The State Bar of Texas is investigating actions taken by trial prosecutors in the 1987 wrongful conviction of Michael Morton, an official said Wednesday.
The bar took the rare step of acknowledging an ongoing disciplinary investigation because of the attention Morton’s case has received since mid-August, when his lawyers announced that DNA tests showed another man killed his wife, Christine, in their Williamson County home.
Morton was freed Oct. 4 after serving almost 25 years in prison, and the state’s highest criminal court later proclaimed his innocence and tossed out his murder conviction and life sentence.
“We decided, because of the high-profile nature of the thing, that we were going to tell the public that we were looking into it,” Maureen Ray, with the bar’s office of chief disciplinary counsel, said Wednesday.
Also Wednesday, the former district attorney who prosecuted Morton, Ken Anderson, filed a motion to quash a subpoena forcing him to testify under oath about allegations that he improperly hid evidence favorable to Morton.
Morton’s lawyers are set to depose Anderson, now a district judge in Georgetown, on Oct. 26. However, through his attorney Mark Dietz, Anderson said District Judge Sid Harle lacked the jurisdiction to issue the subpoena and that he was not provided 10-day notice as required by court procedures.
Morton’s lawyers declined to comment on Anderson’s motion. Anderson also has declined to comment, saying he could not discuss a pending case.
The State Bar of Texas, which licenses and disciplines state lawyers, began the Morton investigation on its own initiative — also a relatively rare event in the complaint-driven grievance process against lawyers.
Ray said she could provide no other details, including who is the target of the investigation or how far the investigation has progressed.
But Morton’s lawyers have filed court documents that include accusations of professional misconduct against Anderson and former assistant district attorney Mike Davis, now a Round Rock lawyer, for allegedly withholding evidence that could have helped establish Morton’s innocence.
One such document was the transcript of a police interview indicating that Morton’s 3-year-old son, Eric, witnessed his mother’s attack and said his father was not home at the time. Morton’s appellate lawyers received the transcript under Texas open records laws in 2008.
According to state rules on lawyer conduct, prosecutors must disclose to defense lawyers “all evidence or information u2026 that tends to negate the guilt of the accused.”
“A prosecutor has the responsibility to see that justice is done, and not simply to (seek a conviction),” the Texas Disciplinary Rules of Professional Conduct state.
If the inquiry results in the bar filing a complaint against an attorney, that document would be hidden from public view, Ray said. At that point, the accused lawyer would have a choice: stand before an evidentiary panel of a bar grievance committee, which would be conducted in private, or take the case to state district court, which is a public process, Ray said.
Available sanctions include disbarment, suspending a law license for a set time or placing a lawyer on a form of professional probation. The bar also can issue a public reprimand or a private admonition.
The state bar action becomes the fourth investigation related to the Morton case:
• A special prosecutor from the state attorney general’s office is leading the reinvestigation of the Christine Morton murder, including efforts to build a case against a suspect whose DNA was found on a bandanna containing the victim’s blood.
• Travis County law officers are investigating the 1988 murder of Debra Masters Baker after DNA tests recently determined that a hair collected from the murder scene came from the same suspect in the Morton case. As of last week, the suspect was not in custody.
• Morton’s lawyers are investigating professional misconduct allegations leading to the subpoena that Anderson is fighting.
The state bar rarely investigates prosecutors for cases of alleged misconduct, several lawyers involved in the grievance process said Wednesday. One problem is the lack of credible witnesses because complaints typically come from successfully prosecuted inmates.
It is also “very, very rare” for the bar to follow through with sanctions against prosecutors, said Chuck Herring, an Austin lawyer who specializes in lawyer discipline cases.
“In over 25 years doing this area of law practice, I have never represented a prosecutor,” Herring said. “I can remember only a very few instances of reports of prosecutors being disciplined for any violation of the rules.”
One such case came in 2005, when the bar sanctioned former Swisher County District Attorney Terry McEachern for hiding information about a paid informant’s criminal past to prosecute 46 people in a 1999 Tulia drug sting. McEachern was placed on a two-year probation that allowed him to continue practicing law.