Will Nancy O'Malley Be California’s Next Top Prosecutor?

Alameda County's district attorney is on the shortlist to become the next state attorney general. She’s recognized nationally for combating sex trafficking, but is that enough?


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Ariel Nava

Alameda County Public Defender Brendon Woods praised O'Malley for her emphasis on drug diversion and rehabilitation.

In January 2015, U.S. Rep. Eric Swalwell (D-Dublin)—who worked for seven years as a prosecutor under O’Malley—praised his former boss on the floor of Congress for receiving a series of awards, including one from the House of Representatives the year before. O’Malley “is nationally known for her work on issues surrounding violence against women, child abuse, domestic violence, and exploitation,” Swalwell said. “She is also a tireless advocate on behalf of victims and their families.”

But O’Malley’s 30-plus-year career focusing on sex trafficking is not without its critics. Several local community activists, who spoke on condition of anonymity because their offices receive funding from the county and work with O’Malley’s office, take issue with the county’s law enforcement-centric method of dealing with victims of sex trafficking. Under this system, police and prosecutors refer victims to service organizations, which, in turn, rely on law enforcement for state and federal grant funding.

Another point of contention for community advocates is O’Malley’s apparent flip-flop on Senate Bill 1322, legislation that Gov. Brown signed into law on Sept. 26 decriminalizing prostitution for minors. In an interview, O’Malley said she supports the bill. However, analyses of the bill prepared for the state Legislature state that the Alameda County District Attorney’s Office officially opposed SB 1322 from its introduction in April until Aug. 18.

The actions of Patrick Mims, former director of Bay Area Women Against Rape, or BAWAR, also raised questions about O’Malley’s judgment. Mims, a former inmate who was convicted of murder, sexually exploited the mother of an underage sex worker and BAWAR client while he worked for BAWAR. O’Malley knew about Mims’ murder conviction yet signed off on his hire by BAWAR, which works in the Alameda County Family Justice Center on 27th Street in Oakland and receives money through the trafficking grants administered by the district attorney.

O’Malley also did not inform the Oakland Police Department of Mims’ prior conviction. In fact, Mims was so favored by O’Malley that he was advertised as one of “Nancy’s Hero[es]” with whom the public could meet at her summer barbecue fundraiser in 2014. Mims left his job at BAWAR in 2014.

“He was respectful and kind toward the young women he helped—he didn’t judge them,” O’Malley said of Mims. “He helped turn around a lot of young lives. But for what he did otherwise, shame on him.”

 

Before O’Malley became district attorney, Alameda County had a reputation of being a traditional tough-on-crime prosecutor’s office. Despite the East Bay’s liberal leanings, O’Malley’s predecessors were known for pursuing the death penalty in high-profile cases. However, under O’Malley, the number of capital prosecutions has dropped notably. Her prosecutors often initially charge eligible felonies as death penalty cases, but then reduce the charges during pretrial hearings.

That effort, as well as her office’s increased emphasis on drug diversion and rehabilitation (which is a broader result of Gov. Brown’s 2012 Realignment policy), has earned O’Malley some progressive bona fides. “As far as district attorneys go, I think she’s doing a good job,” said Alameda County Public Defender Brendon Woods. “There are many prosecutors who don’t get the issues she does.”

But some critics argue that O’Malley’s record on public corruption and white-collar cases is less than stellar, particularly regarding predatory mortgage lenders whose actions precipitated a catastrophic fallout from the 2008 housing crisis in Oakland’s black and brown communities.

Ralph Kanz, an East Oakland resident who fell victim to a predatory lender when he and his wife purchased their house in 2005, is an outspoken critic of the county prosecutor’s approach to real estate fraud and white-collar crime. “My perception of O’Malley at this point is she doesn’t go after anyone with political or financial clout,” Kanz said. His perception stems from an unsuccessful two-year fight to get Alameda County prosecutors to pursue his lender for forging his family’s loan application. Kanz is also a longtime good-government advocate in Oakland and a former member of the city’s Public Ethics Commission.

Over the past few years, O’Malley’s major victories in the field of white-collar crime have often come from joint prosecutions with the California Attorney General’s Office or branches of the U.S. Department of Justice for corporate environmental or financial crimes. “There are almost no white-collar cases they originate themselves,” Kanz said. “They go after the low-hanging fruit, no matter what type of crime.”

In this regard, O’Malley’s record contrasts sharply with that of one of her potential rivals for the attorney general’s job: Los Angeles County DA Lacey. His deputies have filed and won several high-profile real estate fraud cases, in addition to high-profile public corruption convictions of officials from the small Tammany Hall-style city of Bell, and of former County Assessor John Noguez for a range of financial crimes.

Critics say another weakness of O’Malley’s office is its apparent unwillingness over the years to hold law enforcement officers to the same standards as everyday citizens. “My number-one beef with her is the failure to prosecute police misconduct—what does it take?” attorney Siegel said before O’Malley had announced the criminal charges in the Ms. A case. “Does someone need to have video of the police murdering someone? Why haven’t there been any prosecutions of police when there have been so many cases of misconduct litigated in civil court and millions of dollars in settlements?”

While O’Malley’s predecessor Orloff did file murder charges against BART police officer Johannes Mehserle for killing Oscar Grant in 2009, O’Malley has yet to file a homicide case against an officer in her jurisdiction, despite numerous high-profile killings by local police in recent years.

Siegel’s firm is representing the family of Yuvette Henderson, who was fatally shot by Emeryville police near the Oakland border in February 2015. Henderson was suspected of shoplifting and allegedly pulled a revolver on police before she was killed. As part of the civil suit filed by Henderson’s relatives, Siegel has examined the DA’s investigative file concerning its review of the shooting for any potential criminal misconduct by Emeryville police. “Those reviews are like a joke,” Siegel said. The district attorney inspectors, he said, “question the officers in a way which prompts them to give the right exculpatory answers.”

Siegel also pointed to the Alameda County district attorney’s lack of action on the shooting death of unarmed Derrick Jones in fall 2010 by Oakland cops Omar Daza-Quiroz and Eriberto Perez-Angeles, both repeat shooters with personnel files thick with excessive force complaints. Jones, who was unarmed, fled from officers who showed up at his barbershop after an altercation with a woman at a nearby laundromat. After a brief chase, Daza-Quiroz and Perez-Angeles shot Jones in an alley after mistaking a small digital scale in his hands for a weapon. Following protests and a request by then-Oakland Police Chief Anthony Batts for FBI agents to investigate Jones’ death (they never did), O’Malley’s office cleared Daza-Quiroz and Perez-Angeles of any wrongdoing.

The Inspector Division of the Alameda County District Attorney’s Office also has long been accused of being too tight with area law enforcement agencies. Once officers have served in a police department for 20 years or more, making them eligible to receive a department pension, they frequently seek employment as a DA inspector. “Her office is kind of a retirement home for Oakland cops,” said Siegel, noting the large number of former OPD personnel now working as DA inspectors. The division’s top two investigators, Robert Chenault and Craig Chu, are former Oakland police officers.

Jim Chanin, one of the plaintiffs attorneys in the Oakland police Riders case, which led to the 13-year-old federal consent decree for the Oakland Police Department, believes local prosecutors have too many conflicts of interest to independently review police shootings for criminal conduct. “There is an inherent tension between the necessity of prosecuting officers who commit crimes and the district attorney’s reliance on police officers,” Chanin said. “We need an office that’s more politically removed from the day-to-day mechanisms and politics of police work—such as a unit of the state Attorney General’s Office.”

Other states have reacted to public calls for more independent investigations of police misconduct and officer-involved shootings by taking investigations away from local district attorneys. Last year, New York Gov. Andrew Cuomo signed an executive order granting State Attorney General Eric Schneiderman the authority and discretion to investigate officer-involved shootings. Schneiderman has already exercised that authority in several instances. 

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