By David M. Greenwald
Yesterday we reported on the bizarre give and take between the Alameda County DA and their public defender. As reported yesterday, Assistant Public Defender Richard Foxall filed a motion to recuse the entire DA’s office from a case due to past and ongoing misconduct that, frankly, is pretty well documented.
Foxall, as the appointed defense for his client, has the duty and obligation to do everything he can to provide his client with a vigorous defense. Again, the cases of misconduct were well-documented. I don’t know if the judge will agree with the defense, but they certainly have an argument.
The response by the elected DA of Alameda County—Nancy O’Malley—is nothing short of appallingly childish.
I am really reminded of the incident last June in Yolo County. It was the day of the public defender Black Lives Matter march. Yolo County Public Defender Tracie Olson was interviewed on Sacramento TV and discussed current problems in the system.
She said, “Honestly we see Black people go to prison for crimes that white people don’t go to prison for…On April 20, I looked at the jail population. We had about a little under 200 people in the jail, 49 of whom were Black. So that’s 25% of our Yolo County jail population is Black. Yolo County’s demographic population is 3% black. So we have over an 800% over-representation of Black men and women in our local jail. So it is a local problem.”
As we looked at the data after the fact, it seemed pretty accurate. Moreover, notice she did not point fingers. She did not blame the DA, law enforcement or anything. She simply cited the data—accurately.
For that, DA Jeff Reisig responded with a completely over-the-top missive.
He said in a press release: “Yolo County Public Defender Tracie Olson’s recent broadside against the justice system in our county was inaccurate, irresponsible, and insulting to both prosecutors and the judiciary.”
The response this week from Nancy O’Malley reminds me of Reisig’s response to Tracie Olson.
Granted, unlike Tracie Olson’s comment to the press, the motion to the court does point fingers directly at Nancy O’Malley. But public defenders and defense attorneys file motions like this all the time—usually the DA responds in a response brief, not by retaliating.
Citing a “troubling and extensive pattern of misconduct” by “some prosecutors which the District Attorney of Alameda County has failed to seriously address,” Alameda County Assistant Public Defender Richard Foxall will move for recusal of the Alameda County DA’s Office in a motion that will be heard on Monday morning.
In response, in a letter from DA Nancy O’Malley to Public Defender Brendon Woods, the DA announced that “the District Attorney’s Office will no longer engage in informal discussions with the Public Defender staff.”
Foxall writes, “We would not ask the court to recuse the district attorney if the misconduct in this case was an isolated example. But it is not. Over the past decade, there has been a well-documented pattern 0f misconduct by some attorneys in the Alameda County District Attorney’s Office that has gone uncorrected and unpunished.”
The response is appalling.
DA O’Malley writes: “It is very unfortunate that it has come to this. Regrettably, false and misleading accusations against my Office, which has a great reputation, and false and misleading accusations against me and against members of the Office have created a hostile and unworkable relationship with the Public Defender’s Office.”
O’Malley said, “We will not lower ourselves to the level of pointing out unethical, unprofessional and dishonest conduct by members of the Public Defender’s Office, or against you, the appointed Public Defender. Instead, we will continue to carry out our duties as mandated under the law.”
I love it, she even pulls the only “we will not lower ourselves” by pointing out “unethical, unprofessional and dishonest conduct by members of the Public Defender’s Office”—yeah, hey, I’m glad she didn’t point out unethical conduct.
Of course, the 59-page filing by Foxall lays out in detail the allegations both in the instant case and in the department.
“Instead of saying that she will address the problems, her response is essentially saying we will not talk to you anymore,” Public Defender Brendon Woods said. “If we can’t informally try to resolve cases, the court backlog—which has been exacerbated by COVID—is only going to get worse.”
Woods earlier this week charged that, while many of the county prosecutors conduct themselves in an ethical manner, “we do know about 20 lawyers employed by their office now that, according to the court of appeals, committed misconduct in trials.”
I think it’s important to note that in this specific Alameda case, we have a 2017 appellate court decision that clearly puts the blame on the DA’s office.
The case involves a murder trial from 2017 in which Shawn Martin was charged with murder in connection with a 2014 incident. Martin was found guilty of second degree murder at the time, but in 2020 the appellate court reversed a judge’s ruling on a jury instruction and remanded the case for retrial.
The appellate court explained that the “trial court … failed to clarify or correct the prosecution’s misstatement of the law regarding the antecedent threats instruction and the imperfect self-defense instruction.”
In his motion, Foxall notes that the court “wryly noted in its opinion … [t]hat the prosecutor made the argument that he did is inexplicable. Whether he did so through ignorance of the law or in bad faith is immaterial as there is no claim of prosecutorial misconduct before us.”
For a judge to even posit the idea of bad faith here suggests the level of egregious conduct by the prosecutor.
“This was not the only time the court pointed out the role that the prosecutor’s misconduct played in the reversal,” Foxall continues.
The court wrote, “We do not fault the trial court for using the approved CALJIC instruction; this instruction is still legally valid. The fault, however, lies in the prosecutor ’s incorrect argument and the trial court’s failure to correct it.”
Brendon Woods cites 20 cases, and the motion lays out a number of examples of prosecutorial misconduct under the office of Nancy O’Malley.
The striking thing in both cases—Nancy O’Malley and Jeff Reisig—is we have a systemic problem. Yolo County, for example, is hardly alone with a vastly disproportionate number of Black incarceral population compared to the overall population.
O’Malley, instead of attempting to address problems in her office, has instead shown the equivalent of the approach to take her ball and go home.
“Instead of saying that she will address the problems, her response is essentially saying we will not talk to you anymore,” Woods said.
Doubling down, O’Malley pulls the old tactic of “I will not lower myself by pointing out the unethical behavior of the public defender’s office.”
Again, she said, “We will not lower ourselves to the level of pointing out unethical, unprofessional and dishonest conduct by members of the Public Defender’s Office, or against you, the appointed Public Defender. Instead, we will continue to carry out our duties as mandated under the law.”
Then again, by adding that to the letter she has done exactly that—by implication and innuendo.
I don’t think it’s too much to ask public leaders to act like adults. Sometimes defense attorneys have to make strong arguments in motions. Sometimes there is a good deal of truth to those arguments. The proper response is not to fire off a letter as O’Malley did, that’s how a nine-year-old deals with such conflict, not how an adult does. California and the voters of her county deserve better.
—David M. Greenwald reporting
To sign up for our new newsletter – Everyday Injustice – https://tinyurl.com/yyultcf9
Support our work – to become a sustaining at $5 – $10- $25 per month hit the link: