Colleague: Ex-DA worked to keep notes from defense

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Associated Press

Posted on February 6, 2013 at 7:31 PM

Updated Thursday, Feb 7 at 11:32 AM

GEORGETOWN, Texas (AP) — A former Texas prosecutor who worked for an ex-district attorney at the center of a wrongful conviction case said Wednesday that his former boss indicated he didn't like calling investigating police officers to testify at trials because it meant turning over their notes to the defense.

A court of inquiry is examining whether Ken Anderson, then a district attorney in Georgetown and now a state district judge, acted improperly in the 1987 case of Michael Morton. Morton spent nearly 25 years in prison for killing his wife, Christine, but was exonerated in 2011 based on new DNA testing.

Such proceedings are extremely rare against sitting court officials. Morton's lawyers have accused Anderson of hiding evidence during the trial that would have pointed to Morton's innocence, including case notes collected by the police officer who investigated the case, Sgt. Don Wood.

Doug Arnold, a former colleague of Anderson's and now a judge himself in another part of Texas, testified that Anderson told him he had a habit of not calling investigators to keep their case notes out of court.

"He said the reason was, you have a duty to turn over any notes, any files in the case," Arnold recalled. "But if you don't call that witness, the other side can't have access to those reports on the witness stand or in the court room."

The defense had the option of calling Wood to testify during the original case, but Morton's attorneys noted that it had no way of knowing what his files said beforehand and likely believed his testimony would hurt their client's case.

Arnold was asked Wednesday if there was "any defense attorney on God's green earth who would call as a defense witness an investigating officer with a thick evidence report that you don't know what it's going to say, but you know he's against you?"

Arnold replied: "I've never heard of that."

Morton's legal team also presented transcripts from a pretrial hearing in the Morton case in which Anderson indicated that he'd rather strike the entire testimony of another witness than provide the defense notes she made to aid her testimony.

Evidence Anderson is accused of withholding also includes statements from the couple's then-3-year-old son, who witnessed the murder and said his father wasn't responsible. Morton's attorneys say Anderson did not turn over all evidence police had collected, even after presiding judge William Lott explicitly ordered him to do so. Lott has since died.

Morton, who claimed an intruder broke in and killed his wife in their north Austin home after he left for work, was convicted on circumstantial evidence and sentenced to life in prison.

Anderson has apologized to Morton for what he called failures in the system but said he believes there was no misconduct in the case.

The new DNA tests pointed to another suspect, Mark Alan Norwood, who was arrested in November 2011 for Christine Morton's murder. He is set to be tried in March. Norwood also has been indicted in a separate 1988 slaying of another Austin woman who lived close to the Mortons.

Investigators discovered the DNA connection between the two cases after Morton's attorneys spent years fighting for additional testing of a bloody bandanna found near the Morton home after Christine Morton's slaying. The testing was done in the summer of 2011 and Morton was released from prison in October of that year.

Also Wednesday, Kristen Jernigan, an assistant county district attorney, testified about Anderson offering a "very dry" reaction upon learning Morton was set to be exonerated in 2011.

"Judge Anderson can be very dry sometimes," Jernigan said. "He's nice and everything, but his reaction to things can sometimes be very dry."

In testimony later Wednesday, Bill White, one of the defense attorneys in Morton's original trial, said investigators found 15 unidentified fingerprints in the Morton home and two on the back, sliding door, as well as an unidentified footprint in the backyard.

White said the defense was trying to find any evidence to support its theory that a stranger broke in and killed Christine Morton. He noted that the home's back fence featured boards like a ladder, making it easy to climb. The sliding glass door to the home was also unlocked at the time of the slaying — so the fingerprints and footprint helped.

But the defense did not receive the testimony of a neighbor who said she saw a man park a green van near the Morton home and then walk into a wooded area that abutted the back fence prior to the slaying.

Asked about the van, White said "obviously it gave meat to the bones of the defense case."

White also said the defense did not put Morton's 3-year-old son on the stand because the jury might have been offended about using a boy to try and clear his father of murder.

But the child's account was confirmed by Christine Morton's mother, who told Wood 11 days after the killing that the boy told her a "monster" not his father was responsible for the killing.

Her comments were especially valuable because the victim's mother had no motive to lie — unlike a small boy who could have been coached by his father. Also never turned over to the defense, White said, were several pages of transcripts where Wood tried to convince Christine Morton's mother that her grandson was mistaken.

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