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?
~submitted by Gene Howington, Guest Blogger