A special hearing is being held to examine whether Williamson County Judge Ken Anderson acted improperly in 1987 when, as district attorney, he prosecuted Michael Morton. Morton's lawyers have accused Anderson of intentionally hiding evidence, though Anderson has denied any wrongdoing.
Morton, 58, was released from prison in October 2011 after new DNA tests showed that he didn't fatally beat his wife, Christine, in their north Austin home. Another man has been arrested for the murder.
The special prosecutor in the case, Houston defense attorney Rusty Hardin, has focused on whether Anderson failed to give Morton's trial lawyers a transcript and a report about statements made by Morton's then 3-year-old son, Eric. They boy said he witnessed the 1986 slaying and indicated it was a "monster" and not his father who committed the crime.
During the eight-hour deposition, Anderson said he couldn't recall if at the time of the trial he had any documents about statements by Morton's son.
"There's no way in God's green earth that, if that was in my file, I wouldn't have told" Morton's attorneys about the boy's statements, Anderson said in the October 2011 deposition.
Anderson, who has apologized to Morton but denied any wrongdoing, said when allegations were made he had suppressed evidence, he wasn't worried because he believed Morton was guilty.
He also said he never had a problem as a prosecutor disclosing evidence that could point to a defendant's innocence, adding: "It's your worst nightmare to have anybody you convicted be innocent," Anderson said.
Scheck repeatedly asked Anderson whether the ex-district attorney had complied with an order by the trial judge to turn over all evidence that could have been favorable to the accused. Morton's attorneys have contended the order included the statements made by Morton's son. Anderson, continuing to say he can't remember if he had any documents related to such statements, believed the judge's order only meant he needed to turn over reports related to interviews investigators had done with Morton.
Later Tuesday, during a break from the playing of the videotaped affidavit, Kimberly Gardner, a former prosecutor who had worked for Anderson, testified that before Morton's trial, she had heard Anderson discuss Eric Morton's claims that a monster had killed his mother.
"It's very hard to do this because I don't want to be here but I know what I heard," said Gardner, who added that she likes Anderson and feels grateful to him.
Gardner said she asked if the boy's statement could be used at trial and was told no because the boy was not a competent witness because of his age.
The video was played during a court of inquiry, a rarely used hearing that is held when officials or public servants are accused of wrongdoing. District Judge Louis Sturns is hearing the evidence and could refer the case for possible prosecution if he determines Anderson committed a crime. Anderson, whose courtroom is just down the hall, has been a judge in the county since 2002.
The court of inquiry was to continue Wednesday with testimony from more witnesses.
The new DNA tests, which were conducted on a bloody bandanna found near the Mortons' home, pointed to another suspect, Mark Alan Norwood, who was arrested for the murder in November 2011. He is set to be tried in March for capital murder. Norwood also has been indicted in a separate 1988 slaying of another Austin woman who lived near the Mortons.
Anderson also is being sued by the State Bar of Texas for his conduct in the Morton case.
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