The third day of the court of inquiry into alleged prosecutorial misconduct in the Michael Morton case began with startling testimony. Williamson County Court at Law Judge Doug Arnold recounted a conversation he had years ago with then-D.A. Ken Anderson, who, according to Arnold, told him that he had used an unusual trial strategy on more than one occasion in criminal cases he had prosecuted: Anderson said he would deliberately not call the lead investigator in a case to the stand so that he would not have to turn over the investigator’s reports and notes to the defense. (According to state law, the defense has the right to see an officer’s notes before cross-examining him or her.)
Arnold’s testimony is highly relevant to the Morton case because during Michael’s 1987 trial, Anderson never called the lead investigator, Don Wood, to the stand. Michael’s defense attorneys, in turn, never saw Wood’s offense reports and notes. Those reports and notes, we now know, contained exculpatory evidence that could have helped Michael prove his innocence. Of primary importance among them was a transcript of a recorded conversation between Wood and Michael’s mother-in-law, Rita Kirkpatrick, in which she informed the investigator that her three-year-old grandson, Eric, had told her that he had seen “a monster”—not his father—beat his mother to death.
Arnold testified that he contacted Michael’s lawyers with this information after Michael went free because “I felt horrible for Mr. Morton, and I felt like I owed it to him,” he said. “I felt terrible about what was going on here at that time, with people trying to quash subpoenas, meetings.” Arnold was referring to Anderson (who fought a subpoena to testify in a court-ordered investigation into the Morton case) and Anderson’s successor, then-D.A. John Bradley (who twice gathered together the state’s main players in the case behind closed doors).
Arnold’s damning testimony about his former boss—a fellow judge, no less—was remarkable in a county better known for circling the wagons.
Kimberly Dufour Gardner, another former Williamson County prosecutor, took the stand Tuesday and recounted comments she heard Anderson make to assistant D.A. Mike Davis during a pretrial strategy session about Michael’s case in 1986. “I remember him leaning up against a door jamb with his arms crossed, saying, ‘The kid thinks a monster killed his mother,’” she testified. She recalled the conversation vividly, she said, because it had happened early in her career, when she was eager to learn more about prosecuting murder cases, so she had listened attentively.
Her testimony suggested that Anderson was well aware of the transcribed conversation between Wood and Kirkpatrick.
Gardner testified that Anderson had said he thought the “monster” was actually Michael wearing his scuba diving suit—a bizarre theory also floated by Wood—since no bloody clothes had been recovered from the crime scene. Gardner recalled thinking that the theory was “pretty strange.”
That pretrial strategy session, she testified, had centered on whether Eric’s statements would be admissible in court. Ultimately, the determination was made that Eric would not be able to take the stand because he was too young and his grandmother would not be able to testify about what he had told her because her comments would constitute hearsay. Gardner added that there was never any discussion about withholding this evidence from the defense, and that she had believed, based on what she had been told, that Michael was guilty. She also that she had been horrified to learn in 2011 that he was innocent all along, and had immediately thought back to that pretrial strategy session.
“I don’t want to be here but I know what I heard,” she said toward the end of her testimony.
On the same day that Gardner testified, the entirety of an eight-hour, videotaped deposition that Michael’s lawyers conducted with Anderson in the fall of 2011 was played in open court. I had read the deposition before, but it was illuminating to watch Anderson deliver ever more oblique answers to the questions that were posed to him. During hour after hour of questioning, Barry Scheck pressed him on whether or not he had failed to share exculpatory evidence with the defense. Anderson insisted that while he had no memory of what, precisely, he had done, “there’s no way on God’s green earth” that he did not tell Michael’s attorneys about the transcript of Wood’s conversation with Kirkpatrick.
That contention was rebutted on Wednesday when Michael’s original trial lawyers, Bill Allison and Bill White, took the stand.
“Did you ever know anything about a transcript of a conversation between Rita Kirkpatrick and Don Wood, about her grandson witnessing the murder?” Rusty Hardin asked Allison.
“No,” said Allison.
“How certain are you of that?” Hardin asked.
“One hundred percent.”
Bill White testified that another document—a police report about sightings of a green van behind the Morton home around the time of the crime—was arguably even more important than the transcript. The report described neighbors seeing a man park a green van by the vacant, wooded lot behind the Morton home and walk into the area that extended up to the Mortons’ privacy fence. “That was consistent with our theory of an unknown intruder,” said White. He explained that what little evidence he and Allison did have—a footprint in the backyard, fingerprints along the sliding glass door—gave credence to the idea of a stranger breaking into the house. The green van report would have given “meat to the bones of the case” had he and Allison known about the police report during the trial.
Hardin is expected to finish presenting testimony on Thursday. Anderson’s lawyer, Eric Nichols, stated today that if Hardin doesn’t call former Williamson County district attorney John Bradley, he will.