Judge Again Issues Rebuke to DA’s Office

Judge Thomas M. Goethals (left). District Attorney Tony Rackauckas (right). (Pool photos)

Superior Court Judge Thomas M. Goethals ruled Friday that two former deputy district attorneys — who were just this month sworn in as judges themselves — engaged in “serious misconduct” during the prosecution of a murder case, and would be barred from retrying the case if they were still with the DA’s office.

Cole Wilkins, a 40-year-old from Long Beach 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 in Anaheim 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.

“These two (former) prosecutors bear ultimate responsibility” for the failure to tell Wilkins lawyers 11 years ago that the California Highway Patrol destroyed original accident reports and ordered them rewritten, Goethals wrote in his opinion handed down during Friday’s court session.

Goethals acknowledged his ruling was “largely symbolic” because the former deputy district attorneys, Larry Yellin and Michael Murray aren’t with District Attorney Tony Rackauckas’ office anymore. They were elected as Superior Court judges last year and and both denied knowing about the destroyed reports.

But Goethals’ opinion cited a series of U.S. Supreme Court and other legal decisions that hold prosecutors responsible for knowing all of the evidence in a case and notifying the defense of anything that would help its case.

“This recusal order results from the compelling evidence presented to this court related to serious misconduct engaged in by prosecution team members,” Goethals wrote. “If the justice system is to maintain its integrity judicial transparency must be an essential part of the process.”

The Wilkins case is the latest example of the DA’s office allegedly violating the constitutional rights of defendants by hiding information from their lawyers. The office is currently being investigated by both the state Attorney General’s office  and the U.S. Department of Justice’s civil rights division in the wake of the so-called jailhouse snitch scandal.

In 2014, Scott Sanders, the county public defender representing mass-murderer Scott Evans Dekraai, submitted an extraordinary 600-page motion to Goethals that detailed a vast jailhouse informants network through which Sheriff’s deputies and DA prosecutors secretly obtained evidence against criminal defendants that they never handed over to defense attorneys.

In 2015, Goethals barred the DA’s office from handling the death penalty phase of the case against Dekraai, who admitted to the 2011 slaughter of his ex-wife and seven others at a Seal Beach beauty salon.

So far at least six defendants have had their convictions for murder or other major crimes overturned for rights violations by the use of informants.

The Wilkins case, however,  differed from others because it involved accident reports destroyed by the CHP, not direct misconduct by prosecutors.

In 2008, DA prosecutors won a first degree murder conviction of Wilkins and a sentence of 26 years to life in prison without his defense attorneys knowing about the original CHP reports. But the state Supreme Court unanimously overturned the conviction in 2013, saying Wilkins had put enough distance between himself and the Riverside County robbery site to reach “a place of safety” unconnected to his crime.

Following the Supreme Court ruling, the DA’s office decided to retry the case.

During a month-long hearing late last year, deputy public defender Sara Ross argued no one within the DA’s office could be trusted to handle Wilkins’ retrial because of the office’s history of failing to disclose information to the defense.

“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 said in written arguments to Goethals.

But both Yellin and Murray denied knowing the CHP destroyed the records, and, in any case, deputy district attorney Howard Gundy told Goethals they said “the reports would have been irrelevant and of no importance to the case, one way or the other.”

However Goethals said in his ruling the destroyed reports were “exculpatory”—information that could have helped Wilkins’ defense.

Yet Goethals ruled there was “insufficient” evidence developed during the hearing to remove the entire DA’s office from the case, as he did in the Dekraai case.

Ross said in her written arguments that 24 years ago, when Rackauckas was a juvenile court judge, he sentenced a 15-year-old Wilkins to nearly 40 years in the California Youth Authority when he was found guilty of rape. Wilkins was released when he was 25.

Before filing the murder charges against Wilkins in the 2006 case, Ross said in her written arguments, Yellin met with DA Rackauckas who told him to “figure out” if the case could be filed as murder.

But Deputy Attorney General Ryan Peeck said during the court hearing that Rackauckas was telling the deputy DA “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 Peeck.

Goethals wrote in his opinion “the evidence here does suggest that 10 years ago the elected district attorney took a personal interest” in the case. And, he wrote, “the court is mindful of the facts that ‘deputy district attorneys serve at the will of the district attorney’” making it “possible” that some future deputy district attorney could “be motivated by a misguided sense of loyalty or friendship to a former colleague and as a result treat this defendant unfairly.”

But, he cited legal precedents that determined “recusal of an entire district attorney’s office is an extreme step” and Goethals added an elected district attorney has a right to decide how cases are handled. “He has been elected to make such decisions” and it’s ultimately up to the voters to decide if he is handling his responsibilities well.

Goethals set April 17 as Wilkins’ new trial date.

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

  • verifiedsane

    The OC Register: “Orange County Sheriff’s Department sought permission to destroy jailhouse snitch records” keep following this government cover up….It’s a county leadership circle of corruption


  • Jacki Livingston

    Goethals is a tool. How can we respect a judge who wags his finger at TRack but who has ignored letters and docs from county employees who came forward with evidence of Tony’s repeated negligence and misconduct? What a selective investigation.

    • LFOldTimer

      You have your job titles & descriptions mixed up.

      Goethals is a Judge. He’s not a County Supervisor, a prosecutor or a cop.

      • Jacki Livingston

        He is an officer of the court, required to report crimes brought to his attention. Period.

        • LFOldTimer

          A complaint is not a crime.

          It’s not Judge Goethals job to investigate county employee complaints about county operations.

          How many different versions of that do I need to communicate?

          • Jacki Livingston

            No, it isn’t. Nut if he really cared about right or law, he could have picked up the phone and called someone.

          • LFOldTimer

            Who’s he going to call? Ghostbusters? He’s probably not even on speaking terms with the DA or OCSD. If you had a 3 hour interview with the FBI w/ zero results what do you expect Goethals to do? Turn water into wine?

          • Jacki Livingston

            Oh come on. He doesn’t know someone, somewhere, to ask questions? The state bar? Justice department? He wants to be da, but he can’t even pick up a phone and call ME to ask what is going on? I am sick of the wimpy, cowardly, weak and impotent men in power in this County. He wants to be the top law enforcement officer and he can’t pick up a phone. Pffffft. GTFOH.

          • LFOldTimer

            And where was it stated that Judge Goethals wants to be the next DA? I must have missed it. But if it’s true – then that’s some of the best news I’ve heard in a long long time.

            Did you request action to your cause in writing from every single superior court judge in OC? All 124 of them? If so, how many positive responses did you get?

            I empathize with your situation. I have no reason not to believe your story.

            I would suggest that you concentrate on annoying those who are actually responsible for investigating county elder abuse – like the BoS, APS, the DA or OCSD.

            Have you ever attended a BoS meeting and used your right to a 3-minute public comment to express your frustrations? They moved public comments to the start of the meeting so you don’t have to wait 4 hours to comment. Use the power of public exposure.

          • LFOldTimer

            Jacki – still there?

        • LFOldTimer

          Obama and Hillary are lawyers and officers of the court.

          Did you write them?

          • Jacki Livingston

            Yes. I wrote Jamal’s Harris, Babs Boxer, Feinstein…Obama had an FBI investigator and HHS investigator question me for three hours. This judge is here, and IP to his neck bin it.

  • LFOldTimer

    The only hope left for this pathetic county justice system is for a man or woman with indisputable integrity and a willingness to ‘drain the swamp’ to run for DA in 2018. No Todd, you don’t fit the bill. You’d just give us more of the same. We don’t need more fake leadership and fake oversight that turns a blind eye to malfeasance inside the county family.

    Judge Goethals – please throw your hat in the ring and grace us with your service as the next DA. We desperately need a man like you to turn this ship in distress around. And hire Scott Sanders as your Chief of Staff. It’s getting hard to tell the difference between the thugs behind iron bars and the ones who put them there. We need you to restore the rule of law and defend the US Constitution. We need a public official who actually honors his or her sworn oath. We need your service, sir.

    • Jacki Livingston

      Goethals and Sanders are as ineffectual and lazy as the rest. Both are among the dozens of officials that County employees reached out to, only to be ignored. Another two employees at SSA gave. notice this week, giving up those careers of honest service and duty, after trying to get someone to look at the cesspool swamp. It is a disgrace, and these officials, officers of the court, are as dirty as the rest. VoC ignores employees who go so far as to even risk jail by sending them files. Methinks they all protest too much.

      • LFOldTimer

        You appear confused. Scott Sanders isn’t a prosecutor or an investigator. His job is to defend the accused. Against all odds his persistent and tenacious legal work that exposed flagrant violations by the guys in the white hats is not consistent with a “lazy” or “ineffectual” public servant. If not for Sander’s relentless service the Constitution would would continue getting trampled on by the white hats unnoticed to this day.

        Judge Goethals isn’t a prosecutor or an investigator either. He presides over legal cases that come before his court. Investigating complaints from county employees isn’t in his job description. If Judge Goethals was “lazy” or “ineffectual” he wouldn’t have put his butt on the line by calling out OCSD and OCDA. Think!

        Don’t blame Judge Goethals or Scott Sanders for you not getting your desired results from your elected government representatives, the DA’s office or your local police department.

        • Jacki Livingston

          We wrote every official in the county and state. Only one responded…a GOP congressman in my district. These men are officers of the court. It was brought to their attention that men, women and children were being raped, robbed and killed…proven. Officers of the court. I don’t care what their job description is. They didn’t make a phone call. Nothing. That renders them as cowards, in my book, and I am sick of cowards. It wasn’t in my job description, to speak out and get money back for taxpayers and patients. But I did, because it was right. No more excuses. We have to demand a better class of public employees and servants.

          • LFOldTimer

            How do you know Judge Goethals or Scott Sanders didn’t make phone calls?

            Besides, even if Judge Goethals or Scott Sanders called the DA, OCSD or the County Supervisors and asked them to investigate misconduct by county employees – what response would they get? ha.

            It isn’t like Goethals and Sanders frequented the local watering holes for happy hour on Friday afternoons with the white hats from OCDA, OCSD and the boys and girls on the 5th floor of the County Hall of Administration. ha.


    • I will join you in encouraging Judge Goethals in running for DA, However I am curious if his honesty will be a hindrance or if he will get a nod from the Lincoln Club.

      • LFOldTimer

        Good point, Dweeze.

        I lost faith in the Lincoln Club years ago.

        Have they even protested the recent behavior of OCSD and OCDA? Or are they using Johnny Cochran’s old phrase “Let’s not rush to judgment”?

        Politics ruins everything.

        People have lost the ability to tell the difference between right and wrong.

  • verifiedsane

    The only question that needs to asked now is when will DA Rackauckas step down or be forced out of office…The DA’s office needs a serious and complete house cleaning…it must start from the top, down…It is past time for the corruption throughout OC government and agency’s to end. We the people demand accountability from our elected leaders including the public agency’s, and public service employees under their charge. The public has lost confidence in our government and justice system because of ongoing governmental institutionalized corruption and criminal behaviors. Everyone should be very very concerned, because once the bedrocks of our constitutional republic are no longer trusted, serve everyone, or protect equally; then we are no longer a nation of laws, making actually no longer a representational county. When that day dawns upon us as a people; then only chaos, tyranny, and archaic will be left in the piles of rubble.