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. 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….

  2. 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.

  3. 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.

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

  5. 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.

  6. 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….

  7. 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.

  8. 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.

  9. 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.

  10. A good pound of cure would be if the PA gets whacked in the uttBay the first day in prison.

  11. 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.

  12. “… 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.”

  13. 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.

  14. 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”

  15. 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.

  16. 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.

  17. 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 ……

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