Third Judicial District Judge Mike Murphy
The judge overseeing the bribery case against District Judge Mike Murphy on Monday unsealed an order he issued last week and revealed that he has dismissed the entire grand jury indictment that was issued in May.
Judge Leslie Smith granted the defense’s request to dismiss the indictment based on an argument that exculpatory evidence should have been presented to the grand jury. The judge’s order allows special prosecutor Matt Chandler to take the allegations before a new grand jury and seek another indictment if he presents that evidence.
For now, Murphy is no longer facing the four felony charges contained in the indictment. And as NMPolitics.net reported last week, Smith has also dismissed a misdemeanor charge of violating the state’s Governmental Conduct Act that Chandler brought against Murphy in June.
What’s happening now is a lot of procedural wrangling. Murphy’s attorney, Michael Stout, initially filed a motion requesting that the indictment be dismissed. Smith denied that motion. Stout filed a motion to reconsider the motion to dismiss. That’s the motion Smith granted last week. Now Chandler has filed a motion asking Smith to reconsider his decision to grant Stout’s second motion.
Meanwhile, Murphy is still facing a separate felony bribery charge for which he could go to trial as soon as Oct. 31.
A victory for Murphy
The dismissal of the indictment is a victory for Murphy, who has been on suspension and had his reputation tarnished by the allegations that led to the indictment – that he solicited a bribe from potential judicial applicant Beverly Singleman, told District Judge Lisa Schultz to tell Singleman she needed to pay the bribe, and threatened to destroy Singleman’s reputation for telling others that he solicited a bribe from her.
Smith’s order states that, if Chandler wants to seek a new indictment, he must call District Judge Jim T. Martin to testify before the grand jury with immunity in place. He must also reveal to the grand jury an affidavit from Third Judicial District staff attorney Norm Osborn stating that he doesn’t believe Murphy committed a crime. And, if Chandler refers to money changing hands, the judge’s order requires him to give the grand jury access to Murphy’s bank records.
Chandler has already filed motions asking Smith to reconsider his dismissal of the indictment and the misdemeanor charge. The dispute over the misdemeanor, which is based on a statute Smith says is not criminal, appears to be headed to the N.M. Supreme Court after Smith rejected Chandler’s motion to reconsider at a hearing held Monday. Smith has yet to rule on the request to reconsider dismissing the felony indictment.
Stout said Smith made the right decision by dismissing the indictment.
“The difficulty the prosecution has in obtaining a valid indictment is that there was no crime committed. A fair and proper presentation would confirm that,” Stout said. “… Soon we will provide additional information supporting (Smith’s) ruling.”
Chandler, on the other hand, has accused Stout of misleading the judge. On Friday he said Stout has “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.”
The exculpatory evidence
The evidence at issue includes the 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.”
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 Chandler alleges Murphy solicited a bribe from a judicial hopeful, Beverly Singleman. 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.”
Chandler’s newest motion states that court orders granting Martin immunity are “improper and in violation of procedure established by case law.” It also states that Martin, during two interviews with investigators, said he didn’t know or couldn’t remember details about the issues at stake.
“It is disingenuous as well as deceptive for anyone to assert that his memory or knowledge would ‘improve’ with a use immunity order,” Chandler’s motion states.
As to Stout’s claim that Chandler left out Osborn’s statements in support of Murphy, Chandler claims that the case’s judge at the time of the grand jury ruled them not relevant.
For now, Murphy faces one felony charge
If Smith rejects Chandler’s motion to reinstate the May indictment, Chandler could seek a new indictment in compliance with the order that certain evidence be presented. Or he could appeal Smith’s order to the Supreme Court.
In the meantime, Murphy still faces one felony charge of bribery of a public officer or employee. In that instance, Chandler alleges that Murphy offered “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.
Among the offers Murphy made to Schultz, according to a recording Schultz made of their conversation, was that he would “assist” Schultz in her defense against a Judicial Standards Commission investigation into an ethical complaint.
Both are things of value, which is where Chandler alleges that the bribery comes in: The chief judge gets a pay raise, and an investigation into judicial misconduct could result in a suspension without pay or removal from the bench, if the allegations are substantiated.
Trial on that charge could begin as soon as Oct. 31. However, Stout may file motions challenging that charge, like he has the others. The legal wrangling could delay trial.
Update, 5:10 p.m.
Chandler sent these comments. On the immunity issue:
“Pursuant to N.M. case law, a court must hear from both parties and then balance the defendant’s request against the state’s interest in opposing immunity. Then and only then may the court make an informed decision and issue an order, which appellate courts will review for abuse of discretion. None of this has ever happened in the case against Judge Murphy and it’s the state’s position that the ruling granting a grand jury witness without any say from the state is an unlawful order.
“N.M.’s Supreme Court has ruled that immunity can pose significant challenges to the prosecution and has ruled that a district court should seriously consider these difficulties before making any ruling on immunity. According to the Supreme Court an immunity order, without concurrence from the state, runs a grave risk that prosecution may be impossible. For example, a witness or co-conspirator can alter testimony or lie and he, or the defendant, can greatly benefit from the testimony without any fear that the testimony can ever be used against him. The Supreme Court has stated that the ‘fundamental concern about giving courts unilateral authority to grant use immunity is that doing so invades the province of either the legislative branch, the executive branch or both; and, these fears run deep.’”
On the issue of Osborn’s statements in an affidavit:
“The grand jury judge ruled the information in an affidavit prepared by the defense attorney and signed by the Third Judicial District Court’s staff attorney was not relevant, admissible character evidence and the judge struck the affidavit after a lengthy hearing before the grand jury started. Accordingly, the state did not present the affidavit.”
A prior version of this article incorrectly stated that Murphy is charged with paying a bribe for his position.