WITNESS: JAMES A. MURPHY, III 11 (The witness was administered the oath by the 12 Hearing Officer.) 13 HEARING OFFICER: State your name for the 14 record, please. 15 THE WITNESS: James A. Murphy, III. 16 DIRECT EXAMINATION 17 BY MS. HAYNES: 18 Q Mr. Murphy, this will be very short. You are the 19 District Attorney in Saratoga County; is that right? 20 A Yes. 21 Q And as district attorney, do you correspond or 22 communicate with police officers in Saratoga County, 23 as part of -- 24 A Yes. KELLY J. OWENS, COURT REPORTER (518) 798-6598 kjosteno@nycap.rr.com 159 Witness: James A. Murphy, III - Direct Examination 1 Q Is that part of your duties? 2 A Yes. 3 Q And do you know Officer Kane of the Village of 4 Corinth? 5 A I do. 6 Q And how do you know him? 7 A He's the chief of police and I have contact with him 8 as chief. 9 Q Okay. Did there come a time in or about September 10 of 2004 where Officer Kane spoke to you about an 11 investigation -- spoke to you about matters in the 12 Village of Corinth Police Department? 13 A I don't recall specifically what it was we 14 discussed. 15 (Village Exhibit 19 was marked for 16 identification.) 17 BY MS. HAYNES: 18 Q Mr. Murphy, I'm showing you what's been marked 19 Village Exhibit 19 for the record. Can you tell me 20 what that is? 21 A Yes. That is a photocopy of my original planner for 22 Thursday, September 2nd, 2004, which I produced as a 23 result of trying to find out whether I had any 24 contact with Bob Kane or not. KELLY J. OWENS, COURT REPORTER (518) 798-6598 kjosteno@nycap.rr.com 160 Witness: James A. Murphy, III - Direct Examination 1 Q Okay. And on that planner, do you list the people 2 who you spoke to on that day? 3 A I do. 4 Q And is Officer Kane -- or Chief Kane on that list? 5 A He is. 6 Q And, as you sit here today, do you remember what the 7 sum or substance of that conversation was? 8 A I do not. 9 MS. HAYNES: Okay. I would offer 10 Exhibit 19. 11 MR. DUNN: No objection. 12 HEARING OFFICER: Nineteen is received. 13 (Village Exhibit 19 was received into 14 evidence.) 15 MS. HAYNES: I have no further questions. 16 CROSS-EXAMINATION 17 BY MR. DUNN: 18 Q Very briefly. Your general professional practice as 19 D.A., are you consulted from time to time by police 20 officers and asked advice about whether or not there 21 is a prosecutable offense? 22 A Yes, to the degree that officers will provide us 23 with information relative to an investigation. And 24 our policy and practice is that we don't advise the KELLY J. OWENS, COURT REPORTER (518) 798-6598 kjosteno@nycap.rr.com 161 Witness: James A. Murphy, III - Cross-Examination 1 police to arrest or not to arrest. We merely say, 2 if there is sufficient evidence that you think that 3 you have, then you should arrest, keeping in mind 4 that a D.A. has absolute immunity, and, if we act as 5 a police officer, we lose the immunity and then are 6 subject to qualified immunity, so it's our practice 7 never to advise police officers or departments to 8 make an arrest or not to make an arrest. 9 Q Do you have any reason to believe that, in this 10 circumstance, where you discussed something with 11 Chief Kane, that you departed from your practice? 12 A I don't depart from my practice. 13 Q So your practice is, you do not advise arrest or 14 don't arrest, because you're afraid that would 15 compromise the immunity that the law gives you, 16 appropriately? 17 A Correct. 18 MR. DUNN: I have no further questions. 19 HEARING OFFICER: Redirect? 20 REDIRECT EXAMINATION 21 BY MS. HAYNES: 22 Q Mr. Murphy, understanding that you don't discuss 23 whether or not to arrest or not arrest, do officers 24 call you or chiefs of police call you to discuss KELLY J. OWENS, COURT REPORTER (518) 798-6598 kjosteno@nycap.rr.com 162 Witness: James A. Murphy, III - Redirect Examination 1 investigations that they are working on? 2 A Yes. 3 Q Do they discuss the evidence that they've obtained 4 in those investigations to date? 5 A Sometimes. 6 Q It would not be unusual for a chief of police to 7 have that kind of a discussion with you? 8 A Typically, it would be with the assistant D.A. who 9 covers that jurisdiction, but, occasionally, I will 10 speak directly with a chief or a sheriff or a senior 11 investigator of the State Police. 12 MS. HAYNES: Thank you. Nothing further. 13 HEARING OFFICER: Thank you. 14 (The witness was excused.)