Fault Lines
25 May 2017

Another Isolated Incident of Prosecutorial Misconduct

January 13, 2016 (Fault Lines) — Listen, if you’re going to go to the trouble of stealing a stove, you should probably strap it firmly to your get-away vehicle. Cole Allen Wilkins hadn’t learned that lesson, unfortunately, and so the stove he’d stolen from a construction site and slapped onto the back of his pickup truck plopped out onto the highway as he scurried home.

This put Wilkins in an awkward situation, as a truck right behind him ended up smacking into the stove. The driver of that truck, a brave soul named Danny Lay, chased Wilkins down, rolled down his windows, and screamed at Wilkins until he pulled over.

Naturally, Wilkins didn’t give Lay his real name or insurance information, and didn’t double back to grab the stove. Instead, he gave out some bogus numbers, used his brother’s name, and went home. Cole Allen Wilkins is kind of a jerk.

Half an hour later, a Los Angeles Deputy Sheriff named David Piquette was driving down that same highway. He was going pretty quickly, and didn’t see the stove until the last second. He swerved into a cement truck and died.

The Orange County Assistant District Attorneys involved in the case, Michael F. Murray and Larry Yellin, decided to charge Wilkins with murder, alleging that although the stove fell off of his truck sixty miles away from the construction site, and the accident occurred a half hour after that, Wilkins had killed the deputy while committing the felony of burglary.

The only problem with this theory was that to charge Wilkins, Murray would have to prove that Wilkins had killed the deputy either while he was committing the burglary, or while he was “escaping from it.” And there was really no doubt that Wilkins had long gotten away by the time the officer struck the cement truck.

Murray successfully got the trial court not to instruct the jury that Wilkins couldn’t be convicted if he had already escaped “to a temporary place of safety,” and then, less successfully, watched that conviction get overturned by the Supreme Court of California.

Now, it is pretty common that people whose convictions are overturned on appeal still find themselves in prison afterward. They might take a plea deal to avoid a second trial, or they might just go to trial on roughly the same facts and wind up with the same result. Fortunately for Wilkins, his lawyer remembered that she was in Orange County, so she decided to see if the prosecutor had hidden evidence.

Boy did he. The prosecution never disclosed to the defense at the previous trial that a police officer who analyzed the accident that led to Deputy Piquette’s death determined that he was at fault because Piquette had been driving recklessly fast and changing lanes erratically. In California traffic cop talk, the officer determined that Piquette’s bad driving was the “primary collision factor,” especially because “thousands of other drivers” had managed to avoid an accident despite driving by the same spot.

Prosecutors pleaded with the officer who wrote the report to change his mind. But he stuck to his guns. This was potentially disastrous for the prosecution’s case. If the jury learned that law enforcement had determined that the driver was at fault, it would much harder to persuade them that it happened “during” the burglary—it would begin to seem like a totally separate incident.

Fortunately for those prosecutors, the reporting officer’s superiors were understanding. They altered his report, and the report of another officer, to make it appear that everyone who had looked at the case agreed that the accident was Wilkins’ fault.

The Orange County Public Defender’s office has moved, again, for the District Attorney’s Office to recuse itself from the case, arguing that it can’t possibly be fair or impartial while trying to hide its own misconduct from the judge and jury. According to the OCWeekly, Michael Murray was not happy about having to testify.

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.

Youch.

This appears to be part of a continuing pattern of conduct over in Orange County. Prosecutors don’t just cheat to win cases, they respond to being caught by getting angry. Somehow, the indignity of having their conduct reviewed by others is just so much worse than whatever minor ethical lapse they may have committed.

It is unclear whether the trial court judge, who has had his own troubles with the District Attorney’s Office, will decide to grant the recusal, though he reportedly asked the Public Defender “so what?” more than once. Here’s what we can say with confidence:

  1. If it is found that these prosecutors withheld and altered evidence, neither of them will be punished.
  2. The California Attorney General will continue to vigorously defend their actions all the way up to the Supreme Court, if needed.
  3. No one is going to learn any lessons.

On the bright side, it is extremely unlikely that Yellin or Murray will ever again commit a Brady violation. They can’t—they’re judges now.

2 Comments on this post.

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  • SCG
    13 January 2017 at 10:49 am - Reply

    *Judges*?! How is anyone supposed to have confidence in the legal system?

  • Ken
    13 January 2017 at 2:26 pm - Reply

    Great article. But why did it take a full year to arrive in my inbox?