A judge Friday denied a motion to recuse the Orange County District Attorney’s Office from handling a murder case based on allegations of prosecutorial misconduct, but he singled out two ex-prosecutors, who are now judges, for criticism.
The motion came in the case against Cole Wilkins, who was found guilty of first-degree murder in connection with a 2006 crash that killed a Los Angeles County sheriff’s deputy, but later had the conviction overturned on appeal due to a judge’s error involving jury instructions.
At issue was a California Highway Patrol report on a series of collisions resulting from a stolen stove that fell off the back of Wilkins’ truck. There was dissent among CHP officials on the primary cause of the crash and who should be found criminally liable for the death of Deputy David Piquette.
The initial report, which did not fault Wilkins, was changed by a supervisor and used against Wilkins at his trial. The original draft was destroyed and Wilkins’ attorney did not have it to use as exculpatory evidence in his 2008 trial.
Deputy Public Defender Sara Ross argued that the prosecution’s team committed what is known as a “Brady” violation, which mandates exculpatory evidence be turned over to defense attorneys. She argued that failure to turn over that evidence meant the District Attorney’s Office could not guarantee a fair retrial for her client.
Orange County Superior Court Judge Thomas Goethals, who recused the District Attorney’s Office from handling the case against Scott Dekraai, the worst mass killer in the county’s history, disagreed with Ross on recusing the entire office.
But Goethals ruled that ex-prosecutors Larry Yellin and Mike Murray, who were sworn in as judges this month following their elections last year, should be recused from the case, despite it being a moot point now.
“Both of these prosecutors were deeply involved in this case when the misconduct occurred, Mr. Yellin as the case filer and the prosecutor who presented the matter on behalf of the people at the preliminary hearing, and Mr. Murray as the trial prosecutor,” Goethals wrote in his ruling. “During his recent testimony, each has denied knowledge of any changed or destroyed reports. Unfortunately, that testimony does not resolve the issues raised by this recusal motion.”
Goethals noted that Yellin testified that he “initially had serious doubts about the viability of a homicide charge based on the facts as he understood them at the time.”
Yellin met with his boss, District Attorney Tony Rackauckas, before charges were filed, which Yellin acknowledged was “unusual.”
Rackauckas, Yellin testified, “instructed him to `figure out’ if the facts would support a homicide filing,” Goethals wrote. “When he gave this direction what exactly was the District Attorney directing Mr. Yellin to do?” The record provides at best an ambiguous answer to this question.
The judge also criticized Murray for not following up on comments from CHP investigators about dissent as to the cause of the deadly crash.
“What exactly Mr. Murray should have done in response to receiving this potentially exculpatory information from two independent sources is debatable,” Goethals wrote. “The fact is he should have done something. At the very least, he should have asked his law enforcement source … `What do you mean?’ or `What are you talking about?’ When he failed to make any inquiry whatsoever in the face of his receipt of this potentially exculpatory information from two independent sources, the trial prosecutor breached his constitutional discovery obligation, which required him to supply the defendant with exculpatory evidence …”
Goethals did not fault the CHP supervisors for altering the report, but he said defense attorneys should have received those draft opinions.
Goethals noted that Ross failed to make the case that her client could not receive a fair trial from other prosecutors in the District Attorney’s Office.
The judge, however, said Wilkins could not receive a fair trial from Yellin or Murray.
“The court recognizes that the recusal of Mr. Yellin and Mr. Murray is at this point largely symbolic since neither is any longer employed by the Orange County District Attorney,” Goethals wrote. “Nonetheless, if the justice system is to maintain its integrity, judicial transparency becomes even more important. To decline to make any ruling on this aspect of the defendant’s recusal motion would therefore be inappropriate.”
Goethals said he could not recuse the entire office because Ross did not produce evidence to prove all of the prosecutors were unfair.
“After analyzing only the evidence presented, this court concludes that this record does not support the defendant’s motion to recuse the entire office of the Orange County District Attorney,” Goethals wrote.
Goethals added that, unlike in the Dekraai case, there is no evidence of a “systemic failure” of the government in the handling of the defendant’s constitutional rights.
“The evidence here does suggest that 10 years ago the elected District Attorney took a personal interest in this case when he discussed it with Mr. Yellin,” Goethals wrote. “The evidence also indicates that before the defendant was sentenced Mr. Murray, the trial prosecutor, was twice alerted to the possibility of investigative misconduct, and that he did nothing to investigate the situation.”
Goethals acknowledged it was possible future prosecutors “could possibly be motivated by a misguided sense of loyalty or friendship to a former colleague and as a result treat this defendant unfairly.”
But, the judge added, there are “hundreds” of prosecutors and “the evidence in the current record is insufficient to support a judicial interference that any of these possibilities is likely enough to warrant the office-wide recusal requested.”
Rackauckas had the right to prosecute the case in the way that he did, Goethals wrote.
“Even if this court should disagree with the manner in which such a decision is made in a particular case, it is generally the voters of Orange County rather than this court who must determine the propriety of the District Attorney’s exercise of his professional discretion.”
Wilkins, 40, was ordered to return to court March 10 for a pretrial hearing. His trial is set to begin April 17.
Wilkins, who is charged with first-degree murder, was sentenced in July 2008 to 26 years to life in prison. The state Supreme Court overturned that punishment and conviction.
Wilkins swiped some appliances from a home under construction in Menifee in Riverside County on July 7, 2006, and failed to tie down the stolen goods in his pickup truck in his haste to get away, according to prosecutors.
A stove tumbled off the back of the truck while he was driving on the 91 Freeway in Anaheim. Minutes later, Piquette, who was in the fast lane, swerved to avoid slamming into the stove, causing him to crash into a big-rig in the right lane, according to trial testimony.
Rackauckas’ spokeswoman, Susan Kang Schroeder, said prosecutors intend “to take this case before the jury to prove once again that a police officer was murdered on his way to work.”
She said Rackauckas “respectfully disagrees” with the judge’s ruling.
“The former two prosecutors who were recused from this case are among the finest lawyers in our community who have faithfully served our county for many years and will certainly go onto having distinguished careers on the bench,” Schroeder said.
—City News Service