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By Samson Habte
Dec. 13 — A recommended one-year suspension for a California prosecutor accused of tampering with evidence is raising questions about prosecutorial misconduct and whether bar authorities go too easy on government lawyers who break the rules.
The prosecutor, deputy district attorney Robert Murray, was accused of doctoring a transcribed police interrogation to make it appear as though a criminal defendant had confessed to having sex with a child.
Murray's actions led to the dismissal of the case even though the defendant allegedly admitted having sexual contact with the child short of intercourse. The defendant was later convicted of abusing another child.
“This is a guy who could very easily have put a person in prison forever through his creation of false evidence,” said Scott H. Greenfield, a New York criminal defense lawyer and author of the blog Simple Justice. “What’s it going to take for bar counsel to start taking seriously all those sweet flowery words that Justice [Robert] Jackson used to speak about the duties of a prosecutor?”
“It’s actually shocking that any punishment at all was meted out beyond a very stern talking to,” Greenfield told Bloomberg BNA. “That’s the typical prosecutor punishment for gross malfeasance and violating constitutional duties.”
But Fordham Law School professor Bruce A. Green saw things differently. “To me, a one-year suspension is pretty serious,” he told Bloomberg BNA.
“Not that it’s not deserved,” Green said. “But to say, ‘Oh, it’s only a year and not disbarment’ is to not reckon with the seriousness of the sanction in the real life of a person who has spent his life as a lawyer.”
Last month, a three-judge panel of the California State Bar Court recommended that Murray be suspended from practice for one year, followed by a year of probation (Cal. State Bar Ct., Review Dep’t, No. 14-O-00412, 11/10/16).
The California Supreme Court rarely reviews such recommendations, and bar counsel didn’t seek disbarment or a longer suspension, so the bar court's ruling will likely resolve the disciplinary case against Murray.
Murray kept his job in the Kern County (Cal.) District Attorney’s Office after his misconduct came to light, and his defense in the discipline case was bolstered by character references from his current boss, a sitting state court judge and bar association leaders.
But Murray’s conduct also generated outrage. And a decision sparing him from disbarment could add fuel to a roiling debate over what some critics—including a prominent Ninth Circuit judge—view as an epidemic of prosecutorial misconduct that bar authorities have cast a blind eye toward.
Murray consistently maintained that he was playing a joke on a public defender—and not trying to railroad a criminal defendant—when he added two lines of fabricated dialogue to the transcript of a police interview with an accused child molester.
The interview took place after police received a complaint that Efrain Velasco-Palacios had molested his girlfriend’s 10-year old daughter.
Murray edited the transcript of the interrogation to make it appear as though Palacios—who made a number of damaging admissions about fondling and kissing his alleged victim—had also confessed to penetrative acts.
Palacios was released because of Murray’s actions; he was later arrested and convicted for abusing a different child.
At a hearing to decide whether to dismiss Palacios’s charges, Murray testified that he was playing a “joke” on his counterpart in the Kern County Public Defenders' Office.
The trial judge wasn’t convinced. He found that Murray altered the transcript to gain leverage after Palacios rejected an initial plea offer. The judge said the fabricated dialogue gave Murray the evidence he needed to be able to credibly threaten to bring more serious charges against Palacios if he didn’t accept the initial offer to a lesser offense.
Murray’s “joke” defense also failed to convince the bar court, which found that he engaged in “egregious misconduct” that violated the “basic notions of ethics, integrity and fairness upon which the legal profession is built” and “erodes confidence in law enforcement and the criminal justice system.”
The bar court’s opinion was authored by Judge Richard A. Honn, and joined by Judges Ronald W. Stovitz and Patrice E. McElroy.
Honn characterized the bar court’s recommended sanction—a one-year suspension followed by a year of probation—as harsh. He said suspending Murray for an actual term of one year would send a “forceful and clear” message about the high ethical standards demanded from prosecutors.
Greenfield said that was “malarkey.”
“Here you’ve got a guy essentially condemning a guy to life, and you’re going to give him a year?” Greenfield commented. The actual “message” sent by that sanction would be that “prosecutors can be unethical without significant sanction while every other lawyer has to suck it up and take disbarment like a man,” he said.
“The message is that this is the worst that can happen to someone who affirmatively goes out to undermine the legal system,” Greenfield said.
Pace University law professor Bennett L. Gershman, author of the treatise Prosecutorial Misconduct, echoed that sentiment. “To me this prosecutor should’ve been removed,” he told Bloomberg BNA.
Gershman said the soft approach toward Murray was illustrative of a broader problem. “The system of regulating prosecutors is not just deficient, it’s almost non-existent,” he said.
Jonathan I. Arons, the lawyer who defended Murray against the bar complaint, told Bloomberg BNA that he understands why the “joke” defense might draw skepticism from outside observers.
“In the abstract, it sounds preposterous,” said Arons, who practices in San Francisco.
But it really was a joke, Arons said, and people shouldn’t dismiss that defense out of hand without taking a close look at the record. “Anybody who doesn’t sit in on the hearings and pontificates on whether someone was candid or not is [being] misleading,” Arons said. “They don’t have full information.”
Arons stressed that his client never tried to enter the altered transcript into evidence as an exhibit in Palacios’s case. The document wasn’t exchanged in discovery, he noted; it was sent informally, defense counsel had his own audio recording of the interrogation, and Murray didn’t try to re-initiate plea negotiations after sending the document as a joke.
Arons said he thinks the bar court, influenced by the zeitgeist, made “a results-driven decision.”
Arons said he thought it was “absolutely correct to say that [bar authorities] have been dilatory in going after prosecutorial misconduct.” But Arons said the case was less damning than it may have appeared on the surface, and that Murray faced an uphill battle because “he is a prosecutor in an era in which prosecutors have gotten away with outrageous conduct.”
The national debate over the alleged prevalence of prosecutorial misconduct has been particularly acute in California, which enacted a law in October that makes it a felony punishable by up to three years in prison for prosecutors to tamper with evidence or withhold exculpatory material from criminal defendants.
California’s role in the debate has also been heightened by the outspokenness of a prominent jurist based in the state: Judge Alex Kozinski of the San Francisco-based U.S. Court of Appeals for the Ninth Circuit.
In 2013, Kozinski penned a dissent that bemoaned what he described as “an epidemic of Brady violations abroad in the land.” Three years later, he cited Murray’s ethical infractions in a law review article that echoed critics who accuse bar authorities of taking an insufficiently vigorous approach to prosecutorial misconduct.
“There have been a few instances of professional discipline against prosecutors, though even that has been much less than against similarly-situated private lawyers,” Kozinski wrote. “By and large, however, professional organizations are exceedingly reluctant to impose sanctions on prosecutors for misconduct in carrying out their professional responsibilities.”
Gershman said he agrees that prosecutors are too often permitted to engage in unethical and sometimes illegal conduct with impunity.
“You rarely ever see discipline of prosecutors who engage in courtroom misconduct—inflammatory summations, presenting false evidence, hiding evidence—that almost never happens,” Gershman told Bloomberg BNA. “You’d think that when a prosecutor is caught red-handed, the courts would really make an example of [him] to at least let the public know that prosecutors don’t get special treatment.”
But bar counsel, who are “typically extremely passive when it comes to prosecutors,” must also play a stepped-up role, Gershman said. Disciplinary authorities “have a responsibility to be aggressive—to be proactive, not to sit back and wait” when they hear about potential prosecutorial misconduct.
“If [bar counsel] were to read an opinion that excoriates a prosecutor for misconduct, you should take that as a basis for maybe conducting an investigation,” Gershman suggested. “Why do you need a complaint? If you can see in an opinion from a court that a prosecutor violated the rules, look into it.”
Prosecutors are “quasi-judicial” officials and “their job is not to win the case, their job is to do justice,” Gershman added. “And so when a prosecutor violates the rules I think that’s more serious than when a private lawyer does it. I think discipline has to be harsh, especially in cases where the conduct is—as the court said in Murray—egregious, outrageous and shocking to the conscience.”
Greenfield said he hoped the California Supreme Court would use its discretionary authority to review the bar court’s findings and reject the recommended sanction.
“Murray’s conduct was so egregious—it was so flagrant, so affirmatively wrong—that this would be an opportune case for the California Supreme Court to send back,” he said.
If history is an accurate guide, that is unlikely to happen.
The California Supreme Court has delegated much of its authority in lawyer misconduct cases to the bar court. The bar court’s recommendations become final within 60 days unless the respondent or bar counsel petitions for reversal or modification, or the supreme court decides to conduct a de novo review.
Lawyers who spoke with Bloomberg BNA said the California Supreme Court rarely exercises its discretion to conduct a de novo review of a disciplinary case where neither party has petitioned for modification.
To contact the reporter on this story: Samson Habte in Washington, D.C. at firstname.lastname@example.org
To contact the editor responsible for this story: S. Ethan Bowers at email@example.com
Full text at http://members.calbar.ca.gov/courtDocs/14-O-00412-3.pdf.
Copyright © 2016 American Bar Association and The Bureau of National Affairs, Inc. All Rights Reserved.
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