Judge Murdoch's Discernment, Present & Past Issues

I had a spirited debate on Peter St. Cyr's facebook page 7/19/11
http://tinyurl.com/4y5w59y
regarding Judge Murdoch's lack of discernment (recent arrest for: rape, intimidation of a witness and sexual criminal penetration) and how it affected not only is private life but the affect it has on his public life and others. I pointed to just one issue in particular, the Elton John Richard case. There are many other cases as well.

However, my comments were not meant to rehash the merits of the case but to point out that not only did Judge Murdoch violate the plea deal/agreement but he exhibited poor discernment. I define good discernment as the ability to distinguish between good and bad.

Peter St. Cyr said that I was attempting to make up facts that were not in the record. However, I was attempting to shed light on facts that were NOT in the record.

My comments were met with heated exchanges in support of Judge Murdoch and stabs at my logic and ration regarding the purpose of my statements. Joline Gutierrez Krueger, a columnist for the Albuqerque Journal who previously reported on the story took notable exception to my comments, stating I was wrong and that Judge Murdoch did not violate the plea deal/agreement.

Ms. Gutierrez Krueger said no sentence was specified for Mr. Richard, so Judge Murdoch could give Mr. Richard, 2 years in prison, 4 years of supervised probation & ordered to pay $500 per month in restitution, because no remorse was displayed.

I made a response to that statement and I emailed it to Peter St. Cyr and Senator Rod Adair who gave me kudos for stating "I very much appreciate logical, sequential, reasoned argumentation. No emotion, no histrionics. Well done."

Here is my response to Ms. Gutierrez Krueger's assertion.

In regards to your comments that I was wrong & judge Murdoch did not violate any plea deal/agreement with Elton John Richard, please consider the following:

A plea deal is a contract between the state & the defendant that requires all elements of the deal to be explained and known by both parties and entered into with good faith. Therefore, contract law applies to plea deals.

I don’t see any evidence in the record or in any article in the ABQ Journal that there was an element or requirement for Elton John Richard to act “remorseful” in front of judge Murdoch. If so was it ever explained, known or disclosed to Richard?

Therefore, requiring the defendant to act remorseful before judge Murdoch was the introduction of an additional element/requirement into the plea deal or contract that was in fact a “violation” of the plea deal (reneging of the agreement) & operation in “bad faith”.

Was there “anticipatory repudiation”? Did the state know that Richard wasn’t going to act remorseful? If it knew did it purposely avoid showing that as an element or requirement in the plea deal because it wanted a reason to renege on the plea deal? That fact could only be known by a reporter if the attorney client privilege was breached, & that can only happen at the risk of loss of the attorney’s license to practice law.

It is doubtful that a defense attorney or prosecutor would risk telling a reporter about elements of a plea deal before a deal is made. After the deal is made the disclosure of “pre” plea deal elements would be avoided for reasons of doing so has no benefits and only detrimental value to either party.

Were any additional elements/requirements not in the plea deal known by the reporter after the plea deal was made? Was it disclosed in the newspaper? If it was known and wasn’t disclosed, why not? Did Richard know that if he didn’t act remorseful on the stand before the judge that he would be given prison time?

I doubt that Richard knew he would be given prison time if he didn’t act remorseful in front of judge Murdoch and therefore he (Richard) could not be expected to perform or be compelled to act without explanation, knowledge, consent or agreement. Are you aware of Richard being willing to agree to the plea deal if he thought or believed that he could be given prison time?

There was not a simple withdrawal of the plea deal by judge Murdoch but the imposition of an additional element/requirement that resulted in prison time and caused additional harm, damage and injury to Richard and his family. All of this was done (reneging of the plea deal/agreement) based upon Richard’s “failure to perform” or act remorseful.

That would be the similar to a dealership selling you a car. You sign the contract put down the deposit towards the remaining balance, but when you go to pickup the car, the sales manager sees you (the buyer), not smiling and decides to charge you an extra fee that you must pay before taking home the car.

You refuse to pay the extra fee by stating you were not aware of any requirement to smile when you came to pick up the car. The sales manager states you are in breach of the agreement, keeps your deposit and prevents you from taking delivery of your vehicle.

The sales manager has just breached (violated) the agreement by adding conditions that didn’t exist in the original contract. He has created an addendum to the contract with only one party’s consent.

The sales manager (has in effect) violated/breached the contract & reneged on the initial agreement, based upon conditions that were not explained, known or disclosed. It is NOT a violation of the contract or breach of agreement by the buyer.

The buyer could sue the dealership for breach of contract, operating in bad faith, if the buyer had knowledge, ability & willingness. Especially, if the buyer loses a deposit that is declared non-refundable by the dealership after the fact and without the knowledge and consent of the buyer. The sales manager states that the buyer has violated the contract by not “smiling” when she went to pick up the car as part of requirement to perform and fulfill requirements of the contract/agreement.

The sales manager says the buyer has breached the contract but the exact opposite has happened. However, unless the buyer is knowledgeable on contract law and is aware of recourse, the dealership is believed, the deposit is forfeited and the vehicle is not delivered to the buyer.

I imagine you already get the analogy but just so there is no confusion. The buyer is Elton John Richard. The dealership is the state of New Mexico. The sales manager is Judge Murdoch. The deposit is Richard’s freedom. The contract is the plea deal. The additional addendum or requirement to the sales contract is Richard’s need to act remorseful in front of Judge Murdoch.

That is in essence a reversal of the actual (plea deal) agreement. Who really violated the agreement? Who was damaged by the violation? What were the damages?

If I were the attorney for Richard I would have considered those questions very important for the dismissal of the plea agreement by introduction of an additional element of “remorseful” as the reason & basis for giving Richard prison time.

I would have consider such conduct on the part of judge Murdoch as an abuse of discretion and consider an immediate appeal & filing a civil suit against the state & request the recognition of lost judicial immunity for judge Murdoch knowingly violating Richard’s civil rights, see 42 USC 1983 & 1985.

That is why I said that Judge Murdoch violated the plea deal for the above stated reasons. He cannot add an element to the plea deal that didn’t exist and especially if it was not known or disclosed to Richard.

Adding an element or requirement to a plea deal/agreement is a violation of contract law. If the plea deal/agreement was voided then Richard should have been entitled to a jury trial at that point.

Now tell me again how my argument is wrong.

For a good summary of plea deals look at http://www.cicchinilaw.com/PDFs/5-new-Ciicchini.pdf