Commentary: State Bar Still Lacks Teeth in Countering Prosecutorial Misconduct

Kern County remains one of the more problematic counties in terms of its criminal justice system.  On Thursday, the State Bar sent out a press release announcing that a Deputy DA in Kern County who falsified a confession, leading a court to drop all charges against an accused child molester, faces a one-year suspension of his law license for his misconduct.

Robert Murray, 41, had his recommended punishment increase to a year after it had initially been 30 days.  He was found to have added “two lines to the transcript of a defendant’s statement to law enforcement to make it sound like he had confessed.”

According to the Bar, Mr. Murray “then gave the transcript to the public defender. Nine days later, and after the public defender confronted his client with the confession, Murray told the public defender he had made the alteration.”

When confronted, he “defended his actions by claiming he was playing a ‘joke’ on the public defender.”

However, the courts did not buy it.  The superior court and the Court of Appeal found that Murray intentionally altered the statement to influence plea negotiations. The State Bar Review Department agreed and rejected Mr. Murray’s explanation.

“Murray’s behavior is wholly inappropriate and unbecoming of an experienced prosecutor, who is expected to adhere to the highest standards of ethical conduct and to act as a gatekeeper to the fair administration of justice,” State Bar Court Judge Richard A. Honn wrote.

Murray remained employed as a deputy district attorney in Kern County throughout the proceedings.

“While our limited case law did not support  disbarment on these facts,  a one-year suspension should send a strong signal that prosecutors will be held accountable for committing acts of misconduct, especially when it leads to such serious consequences,” said Melanie Lawrence, acting deputy chief trial counsel and assistant chief trial counsel.

In our view, Robert Alan Murray should not be allowed to prosecute cases ever again.  He has completely violated the trust bestowed on him by the people of California.

The research on false confessions shows just how much weight juries give to those confessions.  There have been numerous wrongful convictions where the jury has been presented exculpatory evidence that they have disregarded because of the confession.

In this case, the prosecutor went a step further and intentionally falsified the confession.  His explanation is preposterous and only adds weight to the offense he committed.

As we have argued elsewhere, not only does the conduct of the prosecutor risk putting an innocent man in prison for a long time, but it risks the true perpetrator going free.  In this case, there is a tremendous negative consequence that an accused child molester now does not face charges.  If this person actually committed the offense, other children will be at risk.

Disbarment seems like the most appropriate consequence.  The prosecutor’s office in Kern County can and it seems likely will terminate the employment of this individual.  But that’s really not enough – at least three prosecutors, that were recently terminated in Yolo County for cause, were hired as prosecutors in other counties.

But the news here is not all bad.  This was an early test of the State Bar of California’s recently adopted proposed new ethics rule regarding the special duties of prosecutors in criminal cases, citing the need to hold prosecutors to high ethical standards.  While those rules are pending Supreme Court approval, we have seen the State Bar more likely to intervene in matters of this sort.

That represents a huge improvement in what had happened previously.

In 2010, the Veritas Institute, a project funded by the Northern California Innocence Project, documented more than 800 instances of prosecutorial misconduct, including 107 where the prosecutors were found to have committed misconduct more than once – two were cited for misconduct four times, two were cited five times and one prosecutor was cited for misconduct six times.

Of all of these cases, only six prosecutors were disciplined.

Here at least there was discipline, even if it seems too light for the gravity of the offense.

A similar issue arose in the Ajay Dev case. During closing arguments, Yolo County Deputy DA Steve Mount told the jury that he saw Ajay pass a note to his lawyer during the preliminary hearing in which Ajay admitted his guilt.

This was strongly objected to by the defense, but was overruled by Judge Fall.

Mr. Dev remains in prison as his 378-year sentence is appealed.  This is one of the issues that came up during oral arguments.

Prosecutorial misconduct then plays a huge role in both wrongful convictions as well as letting potentially guilty people go free.  The State Bar has taken steps to improve their disciplinary system, but in the case we have highlighted, that system seems too lenient.

—David M. Greenwald reporting