By David M. Greenwald
Executive Editor
Santa Ana, CA – Back in November 2020, David Valladares filed a motion seeking resentencing via PC section 1170.95. The DA’s office in Orange County agreed that Valladares was entitled to an evidentiary hearing—however, Public Defender Scott Sanders has filed a motion seeking recusal of both the deputy district attorney and the judge in this case.
“Petitioner alleged at the time and re-alleges now that the investigation of the case was infected by misconduct by members of the Orange County Sheriffs Department and by DDA Murray’s subsequent, prolonged withholding of related discovery,” Sanders writes in a motion filed on Wednesday.
Currently, DA Eric Scarbrough is assigned for the PC 1170.95 hearing related to a felony murder, second degree murder conviction.
Sanders is seeking his recusal.
Sanders writes, “The improbability that Mr. Valladares will receive a fair trial if DDA Scarbrough remains the prosecutor on this case stems from an entrenched lack of fidelity to discovery and ethical obligations.”
Valladares was initially charged with special circumstance murder along with enhancements and robbery charges. In 2005, he pled to second degree murder. As part of the agreement, the special circumstance allegation, and the enhancements were dismissed. He was sentenced to 15 years to life.
Sanders cites two cases to bolster his argument, one where he alleges Scarbrough “engaged in improper efforts both to withhold favorable evidence and to present misleading arguments in order to help prevent judicial 
findings that DDA Murray engaged in misconduct..”
The other, “Scarbrough intentionally or recklessly elicited false and misleading testimony from a member of the OCSD regarding that agency’s role in facilitating efforts to have jailhouse informants question high-value inmates.
Scarbrough, Sanders continues, “subsequently failed to take steps to ensure the false testimony would be revealed to other defendants who were entitled to its disclosure through the agency’s Brady Notification System.
“As a result of the conduct detailed herein, DDA Scarbrough should not be permitted to stand as the gatekeeper once again between a defendant and evidence in a case where DDA Murray previously served as the prosecutor DDA Scarbrough’s prior history has created a conflict that requires recusal in this matter,” Sanders argues.
Sanders also seeks to disqualify Judge Kimberly Menninger from presiding over the case.
As a prosecutor, Michael Murray was assigned this matter during the final two years of criminal prosecution, which ended in a plea agreement.
Sanders notes that the criminal case “was plagued from its inception by misconduct committed by investigators from the Orange County Sheriff’s Department” as well as “the failure of the prosecution team to make timely disclosures of evidence.”
In December 2021, Judge Michael Cassidy disqualified himself and the matter was reassigned to Judge Menninger, Sanders believes that Menninger should also be disqualified at this time.
Scarbrough was a candidate for judge in June and received over the required 50 percent of the vote, meaning that he will not face a runoff in November and will begin serving as a judge in January 2023.
The judge who decides whether to rescue Scarbrough “will be asked to consider evidence of his prior misconduct in two cases, including one where Petitioner alleges that DDA Scarbrough committed misconduct to protect DDA Murray from findings of misconduct and adverse motions initiated by the defense.”
Similar issues exist with regard to Judge Murray, and Sanders notes that the Commission on Judicial Performance filed a proceeding alleging that Murray committed acts of misconduct related to the vehicular murder case.
Sanders argues “there is at least the appearance that Judge Menninger has a bias in favor of Judge Murray because of her decision to endorse his 2016 judicial candidacy.” She did this despite “a highly critical 2007 Court of Appeal opinion citing multiple instances of misconduct during DDA Murray’s closing argument” and despite his testimony in the Dekraai case where he acknowledged that he failed to turn over critical evidence of an interview with a jailhouse informant.
Sanders argues that Judge Menninger “would be motivated to reject the requested findings related to DOA Murray’s conduct in these cases because adopting the requested findings would suggest that she engaged in inadequate due diligence before her endorsement and/or ignored the misconduct because of other motivations for supporting the candidacy.”
At the core of the argument is the alleged tainted investigation and murder prosecution of Cole Wilkins, who in 2008 was convicted of first degree murder in a case prosecuted by Murray when he was DA.
Cole Wilkins was driving on the freeway in Orange County in 2006.
David Piquette, a 10-year veteran of the Sheriff’s Department, “was driving to work from his Corona home and swerved to avoid hitting the appliance. He collided with a cement truck, which landed on top of his car and crushed him.”
The LA Times in 2020 reported “a three-judge panel of the 4th District Court of Appeal in Santa Ana ruled Tuesday that jurors did not have enough evidence to prove Wilkins’ actions contained the ‘implied malice’ needed to qualify for a second-degree murder conviction. Instead, the panel changed his conviction to involuntary manslaughter, which carries a maximum term of four years.”
“There was no evidence that Wilkins was speeding, making abrupt lane changes, or otherwise driving dangerously,” Justice Eileen C. Moore wrote in the decision.
However, she noted that “Wilkins’s actions of loading his truck with large stolen appliances in an unsafe manner (not tying them down) and driving on the freeway with the tailgate down plainly establish criminal negligence,” which caused Piquette’s death.
The court determined that involuntary manslaughter would be a more appropriate conviction.
Key to the proceedings, however, is the fact that during and after the 2008 trial, Murray was alerted by several sources that the CHP reports had been altered and Murray ignored it, stating that Wilkins was a “fleeing felon” when the stove fell.
Meanwhile, Scarbrough was assigned attorney for post-conviction litigation in Wilkins.
Sanders writes, “He not only vehemently denied that DDA Murray had engaged in misconduct, but insisted that Brady was not violated by the prosecution team because the altered reports at issue had not been ‘finalized.'”
Further, Scarbrough, Sanders alleges, “omitted from his briefs several interviews that corroborated that a) the CHP reports had been improperly changed to benefit the prosecution, and b) that DDA Murray had known the reports were altered to change the PCF, but concealed his knowledge.”
Sanders argues, “By failing to include (or even reference) the prosecution’s own interviews that were favorable to the defense, while insisting the related defense allegations were false, DDA Scarbrough intentionally misled the court in furtherance of protecting Murray and the prosecution team.”
Citing opposition briefs, Sanders alleges that Scarbrough showed just how far he was willing to go “in the name of protecting DDA Murray and preserving OCDA convictions.”
Here Scarbrough argued, “Over the last several months, the defense bar has become enamored of filing “outrageous governmental misconduct” motions. These are, essentially, “‘copycat’ motions, styled after the defense motion filed in Dekraai.”
He writes, “These copycat motions, such as the one at bar, are meritless, vexatious motions, filed in the hopes that the prosecution will, in order to avoid litigating the motion, give a discounted plea bargain-akin to the ‘nuisance value’ settlements common in civil court.”
Scarbrough, Sanders argues, “did not just deny the Brady violation he knew to be true or to hide favorable OCDA interviews that undermined his arguments.”
He writes, “He painted DDA Murray as the victim of false allegations-wrapping the presentation in a vitriolic attack against Wilkins’ counsel.”
He added, “Of course, DDA Scarbrough would have had every right to challenge the defense allegations in a fair fight where, for example, he attacked the credibility of those members of law enforcement who gave statements consistent with the defense allegations (if the prosecutor genuinely believed them to be false).
“But that was not the fight he sought,” Sanders argued. “His conduct should shock the conscience, even if it did not impact Scarbrough’s conscience in the slightest.”
