Third Judicial District Judge Mike Murphy
A judge has apparently dismissed one or more felony bribery charges against Third Judicial District Judge Mike Murphy, but he did so under seal, so exactly what the judge ordered and why isn’t clear.
The judge also dropped the lone misdemeanor charge Murphy faces, saying the statute under which Murphy was charged isn’t criminal.
Retired Federal Magistrate Judge Leslie Smith, who the N.M. Supreme Court appointed to oversee the case, gave little explanation in partially granting a defense motion to dismiss the grand jury indictment that resulted in four felony charges against Murphy.
“The court will grant the motion in part,” Smith wrote. “The remainder of this portion of the order appears only in the sealed version filed concurrently herewith.”
Why Smith sealed that portion of his ruling isn’t clear. A clerk at the Third Judicial District Court said she couldn’t tell what charges Murphy is still facing.
The effect of Smith’s Wednesday ruling is that an elected state judge is accused of soliciting a bribe from potential judicial applicant Beverly Singleman, telling District Judge Lisa Schultz to tell Singleman she needed to pay the bribe, and threatening to destroy Singleman’s reputation for telling others that he solicited a bribe from her – but the public has no way to know what charges Murphy currently faces.
Special prosecutor Matt Chandler is bound by Smith’s ruling to keep what is under seal secret, so he couldn’t provide details about the judge’s actions.
“Although I respect the court’s order, I think it’s in the best interest of justice to have full transparency in this case,” Chandler said.
Sarah Welsh, executive director of the N.M. Foundation for Open Government, said state courts are subject to relatively new rules on sealing documents that are “designed to prevent exactly this situation, where people in the public who are watching the case are left wondering, what happened, did something happen, and why can’t we access the order?”
‘A setback for the prosecution’
Murphy’s trial is currently scheduled to begin Oct. 31. While acknowledging that the judge’s order was “certainly a setback for the prosecution,” Chandler said he will file motions to reconsider that he hopes to have litigated next week.
“It’s the state’s position that the defense attorneys have been disingenuous with the court regarding the history of this case and the state’s laws, and when the court hears all the facts and applies the applicable laws, we are hopeful that the court will revert to its original rulings and allow the state to proceed to a jury trial as scheduled,” Chandler said.
He added that the state will continue to fight “even if it means going to the Supreme Court for guidance.”
Murphy’s attorney, Michael Stout, had no immediate comment.
The charges on which Murphy was indicted in May include demanding or receiving a bribe by a public employee; bribery of a public officer or employee; and bribery, intimidation, or retaliation against a witness – all third-degree felonies – in addition to a fourth-degree felony charge of criminal solicitation. Which of those charges still stands isn’t clear.
Chandler also charged Murphy with the misdemeanor count of violating the state’s Governmental Conduct Act. Smith dismissed that charge Wednesday.
In a separate case, Murphy also faces one felony charge of bribery of a public officer or employee for allegedly offering “several promises” to District Judge Lisa Schultz in December 2010 if she would agree to be the tie-breaking vote to make Douglas R. Driggers the chief district judge in Las Cruces. That charge still stands, and while Chandler has said he intends to join that case with the other, he hasn’t yet sought an order to do that.
Exculpatory evidence
The Stout motion Smith partially granted alleged that Chandler failed to present exculpatory evidence to the grand jury. Such evidence, the motion states, includes testimony from District Judge Jim T. Martin, Schultz, local politico Edgar Lopez, court staff attorney Norm Osborn, and Murphy’s bank records – and it’s evidence Stout claims would help Murphy.
You can read Stout’s motion here.
Though it’s not clear from the portion of Smith’s ruling that he made public, it’s possible that the judge’s order allows Chandler to ask another grand jury to re-indict Murphy on the charges that were dismissed.
But if he opted to try again, and the judge’s order stands, Chandler would likely have to present the exculpatory evidence that he didn’t present to the first grand jury.
Such evidence includes a statement from Osborne. In court filings, Chandler claims that Osborn told investigators that Murphy said he paid money every month “to influence his appointment process.” What Chandler left out, according to a filing from Stout, is Osborn’s statement that he “did not receive any factual information that Judge Murphy committed a crime.”
“He heard Judge Murphy discuss political advice given to those who seek a judicial appointment. The advice was similar to what he had heard from other judges,” a court filing from Stout states. “When he heard Judge Murphy give this advice, it was clearly about political contributions and had nothing to do with a crime of any kind, including bribery. Judge Murphy did not at any time state or imply that there was a quid-pro-quo for contributions.”
Stout also takes issue with the way Chandler handled Martin’s testimony before the grand jury. Martin refused to answer some of Chandler’s questions because he was also being investigated.
Martin was at a meeting at which prosecutors allege Murphy solicited a bribe from a judicial hopeful. Stout alleges that Chandler orchestrated a situation before the grand jury in which he knew Martin would refuse to answer questions.
“The prosecutor presented a witness he knew to have exculpatory information – in fact, the only other witness to the alleged crime – and forced him to not answer questions about the substance of the alleged crime,” Stout wrote in a court filing. “This implies that there was a crime at which Judge Murphy was present.”
The misdemeanor charge
The misdemeanor charge Smith dismissed was based on the same allegations that led to the May indictment and alleges that Murphy failed to meet the statutory requirement that a public officer “conduct himself in a manner that justifies the confidence placed in him by the people, at all times maintaining the integrity and discharging ethically the high responsibilities of public service.”
The act states that it is a misdemeanor punishable by up to one year in prison and a fine of up to $1,000. But Smith ruled that the portion under which Murphy is charged is not a criminal statute because it is too vague to make clear what conduct it prohibits.
Chandler plans to fight that ruling as well.
“I understand this may be the first time a prosecutor has filed a charge such as this under the Governmental Conduct Act, so this might be an issue of first impression that ends up in the New Mexico Supreme Court,” Chandler said. “However, it’s the state’s position that the Legislature intended for alleged conduct such as this, by a state public official, be punished by up to a year in jail and/or a fine of up to $1,000 or both, which is why they spelled out the criminal penalties in the act.”
A compelling reason needed to seal records
As to what happens next, Chandler will apparently argue his case during a hearing next week. The Supreme Court ruling on sealing court records allows any member of the public to file a motion seeking the unsealing of Smith’s order, but none has been filed.
In the meantime, Welsh remains concerned about the situation. The spirit of the sealing rule, she said, is to “make sure that everything is public unless there is a really compelling reason that something specific has to be kept confidential.”
That’s especially true in the case of an action of the court, like Smith’s order.
“If the public can’t know what the court is doing, there’s got to be a really compelling, strong reason that that needs to be secret,” she said.
“The entire reason our courts are open is so that the public has confidence that justice is being done,” she added. “In a case like this, where there is extremely high interest, it implicates the integrity of the judiciary, the public’s interest in knowing is extremely high. So that raises the bar for the compelling reason to seal anything.”
Update, 11 p.m.
Stout sent this statement:
“Dismissal is appropriate. The court’s ruling is that Judge Murphy’s motion to dismiss for failure to present exculpatory information is granted in part.
“There is no crime here. If the prosecution proceeds fairly and follows the rules concerning proper evidence, the charges will not be pursued.”
A prior version of this article incorrectly stated that Murphy is charged with paying a bribe for his position.