Judge Set to Decide Whether to Bar DA From Another Murder Case

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Arguments wrapped up Tuesday in another extraordinary Superior Court hearing focused on whether District Attorney Tony Rackauckas’ office should be barred from a murder case due to allegations that prosecutors violated the defendant’s right to a fair trial.

In this case, the defendant, Cole Wilkins, is facing a second murder trial because a Los Angeles County sheriff’s deputy was killed early on a July morning in 2006 after crashing his car into a truck on the 91 freeway while swerving to avoid a stolen stove that fell off Wilkins’ pickup.

In their original report, California Highway Patrol officers ruled the death of 34-year-old deputy David Piquette an accident because other motorists ahead of Piquette had been able to avoid the stove. But a superior officer ordered that report changed to say it was Wilkins’ fault and prosecutors filed murder charges against him because the death occurred during the commission of a felony.

DA prosecutors in 2008 won a first degree murder conviction of Wilkins without his defense attorneys knowing about the original CHP report. But the state Supreme Court unanimously overturned the conviction in 2013, saying he had put enough distance between himself and the robbery site to reach “a place of safety” unconnected to his crime.

Rackauckas’ office is now attempting to retry Wilkins, and a key question before Superior Court Judge Thomas Goethals is: what did DA prosecutors know about the destroyed report and when did they know it?

The issues in the Wilkins case bear a striking resemblance to those in the case of mass-murderer Scott Evans Dekraai, which is also being tried before Goethals. In 2011, Dekraai gunned down his wife and seven other people in a Seal Beach Beauty salon.

In 2015, Goethals barred Rackauckas from prosecuting the death penalty phase of the Dekraai case after it was revealed that prosecutors and sheriff’s deputies concealed information gleaned  from jailhouse informants from Dekraai’s public defenders.

The so-called jailhouse snitch case has mushroomed into a major scandal and become the subject of investigations by the state Attorney General and the U.S. Department of Justice’s civil rights division.

However, while there are similarities in the Wilkins and Dekraai cases, there are also significant differences.

Ever since a months-long evidentiary hearing in which Scott Sanders, Dekraai’s public defender, revealed the vast informants network operating inside the county jails, it has been clear that prosecutors knowingly hid evidence from Dekraai.

But there is less clarity in the Wilkins case. No clear evidence exists showing what prosecutors knew or should have known when the case was originally tried.

“Who knew what, when?” Goethals said at one point during the hearing. “Something wrong happened and the defense had a right to know that.”

In her arguments Tuesday, Wilkins’ public defender, Sara Ross, asked Goethals to consider if the DA’s office stays on the case, who in the office “will stand up” to top management, possibly including Rackauckas, and make sure any evidence that could help Wilkins isn’t hidden.

She argued that even though two deputy DAs who handled Wilkins’ prior case no longer are with the office, prosecutors working for Rackauckas dismiss the importance of what happened or take the approach that “we’re going to call them (Wilkins’ defense team) liars and say none of this ever happened.”

The two former deputy DAs are Michael Murray and Larry Yellin, who were elected superior court judges last year and sworn in Tuesday.

“OCDA’s conduct in this case demonstrates that no prosecutor from OCDA can be reasonably relied upon to provide exculpatory evidence to the defense, including evidence that is inconsistent with the testimony of current and former prosecutors who testified in this litigation,” Ross wrote in additional arguments submitted for Goethals to consider.

But deputy attorney general Ryan Peeck, arguing on behalf of the DA’s office, said Yellin and Murray haven’t been involved with it for months and there was “no evidence” other lawyers in the office would act unethically.

“Because Wilkins has not demonstrated the existence of a conflict of interest, nor one of sufficient gravity making it unlikely that he will receive a fair trial, his motion should be denied,” Peeck said in written arguments.

If the DA’s office is barred from prosecuting the case, it would go to the AG’s office.

But everyone, including deputy district attorney Howard Gundy, who is defending the DA’s office in the case, said they agreed Wilkins lawyers should have been told what was in the original CHP reports and that they were destroyed.

“Was the information exculpatory? Yes. I think we can all agree on that,” said Peeck.

But, Goethals said, the key question is: “was there misconduct at some level?”

Peeck responded it was “prosecutorial error,” not willful misconduct. “I don’t think there’s any evidence the DAs knew about it.”

However, Goethals said under California law prosecutors are responsible for knowing the evidence and for disclosing exculpatory evidence.

“It seems to me the California Supreme Court has said school’s out on that issue and the prosecution is responsible,” Goethals said.

“That’s true,” replied Peeck, “but there’s no evidence of a structural effort by the DA’s office to deny Wilkins a fair trial.”

Gundy told Goethals there was no reason to remove the DA’s office from the case. He said it was the CHP that changed the original reports and destroyed them. The DA’s prosecutors weren’t told the reports were changed, he said.

By going back now and saying what the prosecutors should or shouldn’t have done in terms of trying to find exculpatory evidence, puts “too high a burden on prosecutors.”

In his written arguments, Gundy said Wilkins’ lawyer failed to prove anyone in the DA’s office ordered the change of the reports; knew the reports had been changed and that “the changed information was material to any issue at trial, i.e. that disclosure would have been reasonably likely to change the jury’s verdict at trial.”

Another issue is whether Rackauckas intervened to increase the charges against Wilkins to murder, possibly because the now 10-year-old case drew a lot of public attention.

Wilkins, now 40 and still in jail, was brought by deputies to the courtroom wearing the short-sleeved orange jail jumpsuit with a chain around his waist and handcuffs attached to the chain.

Through most of the hearing, he paid close attention but his face offered little expression. At points during the hearing he held short, quiet, animated conversations with his lawyer.

Goethals said information presented during the month-long hearing also showed Yellin sought a meeting with Rackauckas about the case, something prosecutors said was unusual.

Peeck said “Mr. Rackauckas told him (Yellin) to resolve one way or the other” whether the charges against Wilkins should be murder or a lesser offense. “I don’t see anything wrong with that” if it was done properly.

Said Goethals: Rackauckas “has a right to insert himself in the decision-making process. That’s his job.” If voters don’t like it, they can vote against him.

But Ross said when Rackauckas told Yellin to “figure it out” about whether there was enough evidence for a murder charge, what he meant was “find a way” to make it murder.

“It’s ridiculous the amount of work they put into trying to protect themselves and this case,” she added. “There is no one in that office that we can feel comfortable with” prosecuting Wilkins and making sure he gets a fair trial.

Over the next several days Goethals said he will study written arguments submitted by Wilkins’ lawyer, the DA’s office and the AG. He is scheduled to issue a ruling on Jan. 13.

You can contact Tracy Wood at twood@voiceofoc.org and follow her on Twitter: @TracyVOC.

  • LFOldTimer

    Dweeze – never underestimate the stupidity of the average California voter. And stupid is darn hard to fix.

    In Sept 2014 the The California Commission on Judicial Performance censured OCSC Judge Scott Steiner ( a married man w/ 2 children) for having s*x with 2 of his former law students on multiple occasions in his judicial chambers.

    In June 2016 Judge Steiner was reelected to the bench by the OC voters. ha. He beat his opponent (a female OC Deputy District Attorney) by over 10 percentage points. lol.

    Now someone raised on a moral code might have some anger issues and harbor resentment at the Judge. But you can’t blame the Judge for his reelection to the bench. At some point you have to point your finger at the ones who enabled him – the electorate.

    When the fish rots from the head the rot insidiously permeates the entire body. And like a
    cancer oftentimes the rot is undetectable until it’s too late and it takes down the host.

    I might be wrong – but I believe our society has arrived at the point of no return. Too much irreversible rot. We’ve gone terminal.

    • verifiedsane

      California Commission on Judicial Performance is a secretive political operation that seldom even investigates Judicial misconduct. In fact less than 1% of complaints filed with this judicial protection racket boondoggle are even investigated. When these judicial supposed public servants are investigated; it’s done in complete secrecy .This so called commission is currently using tax payer dollars in a legal fight against the state legislature who ordered the first ever audit of its nefarious conduct. Our justice system has become a complete and total sham; where the powerful politically connected are immunized from any and all actual accountability for their despicable and criminal actions.

      LFOldTimer, you are absolutely correct about a purposefully ignorant and uninformed citizenry. We live in a society of majority apathy rule, Where citizens vote based upon whatever propaganda the MSM throws their way for political and social consumption. To few seem to care that our governmental institutions have become hopelessly corrupt and dysfunctional, making them both unable and unwilling to fulfill the solemn promises and commitments made to the very people they were created to protect and serve. Us, the citizens!

      The unfortunate reality is people don’t seem to care, or at least until the rampant corruption and injustice comes knocking down their door and it happens to them. By the time they realize that harsh unpalatable truth, it’s far to late. Then they realize the consequences of their apathy by becoming just another statistic and victim of an unquenchable political monster & irredeemable ruling class machine.

      The unpleasant truth and reality today is that we are no longer a nation of laws or are afforded equal protection under those laws. We are literally doomed as a constitutional republic democracy. We today are on the very cusp of reaping exactly what we have sown unto ourselves. This is something every citizen should be concerned & shaking in their boots about; because living in a corrupt & lawlessness society under a bastardized form of totalitarian rule & anarchy never ends pretty; it almost always ends in uncontrolled chaos, unimaginable suffering, mass object poverty, and raging rivers of innocent blood…

  • Perhaps voters will take a few minutes to actually read outside the voters pamphlet about judges up for election. Personally, I will not vote for any former Dep DA for the office of Judge, however, Judge Goethals was actually a former Dep DA.

  • Paul Lucas

    The DA is tainted beyond redemption and should be placed under a consent decree. How is it that the two former prosecutors can be allowed to be sitting judges with this in their files? I would suggest removing them from the bench and banishment from the legal profession.

    • Shirley L. Grindle

      I warned all my friends not to vote for Yellin and Murray because of their involvement in the informant situation. Too bad the press didn’t reveal their backgrounds.

  • verifiedsane

    Rackauckas’s DA Office is a dirty political machine…Just another case of the prosecutors office using nefarious and often illegal methods to get high profile convictions for political gain. This goes on while this same DA’s are ignoring cases of public servant corruption that appear to have been institutionalized throughout the OC justice system and beyond. The basic foundations of equal and fair justice for all is now under assault, and is being used as a political football to be kicked around by ruling class power brokers.

    If we are to become a nation of the lawless, or by setting different and separate standards for the rich & powerful, then we are no better than any other corrupt third world totalitarian state. The People should be taking serious heed and paying close attention to these governmental overreach of authority events; next time it could be “you” that is either targeted, or (on the other end of the pendulum) left out in the cold by this unscrupulous governmental body run amuck.