The lawyer for a burglar convicted of murder after causing a bizarre Orange County traffic fatality is asking a superior court judge to either grant a new trial because of prosecutorial misconduct or lower the jury’s finding to manslaughter based on the evidence.
In advance of a scheduled Oct. 27 sentencing hearing, Deputy Public Defender Sara Ross wants Judge Thomas M. Goethals to consider her motions that, if accepted, could potentially save Cole Wilkins, her 41-year-old client who has already lived a decade in custody, from spending the rest of his life in prison.
There’s nothing usual about this case. Besides the freak accident, the California Highway Patrol (CHP) secretly doctored reports to aid Tony Rackauckas’ Orange County district attorney’s office (OCDA) advance a murder case. But nobody believes Wilkins knowingly intended to kill anyone.
The defendant burglarized an Inland Empire residential construction site in 2006, loaded stolen appliances on the bed of his truck without securing the items and was driving to Long Beach when a stove fell off. It landed on the 91 freeway in Anaheim at the outset of early morning rush hour. Though hundreds if not thousands of drivers avoided collisions, several minor accidents ensued. The incident ended, however, with the death of David Piquette, an off-duty Los Angeles County sheriff’s deputy who swerved across multiple lanes and struck a cement truck, which crushed him.
The original CHP report blamed Piquette for unsafe driving, but the agency’s management destroyed that document and crafted a new one that made Wilkins liable after a meeting with OCDA, where Rackauckas wanted to elevate the charge against the burglar from manslaughter to murder. Critics accused the DA’s office of inflating the charge only because Piquette, an immigrant from Vietnam, had been a law enforcement officer.
Two years after the accident and without the defense knowing of the CHP hanky-panky, prosecutor Michael F. Murray, now a judge, used the felony murder rule—a death, even if accidental, resulting from felonious conduct can be considered murder—to win a conviction.
In 2008, Judge Richard Toohey sentenced Wilkins to a term of 26 years to life in prison. The California Supreme Court overturned the conviction in 2013 after concluding Toohey gave a faulty jury instruction that unfairly benefitted the prosecution.
The matter landed with Goethals, who earlier this year ruled Rackauckas’ office sandbagged the defense by hiding the existence of the original CHP report and ordered a new trial. In September, Senior Deputy District Attorney Jennifer Walker, a close Murray ally, refused to give the jury a choice between manslaughter and murder, and won a second murder conviction, which Ross insists trampled justice.
“While the prosecutor may strike hard blows, he or she is not at liberty to strike foul ones,” Ross told Goethals in her new motion, which claims Walker deceived the jury into accepting a lower burden to find for murder in the case.
The issue involves a technical legal point: Case law states Walker needed to prove Wilkins knew in advance that loading the stolen appliances in the back of his truck would result in a “high probability” of someone’s death during his flight from the burglary.
Walker, however, changed her burden in her closing argument when Ross couldn’t respond, assuring the jury she only needed to prove Wilkins knew his conduct would be “dangerous to human life.”
“Obviously, prosecutors are not at liberty to misstate the law,” the public defender recently told Goethals, who during the trial rejected her request to clarify Walker’s legal burden before jury deliberations.
It’s unclear whether the Oct. 27 hearing will go as scheduled or be delayed.
Go HERE  to see the Weekly‘s cover story on the case.
[UPDATE, Oct. 27, 2017: Judge Goethals sentenced Wilkins to a term of 16 years to life in prison.]