Lawyer Says Orange County DA Uses Two-Pronged Cheating Strategy: Deny & Attack

Lawyer Says Orange County DA Uses Two-Pronged Cheating Strategy: Deny & Attack
Bob Aul

Wearing a sharp suit, perfectly coiffed hair and an indomitable expression befitting a feared senior deputy district attorney, Michael F. Murray walked through Orange County's Central Courthouse in mid-December, entered a courtroom, swore an oath to tell the truth, then sat in the witness chair. Nobody doubted Murray's contempt for the role reversal. Deputy Public Defender Sara Ross had summoned the West Point graduate to testify about what she insists was his unethical 2008 murder conviction in one of Southern California's most bizarre cases, People v. Cole Wilkins.

In July 2006, a stove Wilkins stole from a Riverside County residential construction site fell off the bed of his truck and landed on the 91 freeway in Anaheim. Frantic calls to the California Highway Patrol (CHP) emergency telephone line began at 4:59 a.m. Several vehicles struck the appliance during a five-minute period before a Crown Victoria driven by David Piquette collided with a cement truck. Piquette, a Los Angeles County sheriff's deputy, died instantly.

After consulting with District Attorney Tony Rackauckas, prosecutor Larry Yellin filed the maximum possible charges under the felony-murder theory that a death—even if accidental—caused by someone in the process of committing a serious crime is a homicide. Yellin gave the case to Murray, who told jurors in his opening statement, "It was murder." Wilkins attorney Joseph T. Vodnoy, however, argued the fatality was "a terrible accident" resulting from the deputy's unsafe speed and reckless lane change.

Jurors sided with prosecutors, Superior Court Judge Richard Toohey sentenced the Long Beach resident to a term of 26 years to life in prison, and Murray sent out a congratulatory email to law-enforcement partners.

But the California Supreme Court overturned the conviction in 2013, opining that Toohey failed to issue proper instructions. According to the high court, jurors should have considered an "escape clause" in the felony-murder rule that would have landed Wilkins, who was not speeding, in a "place of temporary safety," separating the burglary from the death because of the substantial time (more than an hour) and distance (more than 60 miles) between events. A fair trial likely would have led to an acquittal, the justices asserted.

The supreme court's decision inadvertently led to the public defenders' office discovering additional irregularities with the case. It turns out Vodnoy hadn't known the depths of the law-enforcement shenanigans. CHP officials conferred with Rackauckas' office before trial and quietly altered reports by officers who'd conducted the initial investigation. After shifting blame from Piquette's actions as the "primary collision factor (PCF)" and flip-flopping recommendations against criminal prosecution, the agency's management destroyed the original documents.

Those revelations prompted Ross to complain to Judge Marc Kelly that Murray violated his Brady obligation, in which law enforcement must surrender exculpatory information for a defendant as well as impeachment evidence against the government's witnesses. Kelly agreed evidence had been withheld but refused to recuse Rackauckas' office, hold an evidentiary hearing or dismiss the charges. The California Court of Appeal ruled last year that Kelly erred by making findings without listening to testimony.

The matter is now with Thomas M. Goethals, the judge who has presided over the ongoing Orange County jailhouse-snitch scandal and who, in March 2015, historically recused the Orange County district attorney's office (OCDA) from People v. Scott Dekraai, a pending death-penalty case. His concern? Our local DAs can't be trusted to uphold basic ethical standards during future penalty-phase sessions.

The Wilkins litigation is semi-déjà vu for Goethals. As with Dekraai, prosecutors find themselves fighting questions about what they knew about altered records and when they knew it. Is, as Ross contends, OCDA so structurally warped that corruption is continually covered up rather than punished? Or has the agency been unfairly smeared, as Murray and Yellin, both newly elected superior court judges, believe?

In this latest recusal effort, the burden is on Ross to prove that a conflict of interest exists among prosecutors who are more interested in protecting their colleagues' reputations than ensuring Wilkins' fair-trial rights. She called Michael Bernardin, the CHP officer who handled the Piquette fatality, as her first witness on Nov. 28. Bernardin testified "the sheriff's deputy was at fault" because he had been driving "an unsafe speed for conditions." To support his opinion, he noted the stove had been in the road for "at least five minutes" before Piquette's arrival and "thousands" of other drivers on the westbound 91 freeway had managed to avoid collisions.

But with prosecutors wanting a murder case, CHP officials changed Bernardin's report. In his three decades of experience, he said, it was "very uncommon; very rare" for his PCF determinations to be altered. The judge also learned that the agency amended the PCF on a second officer's report so that it would appear the agency was unanimous in the case.

"It is undisputed that this evidence was never turned over to the defense and that Mr. Wilkins did not have the benefit of this evidence until the defense uncovered it after the case was reversed on appeal," Ross wrote in a recusal brief. "Direct evidence proves the OCDA was aware of the changed and destroyed reports."

During the hearing, Howard Gundy, a Rackauckas lieutenant, described the original PCF as a meaningless "artificial" concept. "Perhaps you should ask the defense why [it] matters whether there was a decision at CHP command to do a report that reflected a primary collision factor other than some other subjective opinion of an officer," Gundy told the judge. "I don't get this."

Nonetheless, he encouraged Bernardin to change his opinion without success. "The stove was stationary," the retired officer explained. "As a result, the person that hit it was in violation of [vehicle code] 22350. That's my opinion, and I am sticking with that."

Ross believes Wilkins underscores Yellin's practice of hiding evidence unhelpful to the government and noted a 2014 interview he gave to City News Service. In that story, he acknowledged not turning over documents in a different murder trial (People v. Begaren). Rather than accept the work of the author, Paul Anderson, a veteran courthouse reporter, Gundy impugned his integrity and labeled the article "part of the fake-news phenomenon."

Ross says Rackauckas' office employs a two-pronged strategy for every ethics crisis it creates: After cheating, deny and attack.

When Murray arrived on the witness stand on Dec. 12, he didn't mask his hostility. He denied knowing about the altered CHP reports and said any changes, one way or the other, were irrelevant to his prosecutorial concerns. He firmly considers Piquette, who immigrated from Vietnam, a murder victim. Yet, he also acknowledged three different individuals, including a CHP official, advised him before and during Wilkins' trial that officers didn't agree with the murder charge, but he didn't care to investigate for potential Brady evidence.

Ross confronted Murray about ignoring the information, asking, "You just sort of brushed it off?"

The reply came quickly: "Absolutely."

She followed up: "Did it pique your curiosity at all?"

"Not even in the slightest," he fired back.

Goethals—who repeatedly asked Ross, "So what?" during the proceedings—scheduled his recusal decision for Jan. 13.


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