OAKLAND — An attorney with the public defender’s office has filed a motion in a murder case asking a judge to not just kick off the prosecutor, but the entire Alameda County District Attorney’s office on the basis that its “troubling and extensive pattern of misconduct” would inhibit them from ethically trying the case.
The motion, filed this week by deputy public defender Richard Foxall, says that District Attorney Nancy O’Malley “ignores misconduct in the ranks and in fact covers up that misconduct and, frankly rewards it,” citing a list of seven county prosecutors who have either been dinged by appellate courts for impropriety or had convictions flipped for serious errors. A spokeswoman for O’Malley’s office declined to respond to Foxall’s motion, citing a guideline that dissuades attorneys from publicly commenting on pending cases.
Foxall is representing Shawn Martin, an East Bay man whose murder conviction was overturned last year when an appeals court found the prosecutor, deputy district attorney Butch Ford, “incorrectly urged jurors to focus on the victim’s state of mind,” not Martin’s, during his closing argument. Martin’s case is headed to trial either in late March or early April, assuming the DA’s office isn’t pulled.
In an interview Thursday, Chief Public Defender Brendon Woods said that while “there are many (prosecutors) that are ethical, fair and take their obligations very seriously,” he stood behind Foxall’s motion.
“The reality is we don’t know how pervasive misconduct is, we don’t see everything a prosecutor does,” Woods said. “But we do know about 20 lawyers employed by their office now that, according to the court of appeals, committed misconduct in trials. And six of them did it more than once.”
Among the attorneys cited in Foxall’s motion are deputy district attorney Amanda Chavez, who prosecuted a child rape case that was overturned on appeal last year after a higher court found she withheld police and CPS reports from the defense, adding “there was a reasonable chance the jury would have reached a different result” had those reports been made available. It also cites a case against a former East Bay cop, in which appellate justices found the prosecutor, Connie Campbell, “repeatedly used deceptive or reprehensible methods” that warranted felony convictions to be overturned.
In some cases, attorneys who committed misconduct received “a slap on the wrist” and in other cases, were actually promoted despite having a questionable record, the motion claims.
A judge is set to rule on the motion next week, and Alameda County prosecutors have not yet filed a response. Woods would not comment on whether he believed it would succeed, saying, “we just don’t know,” but said his office would likely continue to file similar motions if more cases are overturned on appeal for similar reasons as the Martin case.
