The legend across the top of the decision reads,
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
Fortunately, this isn’t an official report, because what Kern County, California prosecutor Robert Alan Murray did was so outrageous, so incredible, as to demand it be reported somewhere. Sidney Powell reported it in the Observer, and I would be remiss not to spread it as widely as possible.
The defendant, Efrain Velasco-Palacios, was charged with five counts of lewd and lascivious conduct with a child. As his public defender, Ernest Hinman, was trying to work out a plea, which the defendant was unwilling to accept, Murray tried to up the ante to force the deal.
That same day, Murray provided Hinman with an English language translation of defendant’s police interrogation, which had been conducted in Spanish. The translation, however, contained two additional lines, added and fabricated by Murray, which read as follows:
“[DETECTIVE]: You’re so guilty you child molester.
“[DEFENDANT]: I know. I’m just glad she’s not pregnant like her mother.”
Upon receiving the transcript, Hinman informed defendant it included an admission of penetration that could be used to file more serious charges against defendant. Defendant denied making the incriminating statements, and Hinman continued to advise him to make an offer to settle the case.
That’s right, Murray “added and fabricated” those two lines, which fundamentally alter the nature of the crime, as well as the penalty to life in prison.
The defendant denied this happened, and his lawyer tried to get the original CD of the interrogation, but Murray stonewalled. When they appeared in court a week later for putative trial, Murray said nothing of his fabrication. Only when Hinman pushed for the CD did Murray finally admit he added the two lines.
In response to HInman’s motion to dismiss, the prosecution offered this:
The People filed a response to defendant’s motion and asserted the lines were added “in jest,” and defendant had not been prejudiced by the fabrication. The response also contained an affidavit from Murray stating Hinman had admitted to him defendant did not have a viable defense.
It wasn’t that Murray and Hinman were old joking buddies, not that it would have been acceptable even if they were, but the thrust of the prosecution’s opposition was that the defendant was guilty anyway. He “had no defense.” And if he was guilty, then Murray’s hysterically funny fabrication of a confession of rape did no harm.
The trial court, like the defendant and his lawyer, didn’t find Murray’s joke nearly as funny as he did.
After the conclusion of the evidentiary hearing, the trial court issued a written opinion dismissing the charges against defendant. In support of its order, the trial court found Murray’s dissemination of the fabricated transcript was made during discovery proceedings and was “in play” during settlement negotiations. The trial court also found Murray had failed to prove the fabrication was a joke, but even if it had been done in jest, Murray’s dissemination of the fraudulent confession during plea negotiations was “egregious, outrageous, and … shocked the conscience.”
While the court held that it impaired the defendant’s right to counsel, the court further held that the conduct itself was so shocking that it compelled dismissal:
The court does not believe that it can tolerate such outrageous conduct that results in the deprivation of basic fundamental constitutional rights that are designed to provide basic
What is notable is that the mere fact that Murray engaged in this outrageous lie, without a resulting prejudice to the defendant’s rights, might have eluded remedy. What is also notable is that regardless of a remedy for the defendant, Murray wasn’t led out of the courtroom in handcuffs for having lied and fabricated evidence to the court and defense.
What’s worse is that on appeal, the state not only didn’t concede the outrage of Murray’s lie and fabrication of evidence, but fought back:
On appeal, however, the People dispute that Murray’s misconduct was outrageous or conscience shocking in a constitutional sense, as it was not physically brutal. . . ..
Indeed, there is simply no support for the People’s contention that an act must involve some form of physical brutality in order to support a sanction of dismissal. Meanwhile, there is ample support for defendant’s contention that egregious violations of a defendant’s constitutional rights are sufficient to establish outrageous government misconduct.
The position taken by Kamala Harris, California Attorney General, is that short of physically beating a confession out of a defendant, there is nothing prosecutors can do that is so outrageous as to justify dismissal.
There are lines that don’t get crossed. What Murray did here crossed such a line. We may expect a cop to tune up a defendant who didn’t “respect his authority” the way he wanted, or deep-six exculpatory evidence because he didn’t want the guilty defendant to walk. That’s bad, but not unanticipated. But for a prosecutor to fabricate a rape confession, stick it into a transcript, is so far beyond the pale as to be mind-boggling. And Robert Murray did it.
And yet Murray is not only unindicted, but still working as a prosecutor in the office of Kern County District Attorney Lisa Green, and being defended by California Attorney General Kamala Harris. The California State Bar has commenced disciplinary proceedings against Murray, which are pending.
Regardless of outcome of the disciplinary proceedings, report of Murray’s conduct must not go unpublished. Let this follow him wherever he goes and whatever he does.
H/T Glenn Reynolds, Instapundit