Suspension Is No Joking Matter

The California State Bar Court Review Department has recommended a suspension of a state court prosecutor.

 During plea discussions in a child molestation case, Kern County prosecutor Robert Murray added two fabricated lines of testimony to the defendant’s transcribed statement that made it appear that the defendant had admitted to having sexual intercourse with a 10-year-old child—an offense that carries a life sentence. Murray then transmitted the false document to the public defender. When confronted by the public defender nine days later, and despite several opportunities to correct the record, Murray claimed it was all a joke. The Kern County Superior Court did not see Murray’s actions the same way and found his conduct to be so “egregious,” “outrageous,” and “conscience-shocking” that it violated the defendant’s constitutional rights to counsel and to a fair trial. In light of the prejudicial impact, the superior court dismissed all criminal charges against the defendant. The California Court of Appeal affirmed the dismissal in a published opinion.

 The matter was referred to the State Bar. A hearing judge found Murray culpable of grossly negligent conduct amounting to moral turpitude and recommended a 30-day actual suspension. The Office of the Chief Trial Counsel of the State Bar (OCTC) appeals, arguing the discipline is “grossly inadequate” given Murray’s intentional behavior and the magnitude of the harm he caused, and requests a one-year actual suspension. Murray does not appeal and  contends, as the hearing judge found, that he was trying to create a moment of levity and ease relations with the public defender, and that he did not intend to deceive anyone or affect the outcome of the case.

 After independently reviewing the record (Cal. Rules of Court, rule 9.12), we agree with the courts of record in this matter. We find that Murray deliberately created and inserted a fraudulent document into a criminal prosecution while he was actively negotiating a resolution by plea agreement. This altered evidence bore no indicia of being a “prank,” and Murray made no prompt effort thereafter to control the consequences. Murray’s behavior is wholly inappropriate and unbecoming of an experienced prosecutor, who is expected to adhere to the highest standards of ethical conduct and to act as a gatekeeper to the fair administration of justice. We therefore recommend a one-year actual suspension to protect the public and to maintain integrity and confidence in the legal profession.

The added lines

[Officer Martinez]: You’re so guilty you child molester.

[Palacios]: I know. I’m just glad she’s not pregnant like her mother.

Then

During normal business hours that same day, Murray emailed the altered transcript to [defense counsel] Hinman from his office email account. Nothing in the text, font, or formatting of the alteration, or in the manner in which the altered document was delivered, signaled anything unusual. And there was some truth in Murray’s manufactured admission because, in fact, the girl’s mother was pregnant by Palacios. After sending the transcript to Hinman, Murray turned his attention to other pressing matters, and claimed he forgot about it.

Murray later defended his actions as a “joke.” He testified in these proceedings that he was carrying an unusually heavy caseload at the time, including several infant homicide cases, and he underestimated the emotional toll it was taking as he struggled to cope with it. He stated that it was out of character for him to play a “prank” like this, but it was an attempt to deal with the stress through humor.

Hinman read the altered transcript within several days of receiving it. He did not recognize the false confession to be anything but genuine and had no reason to believe Murray was playing a “prank” on him. He testified: “There were some jokes over the years [with Murray], but the relationship between us was not one of, you know, playing a prank with a piece of evidence. I’d never seen that or heard of that before, ever. . . . I wouldn’t have expected any prosecutor or defense attorney on a case to do that.” Instead, Hinman was troubled that his copy of the transcript was incomplete. He was also reluctant to raise the issue directly with Murray; he did not want to alert Murray to any incriminating statements by Palacios that Murray might have overlooked.

Hinman then conducted a videoconference with his incarcerated client, asking him about the last two lines of the transcript, and informing him that an admission of penetration could be used to file more serious charges against him. Palacios denied making the statement. He later testified to the superior court that he initially had a good relationship with Hinman and was comfortable with Hinman representing him at trial; however, after Hinman approached him with falsified evidence, he “did not feel safe” and “[did not] even trust in [his] attorney anymore.”

There was substantial character evidence but

Murray had time and opportunity yet did nothing to set the record straight in the Palacios case until confronted by Hinman. He took no prompt, remedial action, and, as a result, significant damage was done to the public, the profession, and the administration of justice.

Bakersfield.com had a story on the bar charges.

The opinion (unlike many in California) is for publication. (Mike Frisch)