{"id":32114,"date":"2011-09-23T18:49:52","date_gmt":"2011-09-24T00:49:52","guid":{"rendered":"http:\/\/www.nmpolitics.net\/index\/?p=32114"},"modified":"2011-10-20T09:41:56","modified_gmt":"2011-10-20T15:41:56","slug":"judge-apparently-drops-some-felony-charges-against-murphy","status":"publish","type":"post","link":"https:\/\/nmpolitics.net\/index\/2011\/09\/judge-apparently-drops-some-felony-charges-against-murphy\/","title":{"rendered":"Judge apparently drops at least one felony charge against Murphy"},"content":{"rendered":"
\"\"<\/a>

Third Judicial District Judge Mike Murphy<\/p><\/div>\n

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\u2019t clear.<\/p>\n

The judge also dropped the lone misdemeanor charge Murphy faces, saying the statute under which Murphy was charged isn\u2019t criminal.<\/p>\n

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<\/a> that resulted in four felony charges against Murphy.<\/p>\n

\u201cThe court will grant the motion in part,\u201d Smith wrote. \u201cThe remainder of this portion of the order appears only in the sealed version filed concurrently herewith.\u201d<\/p>\n

Why Smith sealed that portion of his ruling isn\u2019t clear. A clerk at the Third Judicial District Court said she couldn\u2019t tell what charges Murphy is still facing.<\/p>\n

The effect of Smith\u2019s Wednesday ruling is that an elected state judge is accused of soliciting a bribe<\/a> 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\u2019s reputation for telling others that he solicited a bribe from her \u2013 but the public has no way to know what charges Murphy currently faces.<\/p>\n

Special prosecutor Matt Chandler is bound by Smith\u2019s ruling to keep what is under seal secret, so he couldn\u2019t provide details about the judge\u2019s actions.<\/p>\n

\u201cAlthough I respect the court\u2019s order, I think it\u2019s in the best interest of justice to have full transparency in this case,\u201d Chandler said.<\/p>\n

Sarah Welsh, executive director of the N.M. Foundation for Open Government<\/a>, said state courts are subject to relatively new rules on sealing documents that are \u201cdesigned 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\u2019t we access the order?\u201d<\/p>\n

\u2018A setback for the prosecution\u2019<\/h3>\n

Murphy\u2019s trial is currently scheduled to begin Oct. 31. While acknowledging that the judge\u2019s order was \u201ccertainly a setback for the prosecution,\u201d Chandler said he will file motions to reconsider that he hopes to have litigated next week.<\/p>\n

\u201cIt\u2019s the state\u2019s position that the defense attorneys have been disingenuous with the court regarding the history of this case and the state\u2019s 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,\u201d Chandler said.<\/p>\n

He added that the state will continue to fight \u201ceven if it means going to the Supreme Court for guidance.\u201d<\/p>\n

Murphy\u2019s attorney, Michael Stout, had no immediate comment.<\/p>\n

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 \u2013 all third-degree felonies \u2013 in addition to a fourth-degree felony charge of criminal solicitation. Which of those charges still stands isn\u2019t clear.<\/p>\n

Chandler also charged Murphy with the misdemeanor count<\/a> of violating the state\u2019s Governmental Conduct Act. Smith dismissed that charge Wednesday.<\/p>\n

In a separate case, Murphy also faces one felony charge<\/a> of bribery of a public officer or employee for allegedly offering \u201cseveral promises\u201d 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\u2019t yet sought an order to do that.<\/p>\n

Exculpatory evidence<\/h3>\n

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\u2019s bank records \u2013 and it\u2019s evidence Stout claims would help Murphy.<\/p>\n

You can read Stout\u2019s motion here<\/a>.<\/p>\n

Though it\u2019s not clear from the portion of Smith\u2019s ruling that he made public, it\u2019s possible that the judge\u2019s order allows Chandler to ask another grand jury to re-indict Murphy on the charges that were dismissed.<\/p>\n

But if he opted to try again, and the judge\u2019s order stands, Chandler would likely have to present the exculpatory evidence that he didn\u2019t present to the first grand jury.<\/p>\n

Such evidence includes a statement from Osborne. In court filings, Chandler claims that Osborn told investigators that Murphy said he paid money every month \u201cto influence his appointment process.\u201d What Chandler left out, according to a filing from Stout, is Osborn\u2019s statement that he \u201cdid not receive any factual information that Judge Murphy committed a crime.\u201d<\/p>\n

\u201cHe 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,\u201d a court filing from Stout states. \u201cWhen 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.\u201d<\/p>\n

Stout also takes issue with the way Chandler handled Martin\u2019s testimony before the grand jury. Martin refused to answer some of Chandler\u2019s questions because he was also being investigated.<\/p>\n

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.<\/p>\n

\u201cThe prosecutor presented a witness he knew to have exculpatory information \u2013 in fact, the only other witness to the alleged crime \u2013 and forced him to not answer questions about the substance of the alleged crime,\u201d Stout wrote in a court filing. \u201cThis implies that there was a crime at which Judge Murphy was present.\u201d<\/p>\n

The misdemeanor charge<\/h3>\n

The misdemeanor charge Smith dismissed was based on the same allegations that led to\u00a0the May indictment and alleges that Murphy failed to meet the statutory requirement that a public officer \u201cconduct 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.\u201d<\/p>\n

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.<\/p>\n

Chandler plans to fight that ruling as well.<\/p>\n

\u201cI 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,\u201d Chandler said. \u201cHowever, it\u2019s the state\u2019s 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.\u201d<\/p>\n

A compelling reason needed to seal records<\/h3>\n

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\u2019s order, but none has been filed.<\/p>\n

In the meantime, Welsh remains concerned about the situation. The spirit of the sealing rule, she said, is to \u201cmake sure that everything is public unless there is a really compelling reason that something specific has to be kept confidential.\u201d<\/p>\n

That\u2019s especially true in the case of an action of the court, like Smith\u2019s order.<\/p>\n

\u201cIf the public can\u2019t know what the court is doing, there\u2019s got to be a really compelling, strong reason that that needs to be secret,\u201d she said.<\/p>\n

\u201cThe entire reason our courts are open is so that the public has confidence that justice is being done,\u201d she added. \u201cIn a case like this, where there is extremely high interest, it implicates the integrity of the judiciary, the public\u2019s interest in knowing is extremely high. So that raises the bar for the compelling reason to seal anything.\u201d<\/p>\n

Update, 11 p.m.<\/h3>\n

Stout sent this statement:<\/p>\n

\u201cDismissal is appropriate. The court\u2019s ruling is that Judge Murphy\u2019s motion to dismiss\u00a0for failure to present exculpatory information is granted in part.<\/p>\n

\u201cThere is no crime here. If the prosecution proceeds fairly\u00a0and follows the rules concerning proper evidence, the charges will not be pursued.\u201d<\/p><\/blockquote>\n

A prior version of this article incorrectly stated that Murphy is charged with paying a bribe for his position.<\/em><\/p>\n","protected":false},"excerpt":{"rendered":"

UPDATED: 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\u2019t clear.<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[11],"tags":[142,216,161,111,114],"class_list":["post-32114","post","type-post","status-publish","format-standard","hentry","category-news-and-analysis","tag-crime","tag-judge-murphy","tag-judiciary","tag-open-government","tag-public-corruption"],"_links":{"self":[{"href":"https:\/\/nmpolitics.net\/index\/wp-json\/wp\/v2\/posts\/32114","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/nmpolitics.net\/index\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/nmpolitics.net\/index\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/nmpolitics.net\/index\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/nmpolitics.net\/index\/wp-json\/wp\/v2\/comments?post=32114"}],"version-history":[{"count":0,"href":"https:\/\/nmpolitics.net\/index\/wp-json\/wp\/v2\/posts\/32114\/revisions"}],"wp:attachment":[{"href":"https:\/\/nmpolitics.net\/index\/wp-json\/wp\/v2\/media?parent=32114"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/nmpolitics.net\/index\/wp-json\/wp\/v2\/categories?post=32114"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/nmpolitics.net\/index\/wp-json\/wp\/v2\/tags?post=32114"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}