By David M. Greenwald
Santa Ana, CA – In January the Vanguard reported on Judge Michael Murray’s conduct in which he is alleged to have committed prosecutorial misconduct in failing to disclose evidence in a murder case a decade ago while a prosecutor.
While the report by a three-judge panel including CJP Trial Counsel Mark Lizarraga and Assistant Trial Counsel Melissa Murphy does not address the issue of discipline, the 98-page report lays out findings that the misconduct allegations are not only proven, but in addition are aggravated by his defense— they charged him with being “deceptive” and having a “lack of candor” during a seven-day hearing that ending in May.
The counsel writes, “Considering that the court recused DDA Murray and DDA Yellin from the case and sanctioned the prosecution, suggesting that DPD Ross sought to ‘extort’ a plea deal through ‘blackmail’ and threats of a baseless motion to dismiss for outrageous government conduct was deceptive and lacked candor.”
Cole Wilkins was driving on the freeway in Orange County in 2006 when David Piquette, a 10-year veteran of the sheriff’s department, was driving and swerving to avoid hitting an appliance that fell out of Wilkin’s vehicle, but collided with the cement truck which landed on top of Piquette’s car, killing him.
CHP officials, however, altered a report that showed that Deputy Piquette’s unsafe speed for the conditions was at fault for the accident; the CHP changed the report to being reasons “other than driver.”
Murray was made aware during the trial that the CHP collision reports concerning the Wilkins case had been altered, but failed to disclose, responding that “it did not matter because the defendant was a fleeing felon at the time the stove fell from his vehicle, or words to that effect.”
Ultimately the conviction was reduced to involuntary manslaughter and Wilkins was released. Murray was elected to the bench in 2016. Last year, CJP filed misconduct charges against him, with the potential he could be removed if found guilty.
Edith Matthai, attorney for Murray, asked the panel to conclude that “the evidence was not material under Brady, because the evidence would not have changed the result that Wilkins caused the death of Deputy Piquette.” Thus they believe that “Murray did not violate his Brady obligations; the evidence was not suppressed and was not material.”
They further declare that Murray “did not act in bad faith or intentionally delay in making the statutory disclosures…”
They add that they don’t believe that he engaged “in either prejudicial misconduct or improper action…”
The examiner’s report finds that Murray, as the prosecutor, “failed to inquire about any potentially exculpatory information he received or became aware of during the 2008 Wilkins prosecution.”
By failing to conduct any inquiry about improprieties in the CHP investigation, “Murray intentionally violated his continuing duty of inquiry.”
They added, “We find that, not only did DDA Murray fail to inquire in 2008, but despite the continuing nature of his duty, he intentionally failed to inquire after the conviction, including between January 3, 2011, and July 2015, when a prosecutor, acting in good faith, would have done so.”
Further, “We find that DDA Murray took no action to investigate any of the multiple allegations of police report tampering or misconduct from the day of sentencing until he provided the exact same reports to the defense as had been provided in the first trial. We further find that DDA Murray’s failure to inquire about potentially exculpatory information he received… was an intentional failure of his continuing duty to inquire.”
Murray also failed to inform Deputy DA Yellin, who asked him if he knew about changed reports. Writes the panel, “Once again, in the face of all the warning signals over more than six years, we find that DDA Murray intentionally failed to meet his duty of inquiry after receiving, yet again, potentially exculpatory information about allegations of changed reports.”
They find, “By intentionally failing to meet his continuing duty of inquiry between January 3, 2011, and July 2015, DDA Murray committed prejudicial misconduct.”
In their report, they note that both Murray and Yellin testified that Public Defender Sara Ross threatened to embarrass Murray and “blackmail” the prosecution with a baseless motion to obtain a favorable resolution in the Wilkins case.
Judge Murray testified that he told DDA Yellin that “[w]e don’t negotiate murder cases by blackmail” and to tell the defense to “file whatever they have to file.”
Instead, they found that in July 2015, Ross filed a motion to dismiss, “not to extort or blackmail DDA Murray, but to represent Mr. Wilkins to the best of her abilities.”
They add, “Ross’s motion was valid and not brought for any nefarious purpose, which buttresses her credibility and undercuts Judge Murray’s.”
They conclude, “Judge Murray’s efforts to suggest that the allegations in the OCG motions were completely false and that DPD Ross sought to blackmail or extort DDA Murray and the OCDA, while, at the same time vigorously seeking to exclude evidence of Judge Goethals’s rulings was deceptive and lacked candor.”