Hearing Begins for OC Judge Accused of Misconduct

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SANTA ANA (CNS) - An Orange County Superior Court judge, when he was a state prosecutor, was part of an effort to ``collude'' with California Highway Patrol investigators to ``facilitate'' a murder conviction, an attorney for a judicial watchdog agency said today in a disciplinary hearing -- while the jurist's attorney said that claim was false and that the agency could not discipline her client even if the allegations were true.

The case against Orange County Superior Court Judge Mike Murray revolves around an internal dispute among CHP officers over the cause of death in the collision that killed off-duty Los Angeles County Sheriff's Deputy David Piquette on July 7, 2006.

The Commission on Judicial Performance is conducting a hearing to determine if Murray should be found to have committed prosecutorial misconduct when he was a senior deputy district attorney in the case against Cole Wilkins, who was ultimately convicted of involuntary manslaughter.

Wilkins stole several appliances from a Menifee home while it was under construction and stuffed them in a Ford F250 truck's cab. He failed to secure the loot properly and did not put the tailgate down.

He left the scene and, about 5 a.m., was trucking down the Riverside (91) Freeway when a stove tumbled out onto the highway, triggering the crash that killed Piquette.

Piquette managed to swerve out of the way of the stove, but he careened into a big-rig truck that jackknifed and fell onto Piquette's car, crushing the victim to death.

Attorney Mark Lizarraga, who represents the commission, said the evidence will show that CHP officers violated their own policies by changing the original patrol officer's report, which found that the crash was Piquette's fault because he was driving too fast. The cause of the  crash was changed to ``no fault of the driver,'' Lizarraga said.

Then the original report from Michael Bernardin was ``shredded,'' Lizarraga said.

A sergeant who altered the report needed to ``demonstrate or suggest that Cole Wilkins caused these accidents,'' including Piquette's.

The attorney said the sergeant was not a ``rogue officer.''

``The evidence is going to show (the sergeant) colluded with members of the Orange County District Attorneys Office ... to facilitate a murder conviction,'' Lizarraga said.

Wilkins was originally convicted of first-degree murder, but that was overturned by the state Supreme Court and the defendant was later convicted of second-degree murder, but that conviction was reduced on appeal to involuntary manslaughter.

Wilkins has a civil suit pending in federal court. Murray and Orange County Superior Court Judge Larry Yellin, who was also previously a prosecutor who handled the case, were dismissed as defendants in that lawsuit based on arguments of immunity they have under state law.

At Wilkins' first sentencing in the case in July of 2008, his attorney, Joseph Vodnoy, outlined multiple allegations, including that one lieutenant was fined for ``tampering with the (police) report,'' and another officer was ``demoted,'' Lizarraga said. Vodnoy requested more time to file a motion for a new trial, but Murray opposed, ``Because he didn't give any credence to the allegations of Mr. Vodnoy.''

Lizarraga said Murray claimed he was not aware of any of the officers Vodnoy had mentioned even though one of them figured prominently in all three of the collision reports and inspected the victims' vehicle.

Murray ``doesn't even ask for a brief recess'' to call the CHP investigators to follow up on the claims, Lizarraga said.

Murray's attorney, Edith Matthai, said ``One of the challenges of this hearing is going to be separating rumor and innuendo from the facts.''

Matthai said Wilkins' truck was ``loaded to the gills'' and the ``inevitable happens'' because he failed to secure the cab full of stolen loot.

When the stove sailed off the truck it triggered a flood of 911 calls for five minutes, Matthai said.

Matthai said some CHP officers believed that if an object in the road doesn't move for 5 minutes then it's the driver's fault for striking it -- no matter the flow of traffic, the amount of light or any other conditions.

``Some officers -- not all of them -- believe that if it's stable in the road and you hit it you're at fault,'' Matthai said. ``It doesn't matter if you're going the appropriate speed or if it's dark... Nothing else matters.''

Orange County District Attorney investigator Wesley Vandiver testified during the trial that Piquette would have had to have been driving 28 mph to avoid the fatal crash, Matthai said.

CHP Sgt. Joseph Morrison instructed Bernardin to change the cause of the collision from Piquette to ``other than driver.'' Officer John Heckenkemper, who wrote up reports on two other collisions related to the stove, also cited ``unsafe speed'' as the cause of those crashes, so Morrison rewrote the vacationing Heckenkemper's report, Lizarraga said.

Vandiver also disagreed with Bernardin and Heckenkemper.

Allegations that prosecutors colluded with the CHP officers to alter the report are ``completely false,'' Matthai said.

When Murray asked Vodnoy to cite any source corroborating the claims he did not provide any, Matthai aid.

``The state of mind of Mike Murray at the time is very relevant in this case,'' Matthai said. ``He didn't get any additional evidence. ... There was never a word spoken to him (by Vodnoy) after this hearing.''

Matthai also said that the commission is ``barred by the state constitution'' from disciplining Murray as a judge for any misconduct done while he was a prosecutor.
Murray was not involved in the appeals, and when he returned to work following back surgery in 2013 it was part-time and he worked mostly form home, Matthai said. Yellin took over prosecution of the case again briefly after it was returned on appeal, Matthai said.

While Murray was still recuperating from back surgery, the Orange County Public Defender's Office filed motions for records of the officers involved in the case, Matthai said.

When Yellin asked Murray about allegations of an altered report Murray said he wasn't aware of any altered reports, Matthai said. In fact, the investigators for the defense attorneys knew more about that angle of the case, she added.

To Murray, it didn't matter what some of the CHP officers thought caused the crash because, to Murray, the collisions wouldn't have happened without the stove in the middle of the freeway, Matthai said.

``He had no doubt he could establish the accident wouldn't have happened if a stove wasn't in the freeway,'' Matthai said.

Retired CHP Chief Steven Beeuwsaert testified at the hearing on Monday that he launched internal affairs reviews based on the altered reports in the Wilkins case as well as allegations of a fixed ticket for an Anaheim Ducks player at the time in 2008. Beeuwsaert testified that he called Murray to tell him about the allegations regarding the altered report and Murray told him that it didn't matter because the prosecutor believed the stove caused the crash.

Beeuwsaert said ``the command was failing'' in the Santa Ana CHP office at the time. Beeuwsaert said he couldn't remember Murray's name, but that he eventually figured it out when he found a declaration he made in a whistleblower claim against Beeuwsaert linked to the Wilkins case.

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