Prosecutors in Morton case seek to avoid questioning under oath
By Chuck Lindell, AMERICAN-STATESMAN STAFF
Oct. 20, 2011
Recent court filings have revealed a previously hidden aspect in the exoneration of Michael Morton a simmering legal battle over efforts to force former Williamson County prosecutors to answer questions under oath.
The former prosecutors who tried Morton for murder in 1987 — District Judge Ken Anderson and Round Rock lawyer Mike Davis — have filed motions in state District Court in Williamson County to quash subpoenas issued last week by Morton's lawyers.
The subpoenas were part of a negotiated agreement with District Attorney John Bradley, who was not involved in Morton's prosecution, allowing defense lawyers to investigate allegations that Anderson and Davis hid evidence pointing toward Morton's innocence.
But because details of that agreement were hidden in sealed court files, outsiders could only speculate about what form Morton's investigation would take — until Anderson and Davis filed their motions and included copies of their subpoenas.
In addition to testifying next week, Tuesday for Davis and Wednesday for Anderson, the subpoenas direct them to produce all documents — including letters, notes, diaries, calendars, faxes and recently sent electronic messages — that "in any way" involve Morton.
In their motions to quash, Anderson and Davis argue that Morton's lawyers lack the authority to issue subpoenas and that District Judge Sid Harle, who is handling the Morton case, lacks the jurisdiction to enforce the orders to testify by deposition.
Anderson's motion also said his subpoena was overly broad and did not provide him with the legally required 10-day notice. In addition, he said, defense lawyers are improperly seeking to explore issues rendered moot last week when the Court of Criminal Appeals proclaimed Morton's innocence based on recently obtained DNA evidence.
Davis' motion included similar points but also touched on several nonlegal subjects, including the offer of an apology to Morton, who spent almost 25 years in prison for a crime he did not commit, the murder of his wife, Christine, in their southwestern Williamson County home.
"Words can never give back to Mr. Morton his lost life, his lost wife, nor his son, and a simple apology is not sufficient, but that is all (Davis) has to offer at this late date," said the motion, filed on Davis' behalf by his lawyer, Shawn Dick.
The motion refers to Davis as an innocent bystander caught in the cross-fire of a long-running political and media battle between Bradley and Innocence Project co-founder Barry Scheck, whose organization is representing Morton. "The service of the subpoena in this case is just another tit for tat in the battle between these lawyers," Davis' motion said.
Davis added that he has no recollection of "anything to do with any disclosures or failure to disclose" exculpatory information to Morton's trial lawyers. Even so, he said he was willing to meet informally with Morton and his lawyers to tell them "everything he remembers about the case."
Davis' motion ends with a plea for financial penalties to be assessed against Morton's lawyers for exceeding their authority by issuing the subpoena. Davis said he expects to pay at least $5,500 in attorney fees and suggested that defense lawyers be ordered to pay that amount to a charity of Morton's choosing.
The motion did not address allegations, contained in Morton court filings, that Davis acknowledged the existence of withheld information shortly after Morton's conviction.
According to defense lawyer William Allison, now a University of Texas law professor, the disclosure came while Allison and Davis spoke to Morton's jurors after the trial — a common practice that helps lawyers evaluate what worked or didn't work in their courtroom presentations.
Davis told jurors that if defense lawyers had gotten hold of certain records, they could have raised "even more doubt" in the trial, said Allison, who recounted the conversation in a hastily filed motion for a new trial that was denied.
Morton's lawyers declined to comment on the Anderson and Davis motions, saying they plan to file reply briefs today.
But in a related matter, John Raley, a Houston lawyer working with the Innocence Project, asked the court Thursday to release documents from the district attorney's file on the Morton case. Bradley had designated the documents as work product — notes and legal research conducted by lawyers in his office — that do not have to be turned over to the defense.
The documents are needed to prepare for next week's depositions, Raley told Harle, a San Antonio district judge appointed to Morton's case in August.