Limitations and the Ken Anderson Prosecution

Former Williamson County prosecutor (and now Williamson County District Judge) Ken Anderson has been charged by a court of inquiry with 1) criminal contempt of court; 2) tampering with or fabricating physical evidence; and 3) tampering with governmental records for his prosecution of Michael Morton. (Findings of Fact and Conclusions of Law, PDF, OCRed.) Which is nice—prosecutors who tamper with evidence and records to convict people of crimes (most especially, but not only, a prosecutor who, like Anderson, “does not believe in the release of [exculpatory] evidence if it may result in freeing an individual that he believes is guilty”) should be prosecuted, and should have to do every day of the sentences that their misdeeds brought their victims—but to little effect.

The statute of limitations for tampering with governmental records with intent to harm another and for tampering with physical evidence, both third-degree felonies, is three years. There is no “discovery rule”—no argument that the statute of limitations begins to run when the bad acts are discovered. Anderson’s bad acts were in 1987.

I have been told that some Texas lawyers think the criminal contempt allegation is not barred by the statute of limitations. Criminal contempt is not a felony—the maximum punishment is six months in jail and a $500 fine—but six months in jail will do more to deter future Ken Andersons (I see incipient Ken Andersons in the Harris County Criminal Justice Center every year) than will nothing.

I haven’t seen the argument fleshed out yet. But I don’t see how it works. Article 12.41 of the Texas Penal Code defines as a Class B misdemeanor any offense that “is not a felony” and has jail as a possible punishment. The statute of limitations for a Class B misdemeanor is generally two years. Criminal contempt is not a felony; it has jail as a possible punishment. Unless it is not an “offense” Anderson’s alleged criminal contempt is a Class B misdemeanor with a two-year statute of limitations. There are many Texas cases in which criminal contempt is described as an offense, including several applying the Blockburger test (whether each offense requires proof of an element that the other does not) to determine whether a criminal contempt conviction barred prosecution for the same act).

Anderson wins on limitations, and I have no faith that all those voters who have fled the scary urban milieu of Austin (white flight from Austin?) to live in the Constitutional backwater of Williamson County will return him to private life based on the monstrosity that he committed twenty-five years ago.

14 responses to “Limitations and the Ken Anderson Prosecution”

  1. Unfortunate if Anderson is able to avoid responsibility for his despicable acts under color of law. But it doesn’t diminish my admiration for Judge Louis Sturns of the 213th District Court of Tarrant County, who pointed out this evil and called it what it is.

  2. I expect few will comment on this. Especially not current or former prosecutors whose only comments would be to defend Judge Anderson. But they won’t put their thoughts out there for everyone to read. They don’t wish for others to know their true feelings, which most of us have heard in one form or another, i.e. “Well, he may not have committed this particular crime, but he committed others and we were able to hang this one on him”.

    Others will have a line of thought somewhere along this line “I don’t blame him. After all the work he put into the case how can he be expected to sabotage it just because flimsy evidence points to his innocence?”

    Then there’s the ones who have higher aspirations themselves (like Anderson did when he prosecuted this case) “Heck fire, I’d have done the same thing myself. After all, I want to be a judge someday”.

    Furthermore, Anderson couldn’t have been the lone criminal in this case. What about his assistants? Detectives? I’d imagine if truth were to ever be told that this involved a conspiracy.

  3. I agree 100% with your analysis. I think it is clear that allegations that he committed crimes in the 1980’s have been time-barred for decades. I think it dangerous to argue for exceptions because we really hate this guy.

    But what if, during the closed-door meetings both he and Bradley admit they had after the DNA came back to Norwood, Anderson even suggested that Bradley should be aware of and try to keep out of public the report of the green van and the kid’s statement?

    Bradley resisted disclosure of the State’s file during the course of active litigation (the innocence claim that culminated in his release) and subsequent inquiries. If aware of the statements, would that not implicate him in a NEW scheme to REPEAT the same Tampering conduct that Anderson is alleged to have committed 25 years ago? That would seem to be within the statute, and it is new conduct and a new offense altogether. And if it was at Anderson’s suggestion, that would seem to be party conduct committed anew in 2010 or 2011.

    As for now, though, that’s not the allegation.

  4. Given that knowledge of this episode has been out there for years I don’t think a formal court finding is going to do much of anything to change voters’ minds.

  5. I am a former prosecutor in Harris County (1983 – 2011 and fall 2012) and believe anyone that thinks my colleagues thought it was ok to hide exculpatory evidence is clueless about them. Ken Anderson’s behavior and attitude that guilt justifies the hiding of exculpatory evidence is something unique to him and those few that adopt his attitude. I can recall two “Brady” type incidents during my career in Harris County. Any time I was in a conversation with other prosecutors and the name of one of those two prosecutor’s came up, the prior Brady behavior was mentioned and not in favorable terms. The other situation was more recent and every prosecutor I know was surprised that person kept their job and continues to keep their job.

    A person that “assumes” all lawyers of a given type are the same simply steps forward to claim the mantle that goes with the first three letters of that word.

    Bill Hawkins

  6. “I have no faith that all those vot­ers who … live in the Con­sti­tu­tional back­wa­ter of Williamson County will return him to pri­vate life”.

    John Bradley might disagree.

  7. “John Bradley might disagree.”

    But if he’d had an extra year or two before he faced the voters, instead of in the middle of active litigation on the Morton case, he might (probably?) have survived.

    • I’d hate to speculate that Bradley would have survived an election if he had had more time to put the Morton case behind him. Morton was the biggest issue in the campaign, but it wasn’t the only one. My point was that there is a point, even in Williamson County, where the voters will say “enough”. After all, Bradley lost in the Republican primary.

      But I don’t want to make this about Bradley.

  8. Most of the time a credible argument can be made for discovery rule especially when the tort or crime has been concealed. There is a lot of law on that. Also, most of the time, a credible argument of "continuing" tort or crimina violation can be made. They were concealing the DNA Evidence until relatively recently. I am not sure when the child's statement came out. There are a lot arguments a creative lawyer can make, and even if contrary precedent exists, the precedent can often be changed. I am just far less certain that limitations bars this than you. This is the time for creative lawyering.  I think about 9/10 of the victory has already been achieved. It is more important in my opinion that the truth come out than that he actually get convicted. He has already been convicted in he  Court of Public Opinion.  The odds of the truth coming out in something like this is low, but this case will help others in a similar situation in the future (hopefully). 

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