Cole Wilkins has been locked up for nearly a decade on a trumped-up murder charge, and I bear some of the responsibility for that.
His murder conviction was tossed in 2013 by the California Supreme Court. At a hearing two weeks ago, Judge Thomas Goethals barred the Orange County District Attorney’s Office from pursuing first degree murder at his retrial, owing to “serious misconduct” by the prosecutors — conduct I knew about firsthand.
Both Goethals and the local D.A., Tony Rackauckas, were on 60 Minutes on May 21, as the office’s misconduct has become a national story, leading to inquiries from the U.S. Department of Justice, the state attorney general, and the local grand jury. One of the county’s Republican supervisors is asking Attorney General Jeff Sessions to take over the office.
The main focus of those inquiries is the office’s apparently systematic use of jailhouse snitches to elicit information from defendants, an illegal practice that has now tainted 15 murder and attempted-murder cases, according to journalist R. Scott Moxley. More than that, the D.A. has failed to turn over that evidence and other potentially exculpatory evidence in case after case.
The problem is not just what 60 Minutes presented — that misconduct allows the guilty to go free. The problem in the Wilkins case is that the misconduct led directly to the conviction for murder of a man guilty of, at worst, involuntary manslaughter.
On July 7, 2006, at around 5 a.m., a stolen stove fell out the back of Wilkins’ truck on a freeway and came to rest, causing a number of drivers in early rush hour traffic to swerve around it. One of them was a Los Angeles Sheriff’s deputy on his way to work. Deputy David Piquette swerved and then slammed into a cement truck without ever hitting his brakes and died instantly.
The D.A. filed murder charges over the accident, under what’s known as a theory of felony murder. That’s the principle that holds a bank robber responsible for murder even when somebody else pulls the trigger. But the charge was wildly inapplicable here — it didn’t have the facts and it couldn’t even fit the theory.
So the D.A. fudged the facts, with the help of the Highway Patrol, and then hoped an Orange County jury sympathetic to law enforcement would get real fuzzy about the theory.
Thanks to one honest patrolman, in particular, whose name won’t be known to anybody but me, they’re unlikely to get away with it in the end, though Rackauckas continues to heap shame on himself by pressing forward with the prosecution.
Highway patrolmen understand the case best, because they deal with objects in the road every day. Every one of them knows that it’s the driver’s responsibility to avoid stationary objects; it says so in their manual.
The CHP deals with tens of thousands of objects in the roadway every year, and none of them ever resulted in murder charges before this. For one reason, the felony murder rule requires that death be “a natural and probable consequence” of the underlying felony — and a freak one-in-a million occurrence isn’t that.
The theory also can’t be employed if the felony is already over by the time the fatal accident occurs — and this one had been over by hours.
The prosecution alleged that Wilkins had broken into a house that was under construction to steal appliances, but they never established any time for the break-in or even that Wilkins had done it. Their theory was that he was making a “getaway” from the break-in, meaning the felony was still in progress, but that’s the exact point the Supreme Court took issue with.
In any case, by the time the stolen stove fell off his truck, Wilkins was more than 60 miles from the site of the break-in. Wilkins’ story was that he bought some hot furnishings the night before and then had driven to Palm Springs to try (unsuccessfully) to store them at a friend’s place, before driving back to Long Beach. Cell records seemed to support the visit to Palm Springs, but they were inconclusive.
I don’t know if Wilkins’ story is true, but I know for a fact that the break-in took place the night before the accident. I’m going to skip how I know that to be true, as I’ve been listed as a witness and the trial is scheduled for June, and I’d hate to see the prosecutors try to obscure that record.
Does that sound like an unfounded accusation? Well, actually, that’s exactly what law enforcement did last time.
A few days before the sentencing in July 2008, I got my initial tip from a CHP source that the Santa Ana office had rewritten an accident report to blame Wilkins. I called the attorneys for the defense and the prosecution to see if they had heard about it.
The defense attorney hadn’t and threw up a Hail Mary trying to get the case re-opened, but the judge shot him down.
It took prosecutor Michael Murray a couple days to call me back. I had just finished covering some dumb beach clean-up on a Sunday morning, when the call came. I told him what was up and asked if he knew anything about it.
Murray said he hadn’t, but right away, he vigorously denied that it would have any bearing on a criminal case. The CHP’s determination would only affect civil liability; murder is decided by entirely different factors, etc.
Lots of lawyers are good on their feet, able to offer plausible arguments extemporaneously. But you couldn’t know the answer to that question — I mean the actual answer, if there was one, not just a good argument — without looking up whether any courts had ever dealt with this freakish set of circumstances before or anything close to it.
He knew what I was talking about, and he knew what he was talking about.
He was also dead wrong. Murray had a duty to look into the matter, to report it to the defense, Goethals ruled, and his failure to do so was “serious misconduct.”
It’s also the reason the D.A. won’t be allowed to pursue the same theory of first-degree felony murder in the retrial, even though Murray has since moved on to sit on the bench in Orange County. Second-degree murder will require them to prove “implied malice,” meaning an “abandoned and malignant heart.” It’s hard to see how you get that from a poorly tied-down stove.
I spent a lot of my free time in the three years after that phone call knocking on doors of cops, driving all around Southern California cold-calling witnesses, filing public records requests, and so on. Eventually, I had a copy of the CHP’s internal investigation into three incidents where reports had been changed, this being one of them, along with all the background detail you could want from multiple sources inside the CHP.
The CHP’s internal investigation pointed to both the D.A. and one of its own investigators named Joe Morrison, who was hired by the D.A. immediately after this case. “Investigators (Sergeant Morrison and the Orange County District Attorney’s Office) subsequently determined that PCF… should be ‘other than driver’ (OTD) because they believed a finding of OTD… would further validate the charge of 187 PC (murder) against the driver of the pickup.” (PCF stands for primary collision factor; my ellipses just skip references to two other crashes related to the stove, for clarity’s sake.)
Unfortunately, my time at the local paper came to an abrupt stop, during a period of layoffs and downsizing. I had been trying to put the whole story into one big glorious and bulletproof package for reasons both selfish and practical (I’ll spare you the tangent on the internal politics of newspapers). But I made the wrong call. I should have written about what I had.
A few years later, after the state Supreme Court had unanimously tossed the conviction, a public defender named Sara Ross gave me a call. I told her what I knew.
She got the patrolmen talking under oath, and they realized they were dealing with someone who had the story.
Eventually there were enough of them on the record that the head of the whole Southern California Division was willing to testify just recently that he “was ‘100 percent’ certain that he informed the original trial prosecutor, either during the defendant’s trial or after the trial was concluded, but before the defendant was sentenced to life in prison, that misconduct had occurred during the highway patrol’s investigation of this case,” in Goethals’ words.
After the conviction, Morrison emailed Murray offering his congratulations, a copy of which I still have in a box.
“Thanks Joe. CHP did an incredible job on this investigation. All I did was lay it up,” Murray wrote back. “It was a good win for all — this guy need (sic) to go.”