Who Watches the Watchmen?



The State of Texas made history this month when, on November 8th, a state judge sent former Williamson County District Attorney Ken Anderson to jail for withholding crucial evidence while prosecuting Michael Morton for beating his own wife to death in 1987. [1]

DNA testing exonerated Morton in 2011 after almost 25 years behind bars, but prosecutors never should have sent Morton to prison in the first place. On the day of the murder, Morton had already left for work by the time Mark Norwood, a complete stranger to Morton and his wife Christine, broke into their home and killed her. When police first investigated the killing, Morton’s son told them as much. He said that Morton was gone when his mother died, and he described the killer as a “monster” who he had never seen before. Neighbors offered further support for the child’s claim. They also told police that they saw a van parked behind Morton’s house on the night of the murder.

Prosecutors knew these facts as they sent Morton to prison. Still, they refused to reconsider their actions, and they never told Morton about the evidence contradicting his guilt.

While Morton will never get those years, everything now, at least, is resolved. For the first time in US history, a prosecutor faces criminal punishment for his misconduct. Ken Anderson is going to jail. But for how long?


Ten days. Ken Anderson’s maximum sentence is ten days in county jail.


While there are varying degrees of misconduct, Ken Anderson’s behavior was particularly egregious. He had evidence that cast serious doubt on Michael Morton’s guilt, and he hid that information for decades. Still, he is far from alone in abusing his position as a prosecutor. The Center for Public Integrity, a nonprofit investigative news agency, found more than 2,000 cases from 1970 to 2003 in which judges reversed indictments, convictions, or prison sentences due to prosecutorial misconduct. [2] Even worse, that number almost certainly underrepresents the true prevalence of abuse.

Given the frequency of prosecutorial misconduct, one might wonder how the criminal justice system treats these problems. No one wants the guilty to walk free, but neither does anyone want innocent people behind bars. Sloppy prosecutions make wrongful convictions all too possible. So what measures do we have in place to prevent them?

Well, even as judges turn over thousands of convictions due to prosecutorial misconduct, the prosecutors themselves, historically, walk free. A study by the public interest journalism agency ProPublica found that, in more than two dozen cases where judges cited prosecutorial abuse as the primary reason for overturning convictions, no court ever referred those misbehaving prosecutors to disciplinary committees. [3] Ken Anderson’s punishment is the exception—the first exception of its kind.

Now, it is easy to see why prosecutors often get off scot-free. Prosecutors are human, just like everyone else, and humans make mistakes. If prosecutors were thrown in jail for every time they forgot to dot an “i” or cross a “t” they wouldn’t be able to do their jobs. They would have their hands tied behind their backs.

Still, prosecutorial responsibility is a balancing act. And at the moment, society places too much weight on the side of prosecutorial discretion. Prosecutors can do almost anything. Far from being constrained by the fear of punishment, prosecutors can rest easy in the knowledge that they will never face the consequences of their misconduct. Until November 8th, no one had ever gone to jail for prosecuting someone too zealously.

In fact, the criminal justice system does more than simply offer prosecutors near unlimited discretion. It encourages prosecutors to do whatever it takes to secure convictions and put more people in prison. After all, in many states, the district attorney is an elected official. He or she is elected by a public terrified of the criminal among us. Citizens with higher incomes vote at a higher rate than others. [4] Since people with higher incomes are far less likely to go to prison, [5] they have little reason to fear overzealous prosecutors. Instead, they fear crime.

District attorneys, as a result, put voters at ease by prosecuting criminals and, hopefully, reducing the crime rate. Sometimes, they make mistakes, but to the voting public, that often doesn’t matter. A district attorney who sends a few innocent men to prison will still get elected. A district attorney who backs down, who shows uncertainty in his or her actions, will not.

Prosecutors, then, face two interconnected problems. Judges don’t hold them accountable for their misconduct, and voters force them to use all means necessary to secure convictions. When those forces meet, accidents and wrongful convictions are inevitable. People like Ken Anderson are inevitable.

Ken Anderson served his sentence. After five days in the Williamson County Jail, he received time off for good behavior and walked away. To call his punishment a slap on the wrist is, if anything, an overstatement. It was an act that deserved far more, and will hopefully, in the future, receive much more.

[1] http://www.dallasnews.com/news/local-news/20131108-ex-prosecutor-gets-10-days-in-jail-over-michael-morton-case.ece

[2] http://www.publicintegrity.org/2003/06/26/5530/methodology-team-harmful-error

[3] http://www.propublica.org/article/who-polices-prosecutors-who-abuse-their-authority-usually-nobody

[4] http://voices.washingtonpost.com/ezra-klein/2010/07/research_desk_responds_how_doe_1.html

[5] http://thecurrentmoment.wordpress.com/2012/06/01/mass-incarceration-follow-up/

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