Case No. (The Clerk of the convicting court will fill this line in.) IN THE 26th JUDICIAL DISTRICT COURT OF WILLIAMSON COUNTY, TEXAS APPLICATION FOR A WRIT OF HABEAS CORPUS SEEKING RELIEF FROM FINAL FELONY CONVICTION UNDER CODE OF CRIMINAL PROCEDURE, ARTICLE 11.07 NAME: Michael W. Morton DATE OF BIRTH: August 12, 1954 PLACE OF CONFINEMENT: Mark W. Michael Unit 266, Tennessee Colony, TX TDCJ-CID NUMBER: 445394 SID NUMBER: (1) This application concerns (check all that apply): X a conviction parole a sentence mandatory supervision time credit out-of-time appeal or petition for discretionary review (2) What district court entered the judgment of the conviction you want relief from? (Include the court number and county.) 26th Judicial District Court of Williamson County, Texas (3) What was the case number in the trial court? No. 86-452-K (4) What was the name of the trial judge? Honorable William S. Lott 1
(5) Were you represented by counsel? If yes, provide the attorney's name: Yes, William P. Allison and Bill White. (6) What was the date that the judgment was entered? February 17, 1987 (7) For what offense were you convicted and what was the sentence? Murder; sentenced to life and a fine of $5,000 (8) If you were sentenced on more than one count of an indictment in the same court at the same time, what counts were you convicted of and what was the sentence in each count? N/A (9) What was the plea you entered? (Check one.) guilty-open plea X not guilty guilty-plea bargain nolo contendere/no contest If you entered different pleas to counts in a multi-count indictment, please explain: (10) What kind of trial did you have? no jury X jury for guilt and punishment jury for guilt, judge for punishment (11) Did you testify at trial? If yes, at what phase of the trial did you testify? Yes (12) Did you appeal from the judgment of conviction? X yes no If you did appeal, answer the following questions: (A) What court of appeals did you appeal to? Third Court of Appeals. 2
(B) What was the case number? 3-87-064-CR (C) Were you represented by counsel on appeal? If yes, provide the attorney's name: Yes, William P. Allison (D) What was the decision and the date of the decision? Denied, August 16 th, 1982 (13) Did you file a petition for discretionary review in the Court of Criminal Appeals? X yes no If you did file a petition for discretionary review, answer the following questions: (A) What was the case number? PD-0279-89 (B) What was the decision and the date of the decision? Petition denied, September 27, 1989 (14) Have you previously filed an application for a writ of habeas corpus under Article 11.07 of the Texas Code of Criminal Procedure challenging this conviction? X yes no If you answered yes, answer the following questions: (A-I) What was the Court of Criminal Appeals writ number? WR-21,383-01 (B-I) What was the decision and the date of the decision? June 5, 1991. The application was granted. In the application, Applicant only sought DNA testing on a bedsheet stained with semen (using the more limited DNA technology available at that time, and prior to the enactment of Chapter 64) and did not ask the Court to vacate his conviction. (A-II) What was the Court of Criminal Appeals writ number? WR-21,383-02 (B-II) What was the decision and the date of the decision? June 24, 1992 (A-III) What was the Court of Criminal Appeals writ number? WR-21,383-03 (B-III) What was the decision and the date of the decision? Sept. 16, 1992 (C) Please identify the reason that the current claims were not presented and could not have been presented on your previous application. 3
The current claims for relief are based upon newly-discovered evidence that was unavailable to Applicant at the time the prior writ applications were filed. First, the claims are based in whole or in part upon the results of DNA testing conducted in 2011 pursuant to a 2010 court order, using advanced STR-DNA technology that was unavailable to any party at the time of trial or the prior writ applications. Second, the claims are based in whole or in part on additional information about the convicted felon who has only recently been identified through the CODIS DNA database as the source of DNA from the scene of the crime at issue, and such evidence could only have been (and was) developed as a result of the DNA test results issued in 2011. And third, the claims are based in whole or in part on documentary evidence received through a public records act request submitted to the Williamson County Sheriff s Office in 2008; the materials provided were suppressed by the State prior to that time and were only obtained after a 2008 ruling by the Attorney General overrode the County s efforts to withhold those documents. (15) Do you currently have any petition or appeal pending in any other state or federal court? yes X no If you answered yes, please provide the name of the court and the case number: (16) If you are presenting a claim for time credit, have you exhausted your administrative remedies by presenting your claim to the time credit resolution system of the Texas Department of Criminal Justice? (This requirement applies to any final felony conviction, including state jail felonies) N/A yes no 4
If you answered yes, answer the following questions: (A) (B) What date did you present the claim? Did you receive a decision and, if yes, what was the date of the decision? If you answered no, please explain why you have not submitted your claim: (17) Beginning on page 6, state concisely every legal ground for your claim that you are being unlawfully restrained, and then briefly summarize the facts supporting each ground. You must present each ground on the form application and a brief summary of the facts. If your grounds and brief summary of the facts have not been presented on the form application, the Court will not consider your grounds. If you have more than four grounds, use page 10 of the form, which you may copy as many times as needed to give you a separate page for each ground, with each ground numbered in sequence. You may attach a memorandum of law to the form application if you want to present legal authorities, but the Court will not consider grounds for relief in a memorandum of law that were not stated on the form application. If you are challenging the validity of your conviction, please include a summary of the facts pertaining to your offense and trial in your memorandum. 5
On August 13, 1986, Christine Morton was found bludgeoned to death in the home in Williamson County that she shared with her husband, Applicant Michael Morton ( Mr. Morton or Applicant ), and the couple s three-year-old son, Eric. Mr. Morton was convicted of the murder after a jury trial in February 1987. At trial, the State alleged that Mr. Morton had murdered his wife in a rage in the late evening of August 12, 1986, or the early morning hours of August 13, 1986, after she declined to have sexual intercourse with him. Mr. Morton asserted a trial defense of actual innocence, maintaining his wife she was alive and asleep in their bed when he left for work at approximately 5:30a.m., and that she must have been killed by an unknown intruder sometime thereafter. In February 1987, Applicant was convicted after a jury trial. In 2005, he filed a motion for DNA testing pursuant to Chapter 64 of the Code of Criminal Procedure which was ultimately granted in substantial part. As set forth below, the results of DNA testing conducted in 2010-11 have yielded new, highly favorable DNA evidence indicating that another man a convicted felon who is also under investigation for a similar murder in the area actually murdered Christine Morton. In addition, between 2008-2011, and also while represented by undersigned pro bono counsel, Applicant obtained a wealth of documentary evidence that had been wrongfully withheld from him at trial in violation of due process, as set forth below. CLAIM ONE Newly Discovered DNA Evidence Provides Scientific Support for Morton s Claim of Actual Innocence. No Reasonable Juror Would Have Found Proof of Morton s Guilt Beyond a Reasonable Doubt Had the DNA Evidence Been Available at Trial. New DNA evidence provides powerful, scientific support for Applicant s longstanding 6
claim of innocence, and establishes that no rational juror would have found proof of Morton s guilt beyond a reasonable doubt had it been available at trial. Applicant was convicted in 1987 of the 1986 murder of his wife, Christine, who was found bludgeoned to death in their home. At trial, Morton contended that when he left for work on the morning of August 13, 1986, his wife was alive and asleep in the couple s bed, and that she must have been killed by an unknown intruder shortly thereafter. New DNA evidence, conducted with advanced STR-DNA technology, strongly supports that trial defense by revealing the following: 1) a bandana recovered 100 yards from the Mortons home the day after the murder contains Christine Morton s blood and hair, co-mingled with the DNA of a known convicted felon ( John Doe ) and 2) John Doe s DNA profile is also consistent with the DNA recovered from a pubic hair at the scene of another, unsolved murder of a female homicide victim in Travis County. The Travis County crime had a similar modus operandi to the Morton crime and occurred when Applicant was already incarcerated for this offense. This objective, scientific evidence strongly supports Morton s claim that someone else broke into his home in the early morning hours on August 13, 1986 and murdered his wife. These DNA results provide clear and convincing evidence that no reasonable juror would have found Morton guilty beyond a reasonable doubt had they been available at trial. See Ex parte Elizondo, 947 S.W.2d 202, 209 (Tex. Crim. App. 1996). CLAIM TWO Newly Discovered Evidence, Other Than DNA, Strongly Supports Morton s Claim of Actual Innocence. No Rational Jury Would Have Found Proof of Morton s Guilt Beyond a Reasonable Doubt Had the Evidence Been Available. The State failed to turn over material, exculpatory evidence that, had it been available at 7
trial, supports a finding that no rational jury would have found proof of Applicant s guilt beyond a reasonable doubt. This suppressed evidence was only obtained after Applicant prevailed in a contested Public Records Act request in 2008, and includes: 1) a taped police interview by the Williamson County Sherriff s Office (WCSO s) chief investigator, Sgt. Don Wood, dated 8/24/86, with the victim s mother in which she reported that her grandson (Applicant s and the victim s son), Eric, had personally witnessed the murder, gave a detailed, factually corroborated account of witnessing a man who was not his Daddy beat Christine to death; 2) a condensed version of the transcript of the interview referenced in above, in which Sgt. Wood alerts the Sheriff and the District Attorney s Office to the most significant information obtained in the interview about this eyewitness account; (3) a handwritten telephone message to Sgt. Don Wood, dated 8/15/86 (two days after the murder), reporting that what appeared to be Christine Morton s missing Visa credit card was recovered at the Jewel Box store in San Antonio, with a note further indicating that a police officer in San Antonio would be able to identify the woman, an unnamed but apparently known prior offender, who used the card; 4) a report by WCSO officer Traylor, dated 8/14/86, that a neighbor had on several occasions observed a male park a green van on the street behind [the Mortons ] address, then the subject would get out and walk into the wooded area off the road and another neighbor may know where the subject lives; 5) internal WCSO notes written to Sgt. Don Wood, undated, and correspondence, dated 9/27/86, reporting that a check made out to Christine Morton by John B. Cross prior to her death was cashed on 8/22/86, nine days after her death, and that the signature on the back appeared to be a forgery of Christine s. This new evidence is non-cumulative, was unavailable to Applicant at the time of his trial or at any time prior to 2008, and strongly supports his claim that a third party intruder committed the crime. It also would have strongly supported his trial defense that investigators 8
for the State, in a rush to judgment against Applicant, failed to pursue reasonable investigative leads that would have identified a third party intruder as the actual murderer. CLAIM THREE The State Violated Morton s Due Process Rights by Failing to Disclose Material, Exculpatory Evidence That Would Have Supported Morton s Innocence Claim at Trial and Impeached the Integrity of the State s Investigation in the Eyes of the Jury. The State violated Morton s due process rights by failing to turn over material, exculpatory evidence that would have supported Morton s innocence claim at trial: 1) A taped police interview by the Williamson County Sherriff s Office (WCSO s) chief investigator, Sgt. Don Wood, dated 8/24/86, with the victim s mother in which she reported that her grandson (Applicant s and the victim s son), Eric, had personally witnessed the murder, gave a detailed, factually corroborated account of witnessing a man who was not his Daddy beat Christine to death, and in which Sgt. Wood attempts to coerce the victim s mother into discounting Eric s eyewitness account; 2) A condensed version of the transcript of the interview referenced in above, in which Sgt. Wood alerts the Sheriff and the District Attorney s Office to the most significant information obtained in the interview about this eyewitness account; (3) A handwritten telephone message to Sgt. Don Wood, dated 8/15/86 (two days after the murder), reporting that what appeared to be Christine Morton s missing Visa credit card was recovered at the Jewel Box store in San Antonio, with a note further indicating that a police officer in San Antonio would be able to identify the woman, an unnamed but apparently known prior offender, who used the card; 4) A report by WCSO officer Traylor, dated 8/14/86, that a neighbor had on several occasions observed a male park a green van on the street behind [the Mortons ] address, then the subject would get out and walk into the wooded area off the road and another neighbor 9
may know where the subject lives; 5) Internal WCSO notes written to Sgt. Don Wood, undated, and correspondence, dated 9/27/86, reporting that a check made out to Christine Morton by John B. Cross prior to her death was cashed on 8/22/86, nine days after her death, and that the signature on the back appeared to be a forgery of Christine s, and in which the WCSO official disparages the possibility that a third-party killer may be linked to the forged check. This new evidence is non-cumulative, was unavailable to Applicant at the time of his trial or at any time prior to 2008, and strongly supports his claim that a third party intruder committed the crime. As such, it was suppressed by the State at trial in violation of Brady v. Maryland, 373 U.S. 83 (1963). The suppressed evidence set forth above would also have been highly material to Applicant s claim at trial that investigators and prosecutors for the State, in a rush to judgment against Applicant, failed to pursue reasonable investigative leads that would have identified a third party intruder as the actual murderer. See Kyles v. Whitley, 514 U.S. 419 (1995). CLAIM FOUR The State Violated Morton s Due Process Rights by Deliberately Failing to Comply With Specific Court Orders to Produce Investigative Documents to Trial and Appellate Courts for In Camera Brady Review When Those Documents Contained Material, Exculpatory Evidence That Would Have Supported Morton s Theory of Defense and Impeached the Integrity of the State s Investigation. The State violated Morton s due process rights by failing to comply with court orders to produce all investigative documents and reports prepared by Sgt. Don Wood for in camera review, so that the trial and appellate courts could determine if they included any Brady material that would have supported Morton s theory of defense or undermined the integrity of the police investigation. Although Wood was the lead investigator the prosecution did not call him and 10
thereby avoided a statutory obligation to disclose his reports and notes. This request was first made by defense counsel at a pretrial conference, and the Court ordered that the State to hand over the complete reports of Sgt. Wood s, including all of his field notes, in order to make an in camera determination whether any of the evidence was Brady material, which the trial court then placed under seal for review by the Court of Appeals. Both the trial court and the Court of Appeals reviewed the sealed envelope containing what was produced by the prosecutors as purportedly the complete Wood reports and field notes, and concluded there was no exculpatory or impeaching material contained therein. On August 26, 2011, the sealed in camera documents provided to the trial court and forwarded to the Court of Appeals in 1987 were unsealed pursuant to a motion by undersigned counsel. Only one report from Sgt. Wood, dated August 13, 1986 (the date of the murder), was inside, and none of the other materials prepared and received by Sgt. Wood during his investigation that form the basis of Brady relief in Claim Three were included. Moreover, some of these suppressed exculpatory documents -- including the condensed version of the interview between Wood and applicant s mother in law reporting the critical details of Eric s eyewitness account of a third-party monster committing the murder, and the report of the suspicious individual in a green van repeatedly parking behind the Mortons home) were contained within the portion of the District Attorney s Office file marked Trial Documents produced by court order on September 26, 2011. Trial prosecutors deliberate failure to produce the Wood documents as expressly ordered for in camera review by the trial and appellate courts for Brady review was a knowing and egregious violation of Morton s due process rights, and renders his trial fundamentally unfair. CLAIM FIVE 11
The State Made False Assertions at Trial Regarding Alleged Scientific Evidence as to the Victim s Time of Death in Violation of Article I, Section 13 of the Texas Constitution and Federal Due Process. This False Evidence, Which Has Now Been Refuted by DNA Evidence, Denied Morton a Fair Trial. The State made false assertions in its closing arguments at trial by misrepresenting scientific testimony presented by former Travis County Medical Examiner Roberto Bayardo. Dr. Bayardo testified at trial that based on an examination of the victim s stomach contents at autopsy, she was most likely killed no later than 1:15 a.m. However, Dr. Bayardo repeatedly emphasized that his estimation was not a scientific statement and otherwise qualified his testimony significantly. In summation, however, the prosecution grossly misstated that testimony. The prosecutor argued, for example, that medical science shows this Defendant killed his wife and made numerous other false characterizations of Dr. Bayardo s conclusions and opinions. This argument far exceeded the State s latitude to make fair comment on the evidence by misrepresenting Bayardo s opinions as scientific statement, a misrepresentation that was calculated to, and did, mislead the jury as to a critical issue in dispute at trial. The trial prosecutors knew or should have known that their assertions did not reflect a scientific opinion by Dr. Bayardo, nor his actual testimony. Because there was no other forensic evidence linking Applicant to the crime and the case against him was otherwise entirely circumstantial, this misrepresentation had a highly prejudicial impact on the jury. Accordingly, these false assertions by the State violate Article I, Section 13 of the Texas Constitution and Federal Due Process and deprived Applicant of a fair trial. Furthermore, to the extent that this claim may otherwise be procedurally barred because Applicant s counsel failed to raise it on direct appeal or otherwise, it is now cognizable under art. 11.07 4(a)(2) because of the other evidence now in the record establishing that no rational juror would have convicted Applicant beyond a 12
reasonable doubt. CLAIM SIX The State Presented What Purported to Be Scientific Conclusions Concerning Semen and Hair Evidence To Prove Motive and Rebut Morton s Theory of Defense That New DNA Testing Now Shows Were False Thereby Depriving Morton of His Rights To A Fair Trial in Violation of Article I, Section 13 of the Texas Constitution and the Due Process Clause of the United States Constitution. The State presented evidence from the Texas Department of Public Safety (DPS) laboratory technician Donna Stanley that was scientifically incorrect. Stanley testified that her analysis of a stain on the victim and Mortons marital bed sheet consisted of semen only (what is known as a neat stain), supporting the State s theory that Applicant had killed his wife and then masturbated over her in a jealous rage. In 2000, however, in conjunction with court-ordered DNA testing on the bedsheet stain, it was revealed to be a mixture of seminal fluid from Applicant and abundant epithelial cells from Christine consistent with it being a product of prior consensual intercourse between Morton and his wife. Furthermore, Stanley s original DPS reports about the bed sheet examination do not provide any notice or basis for her testimony that the stain was neat (contained only semen), so the defense counsel could not have known, and did not know, about her key conclusions prior to trial. This now demonstrably incorrect scientific testimony, presented in way that deliberately deprived the defense of an opportunity to expose its falsity at time of trial through microscopic examination by an expert, allowed the State to improperly argue an incorrect motive for the crime based evidence that DNA testing now proves and present factually false evidence regarding the manner in which the crime was allegedly committed. Additionally, DPS falsely excluded Christine as source of hair on a critical piece of 13
evidence, a blood-stained bandana, that advanced DNA testing conducted in 2011 reveals was, in fact, her hair. This false exclusion undermined Morton s theory of defense. Collectively, this factually false scientific evidence improperly bolstered the prosecution s motive allegation and undermined defendant s theory of defense in violation of Article I, Section 13 of the Texas Constitution and Federal Due Process and deprived Applicant of a fair trial. CLAIM SEVEN The Cumulative Effect of the State s Brady and Other Due Process Violations Denied Morton a Fair Trial and Resulted in a Conviction Not Worthy of Confidence. Each of the above claims, individually and collectively, establishes that had the suppressed exculpatory and impeachment evidence been presented at trial, and the factually false scientific evidence not been presented, Applicant would not have been convicted. The totality of the suppressed exculpatory and impeachment evidence is material when its cumulative effect is such that there is a reasonable probability that had the evidence been disclosed to the defense, the result of the proceeding would have been different. Kyles, 514 U.S. at 433-34 (1995) (citing U.S. v. Bagley, 473 U.S. at 682, 685). A reasonable probability is one sufficient to undermine confidence in the outcome of the trial. Id. at 434-35. The cumulative effect of the due process violations set forth in Claims Two through Six deprived Applicant of material, exculpatory evidence that would have supported his trial defense, and resulted in a verdict unworthy of confidence. 14
WHEREFORE, APPLICANT PRAYS THAT THE COURT GRANT APPLICANT RELIEF TO WHICH HE MAY BE ENTITLED IN THIS PROCEEDING. STATE OF TEXAS ) ) 26 TH JUDICIAL DISTRICT COURT ) OF WILLIAMSON COUNTY, TEXAS ) AFFIDAVIT OF VERIFICATION Before me, the undersigned authority, on this day personally appeared John Wesley Raley, who after being by me first duly sworn deposed on his oath and stated as follows: My name is John Wesley Raley. I am an attorney licensed in the State of Texas. I represent Michael Wayne Morton. I have the Application for Writ of Habeas Corpus filed on Mr. Morton s behalf. I am familiar with the factual matters set forth therein and they are, according to my information, knowledge and belief, true, correct, and accurate. FURTHER AFFIANT SAYETH NOT. John Wesley Raley Subscribed and sworn before me this day of October 2011. Notary Public, State of Texas My commission expires: 15
Respectfully submitted, John Wesley Raley State Bar No. 16488400 700 Louisiana, Suite 3850 Houston, Texas, 77002 (713) 236-6800 Fax (713) 236-6880 Nina Morrison Barry Scheck The Innocence Project 40 Worth Street, Suite 701 New York, NY 10013 (212) 364-5340 Fax (212) 364-5341 Gerry Goldstein Cynthia Hujar Orr Goldstein, Goldstein & Hilley 310 S. St. Mary's St., 29th Floor San Antonio, Texas 78205 Counsel for Applicant Michael W. Morton 16