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A South Bay judge threw out a plea deal in a child molestation case Friday after the defendant argued that his lawyer railroaded him into the deal and offered up a tape recording as proof. Santa Clara Superior Court Judge Edward Lee vacated defendant Ralph Cortez’s no-contest plea to two felony child molestation counts after listening to a recording Cortez secretly made of his conversation with his former attorney, Jamie Harmon. Lee said Cortez’s credibility was “highly suspect” but vacated the plea over the protests of prosecutors. “There is a substantial risk this defendant is gaming the system,” Lee said. But, he added, “there is something in this case that simply stinks. Ms. Harmon appears to be incorrect in at least some of her advice.” Cortez’s new attorney, Dennis Lempert, had alleged that Harmon pressured Cortez into pleading no contest on the first day of trial last summer and misrepresented the terms of the deal. Cortez contended Harmon told him that even though the deal called for three years in prison, he would only get one year in county jail. Cortez, who drank eight beers before signing the plea, also claimed that Harmon had said his record could be expunged and he’d only have to register as a sex offender for five years. Cortez produced a tape recording, made two weeks after his plea, in which Harmon talked about the deal. Judge Lee listened to a copy of the tape before the hearing and included it in the court record but did not play it in open court. “His plea was made because an attorney lied to him,” Lempert said, “making promises that can’t be met.” Absent a pardon from the governor, sex offenders must register for life, Lempert said. “It frightens me to believe Ms. Harmon did what she did,” Lempert said. “Lawyers do stand next to the clients, whisper in their ear and tell them what to do because this is an alien environment. But this whisper has to be truthful.” Harmon has said she didn’t mislead Cortez. She wasn’t in court Friday, but said in an interview afterwards that Lempert had twisted the facts for his own financial gain. “This is the reason people don’t like lawyers,” Harmon said, adding that Cortez won’t get that deal again. “Lempert would do anything to make a buck, including disparage my character.” Judge Lee said that even though the tape was made after the deal was cut, “inferences could be made” about what Harmon told Cortez the day of the deal. Moments after Lee vacated the plea, Lempert clarified that he was only representing Cortez for this motion. His case is now being referred to the public defender’s office.

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