Ken Anderson's Press Conference: A Richard Nixon Moment
District Judge Ken Anderson
If Ken Anderson's memory is as bad as he claimed it is on Thursday about his role in the Michael Morton murder case, any reasonable person would conclude that any judge with a memory that bad really shouldn't be sitting on the bench conducting trials and making legal decisions which directly impact human lives.
"I literally have no ability to recall what happened, what I was thinking, why I made decisions in a trial 25 years ago," he said.
Even though Anderson's alleged memory loss at his courthouse-lawn press conference contributed absolutely nothing to a new understanding of what went wrong when he successfully prosecuted Michael Morton in 1987 for a murder which Morton didn't commit (and then spent 24 years in prison as a result), the press conference provided insight into Anderson's excuse for his role in that case, and it also yielded a glimpse at the direction he really plans to go in claiming that the whole foul-up wasn't his fault. Despite his wide-ranging memory lapse, he apparently still remembers enough to claim that he did nothing wrong in prosecuting that case.
Anderson's lack of explanation for virtually everything hinges on his claim that he remembers almost nothing, making him a caricature or that character in the Hogan's Heroes TV sitcom, Sergeant Schultz, whose famous lines were: “I saw nothing. I heard nothing. I know nothing.”
Earlier in the investigation of prosecutorial conduct in this case, the WatchDog was ready to confer the “Sergeant Schultz trophy” on Mike Davis, who was Anderson's assistant in prosecuting the case. And even though Davis' memory was terrible, as revealed in his deposition which was recently released, it wasn't altogether vacant. Davis' defense that he knows virtually nothing now appears to be a combination of his really bad memory and the fact that he was kept out of the loop by Anderson to the extent that he may never have known about Anderson's role in suppressing exculpatory evidence that would have exonerated Morton.
Of course, one of the problems Davis will have for the rest of his career as a lawyer (even if the State Bar Association doesn't sanction him or lift his license) is the fact that he represented to the jury after the trial that there was an inch-thick file developed by Don Wood, the investigator for the sheriff's department, which, according to Davis, contained evidence that would have created enough reasonable doubt that Morton might have been acquitted. Pressed on this point in his deposition, Davis said that he couldn't “dispute” that he made that representation to the jury. (Also, in that deposition, Davis agreed that the file could well have been four inches thick, not one inch thick.)
Anderson seemed to feel that he should get total absolution by stating at the press conference that he sincerely apologizes to Michael Morton for the erroneous verdict, even though he (Anderson) didn't do anything wrong and couldn't have made it turn out differently. Despite the apology, he refused to accept any responsibility for the error. But he made an effort to take the sting out of Morton's pain and suffering by suggesting that the money (estimated to be some $4 million) from the state of Texas Morton might receive would make up for losing his freedom for 24 years along with losing his relationship with his son and other family members.
Despite Anderson's claim of a virtually blank memory, his brain cells seemed to fire sporadically when he was asked about his meeting with John Bradley a couple of months ago. At the press conference, Anderson was asked about Mike Davis' account (in Davis' deposition) about a raised-voice argument he (Anderson) apparently had with DA John Bradley in Anderson's court chambers, when Davis was sitting in the lobby adjacent to those chambers. Anderson first said that he didn't have a conversation or argument with Bradley, which, if true, would be an indication of near-term memory loss in addition to his long-term memory loss. But then Anderson caught himself.
Reversing his non-recollection, he said that he did remember that there was a conversation in which he and Bradley discussed the announcement on that very day that the Texas Third Court of Criminal Appeals had exonerated Morton. But he didn't remember it as a loud-voice argument, as described by Davis regarding what he heard coming through the walls. People can draw their own conclusions about that loud-voice argument, but it doesn't take a rocket scientist or psychiatrist to figure out that Anderson was probably extremely upset that Bradley had signed the Agreement with Morton's attorneys which not only exonerated Martin but also allowed the deposition process to go forward—a process that would put Anderson on the hot seat for two days.
Anderson's memory, however, was good enough (or bad enough) to trap him in another seriously erroneous statement at the press conference. In response to a reporter's question about whether or not the Williamson County district attorney's office ought to have an open-file or closed-file policy, which would provides access to exculpatory evidence to defendants' attorneys, Anderson said that the closed file policy was and is a standard across the state.
It has been documented in depositions that in the Morton case, Anderson had a closed-file policy. However, in observance of the time-honored maxim that people should be careful about what they say as well as what they write, check out this statement made by Anderson in his book, Crime in Texas (Austin: University of Texas Press, 1997): “Most prosecutors have what they call an 'open file' policy; the defense can review all reports and witness statements prior to the trial.” (Page 43)
Michael Morton and his attorneys would likely agree that the interests of justice would have been better served if DA Anderson had embraced an “open file” policy in 1987. But that wasn't his policy, despite his claims to the contrary during the press conference about what the standard practice was in 1987. Anderson says in his book that “open file” was the standard policy, but in reality, as Williamson County district attorney, in 1987 Anderson had a “closed file” policy. As far as Michael is concerned, one policy can make a big difference. Anderson's misrepresentation at his press conference on Thursday shouldn't go unnoticed. That "closed file policy" still exists under DA John Bradley, regardless of the "op-ed" piece recently published by Bradley.
One shortcoming of the press conference was that no reporter tried to tap Anderson's memory regarding one of the most important pieces of evidence at the Morton trial—the “time of death” issue as it related to Michael Morton's alibi. The drama involved in what Anderson orchestrated at the trial involving this issue would be an event that no one—even Anderson—should be able to forget.
In his Crime in Texas book, Anderson devoted two pages to this facet of the Morton case in order to illustrate his tenacity and attention to detail as a prosecutor.
Of course, Anderson was trying to convince readers of the book that he was that man. So how would a man, so focused on those “hundreds of details”, miss all of the important, significant exculpatory evidence that would have exonerated Michael Morton before he went to prison?
Other compelling aspects of the press conference included:
Anderson trying to skate over details of what happened to the exculpatory evidence by noting that Sheriff Jim Boutwell and trial judge William S. Lott are both dead, a passive effort by Anderson suggesting that these men may have carried to their graves the truth about the evidence, therefore we'll never know what that is, so if there was a problem with the evidence, it might be the fault of one of these two dead men who can't explain themselves now;
Anderson trying to remove the sting endured by Michael Morton in his pain and loss by pointing out that Morton is entitled to several million dollars in compensation from the state, as if that could really make up for his true pain and loss;
A verbal challenge from Caitlin Baker at the press conference, daughter of Debra Baker, who was killed after the murder of Christine Morton by the same DNA-connected murderer, regarding a statement of Anderson about the processing of evidence which was contradicted by the Mike Davis deposition, followed by Caitlin's later statement to reporters that if Anderson were really as sorry as his apology implied, then he should immediately resign from his position as district judge.
So, why would Anderson set up a press conference containing no substance in which all he had to offer was an apology and a characterization of his memory loss? It's not that hard to figure out. The two days of depositions he was required to undergo will probably be released very soon, and they very likely will contain some attempted explanations by Anderson which will cast huge doubts on his claim that he “did nothing wrong.” This press conference, disingenuous as it was, can only be interpreted as an effort at pre-emptive damage control. When the transcripts of those depositions are available, they undoubtedly will shed a great deal of new light on Anderson's representations at the press conference.
But, reading between the lines, it's not hard to figure out where Anderson ultimately plans to go when faced with the prospect of technically defending himself in his explanation of the missing-evidence issue. He has carefully parsed statements. Of course, we we'll have to wait for Anderson's deposition transcript to find out how he deals with the Brady motion filed by Morton's attorneys requiring him to turn over everything.
The good news is that the issue might well have an answer in Anderson's deposition. The bad news is that Anderson may have as little sense in those depositions as he made in the press conference. If that is the case, the person that John Bradley attempted to discredit in the media (Don Wood) prior to Woods being deposed, saying he had memory loss, in fact has a better memory than Ken Anderson.
Aside from the statements of Anderson, something else was confirmed at the press conference. Williamson County government, and specifically Williamson County commissioners court and County Judge Dan Gattis, are providing support for Anderson. At the press conference, Connie Watson, the Public Information Officer for the county who reports to and is supervised by Gattis, accompanied Anderson and saw to the distribution of his prepared remarks to media. It all happened before 5 p.m., when Watson ostensibly was on the clock as a county employee. That brings us to the question, are we, the taxpayers footing Anderson's legal bills too? The "good ole boys" have certainly circled the wagons so that wouldn't be surprising.
Richard Nixon stepped out in front of the TV cameras on November 17, 1973 and vigorously defended his involvement in the Watergate case and said "People have got to know whether or not their President is a crook. Well, I'm not a crook.”. Less than a year later, he resigned.
Yesterdays press conference was eerily similar.
Watch the entire Press Conference below (It may take a moment to load)