith of the public in the … system.

    The faith in our system is eroding at home and abroad.

    But to your specific point about the criminal justice system, I think it is well taken since even the Attorney General of the United States says “it is broken.”

  7. In many cases the government is not in business to protect people, but to protect itself and its crony allies. The NSA, the CIA, the burgeoning police state, which employs many prosecutors, is seeing the public as the enemy to its ever expanding powers and way of life.

    To purposely and maliciously send an innocent man to prison should be considered a crime on par with kidnapping, rape, and torture. This despicable prosecutor should be behind bars for at least one month of every year the innocent had to serve and then he should be tracked like a sexual predator for the rest of his life.

    You are less likely do the crime if you have to spend true hard time.

  8. Actually, bar authorities and the prosecutors themselves are more willing today than in years past to seek sanctions against rogue prosecutors. As for Mr. Anderson, two points should be made. First, mandatory-minimum sentences exist because some judges will not impose an appropriate sentence. They need their discretion curtailed. Anderson’s case makes this point. Second, not to defend Anderson, but his penalty wasn’t all that light. After all, he can no longer practice law. How’s he going to earn a living, sell tomatoes from a push wagon? Unless he’s got political connections somewhere, no one is going to come near him.

    If you want to become really outraged about lies in the criminal justice system, google “Johnny St. Valentine Brown”. For my money, Brown’s case is the most egregious. It should give pause to everyone with a stake in the criminal justice system.

  9. Williamson (zero tolerance) country, is just north of (DFH infested) Austin,
    where Anderson was a Judge for a # of years, after his stint as DA. I have to wonder what effect this will have on all the other cases he tried as both DA & Judge.
    Ive been reading about this case for years & have to ask if Morton said something that influenced Anderson re character, or if he was just a cold blooded sociopath out for easy reelection.

  10. Vincent Jankowski: “Second, not to defend Anderson, but his penalty wasn’t all that light. After all, he can no longer practice law. How’s he going to earn a living, sell tomatoes from a push wagon?”

    Should have thought about that before he withheld evidence. Then, again, it IS Texas.

  11. What is not spoken about is the MF gets to keep not only his District Attorneys Pension but also his judicial pension….. I think these should be forfeited…… But as OJ Simpson case shows retirements are exempt from attachment…… Ken Anderson the prosecutor is as skanky as you can get….. If my calculations are correct its over $125k a year….

  12. A snake like this could live in the grass in just about any state. All my Ex’s live in Texas so it is not too bad.

  13. Mandatory minimum sentences and no plea deals for all public officials who betray the public trust? Would that include police?

  14. Blouise,

    And to further clarify, I think there would need to be a willfulness element. If someone is just stupid or unlucky, I don’t think throwing the book at them is necessarily equitable or just. But if they violate that public trust willfully? They should get the very pointy end of the stick.

  15. Gene,

    As long as we are including all public officials who betray the public trust then I am 100% in support of mandatory minimum sentences and no plea deals.

  16. Blouise,

    I was reading an article about Anderson, not only does he get his pensions…. But life time health as well as social security….. Something seems wrong about the payout….. Yes, the wrongly convicted person will get about 50k per year for wrongful incarceration…. It just seems that Anderson should forfeit his pensions…… Just sayin…..

    One thing positive is that from now on all defendants are entitled to go through the entire prosecutors file because of this…… So maybe some good did come of this….

  17. one other thing to consider. if he didn’t take the plea deal would they have been able to convict? as an ex-prosecutor and judge that makes him an upright citizen in the eyes of the and order, lock’um up and throw away the key crowd.

    they only need one per jury. not bad odds in texas.

  18. pete,

    A (somewhat) valid observation, but still, the case presents the perfect stage for the underlying proposition (mandatory minimums and no pleas for public servants willfully violating public trust) regardless of the practicality or impracticality of prosecuting the particular case proper. In the instant case? I’m not sure how good the case against Anderson was however it was clearly good enough to convince a former prosecutor he was better off taking the plea instead of his chances. However, on cases like this jury unanimity is usually not required (evidence tampering isn’t a capital crime) just a simple majority. Unless of course there is some weird kink in Texas law – which wouldn’t surprise me as Texas is barely part of this planet.

  19. I disagree with mandatory minimums, and I also disagree with plea deals at all, period, and I hate prosecutorial discretion. Plea deals and prosecutorial discretion are minefields of corruption and favoritism and bigotry and prejudice.

    I think all cases should be tried, and all sentences should be decided by a jury. I DO believe in multiple levels (preponderance, clear and convincing, beyond reasonable doubt) for conviction. In this case I’d say clear and convincing should be the standard. The jury could be informed of the parameters of sentences and pick what they think is appropriate, and I think they would be brutal in this case.

    That would cost us more, but not too much. Consider it a job creating program. Prosecute all of it.

  20. P.S. And as far as prioritizing cases is concerned, I think cases with longer potential sentences should be prioritized first, without exception, and cases with identical potential sentences should be first-come-first-served, without exception. I don’t believe in discretion there, either.

    I have seen the start of murder trials postponed for misdemeanors moved to the top of the list because they involved celebrities and would be covered by news. I find that a travesty of justice, too, if the mayor gets arrested for DUI let him wait his turn like everybody else. Even if the police video is all over the news, let him wait.

    As is true in business, the default solution to “too much work to do” is prioritizing the work, you just need to understand that in prioritizing, you may well be deciding what you will never, ever do. So make sure the important stuff gets done first, and the important stuff is the stuff that carries the greatest impact.

    As for plea bargains in return for aid, that is something else I’d leave up to the jury. If the prosecutor has an idea of what the aid was worth in terms of a reduced sentence, let him tell that to a jury, and how the aid or information helped out, and let them decide that during sentencing.

    But I believe plea deals are heavily abused, and innocent people plead guilty to crimes they didn’t commit because law enforcement is lying to them about what they can prove or what will happen in court. That is not a form of leverage they should be allowed to use.

    Prosecutorial discretion leads to excusing cops from trial when they have actually murdered people in cold blood, and we can tell from the evidence they at minimum should be tried. Prosecutorial discretion is used to forgive the kids of the rich or politicians or police officers or charge them with lesser sentences, and judge-based sentencing discretion gives them community service they never perform while others are getting hard time that ruins their lives.

    Prosecutorial discretion and plea deals for fines instead of trials is why there are no banksters in jail, and they are rewarded with keeping their fraudulent billions in gains instead.

    Prosecutorial discretion very nearly meant the murderer of my sister would go unpunished, because the DA did not think the case was “solid,” and it took me six months to change their mind. (And the jury convicted in 30 minutes.)

    The system does not have to be robotic, juries should have the freedom to impose any punishment within the law based on the peculiar circumstances and quality of evidence and testimony, including any aid provided by criminals to thwart or prosecute other crime.

    I think if there is probable evidence a suspect committed a crime, that should go to a trial and a jury should decide. That is equitable, and if saving money opens the door to inequity and different justice systems for the rich and the poor, we should forgo the savings.

  21. ” Second, not to defend Anderson, but his penalty wasn’t all that light. After all, he can no longer practice law.”

    I don’t think I could agree. He withheld evidence, obstructed justice with at least two severe consequences. His actions took away most of the adult life of an innocent man. In that period of time people meet, get married, have children and grand children, have careers. That seems pretty significant to me. Perhaps even worse, his obstruction assured that a murderer when free with the potential to commit other crimes on an unsuspecting public.

    The several crimes committed by the former prosecutor go to the integrity of the judicial system.

    If the judicial system cannot or will not treat this behavior as the worst of the worst then why should any person have confidence in or respect for the system – either prosecutors or judges who allow this to happen with at most a slap on the wrist?

  22. I like Tony’s response.

    Killlers under cover of law getting away with it….

    http://www.informationclearinghouse.info/article36807.htm

    excerpt. Links to references are in the article. Hope I removed all but the Wikipedia link.

    November 10, 2013 “Information Clearing House – “MintPress News” — Though Americans commonly believe law enforcement’s role in society is to protect them and ensure peace and stability within the community, the sad reality is that police departments are often more focused on enforcing laws, making arrests and issuing citations. As a result of this as well as an increase in militarized policing techniques, Americans are eight times more likely to be killed by a police officer than by a terrorist, estimates a Washington’s Block Report based on official statistical data.

    Though the U.S. government does not have a database collecting information about the total number of police involved shootings each year, it’s estimated that between 500 and 1,000 Americans are killed by police officers each year. Since 9/11, about 5,000 Americans have been killed by U.S. police officers, which is almost equivalent to the number of U.S. soldiers who have been killed in the line of duty in Iraq.

    Because individual police departments are not required to submit information regarding the use of deadly force by its officers, some bloggers have taken it upon themselves to aggregate that data. Wikipedia also has a list of “justifiable homicides” in the U.S., which was created by documenting publicized deaths.

  23. I believe there was an thread some time ago about a prosecutor who spent as a porn actor as portrayed in a youtube video. New information: the video was produced by the brother of his opponent for the prosecutor’s job. The opponent for the job disavows any knowledge of the video.

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