A State Bar of California judge is recommending a 30-day suspension and one-year probation period for a Kern County prosecutor who falsified a transcript in a “joke gone awry” to indicate a defendant had confessed to engaging in sex acts with a teenage girl.
Of the three counts of alleged prosecutorial misconduct filed against Deputy District Attorney Robert Alan Murray, the judge found Murray culpable of one, an act of moral turpitude, “based on (Murray’s) gross negligence, conduct constituting extreme departures from the ordinary standards of conduct and creating a risk of significant harm to the pending criminal case.”
Two counts of failure to comply with laws were dismissed.
A one-year suspension from practicing law has been stayed and will be terminated if Murray successfully fulfills all the conditions of his probation, according to the Dec. 16 decision by Judge Donald F. Miles.
State Bar attorneys had sought a two-year suspension.
In effect, Murray won’t be able to practice law for the first 30 days of probation, and during that time must schedule a meeting with an assigned probation deputy to discuss probation terms and conditions, according to the decision.
Murray must also submit quarterly reports to the Office of Probation, complete the bar’s Ethics School and pass the test given at the end of the session.
The decision is not yet final as it must first be reviewed by the state Supreme Court.
District Attorney Lisa Green said Tuesday that Murray will remain employed in her office. She described him as a “very talented attorney and stand up kind of guy” whose actions were out of character.
Green said the judge’s opinion makes it clear he believed — as Murray has stated from the beginning — that the falsification was a “joke gone awry” between Murray and Deputy Public Defender Ernest Hinman.
She said sometimes attorneys have relationships where they joke with one another, and sometimes it makes for a better work environment, but she has no personal knowledge of the relationship between Murray and Hinman.
Green did not excuse Murray’s actions. She said there are consequences to what he did.
“I think the punishment is appropriate and I hope the Supreme Court will review it in light of how the judge did,” she said.
Miles noted in his decision that Murray and Hinman had a history of joking with one another about cases in which they were opposing counsel, but “there was no history of any practical jokes between them, especially one involving the alteration of potential evidence.”
But the judge found “there was no evidence during the instant trial that the prank document was ever intended by (Murray) to be used by him or by anyone else as evidence in the criminal case or to affect Hinman’s handling of that case.”
Murray’s actions resulted in the dismissal of criminal charges against Efrain Velasco-Palacios in December 2013. The defendant had been charged with five counts of lewd or lascivious acts with a child younger than 14 years old.
Murray placed a fabricated admission of guilt into an English translation of Velasco-Palacios' Spanish-language interrogation.
Specifically, the prosecutor wrote the following into the transcript:
“[Officer]: You're so guilty you child molester.
”[Suspect]: I know. I'm just glad she's not pregnant like her mother.“
During pretrial motions in that case, Murray said he'd be willing to accept an eight-year prison term for Velasco-Palacios. The defendant refused to accept that offer.
Murray then told Hinman, Velasco-Palacios’ attorney, he was considering dismissing the charges and refiling them to allege penetrative acts, which carried a possible life sentence, according to court documents. Murray said if the charges were refiled he would be unlikely to accept any plea offers from the defendant.
Upon a review of the case, however, Murray was unable to find evidence supporting charges alleging penetrative acts, the documents say. That same day, Murray provided Hinman with the falsified transcript.
Hinman questioned Velasco-Palacios about the confession, and the defendant denied making those statements.
Hinman emailed Murray requesting the prosecution's audio recording of the interrogation. Murray did not respond.
Later the same day, the filings say, Hinman spoke to Murray in person about the email and Murray admitted to falsifying the transcript. A Kern County judge dismissed the charges against Velasco-Palacios after Hinman reported what had happened.
Velasco-Palacios was sentenced in April 2015 to four years and four months in prison after pleading no contest to committing sex acts with a new victim.