Clovis prosecutor wants chief justice out of case

Mike Gallagher

A special prosecutor has asked that State Supreme Court Chief Justice Charles Daniels be disqualified from hearing any matters involving the bribery prosecution of Las Cruces District Judge Michael Murphy.

In a motion filed Wednesday with the Supreme Court, District Attorney Matt Chandler of Clovis alleges several events he said could tarnish the court’s integrity and lead the public to question its orders if Daniels continues to participate.

It is unusual for a lawyer to seek to have a Supreme Court justice disqualified.

Among the special prosecutor’s allegations:

• Daniels disparaged the prosecution’s case against Murphy during a cellphone conversation in a public place where it was easily overheard by Chandler and others, leading to a confrontation between the prosecutor and the chief justice.

Daniels maintained his comments were private and made to a court staff member, according to Chandler’s court filing.

Daniels denied Chandler’s request that a retired judge from outside southern New Mexico be appointed to oversee grand jury matters in the case, and instead appointed District Judge J.C. Robinson of Silver City to preside. Chandler alleges Murphy considered Robinson to be favorable to his case.

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.

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

Another witness, Laura Garcia, in a taped conversation, said Richardson had told her he would talk to Daniels about a Judicial Standards Commission investigation of District Judge Lisa Schultz of Las Cruces.

A number of judges involved as possible witnesses in the Murphy case have pending Judicial Standards Commission investigations in which Daniels, as a member of the court, might have to make rulings.

Neither Daniels nor Chandler responded to Journal e-mail requests for comment.

Murphy’s attorney, Michael Stout, said in an e-mail Wednesday night, ”To my knowledge, Chief Justice Daniels has no case before him in which to recuse. What is the reason for filing the recusal motion, except to place unreliable information into the public domain?”

Phone call

In his motion, Chandler recounts overhearing Daniels talking about the case during a cellphone conversation on July 28 in a coffee shop at Buffalo Thunder Resort and Casino.

Chandler contends the chief justice was discussing detailed information about Murphy’s arrest that had not been released to the public during the call and at one point said, ”What’s next, I mean, are they going to go after us for putting on the left shoe before putting on the right one?”

Daniels in a later e-mail to Chandler and Murphy’s lawyer characterized his comments as not applying to the case.

The motion said the state’s district attorneys were at Buffalo Thunder for a meeting and that Daniels was there to attend. It does not identify who he was talking to.

According to the motion, Chandler told Daniels he was shocked to walk by and hear the chief justice giving his opinion of the case.

When he confronted Daniels and said he was shocked at what he had overheard, the motion said, Daniels responded by saying, ”Are you shocked? Well, OK, I guess it’s reality.”

”Chief Justice Daniels told the undersigned (Chandler) that he was only reporting what was reported to him and asked, ’Is that all of your case?’ ” according to the motion.

Murphy had been indicted in May on four counts of bribery, solicitation and intimidation of a witness.

He was arrested in July at his home on an additional bribery charge stemming from a conversation with Schultz during which Murphy allegedly offered to help her in a Judicial Standards investigation complaint against her if she voted for fellow Judge Douglas Driggers as chief judge of the 3rd Judicial District in Las Cruces.

All but one charge has been dismissed without prejudice -- meaning they could be refiled.

Public setting?

In his motion citing the Buffalo Thunder encounter, Chandler said he and Daniels discussed their differing opinions of whether Daniels’ comments were made in a ”public” setting because there were other people in the coffee shop who could overhear.

According to the motion, Daniels had earlier received a call from Chief District Judge Driggers of Las Cruces.

Driggers was interviewed that day by State Police investigators in the Murphy case and already had been identified as a prosecution witness, according to the motion.

But Chandler states the question of who provided Daniels with ”intimate details” of Murphy’s arrest is still open.

”The circumstances under which Chief Justice Daniels claims to have learned of the details surround the defendant’s arrest are deeply troubling to the state,” Chandler states in his motion.

On Aug. 1, Chandler sent an e-mail to Daniels and Stout, Murphy’s attorney, outlining his version of the encounter with the chief justice.

An e-mail attached to the filing and addressed to Chandler and Stout provides a version of events from Daniels’ point of view.

”I tried to assure him (Chandler) that I had not made any predetermination of any matters that may or may not come before me in the future and that all the information I had received at that point was an informal hearsay summary,” the chief justice wrote.

Daniels said in the e-mail that he was having a confidential and private conversation with a court staff member in an area he thought was safe from eavesdroppers.

”I am presuming that no one has acted in any premeditated manner to improperly influence a judicial action on my part,” Daniels wrote.

In another e-mail, Chandler asked Daniels to advise whether he intended to remain involved in the case or recuse himself to avoid even the perception of impropriety.

According to the motion, Daniels didn’t respond so Chandler assumed he rejected the idea of recusal.

The beginning

Murphy originally was indicted in May on four felony charges of bribery, criminal solicitation and witness intimidation.

The charge filed in July was based on a previously undisclosed taped conversation involving Murphy in December 2010, which was secretly recorded by Schultz -- a key witness in the initial bribery case.

The initial bribery case stemmed from a 2007 conversation in which Murphy allegedly told a lawyer she needed to make payments to a local Democratic Party activist if she wanted to ensure her appointment to a judgeship by Richardson.

The charges were dismissed last month by Judge Leslie Smith, a former U.S. Magistrate judge who was designated to preside after the grand jury returned its indictment.

Smith has not ruled on Chandler’s request to reconsider the dismissal.