I said last week that I might not have dismissed the indictment -- and let a (potentially) guilty person free -- based on the government misconduct in that case. Unlike the Ninth Circuit.
By contrast, here's a case where I think the Court of Appeal rightly sets a (potentially) guilty person free based upon government misconduct.
Defendant gets charged with lewd conduct with a child. The D.A. makes an offer of eight years. The defendant doesn't want to take the deal, but his lawyer tries to persuade him to make a counteroffer, and thinks the thing will eventually result in some sort of plea.
Meanwhile, the D.A.'s not happy his offer isn't being accepted, so to turn up the heat, tells the P.D. that he's thinking about refiling the charges against the guy and alleging penetration, which would mean a potential life sentence. And if he refiles, the D.A. threatens, there will be no plea.
Pretty good threat.
One slight problem. The D.A. knows that there's no evidence whatsoever of penetration.
Okay, you might say. That's why they call it a "threat".
Fair enough. It's what happens next that what justifies, in my mind, the dismissal of the charges.
The D.A. has threatened to allege penetration to try to coerce a guilty plea. He knows there's no evidence to support it, however. Meanwhile, discovery in ongoing. There's an audio tape of the interrogation of the defendant by the police. It's in Spanish. The D.A. has a transcription of the interrogation which has been translated into English. Which he turns over to the defendant's counsel.
With one caveat. At the end of the transcript, the D.A. fabricates two additional lines. Which read:
“[DETECTIVE]: You’re so guilty you child molester.
[DEFENDANT]: I know. I’m just glad she’s not pregnant like her
mother.”
You read that right. The District Attorney forged a transcript in which the defendant allegedly admitted the offense. As well as essentially admitted penetration. Which was what the D.A. was threatening to allege -- despite having no actual evidence of it -- in order to coerce a plea.
Here's what the Court of Appeal says about this conduct:
"[An] evidentiary hearing was held on December 17, 2013. At the hearing, Murray [the D.A.] testified the lines were added as a joke, but admitted he did not have a joking relationship
with Hinman [the P.D.] and had not made such jokes in the past. . . . [T]he trial court
found Murray’s dissemination of the fabricated transcript was made during discovery
proceedings and was 'in play' during settlement negotiations. The trial court also found
Murray had failed to prove the fabrication was a joke, but even if it had been done in jest,
Murray’s dissemination of the fraudulent confession during plea negotiations was 'egregious, outrageous, and … shocked the conscience.' . . .
[T]he trial court found Murray deliberately altered an interrogation transcript
to include a confession that could be used to justify charges carrying a life sentence, and
he distributed it to defense counsel during a period of time when Murray knew defense counsel was trying to persuade defendant to settle the case. Further, Murray did not
reveal the alterations until nine days later, and only then when he was directly confronted
about the fabricated lines by defense counsel. This is egregious misconduct and, as is
shown below, it directly interfered with defendant’s attorney-client relationship. Because
Murray clearly engaged in egregious misconduct that prejudiced defendant’s
constitutional right to counsel, the trial court was correct in finding Murray’s actions
were outrageous and conscience shocking in a constitutional sense."
On that basis, the trial court dismisses the charges against the defendant, and the Court of Appeal affirms.
I can honestly say that I don't even understand what the D.A. was thinking. What he did was deeply, profoundly offensive. Shocking. Horrible. I can barely even fathom it.
