Prof. Bennett Gershman interviewed on Legal Broadcast Network about inquiry into prosecutor

This week, Prof. Bennett Gershman, an expert on prosecutorial misconduct, was interviewed on the Legal Broadcast Network about the case of a Texas man just exonerated in the 1986 death of his wife. Lawyers for the man, Michael Morton, are expected to file a request for a special hearing to determine whether a prosecutor broke state laws and ethics rules by withholding evidence that could have led to Mr. Morton’s acquittal.

Gershman told the Legal Broadcast Network that when the case was recently reopened after a Texas court allowed for DNA testing on a bandana covered with blood found near the crime scene, it became apparent that then-Williamson County District Attorney Ken Anderson had known of important evidence and failed to share it with the defense. Anderson is now a federal judge.

Gershman argued, “This evidence would have, I think, easily shown that Mr. Morton could not have committed the crime.” It included reports by neighbors of an intruder driving around the victim’s home; evidence that a credit card and check owned by Morton’s wife were used a few weeks later across state; and statements made by the Mortons’ 3-year-old son that the man who killed his mother was a monster.

Morton’s attorneys are now seeking to have a judge investigate whether Anderson should be disciplined, and possibly criminally prosecuted, for failing to disclose critical evidence 25 years ago. “There’s no precedent for this. I don’t know of any case where this type of disciplinary mechanism works this way,” said Gershman.

He explained that typically, bar associations will handle discipline of attorney misconduct, but that this discipline is notoriously inadequate. And because prosecutors enjoy absolute immunity from civil liability, he said, “There’s nothing left to make prosecutors accountable. That’s why this proceeding in Texas seems so extraordinary, and maybe even iconic in the way it may set a standard for future investigations of prosecutors for gross misconduct, for deliberate misconduct that results in this type of innocent person being convicted and spending–as Mr. Morton did–25 years in jail for a crime he didn’t commit.”

Asked by the interviewer what might cause a prosecutor to hide exculpatory evidence, Gershman suggested a number of factors: politics, pride, ego. He noted, “Anderson was known as an aggressive, pro-law-and-order prosecutor.”

“We have an adversary system where lawyers from both sides compete and each side wants to win the case, and prosecutors want to win very badly. Prosecutors vindicate the rule of law; they prosecute wrongdoers; they prosecute vicious criminals. To a prosecutor, winning sometimes is the most important thing of all,” said Gershman. “The thing about prosecutors is you have to serve the cause of justice. When a prosecutor gets a mindset that this person is a killer–as the prosecutor likely did with Morton, for whatever reason–the prosecutor then tends to ignore other evidence that might contradict the theory of guilt… It’s sort of like tunnel vision.”

Gershman remarked, “We know today that the system has built-in weaknesses.” One important weakness is the undue weight juries give to accounts from eyewitnesses, who frequently make mistakes. The vast majority of exonerations result from DNA evidence disproving an eyewitness identification.

“You sort of have to wonder, what about all those thousands and thousands of cases where there is no DNA evidence? Are people sitting in jail who were convicted on the basis of eyewitness testimony where there is no DNA to contradict that eyewitness? Are those persons really innocent? We don’t know.”

 

 

 

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