By David M. Greenwald
Santa Ana, CA – It seemed like Michael Murray, an Orange County judge, was about to face discipline for failing to turn over Brady evidence as a report by CJP Trial Counsel Mark Lizarraga and Assistant Trial Counsel Melissa Murphy laid 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.”
However, the evidence put forth was not enough for a three-judge panel which ruled that “the Examiners did not demonstrate by clear and convincing evidence certain factual allegations leveled against Murray.” They added, “To the extent the Examiners did prove certain factual allegations, those facts do not support, as a matter of law, the Examiners’ assertion that Murray either committed conduct prejudicial to the administration of justice that brings the judicial office into disrepute or improper action within the meaning of article VI, section 18 of the California Constitution.”
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.
Sarah Ross, who has been involved in this case for nearly a decade as the Assistant Public Defender, told the Vanguard on Monday, “I was very disappointed in their findings.”
She added, “I think what Judge Murray did was absolutely reprehensible and disgusting, and it concerns me because we already have a big problem here in Orange County with DAs that don’t follow the rules. So it’s a big concern that they got it so wrong.”
Ross added that she thought the evidence “was really clear against” Judge Murray when he acted as DA and is “not sure what happened.”
The evidence appears to show that Murray ignored evidence presented by at least four people that the CHP initial findings were that the cause of the accident was the speed by which the officer was driving rather than the conduct of the defendant.
The stove was reportedly in the roadway somewhere between eight and ten minutes before the sheriff’s deputy happened upon it. Other cars had been able to avoid the stove with only minor fender benders and little damage to their car.
Moreover, the accident was of a freak nature. The speeding deputy over-corrected and then ended up hitting a passing tanker which then fell on top of his vehicle, killing the officer.
Murray ignored what several different people who don’t know each other tell him, that it’s contributory negligence, a civil issue, not murder. But Murray ignored it and proceeded with the murder charges.
Murray, in his defense, argued it wasn’t relevant.
“The problem is they argued it extensively in the first trial,” Ross said. “So having that information, of course, would’ve been important to them. That’s the first problem. And the second problem is whenever an officer’s report gets changed, that’s always some grounds for impeachment and, and challenging credibility.”
Ross noted that Murray shouldn’t have been able to wiggle out of it.
Ross told the Vanguard, “There were sentencing transcripts where the defense attorney said, hey, wait a minute. There’s an issue here. I’m hearing, there’s an internal affairs investigation at CHP. There’s something about changed reports. I’m just now hearing this and Murray not only refuses to agree to a continuance, he doesn’t look into it at all. And he’s stuck because that’s in the sentencing transcripts, that’s actually on the record.”
In the report earlier this month, Lizarraga dismissed the notion that Ross attempted to embarrass 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.”
Ross told the Vanguard, “I asked him for an offer. He said, I blackmailed him.”
A full panel of the judges will make a final determination. The question many will ask if whether this ruling—if it holds—means there is really no oversight for prosecutor misconduct.
“I hope that’s not the case. I hope the fact that it was brought in the first place shows that things are hopefully getting better, but I think this is definitely a step back,” Ross said.