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 firstname.lastname@example.org and follow her on Twitter: @TracyVOC.