Resignation Editorial a Rush to Judgment

October 31st, 2011 · No Comments · Uncategorized

By Denise Tessier

I’m not sure which is more problematic: that the Journal in its Sunday lead editorial called for Third Judicial District Judge Michael Murphy to resign, or that the editorial began with a quote from N.M. Supreme Court Justice Charles Daniels as some sort of justification for the editorial position.

Just because you can go there, doesn’t mean you should.

Since May, I have followed with a bit of skepticism the unfolding allegations against Murphy, coupled with an interest in how the case would play out in the press. I’d heard that Murphy’s old-school, politically incorrect personality and tendency to vocalize likely had led to the investigation. Whether that translates into a criminal conviction is another matter, one that remains to be seen.

What should be a certainty is that Judge Murphy is entitled to the benefit of the doubt in terms of the legal charges. (Innocent until proven guilty, anyone?) Those who’ve lived in New Mexico a while have seen countless appointments in all three branches of government go to people who have contributed to campaigns.

The Journal’s editorial Sunday, however, goes beyond any alleged criminal activity as reason to lobby for his removal, and bases its position in part on Murphy’s off-the-bench remarks and personality. From the editorial:

He remains a judge despite being known for making inappropriate remarks. He acknowledged in a secretly recorded conversation that “I should never be chief judge because I got no tact. You know, I may be rude, crude and socially unacceptable, but I’m none of those other things.”

The secret audio tape made of Murphy by the whistleblower in this case was released in full by KOB last week. And while I cannot in any way defend the comments Murphy has made, one has to ask whether Murphy is rude, crude and socially unacceptable while on the bench. The editorial doesn’t say he is. In fact, it says that “. . .Murphy’s legal problems don’t stem from anything he did on the bench” (emphasis added).

Journal Investigator Reporter Colleen Heild “got that” in her reportage on the case earlier this month. Reporting on Murphy’s secretly taped conversation with District Judge Lisa Schultz, she wrote:

Friends and colleagues say Murphy was being, well, Murphy — a smart guy they worried would someday get into trouble for his propensity to say outrageous things.

After quoting a former law partner as saying Murphy is “a hoot to be around,” the editorial continues with:

It’s not a hoot that his actions triggered a case that has affected others in the legal system — from Judge Lisa Schultz, who some view as a pariah for her whistleblowing tactics; to other judges who will have to testify; to the chief justice of the state Supreme Court, who spent last week condemning the “false allegations” and “factual misrepresentations” in a motion that questioned whether he could be impartial in any aspect of Murphy’s case.

Taking sides and divisiveness are common in any legal case, and because of the nature of this case, the principals include members of the judiciary. In fact, Special Prosecutor Matt Chandler’s list of “potential witnesses” back in June included former Gov. Bill Richardson and 14 current and former state and federal judges.

But should Murphy resign because the special prosecutor’s petition to the state Supreme Court, contained “false allegations” and “factual misrepresentations”?

And where is the Journal editorial on Chandler’s recklessness in alleging, in that petition, that Daniels’ wife, Randi McGuinn, bought Daniels’ Supreme Court appointment with a $1 million donation to Richardson?

Chandler’s claim – hearsay that he repeated in his Supreme Court petition – allegedly originated from the writings of Schultz, the whistleblower, who provided to law enforcement notes on what other people allegedly said in addition to the secretly taped recordings with Murphy. On Oct. 13, Heath Haussamen, covering this case from Las Cruces, quoted Schultz’s journal on his NMPolitics.net site:

Schultz wrote that then-Third Judicial District Court Chief Judge Robert E. Robles, who had applied for the Supreme Court spot Richardson gave to Daniels, told her he wasn’t going to get the job.

“Judge Robles explained that the governor was going to appoint Charles Daniels, because his wife (Randi McGinn) had recently given a one-million dollar contribution to the governor’s campaign fund,” Schultz’s journal states.

Chandler’s claim at this point is rumor and hearsay because an on-the-books $1 million contribution to Richardson would have made the news at the time it allegedly was made. It would have jumped out at any Journal investigative reporter, like Mike Gallagher, who’s been covering the Murphy case.

But Gallagher, in covering Chandler’s petition seeking Daniel’s recusal from anything related to the Murphy case, did not refer to on-the-record donations before reporting on whether such an allegation had merit, leaving the matter in “he said, she said” mode. Gallagher’s story characterized Chandler as claiming that:

Murphy, in conversation with another witness in the case, implied Daniels had bought his seat on the court through contributions to then-Gov. Bill Richardson, who appointed both judges to the bench after their names were forwarded to him by the Judicial Nomination Commission.

There was no mention of the $1 million sum, and Gallagher followed with:

Daniels has publicly denied that, and through a spokesman Richardson has called the suggestion “absurd.”

Haussamen, on the other hand, reported, again on Oct. 13:

NMPolitics.net has searched for and found no evidence of a $1 million contribution from anyone. According to FollowTheMoney.org, Daniels gave $200 to Richardson’s gubernatorial re-election campaign in 2006. His wife gave $3,000 to Richardson in 2002 and $5,000 to Richardson in 2006. McGinn also gave $2,300 to Richardson’s presidential campaign in February 2007, according to OpenSecrets.org.

Should Murphy resign because Chandler’s petition for Daniels’ recusal includes claims so defamatory the Chief Justice felt compelled to respond (and refuse to recuse himself from the case)? Chandler based his recusal request largely on the million-dollar “rumor”, along with fragments of half of a phone conversation he overheard at a bar association conference. Chandler also made other claims, prompting Daniels to respond with a 40-page brief (plus 61 pages of exhibits), which is not necessary in recusal opinions but which is called for, Daniels noted,  when “the motion is based on widely publicized misstatements about the true facts or misrepresentations of the applicable legal principles.”

Daniels also included in the order evidence that Chandler allegedly engaged in judge shopping in order to get a Republican to oversee the Murphy case.

The Journal editorial says Murphy should resign because the case has cast a cloud over the entire judiciary, which is where the Daniels quote comes in as the editorial’s lead sentence. Back in July, talking about cases involving judges in general, Daniels had said:

Not only does someone stumbling and falling affect that judge and that judge’s family; it affects people’s perception of the judiciary as a whole, and it undermines their faith in their institutions. And I think having confidence in the judiciary when you walk into a courthouse is really important.

Whether Murphy has stumbled and fallen, like former Second Judicial District Judges John Brennan and Pat Murdoch, technically remains to be seen.

And Murphy’s case is nothing like that of disgraced Public Regulation Commissioner Jerome Block Jr., for whom the Journal’s call-for-resignation editorial was justified. After all, Block’s fellow PRC commissioners, the governor and the state Democratic Party all were asking for his resignation, and state legislators were considering impeachment proceedings that could have cost the state up to $1 million.

Yet the editorial itself acknowledges that Murphy is on upaid leave, and is not hearing cases.

This isn’t the first time the Journal has rushed to judgment with an editorial. In August, an attorney chided the Journal via a column criticizing an editorial about a teacher facing criminal charges.”Nothing has been proven and, like all people in this country, (the teacher) enjoys the presumption of innocence,” attorney Theresa M. Duncan wrote.

Several other attorneys have weighed in on the Journal’s opinion pages with comments specific to the Murphy case. In June, State Bar of New Mexico President Jessica A. Pérez wrote that:

First, no credible argument can be made that an unqualified lawyer has purchased a judicial seat, much less the entire judicial system. The attempted connection between contributions and an appointment ignores the actual facts regarding how judges are vetted, recommended, appointed, elected and retained in New Mexico.

Pérez then pointed out that judges are appointed after recommendation by a Judicial Selection Commission composed of lawyers and non-lawyers appointed by the governor, the chief justice, the chief judge of the Court of Appeals, the speaker of the House, the president pro tem of the Senate and the president of the State Bar, adding, “The law requires that the commission have an equal number of Republicans and Democrats.”

In May, Business Outlook ran a piece by columnist and Second Judicial District Court Judge Alan Malott, in which he explained how tough it is to be a judge, noting that he and other lawyers have made contributions and been politically active. He concludes with this:

Before you “Judge for Yourself,” give each of us the same fair hearing we would give you.

Vincent Ward, Richardson’s chief counsel, wrote on May 25:

I suspect that some of the people the governor appointed made campaign contributions, and others did not. I never once checked whether a candidate made a campaign contribution to the governor or the Democratic Party, and the governor never asked me to do so.

As Leslie Linthicum summarized in an UpFront column May 29, even if no payoffs were made, New Mexico has is a problem with the perception that there is a so-called “tradition” of making contributions in order to secure a judicial seat.

And there’s no question this is a messy case. But a resignation from Murphy isn’t going to provide clean-up or resolution.

A fair and impartial hearing is the proper way to sort it all out.

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  • Larry Rucker

    This article gives a lot to consider about the power of the media to influence opinion. We are seeing the same thing going on with Herman Cain and allegations of a decades old complaint. However, I have had dealings with Judge Murphy in a child custody case where he actually helped a criminal with the proceedings. I attribute his failings as Karma.

  • Denise Tessier

    Larry, I appreciate your comment. I am familiar with the case to which you refer, and because I know the case and Murphy’s action, I’m even more appreciative of your gentle approach in submitting it.

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