California Prosecutor Fabricates Evidence, Escapes Real Punishment

Jan. 22, 2016 (Mimesis Law) — Robert Murray is apparently a great guy. His boss describes him as a “very talented attorney and stand up kind of guy” who committed some actions that were “out of character.” And it’s a shame, what he did has resulted in a harsh penalty: a California bar judge has recommended a whole month without his bar license.

What got Robert Murray in trouble was a hilarious prank. See, Murray was looking to prosecute a Hispanic man for child molestation. So what he did, you see, was alter a transcript of his conversation with police to make it look as though he was confessing to the crime.

He added the following lines to a conversation between the defendant and the interrogating officer:

[Officer]: You’re so guilty you child molester. [Suspect]: I know. I’m just glad she’s not pregnant like her mother.

A real knee-slapper.

But hilarity is a dish best served cold. So Robert Murray didn’t tell opposing counsel about the joke on the day he served him with the transcript. He also didn’t do it a week later, on what was supposed to be the first day of the defendant’s trial.

Defense counsel wasn’t in on the joke. But he did notice that the audio tape he received from Murray cut off abruptly. In fact, funnily enough, it stopped just a bit before his client allegedly confessed.

When, two days after trial, defense counsel demanded the original audio tape, he didn’t receive a response. So he went and spoke to Murray in person, which coincidentally, was the exact moment that Murray decided to say that the whole thing was a prank. Just one of those things that friends sometimes do to one another.

Except, well…

Murray testified the lines were added as a joke, but admitted he did not have a joking relationship with Hinman and had not made such jokes in the past.

It was probably a pretty amusing mix-up back at the office, with the defense attorney asking his client if he had admitted to being a child molester, and the client angrily protesting that he had never said anything like that.

As the California Court of Appeals pointed out, it didn’t exactly help the attorney client relationship:

Indeed, defendant testified he was comfortable going to trial with Hinman as his attorney before Hinman approached him with falsified evidence, at which point defendant “[did not] even trust in [his] attorney anymore.”

Weirdly, the trial judge didn’t believe Murray’s story. He seemed to think that, since Murray had hidden what he had done up until the moment he got caught, had never had a joking relationship with the public defender, and had a vested interest in making sure the defendant pleaded out, the alteration of the transcript had to be deliberate.

And it certainly doesn’t help Murray’s case that, once the defense filed a motion to dismiss for gross prosecutorial misconduct, he disclosed that the defendant’s counsel had privately suggested that he did not believe his client had a viable defense.

It’s hard to see why defense counsel’s opinion about the strength of his case[1] would change whether Murray was joking. It was almost as though Murray was trying to say that his actions were excusable because the defendant was obviously guilty.

The trial judge dismissed the charges because Murray’s conduct was “egregious, outrageous, and … shocked the conscience,” and the Court of Appeals affirmed that decision, agreeing that the misconduct was “outrageous.”

So what made a California bar judge think that Murray deserved a mere one-month suspension for one of the most serious imaginable instances of prosecutorial misconduct?

Well, first off, unlike the trial court, opposing counsel, or the Court of Appeals, the bar judge seemed to believe Murray’s account that the whole thing was just one big misunderstanding.

Josh Kendrick wrote earlier this week about the uneven application of bar discipline between defense attorneys and prosecutors, and this is a rather stark example. It is hard to imagine a defense attorney admitting to fabricating evidence without picking up at least serious license suspension and a criminal conviction.

[1] And by the way, prosecutors, there are plenty of defense attorneys who will tell you they have a crappy case even if they’ve got a great issue to litigate, simply hoping you won’t be prepared for trial.

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