Civil hearing still tentatively set for Sept. 30
Austin Community Newspapers Staff
Judge Ken Anderson is going to have to wait a little longer, before learning if he’s to be banished from the profession he’s practiced for almost 40 years.
During a special hearing Friday, visiting Judge Kelly Moore of Brownfield took under advisement competing motions filed by Anderson’s attorneys and lawyers representing the State Bar of Texas’ Commission for Lawyer Discipline. Moore said Friday he’d rule on the motions in seven to 10 days.
Friday’s two hour hearing – held at the county’s Justice Center in Georgetown – was a condensed version of the five-day court of inquiry that ended with Anderson being arrested and taken to jail. Friday’s hearing was a civil proceeding, separate from the criminal charges Anderson might later be indicted and tried for.
The unresolved nature of the criminal case was at the heart of arguments presented by Eric Nichols, one of two lawyers who joined Anderson in court Friday afternoon.
During that April court of inquiry, Judge Louis Sturns ruled there is probable cause to proceed with criminal charges against Anderson. Those charges stem from Anderson’s alleged conduct in 1986-87 when he prosecuted Michael Morton for the murder of his wife, Christine. Anderson – now judge for the 277th District Court – was the county’s elected district attorney during that trial, when a jury convicted Morton on the murder charge and sentenced him to life in prison. Morton served 24 years, before testing of DNA evidence led to his 2011 release.
Although DNA testing did not exist at the time Morton’s murder trial, Sturns ruled there was other evidence Anderson was legally obligated to share with Morton’s defense team. That led to Anderson being booked – briefly – into county jail on a felony charge of tampering with a government record with the intention to harm another individual, plus misdemeanor charges of tampering with physical evidence and contempt of court.
The felony tampering charge is punishable by two to 10 years in prison and a fine of up to $10,000.
On Friday, Commission for Lawyer Discipline representatives Laura Bayouth Popps and Rebecca Stevens argued there is no reason to proceed with a scheduled Sept. 30 civil hearing (where Moore would also preside) that could lead sanctions against Anderson. Based on the court of inquiry, they said, it is time to move directly to the sanctions – which could range from a public reprimand to disbarment.
“Ken Anderson withheld evidence from Michal Morton’s defense … it very well could have resulted in a not-guilty verdict if it had been disclosed,” Popps told Moore. “Judge Sturns issued detailed conclusions … and found that [Anderson’s] defenses were not credible.”
Popps accused Anderson’s team of wanting to retry the court of inquiry. She said that would be a waste of time.
“There is nothing that they can point to in this case that would prove a different result,” she said. “It is all right there on the record.”
Nichols disagreed, comparing the court of inquiry to a grand jury proceeding and comparing Sturns’ rulings to an indictment against Anderson – even though Anderson has not yet been indicted for the felony tampering charge.
“No one has ever argued that the issues in a court of inquiry were conclusively proven,” Nichols said. “It is crystal clear …. that [courts of inquiry] deal with issues of probable cause that a crime has occurred within the state of Texas. [It] is not a judgment, not a verdict … what was issued was a probable cause order.”
Responding to the State Bar’s allegation that Anderson engaged in professional misconduct, Nichols said: “They need to prove it. We need a trial to get that done.”
While the State Bar’s Commission for Lawyer Discipline wants Moore to proceed with Anderson’s punishment, Nichols and defense attorney Mark Dietz of Round Rock want Moore to dismiss the civil case, stating the four-year statute of limitations has passed. Nichols and Dietz made a similar argument to Sturns, earlier this year, during the court of inquiry.
Anderson’s lawyers say the clock started running on that four-year limit it 1989, following Morton’s unsuccessful appear of his murder conviction.
Popps and Stevens disagreed. They said the starting date is November 2011, when Julie Oliver – from the Texas Coalition on Lawyer Accountability – filed a grievance against Anderson with the State Bar. According to its website, the Texas Coalition on Lawyer Accountability is a nonprofit umbrella group whose members include the Texas Civil Rights Project and other advocacy organizations.
One local lawyer who has followed the proceedings closely predicted Moore will rule against the motions brought by each side and the civil hearing will proceed, as scheduled, starting Sept. 30.
Popps told Moore that if that’s how he rules, it’ll be fine with her.
“I’m not afraid to try this case,” she said. “I could go tomorrow.”
Michael Morton did not attend last week’s proceeding, which was held in the same district court where he was first convicted and later cleared.
In March, Mark Alan Norwood, 59, of Bastrop was convicted of Christine Morton’s murder and sentenced to life in prison He has also been indicted on a murder charge relating to the 1988 killing of Austin’s Debra Masters Baker.
Anderson served in the Williamson County District Attorney’s office – as an assistant prosecutor and elected official – for 22 years. In 1995 the State Bar of Texas named him Prosecutor of the Year. He has been judge for the 277th District Court – succeeding John Carter, who went on to Congress – since 2002.