Wednesday, March 25, 2015
C.A. Affirms Dismissal of Molestation Case as Misconduct Sanction
Prosecutor, Who Faces State Bar Charges, Said Transcript Alteration Was a Joke, Court Calls It ‘Egregious’
By KENNETH OFGANG, Staff Writer
A Kern Superior Court judge correctly dismissed child molestation charges after learning that the prosecutor provided defense counsel with an altered translation of the defendant’s statements to police, the Fifth District Court of Appeal has ruled.
The court Monday certified for publication its Feb. 24 ruling affirming the dismissal of five counts of lewd or lascivious acts with a child against Efrain Velasco-Palacios. Justice Rosendo Pena Jr. said Deputy District Attorney Robert Murray’s conduct, which Murray described as a joke, “was outrageous or conscience shocking in a constitutional sense.”
Pena rejected the argument that under California law, the sanction of dismissal for outrageous government misconduct is limited to cases of physical brutality. Murray is currently facing State Bar disciplinary charges in connection with the incident.
Velasco-Palacios was charged in July 2013 with having molested his girlfriend’s daughter on multiple occasions. He rejected a prosecution offer of eight years in prison in exchange for a plea, but his attorney indicated that the case was likely to settle if the offer came down.
Murray, according to later testimony, responded that if the case did not plead out, he would consider upgrading the charges by alleging penetration, subjecting the defendant to a possible life sentence. In October 2013, Murray provided the defense with the altered translation of the statements the defendant made to officers in Spanish, to which had been added:
“[Officer]: You’re so guilty you child molester.
“[Suspect]: I know. I’m just glad she’s not pregnant like her mother.”
Murray has said the change was a joke, but didn’t admit to falsifying the transcript until nine days after delivering it to Deputy Public Defender Ernest Hinman, Velasco-Palacios’ attorney, and only after Hinman requested the CD the prosecution used for its transcript.
Retired Kern Superior Court Judge H.A. “Skip” Staley granted the defense motion for dismissal, rejecting Murray’s claim that he was joking—he acknowledged in his testimony that he did not have a joking relationship with Hinman and hadn’t done anything similar in other cases—and concluding that even if he was joking, his conduct was, in the context of discovery and plea negotiations, “egregious, outrageous, and…shocked the conscience.”
He said it “diluted the protections coming with the right to counsel” and could have induced the defendant to waive his rights and enter an involuntary guilty plea.
Pena, writing for the Court of Appeal, said Staley’s ruling was entitled to deference. The standard for review of such an order, he said, is similar to that for dismissals in the interests of justice under Penal Code §1385.
“[T]here 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,” the jurist wrote. “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.”
Pena cited the prosecution’s response to the motion, in which Murray claimed Hinman told him Velasco-Palacios lacked a defense to the charges. This forced the public defender to remove Hinman from the case and forced Hinman to testify to matters that would otherwise have been privileged, Pena noted.
The use of the altered transcript “also inflicted irreparable damage” to the attorney-client relationship by putting Hinman in the unknowing position of using fabricated evidence to convince his client to plead guilty, the justice said.
Pena cited Barber v Municipal Court (1979) 24 Cal.3d 742, in which the Supreme Court held that dismissal was the appropriate sanction where police had used an undercover officer to infiltrate a group of anti-nuclear protesters, then had him sit on meetings between defense lawyers and his fellow defendants after the group was arrested.
Murray’s conduct was no less outrageous, Pena said.
“While Murray did not insert an undercover agent into defendant’s meetings with Hinman, he did provide fraudulent and material evidence to Hinman that Murray either knew or should have known Hinman would discuss with defendant,” the justice explained. “Once the fraudulent nature of that evidence was revealed, defendant, like the defendants in Barber, was justified in having suspicions as to whether his attorney was representing defendant’s interests or acting as an agent of the state by presenting falsified evidence to defendant and simultaneously advising defendant to settle the case. This interference with the trust aspects of the attorney-client privilege was prejudicial under Barber.”
Last June, the State Bar’s Office of Chief Trial Counsel charged Murray with moral turpitude by misrepresentation or falsification of evidence, violation of Velasco-Palacios’ constitutional rights to due process and to counsel, and violation of the discovery statutes. In a terse response, Murray, who is represented by San Francisco attorney Jonathan Arons, admitted “that the translation contained extraneous comments which were not made by the Defendant,” but otherwise denied the charges.
The Bakersfield Californian recently reported that Murray “remains employed in the D.A.’s office and is currently assigned as liaison attorney at the Kern Regional Crime Lab.” The newspaper also reported that Velasco-Palacios, now 20, is facing new charges of child molestation and unlawful sexual intercourse with a girl who says the two had sex when she was 13 and that she is now pregnant with his child.
He is due back in court Friday, the newspaper said.
The Court of Appeal case is People v. Velasco-Palacios, 15 S.O.S. 1560.
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