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An accused child molester who claims his lawyer railroaded him into a plea deal last summer is producing a tape recording that he says proves it. At a hearing today, the defendant’s new lawyer, Dennis Lempert, will ask Santa Clara County Superior Court Judge Edward Lee to strike his plea on the grounds his original lawyer, Jamie Harmon, misled him about the sentence his plea would trigger. Ralph Cortez claims that when he agreed to plead no contest to two felonies on the first day of trial last July, Harmon had assured him that while he was agreeing to a maximum three-year sentence, he’d only get a year in county jail. Cortez, who drank eight beers that day, said Harmon told him his record could be expunged and he’d only have to register as a sex offender for five years. In court papers, Lempert says Harmon — who used to work for him — wasn’t ready for trial, and pushed the plea deal on her client even though the victim had recanted her story. Lempert, a Santa Clara solo, said the tape Cortez secretly made proves Harmon not only misled Cortez but was deceptive about it when she took the stand in Lee’s courtroom last week. Lempert won’t say what’s on the tape, but a portion of it was played for Lee last week. He asked that a transcript of the tape be produced in court today. Lempert says the tape shows that “representations made by Ms. Harmon are contrary to everything she’s testified to.” Harmon, of San Jose’s Harmon & Associates, said Thursday she didn’t mislead Cortez last summer and didn’t mislead the court last week. She said Cortez was a demanding client who had backed out of another plea deal and fired his first lawyer before signing up with her. After Cortez soured on the deal she arranged, he asked her to lie so he could get out of it, she said. Harmon said she thinks Lempert is gunning for her in this case and two others, perhaps because she told an appellate lawyer in an unrelated case that Lempert hadn’t done a thorough investigation. “Dennis has been alleging that I and members of my firm are incompetent — [that] not only are we incompetent, we are dishonest in the bargain,” Harmon said Thursday. Harmon said she will have a lawyer from her office represent her at today’s hearing. “I have been advised by the prosecution that I need an attorney,” she said. Robert Baker, the deputy DA who prosecuted Cortez, said he’ll take a position at the hearing, but wouldn’t tip his hand. Cortez was first charged with one count of committing a lewd act on his stepdaughter in September 2002. He hired attorney Ruben Munoz and agreed to a plea deal in November 2002. According to the court file, the deal was vacated. Cortez retained Harmon’s firm weeks before the preliminary exam in June 2003. Cortez was charged with a second count after the preliminary hearing. Baker said that the 9-year-old victim recanted at the prelim. Even so, he says the case is a strong one. A deal was reached in Judge Lee’s courtroom the first day of trial. Everyone agrees Cortez had been drinking that afternoon. Harmon said she spent 15 minutes explaining the deal to her client. “The judge promised that my client would get no more than a year, and I stand by that,” Harmon said. “I told [Cortez] his record could be expunged and that’s a fact,” she said. “We’ll go back and back until we get it done. It may take three or four times, but we can get it done.” Harmon said she’s gotten other clients’ records expunged at no additional cost. Harmon said she told Cortez she’d work to relieve him of registering as a sex offender, even though she’s never done it before. Harmon concedes she was exhausted last July after completing seven or eight jury trials. But she said her client faced up to 10 years in prison, and the deal Judge Lee was proposing was generous, even though, as she put it, the victim had “recanted all over the place.” “The prelim had gone badly. I tried to make that clear,” Harmon said. “It was really a strategic decision, although I will admit I [was] tired.” After the deal was made, Harmon said Cortez called her office more than 30 times and met with her and one of her associates twice in a bid to get out of the deal. “It involved being dishonest and violating my ethical responsibilities. I couldn’t do it,” Harmon said. So she referred Cortez to her old boss Lempert. Lempert filed a motion to set aside the deal in November citing ineffective assistance of counsel. In court papers, Lempert said Harmon was unprepared to go to trial, and Harmon’s staff attorneys walked out on her weeks before the trial. He also alleged Harmon had been denied a continuance, had not reviewed important taped interviews in the case, and “misrepresented” the deal. Lempert argued that in fact it takes 10 years to be relieved of registering as a sex offender and requires a full pardon by the governor. Lempert said he’s doing all this because it’s in the best interest of his client. He said that he employed Harmon for a year, adding that she and another attorney left him in a lurch a month after he had bypass surgery. Lempert said he knew nothing of the tape recording until his client handed it to him last week. “Just before the hearing Friday, he revealed to me he had a tape recording. He was hesitant to reveal it earlier. I thought it was significant evidence in support of his contention,” Lempert said. Lempert said he doesn’t believe the recording breaks statutes outlawing secret taping of conversations. “It’s not the best tape in the world, but you can hear what’s going on,” Lempert said.

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