Sunday, April 28, 2013

Opponents of Marriage Equality Seek Governmental Support for Intolerance

A local columnist recently promised “straight talk about gay marriage,” but instead wandered around in crooked circles.

He made the usual arguments against equality of marriage: he thinks his God doesn’t approve, it wasn’t done in the past, and it’s bad.

But our Constitution and traditions forbid basing governmental decisions on  religious belief.

Further, we don’t know how Jesus viewed gay love.  We do know He preached love and tolerance.   The four “official” gospels do not report Jesus discussing homosexuality. In certain gospels, though not those the Catholic Church chose to include in “the Bible,” Jesus not only approves of it but is said to lie with another man on at least one occasion.

The columnist, Neal Hooks, argues that gay marriage wasn’t traditionally permitted.

Mostly it wasn’t; but past conduct can be a treacherous guide to what’s right.  We enslaved people, sometimes honestly believing they were inferior.  We put married women’s property in their husbands hands.  We branded adulteresses with scarlet letters.

It’s also not quite accurate that marriage has always been between one man and one woman, with no dispute on that point in recorded history.  The 19th Century Mormons were pretty much at war with the United States over conflicting definitions of marriage.  In parts of Tibet where women were scarce, a woman could marry two brothers.   The Roman emperor Nero is said to have married men – twice.

Currently, thirteen countries have legalized same-sex marriage.

We learn as we develop, and develop as we learn, both as individuals and as a society.  We are learning that a non-negligible proportion of the population is naturally disposed toward homosexuality.  We are learning that gay unions can include love, and that a loving same-sex couple can nurture and raise wonderful children.  We are learning that what may seem “natural” to some need not define that word for science or society.

It’s true that during the 1960's we in the Movement did not speak up for gay rights.  Most of us were not even aware that some friends and comrades were gay, or of the angst our ignorance caused them.  I regret that, just as folks today who call same-sex relationships “unnatural” or “immoral” may someday regret hurting kids they know who are secretly gay.  A new book, Does Jesus Really Love Me? chronicles the author’s heartbreaking experience growing up gay in a fundamentalist family that viewed him as “lost.”

Why is gay marriage “immoral”?  Because opponents don’t like it?  Because their churches don’t?   No one faith defines morality for all of us; and laws change as our society grows.

There are numerous religions in the world.  In some countries it is illegal and immoral for a person to practice Judaism, or for a woman to walk with her face uncovered or speak to a man to whom she is not closely related.  Few of us would assume that because religion dictates those rules they are right.

At one point, after appearing to use evolution to prop up his argument, Mr. Hooks adds, “Not that I believe in evolution.”

That’s a curious view.  Your religion is something you believe in.  As others believe in theirs.  Even without objective evidence, you have faith.  That’s part of the beauty of religion.

Abundant evidence supports evolution.

Of course, the world’s best scientific minds could be wrong.  As retired NMSU professor Bud Wanzer once remarked, if our civilization died out and some future civilization’s archeologists studied it, they’d conclude that human beings got smaller between 1948 and 1978.   Otherwise why would our cars have gotten so much smaller?

Still, until someone presents a better explanation of the available facts –something more than “It must be wrong because it contradicts sacred texts” -- evolution looks like the smart bet.

As to the claim that studies show that among homosexuals there are more STDs, obesity, domestic violence, mental illness, depression, and suicide, some of that might be true.  Much of it seems highly dubious.  With regard to mental illness, depression, and suicide, mightn’t those trends be driven by precisely this attitude that being gay is abnormal, sinful, shameful, and dangerous?  As to obesity, let’s not look at people’s sex lives but at McDonald’s, Coke and Pepsi, and the strangle-hold Monsanto has on politicians in both parties.

The reassurance that “no one is taking away homosexuals’ rights to do whatever they want in the privacy of their own homes” falls a bit flat.   Quite recently, gays had no such rights.  A decision penned by Justice Kennedy, who’s still on the Court, told Texas it couldn’t jail folks for gay sex.  That was in 2003.   Folks argued against that decision in much the same words, that it was “immoral” and God didn’t approve.

  Hooks closes by claiming his opinions are based on practicalities and on “faithfulness to God . . . we are all sinners.  The only difference is I am not asking the government to justify mine.”  I’m not sure what his sins are, but if they include adultery or the consumption of alcohol, or even certain sexual practices with a consenting heterosexual spouse, they are sins our government, based in part on people’s religions, has considered criminal.

From the perspective of my religion, which preaches love and tolerance, the folks opposing marriage equality are doing just what Mr. Hooks denies doing: they are asking the government to justify their intolerance by continuing to forbid gay couples to marry.

[The column above appeared this morning, Sunday, April 28, in the Las Cruces Sun-New.  For those who did not see the op-ed column cited in mine, go to Sun-News blog and search Neal Hooks.  I believe it was published April 12th. ]

Sunday, April 21, 2013

Special Prosecutor Finally Drops Felony Charges against Former Judge Michael Murphy

If the Murphy case was a football game, Special Prosecutor Matt Chandler and Susana Martinez lost 42-3.

They brought five felony charges against Michael Murphy, plus a misdemeanor charge of conduct unbecoming of a judge.  The court dismissed the misdemeanor.   The felony charges were losers, and Chandler finally dismissed them Thursday.  The lawyers disinterred the “conduct unbecoming” charge, and Murphy pled no contest to that, saving the prosecution a bit of face.  It’s as if Barry Bonds struck out five times but they let him hit one off a T so he wouldn’t cry.

Thursday’s hearing was interesting.  Chandler made an extensive presentation arguing that Murphy was guilty of felonies.

Twice the Judge asked pointedly, “If that’s all true, then why are we here?  Why are we here on a misdemeanor?”

Afterward I pressed Chandler on the point.  I assumed he did not believe he could convict Murphy on the felonies.  He corrected me: “Absolutely we could prove each and every felony count beyond a reasonable doubt.”

Then why were we here on a misdemeanor?  He replied that the case had “started as an open case against a sitting judge, and now we’ve got a former judge who is a convicted criminal.”  (He added that even a jury verdict against Murphy could have been set aside by the trial judge or appellate courts, leaving Murphy unconvicted.)

Stout disagreed: “They did not have the goods, because it wasn’t true.  This wasn’t a plea bargain for Murphy, it was a plea bargain for the State.   They got something they couldn’t have gotten, a conviction.  Murphy got only what he was going to get at trial, dismissal of the felonies.  We were willing to do it so Murphy could go on with his life.”

Murphy was a loudmouth.  He made unpleasant remarks about gays, and exceptionally stupid comments about politics and judgeships.  He was short on tolerance and common sense.  That cost him his judgeship.

Another judge thought his comments suggested something criminal.  She complained to various authorities.  None saw evidence of a crime
Then she reached out to Susana Martinez.  Martinez either suspected criminality or scented political opportunity.   Enter Chandler, an ambitious Republican politico from Clovis.   Even with Republicans, his conduct of the case shouldn’t help him politically.

First Chandler tried judge-shopping.  His unsuccessful efforts included demeaning and possibly slandering defense counsel Stout and Chief Justice Charles Daniels.  According to his then-deputy, Kirk Chavez, Chandler tried to manipulate the system to keep a southern judge (Democratic) from hearing the case, by suggesting Daniels and Stout had colluded about the appointment.

Chavez, found Chandler’s conduct so unethical that he resigned in April 2011 – and signed an affidavit, under penalty of perjury, stating some very unappetizing facts.   He wrote that although he otherwise admired Chandler as a mentor and fine lawyer, conscience wouldn’t let him keep silent.

Chandler says that by the time of the affidavit, Chavez was “a disgruntled former employee.”  New Mexico Supreme Court Chief Justice Charles W. Daniels cited the affidavit in a 2011 ruling in the case.

Chavez wrote that Chandler secretly recorded other judges and their clerks.   He said Chandler lied and misdirected the court and Stout about materials the court had ordered produced to the defense.  To hide the discovery deception from the court, Chandler allegedly maintained duplicate files.  Meanwhile Chandler was reporting regularly to Martinez on the case.

Chavez wrote that Chandler even told him to lie to the court about the whereabouts of the evidence file.   Then, when the court ordered Chavez to appear, Chandler told him not to go, fearing Chavez would provide the Court information.  When Chavez pointed out that he’d been expressly ordered to be there, Chandler ordered him to stand mute.

Chandler allegedly was “extremely adamant about arresting” Murphy.  It’s more usual in such cases to tell Murphy’s lawyer to bring him in.  But Chandler wanted to stage a “perp walk” to humiliate Murphy and make the evening news.

(That same mean-spiritedness was evident Thursday.  With Murphy convicted, and on probation, why ask the Court to prevent Murphy from leaving the county without permission?  It’s not as if he’s out on bail.)

Chavez reiterated these allegations in a recent conversation.  A tough conversation.   Chavez has suffered through extensive investigations and a suddenly difficult job market.  He lost his home and his wife and received one admonishment from the Bar.  “It’s sad to say,” he told me, “but if an ethical young lawyer were about to do something like that, I’d tell him it’s not worth it.”  Chavez also asked that if I ever met Murphy I apologize for what Chandler and Chavez did to him.

Murphy probably deserved to lose his judgeship for his intolerant remarks.  His other comments probably warranted investigation.  But when no evidence appeared, there should have been no prosecution.
He didn’t deserve what he got.  The New Mexico Judiciary did not deserve this blackening of its reputation.  Taxpayers didn’t deserve to pay for this case to continue so long.

I wasn’t there.  Maybe Murphy did commit those felonies.  But if he did, provably, I don’t quite get Chandler’s rationale for settling now.  He spoke of sending a message about judicial corruption.  If he really believed he could prove the sort of corruption he claims, he should have pressed on.  Murphy had already lost his judgeship, law license, and reputation.  A misdemeanor conviction doesn’t add much to his punishment.

                                       - 30 -
[The foregoing column appeared in the Las Cruces Sun-News this morning, 21 April, 2013.  As always, it represents my views, not necessarily those of the Sun-news.  In the additional comments below, I explain in more detail why I don't buy the prosecutorial rationalizations of a settlement that seemed to show pretty clearly that a trial would have been highly unlikely to result in conviction.]

Both sides claimed victory Thursday when Special Prosecutor Matt Chandler dropped all five felony charges against former Judge Michael Murphy, while Murphy pled guilty to a misdemeanor charge and is on probation.
I spoke afterward with Mr. Chandler.  He was a polite, well-spoken fellow, who reminded me of more young, ambitious lawyers than I can count.  As discussed in the column, he told me that at least with this settlement, Murphy was a convicted criminal.
His point, to be fair, was that without this misdemeanor conviction there would always be a possibility that Murphy could escape any legal penalty at all.  As he said, even if he proved all five felonies to a jury’s satisfaction, the trial judge could overturn the case or an appellate ruling could . While that would be extremely unlikely, it’s not impossible.
He was a well-spoken and courteous young man, and made this sound plausible enough, but I don’t really believe him.  
I disagree not because we see political issues differently.  If the kind of corruption he described were rality here, I would be as appalled as he, if not more so.  I think most of us would be.
I disagree because of these specific points that undermine his credibility.
To me or to others, Chandler said, basically, “We got Murphy removed from the bench” and “We got Murphy branded as a convicted criminal.”  
The first claim may not be true.  Murphy wasn’t removed, he resigned.  That resignation came in the context of Judicial Standards Committee deliberations.  As I understand it, those deliberations concerned Murphy’s intemperate remarks, not the bribery allegations.  As I understand it, too, Chandler did not participate in the Judicial Standards Committee consideration of Murphy – unless it was behind the scenes, which would probably not be ethical.
Chandler could argue that his prosecutorial activities turned up the pressure on Murphy. However, Murphy was off the bench in February 2012, more than a year ago.  Getting him off the bench can’t be a motive for continuing the prosecution after that point.  Chandler could probably have had this same deal a year ago.
That leaves the claimed importance of getting Murphy branded a misdemeanant.  Would the certainty of that outweigh shooting for a felony conviction?  Not if you had a reasonable degree of confidence that you could get the felony conviction.
Here are four reasons I don’t quite believe Mr. Chandler:
1.If Chandler really believed what he told me, that he could have proved the elements of each felony beyond a reasonable doubt, he’d have done so.  First of all, that would have been his obligation as a prosecutor.  Secondly, having allegedly bent the rules to try to pursue this case, he’d have seen some redemption, certainly some political value, in winning if he could.  Third, by the logic of his insistence on “sending a message” to potentially corrupt judges, he would have felt it important to send a stronger one than this misdemeanor conviction could ever do.
2. Stout is an experienced defense counsel.  If Chandler could prove five felonies beyond a reasonable doubt, Stout would likely have recognized that probability and we’d be dealing with a plea in which Murphy pled to at least one felony in return for four dropped felonies and a relatively light sentence.  Stout says he was dealing from a position of strength, because the State couldn’t prove its case.  Chandler says he too was dealing from a position of strength; but the nature of the deal they reached supports Stout’s view of reality, not Chandler’s.
3.As Stout pointed out in court, Judge Schultz’s story was a little weird and fantastical, for several reasons.  In her view of the world during Governor Richardson’s time, all the judges before her paid bribes to get into office and similar bribes were demanded of judicial candidates who followed her, but she herself never received such a demand or paid such a bribe.  Odd, unless she is some sort of Chosen Person too fine for the evildoers to even think of trying to corrupt.
It’s worth noting, too, that Judge Schultz told numerous different authorities the facts as she saw them; and none apparently saw criminal conduct, or even a serious ethical violation, in those facts, until Martinez and Chandler.  
        One of those authorities I have known for a long time and trust.  Another was the FBI, to which Martinez and Schultz took Schultz's story, but the FBI decided not to pursue it.  Either they are all in on a conspiracy, or there really wasn’t much indication of criminal conduct here; and Chandler’s decision to give up would support the latter.
         4. A misdemeanor conviction doesn't prevent Murphy from practicing law.  (He has a license, although it's currently inactive.)  A felony conviction for bribery surely would.  If Chandler believes Murphy to be so vile and dishonest, he owed it to us to hold out for a felony conviction if he thought he could.

Chandler’s very nature undermines his claim here.  He’s highly competitive.  He’s an eager prosecutor so determined to punish Murphy that at Thursday’s hearing he argued unsuccessfully for a maximum $1,000 fine (even though the plea agreement mentioned no fine), suggested that Murphy’s probation require him not to leave the county without permission, and urged the Court to order Murphy to community services “serving food” to homeless or the poor. 
Judge Smith declined to order any fine.  The travel restrictions didn’t make a lot of sense to me, since it isn’t as if Murphy were out on bail.  Judge Smith didn’t order any such travel restrictions.  When the judge said that having Murphy serve food, rather than, say, lecture on the law to old folks or poor people, Chandler still tried to argue the point; and the next morning’s newspapers quoted him as saying Murphy would be better at serving food than at lecturing on law.
Given all this, and the somewhat questionable portrait of the prosecution drawn by Kirk Chavez, it seems unlikely Chandler would give up unless he had to.   One could take the deal simply to be charitable, in light of Murphy’s health and the punishment already meted out, but that isn’t what Chandler did, and he didn’t try to argue that that was his motive.

What of his argument that at least he got Murphy branded a criminal?
I’m not sure why that’s such a big deal, since Murphy had already lost position, livelihood, and reputation.  But assuming it is, there’s a significant difference between a felony such as bribery and a misdemeanor for being uncouth.  I’m no expert on criminal law, but the idea that a jury might have convicted Murphy, then been overruled by the judge, seems highly unlikely.  It isn’t as if there were any allegedly illegal searches, rubber-hose confessions, or questionable witness identifications here.  The issues were the type juries normally resolve.  For the courts to overrule a jury on this one would have taken a massive mistake by the prosecution.  Taking four felonies off the table and securing a conviction on one would be a reasonable response to the possibility – known and articulated by all lawyers – that something always can go wrong.  Dismissing all five felonies says that either Chandler had no confidence he could get a conviction or he knew of or feared some fatal prosecutiorial mistake of which we know nothing.

Litigation isn’t poker.  The cards are pretty much on the table, although you surely can’t predict who’ll get lucky and who won’t.  

I’d respect Matt Chandler more if he’d said, “Listen, based on the facts as we’d been given them, and on Judge Schultz’s account, we thought there might be some really serious and systematic wrong-doing here.  I still think there may have been.  But realistically, our chance of proving it was so slim that we took the best deal we could get for the State, and saved the cost of a trial.”
His comments, which could be paraphrased as “We could have and would have kicked butt, but I took this deal, well, because,” seem a little less manly.
An interesting contrast with last night’s conduct by Austin Trout, who lost a damn close fight that the ringside announcers scored nearly a draw, but instead of complaining about Texas judges and a partisan crowd, he gracefully conceded that on this particular occasion, the other fellow had been the better man.

Again, I don’t practice criminal law.
But I spent decades dealing with significant trials.   
In one case, nearly twenty years ago, we represented a young, up-and-coming company with a new idea in its field.  The company was on the point of going public.  But a larger company, a company known to use its superior resources and propensity for litigation to bully start-ups, filed a lawsuit claiming it owned our client’s ideas.  It was a bullshit lawsuit, but until it was resolved our client could not go public.  It went to trial in Texas, in the home town of the big company’s President and CEO.  (Our client was a California company.)
After a couple of weeks of trial, we were pretty sure we were kicking ass.  The bigger company, also represented by experienced trial lawyers, apparently reached the same conclusion, and offered a settlement.  The proposed settlement would give the bigger company some cash – chump change to companies, but more than enough for you or me to live comfortably for the rest of our lives – and a small share of our client.  We were pretty sure we’d win if we let the trial continue; but one night we sat around discussing the settlement.  Everyone from the head trial lawyer and the Chairman of the Board of the client down to young lawyers and paralegals got to speak his or her piece.  The bottom line was that despite our confidence, the younger men from the client – the two guys who’d come up with the idea – could see that if they settled, and the company went public, even their secretaries would become millionaires within months.  If they continued, based on machismo or resentment, they risked the slim possibility of having to look those secretaries in the eye and explain why they weren’t going to be rich.   We settled.  (We also polled the jury, confirming that they had been strongly favoring our side.  Our client, by the way, went public and was highly successful.)
In short, folks settle for reasons that don’t have much to do with the merits of the case.  But if anyone was doing that here, giving up more than he had to, it likely was Murphy.  He’s the one who, if things went crazy at trial, could end up a felon, possibly in jail.  For the prosecution, if Chandler truly believed he had a winning case, there was no such motive to settle cheaply.  A loss would not put Murphy back on the bench.  It would merely be a momentary political embarrassment, marginally more embarrassing than this settlement.

This is already much too long a blog post, but for anyone who’s reading it somewhere beyond Dona Ana County, what seems to have happened is this: Judge Schultz, upon joining the 3rd Judicial District bench, felt uncomfortable with the other judges for some variety of reasons, and particularly with Murphy.  One source of friction, but not the only one, was that Judge Murphy reportedly made some unpleasant remarks regarding sexuality, and Judge Schultz is reportedly a lesbian.
At a lunch with another sitting judge and a lawyer who was interested in becoming a judge, when the lawyer asked how one improved one’s chances of getting appointed to the bench, Murphy said a candidate should strongly and loyally support the governor’s party and its candidates, with endorsements, campaign work, and campaign contributions.  As I understand it, neither Murphy, the other judge, or the lawyer thought he’d said anything criminal, but his way of expressing himself concerned the lawyer.  To emphasize the importance of consistent and vigorous support, not just a one-time check, he said something about delivering an envelope weekly.  According to Murphy and others, it was not meant literally.  Judge Schultz took it literally, 
Again, I obviously can’t know what Murphy really meant; but there’s abundant evidence, as discussed above, supporting Murphy’s account.  Certainly if there was convincing evidence otherwise, enough to persuade a reasonable jury, then Chandler completely abdicated his responsibility to prosecute Murphy vigorously to conviction.  
Chandler did treat us to a version of what likely would have been his opening statement.  He played snippets from witnesses, introducing them with his characterization of them and summarizing in his view what the witnesses said afterward, all of which is standard practice. It sounded devastating for the other side – as each side’s opening statement or closing argument usually does. 
One witness was a lawyer named Norman Osborne, who worked as counsel for the Third Judicial District Court judges at the time of these events.
In fact, Osborne had signed two affidavits affirming that Murphy “is an exceptionally honest person” and “an honest man [who] would not take or give a bribe,” and also described Murphy giving similar advice about political involvement in similarly exaggerated terms.  He swore that Murphy had not made any express or implied reference to bribery.  Further, Judge Schultz, he testified, had initially asked him to rite a memo concerning Judge Murphy’s behavior.  Using hypothetical facts supplied by her, he wrote the memo.  The conduct described “at worst . . . amounted to an ethics violation.  The conduct described was not a criminal violation.”  
Murphy deserved censure for some of his comments.  Others he made were tasteless and kind of stupid, but not actionable.  Most people I know seem glad he’s no longer on the bench – although Osborne called him “a very good judge who makes intelligent and measured judicial decisions.”
Apparently, some sad conjunction of Judge Schultz’s mental or emotional fixation on Murphy and the political convenience of enemies of former Governor Richardson blew all this up into a headline-grabbing alleged scandal.  Governor Martinez used it in her campaign for Governor, and one of her judicial appointees tried to use it in a campaign to keep her judgeship.
Now the “scandal” is less useful.  When you bring cases eventually you have to expose their weaknesses to unbiased jurors.  Or bail out.