OAKLAND — An Alameda County Superior Court judge found Thursday that an ambitious motion to recuse not just the prosecutor but the entire county District Attorney’s office from a murder case fell well short of meeting the required legal standard.
Judge Alan Hymer said the motion by assistant public defender Richard Foxall failed to “approach” the necessary standard to recuse the entire office. Foxall argued that misconduct was so rampant at the Alameda County District Attorney’s office that his client, Shawn Martin, couldn’t receive a fair trial unless the state Attorney General took over the case.
“I don’t think this particular case rises nearly to an extent that one could say misconduct so permeates the DA’s office … that the District Attorney assigned to this case would be required if not ordered to commit misconduct, therefore interfering with the defendant’s right to a fair trial,” Hymer said at a Thursday morning hearing, before denying the motion. He later added, “There has been absolutely no showing that the prosecutor assigned to this case has ever committed misconduct in the past.”
Hymer added that Foxall’s motion appears to have been “engendered out of frustration” with the DA’s office and that “a mere subjective impression of impropriety does not support recusal.”
Foxall said in court Thursday that he “didn’t file this motion lightly” and hadn’t ever asked for a recusal in his 25-year career. He said his allegations of rampant misconduct were compounded when prosecutors offered his client a less favorable plea deal than he’d been offered before the first trial and didn’t appear concerned that the prior conviction was overturned due to a prosecutor’s error.
Assistant District Attorney Michael O’Connor, though, called Foxall’s motion an excuse to “hurl reckless accusations” that “entirely and utterly failed” to make a convincing argument and said that he initially failed to serve the Attorney General’s office with the recusal motion, as was required. He turned the tables on Foxall’s motion, accusing the attorney of having “misstated the law” by citing a higher court case that didn’t apply.
“If (Foxall) had been thinking about anything other than the opportunity to disparage this office and spent a minute researching, he might have determined that,” O’Connor said, his voice rising. He later added, “We think the process here has been abused, we think the DA’s office — as it always does — will provide a fair and equitable trial for this defendant.”
In legal briefings and in-court arguments, Foxall cited past prosecutorial errors that had either led to overturned convictions or been noted by appellate courts. His motion argued that the District Attorney “ignores misconduct in the ranks and in fact covers up that misconduct and, frankly rewards it.”
Among cases cited by Foxall was Martin’s murder conviction, overturned last year after the courts found the prosecutor, Butch Ford, had misstated the law by encouraging jurors to focus on the victim’s state of mind, not the defendant’s. A new deputy district attorney, Charles Bisesto, has been brought in to try Martin’s case.