Limitations and the Ken Anderson Prosecution

 Posted on April 23, 2013 in Uncategorized

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.