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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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.
Robert Murray. Joker.
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
fairness.”
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
A similar thing happened to George Perrott in Massachusetts. Worse still, he lost his motion to dismiss the indictment in lower court and appeal. He’s still in prison 30 years later today. For what it’s worth, I believe he has a pretty credible claim of innocence. I know no links but the google will find the case quickly.
And yet, this post isn’t about George Perrott in Massachusetts, but about what Robert Murray did in California. Focus.
Oh no, this cannot be happening!
Torrable, torrable, torrable. Ugly white shirt says it all.
Charcoal gray suits and polyester ties are out as well.
Some people just do not have a sense of humor, AG
Harris would seem to be saying. Some nerve!?!
Fact is stranger than fiction in Caulifornia, or did I get
it backwards?
And I thought the Bermuda Triangle of the Legal Mind
was located on the East Coast? Life in prison is no
laughing matter; that is affirmative.
Are you now a member of the fashion police?
Umm.. I see a white suit &.. oh never mind..
White suit could be medical doctor, KKK member in good standing, or… the writer Thomas Wolfe.
What else? Black on the outside, white on the inside; white on the outside, black on the inside. That is the question? Charcoal gray suits and black robes we abhor. Too hot in summer.
This is the same AG’s office that fought re-trial so hard in the Baca case and only caved after an embarrassing video of arguments in the 9th Circuit went viral. The AG in that case agreed to a retrial so as to avoid an embarrassing decision. No state bar action has been taken against Paul Vinegrad, the DDA in Baca.
At least in this situation the state bar is prosecuting an ethics complaint.
In California the AG’s office defends all the direct criminal appeals in state courts. This could put Harris in a uniquely powerful position to take a stand against prosecutorial misconduct. She has announced that she will be running replace Barbara Boxer in the Senate in 2016. Hopefully this record of defending government abuse, corruption, and misconduct will follow her into the Senate race and keep the public debate active on this issue.
Thanks for clarifying that there is no other state called California in the United States, so whenever the state of California is mentioned, it relates back to the same California, as there is only one. Got it.
r u a jerk?
Sometimes. Mostly, I’m intolerant of commenters who think this is their soapbox to take in whatever direction pleases them, particularly when they raise a subject I’ve written about here.
Now my turn: Does your mommy know you’re on the big boy computer?
But he’s agreeing with you, and he’s clearly right about this coming out of the same AG’s office in Braca. Why be mean in response?
And I agree with him, as well. But everybody here plays by the same rules (except me, of course), when it comes to staying on topic, whether they agree with me or not. Should I let people who agree with me go wherever they want, but not people who disagree? Should I be a hypocrite based on which side they’re on?
As for being mean, that’s what curmudgeons do. If that hurts someone’s feelings, there’s always the button on the sidebar.
Is there a database someplace where all these lying DAs and cops are kept on record?
Of course, but it’s kept by the secret Federalist Society and we’re not allowed to let non-lawyers know about it.
Jokes aside, I was actually thinking I might create one. I have most of the code I’d need lying around from a previous project…
There have been (and may well be) some efforts to do so, but code is the least of your problems. There is the center for prosecutor integrity, which may be a good place to start.
He may not only be a jerk, that prosecutor may be a criminal. In many states manufacturing false evidence is a crime (and in may even be all states, I haven’t checked). And in none of the states I have checked is there any exception for the police or prosecutors manufacturing false evidence. I had to research this a while back and found this somewhat surprising, given the solid caselaw that police are allowed to lie with impunity. The difference is when the lie takes the form of tangible evidence, like a fake transcript or a fake lab report, there is a danger that the false evidence will get a life of its own, ending up in a file, only to be seen by a later police officer or prosecutor who does not know the evidence is fake, and then it ends up being used to really prosecute someone.
An even more interesting question if it is against the law in California would be if charges would be filed. Of course, I am getting ahead of myself…
If only the guy who wrote the post thought of that.
If only… ok, I blame anticipation for spring forward for not noticing that. And of course no one would find it surprising that actually presenting false evidence to the court is not allowed (cops can’t lie under oath… or rather, they aren’t supposed to…) What I found surprising was that even if you never presented it to the court, just making false evidence to show to a defendant (say, to get him to confess) is still illegal. Not that you aren’t also making that point above (or care what I find surprising … in fact, I would find it surprising if you did. And you of course wouldn’t care about that either… Heh.) Now excuse me while I try to pull my shoe out of my mouth.
We can always chat about the weather, if you like.
Sure you want to go there? It’s 56 and sunny here.
Sigh. It’s not snowing here. At the moment.
You no doubt know this: that caption means it won’t be published in the “official” Reporter, and is the court’s way of making sure none of silly defense lawyers thinks that just because that prosecutor’s misconduct was punished, it will help if we call a prosecutor out for malfeasance.
Nothing said in that opinion can be used (directly, that is; although I use the “drill-down” approach) as precedent for anything we’d want to argue, even if it is applicable, and directly on point.
That this is the routine is no doubt part of why he thought he could get away with this.
And since the courts won’t do anything about it, I’m with you on the idea of spreading this far and wide. I’d like to see this guy pop up at the top of Google searches, with this being all that is known about him.
(I wonder if anyone has a blog totally devoted to this, like the Police Misconduct does for police.)
Yup.
The only help I can do here is spread theyour links on my FB and Twitter feeds.
Every eyeball who see what this mutt did helps.
How did that March 5 talk at HaaaVahd go? Brady Violations were the topic. I guess Powell and my favorite Judge from the 9th realm of the of the dark forest were the headliners.
P.S. Your should really brush up on your photoshop skillz. Your photo caption fits even without adulteration or addition but considering the crime and the canvas and it being a Saturday and all, I feel a little bit let down.
I really wish I had photoshopping skillz. They would come in very handy.
Fortunately, Murray has been moved over to the District Attorney run crime lab where his dishonesty won’t be as public.
Better, but still deeply unsatisfying with extreme prejudice.
Worse! An evidence faker in the lab?
googling, it appears he has previously been involved in some funny business involving the crime lab, in a case involving a lost blood sample.
Oh.. now there’s irony..
Done in jest. Done. In. Jest… What the fuck? What the fucking fuck?
I suspect that, in some ways, the nature of that pathetic attempt at an argument speaks more to the culture of the department than the lack of prosecution does.
Why did Murray think he could get away with fabricating evidence? The answer that suggests itself is that he has fabricated evidence before, and gotten away with it.
Certainly possible. Had Hinman gotten his client to plead guilty before he found out the evidence was fabricated, no one would have ever known it happened.
The people of California need to stand UP. And remove him.
The people don’t remove him. His DA can fire him. The bar association can disbar him. He can be prosecuted. The people only vote for elected officials to carry out their will.
Note to self for future discovery requests:
“All statements made by the government or its agents ‘in jest’ or otherwise false that did not result in immediate physical harm to the defendant.”
So… if this was plastered in front of the faces of every boobus Americanus, how many would give a f*ck?
I think you have found your problem.
That people don’t care is nothing new. But this is within the legal profession, and that’s an entirely different matter.
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I think that this post, more than any in your recent past, bothers me the most..
There is so much I want to rant about.. but I’ll focus.. or try to..
Nahh.. I just can’t do it..
But I’ll share this as far & wide as I can..