Hunter Becomes Hunted (Redux)

Back in April I blogged about Ken Anderson, a former prosecutor and current judge in Texas who made headlines for actually being criminally charged for misconduct that resulted in an innocent man being sent to prison for almost 25 years. In that post I mentioned that, regardless of the eventual outcome of the criminal proceedings, Anderson would ultimately be judged by voters when he faces reelection.

I no longer think that will be quite enough.

Scott over at Simple Justice has a copy of the judge’s order issuing the arrest warrant for Anderson, in which he lays out the findings of fact supporting the warrant. Buried deep in the order is this gem:

42. Additionally, as Mr. Anderson explained during the Court of Inquiry, although Brady requires prosecutors to release exculpatory evidence to the defense, as an attorney and former prosecutor, he does not believe in the release of such evidence if it may result in freeing an individual that he believes is guilty. (RR 6:116:18-6:117:4 and RR 6:94:4-24).

Read that again, slowly, and make sure you grasp what Anderson said, under oath, to a court examining his conduct – that if he thinks your guilty, the law is just an impediment to his ultimate triumph of putting you in a cage. It’s hard to think of a more appalling example of a prosecutor who has decided to completely ignore his legal, constitutional, and ethical obligations in order to do what’s “right,” of which he is the only judge (naturally).

Prosecutors have a constitutional duty to turn over evidence to defendants that tends to show they’re innocent of the crime with which they’re charged. This so-called Brady obligation is a fundamental protection of an adversary system where one side has the entire investigative apparatus of the state at its disposal. Yet the very nature of it – evidence is required to be turned over only when it might exonerate the defendant – provides prosecutors with enough wiggle room to get into trouble.

I’ve heard that prosecutors are told that if they have a piece of evidence they don’t want the defense to have, then it’s the kind of evidence they need to turn over. Sound advice, but not followed very often. The law should make the decision much easier – turn over everything. Don’t leave the decision about what to disclose to a party with a vested interest in the result. Human nature being what it is, the temptation to filter things through your own biases is going to lead to bad results.

As for Anderson himself, I’m not sure if the law is capable of sending him to prison for what he’s done, for reasons noted in the initial post. But the Texas bar and judicial disciplinary apparatus presumably has more room to deal with his malfeasance. He is a disgrace to the profession and shouldn’t ever have a place in courtroom, except as a party.