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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Lori Eanes

O'Malley would be the first Alameda County DA to become state attorney general since Earl Warren in 1939.

O’Malley bristled at the suggestion that conflicts of interest prevent her office from thoroughly investigating wrongdoing by law enforcement. “Anybody who believes in justice should believe we are doing exactly what we are doing,” O’Malley said. “We follow the ethical obligations of the law and the spirit of the law.”

It also appears as if O’Malley has taken to heart some of the criticism she has received. In the past year, her office has charged two young Oakland cops—Cullen Faeth and Matthew Santos—for a drunken home invasion in the East Oakland hills and for pulling a gun on a painter, respectively. Her office also charged Travis Bannon—a former Alameda County Sheriff’s deputy who allegedly also slept with Ms. A—with more than a dozen counts for violating a restraining order against his wife. O’Malley also fired DA inspector Ricardo Orozco, a former captain and district commander in the Oakland Police Department, for his attempts to have sex with Ms. A.

And during the Sept. 9 press conference, O’Malley made it clear that she was unhappy with Richmond police and city officials and with the Contra Costa County District Attorney’s Office for their roles in helping send Ms. A to Florida for drug rehab. Soon after she got to Florida, Ms. A was jailed on assault charges for allegedly biting a treatment center staffer on the arm and is now stuck there. “We were not consulted … and we protested,” O’Malley said of Ms. A being sent to Florida.

O’Malley said her office would have to wait to file charges against the seven officers until Ms. A’s situation in Florida was resolved. “If we don’t have a witness, we can’t prosecute the case,” she explained. (Ms. A returned to the Bay Area after this report went to print, and O’Malley’s office subsequently filed charges against the officers.)

Across the bay, San Francisco District Attorney Gascón, another potential rival of O’Malley for the state attorney general position and a former police chief himself, has a staked out a stronger position on police misconduct. For example, he convened a special task force of three judges that uncovered evidence of racism and biased policing within the San Francisco Police Department.

 

The Alameda County defense bar has a testy relationship with the district attorney, as is the case in almost every court system in the United States. The local tensions, however, are underpinned by a serious breach in trust that took place in 2012, when a conversation between murder suspect Marissa Manning and a defense expert at Santa Rita County Jail in Dublin was surreptitiously recorded on the order of one of O’Malley’s prosecutors, Deputy District Attorney Danielle London.

Manning was accused of stabbing her husband to death, and the conversation at issue concerned Manning’s defense that she suffered from battered wife syndrome, because he physically abused her for years. The recording was revealed during the discovery phase of the case, prompting Manning’s attorney to ask for all charges to be dismissed. Manning eventually took a manslaughter plea deal for a seven-year prison term, as opposed to the 16-years-to-life sentence that she faced for the initial second-degree murder charge.

When the recording became public, O’Malley suspended London from her job and handed the criminal investigation over to Attorney General Harris’s office. However, the attorney general declined to file charges against London, a state Bar Association investigation resulted in no disciplinary action, and London got her job back within months.

The lack of consequences for London stunned defense attorneys, considering the breach of attorney-client privilege and the violation of California’s two-party consent statute for recording private conversations. Several defense attorneys interviewed for this article highlighted the Manning episode as evidence that the Alameda County District Attorney has a different standard for the conduct of those who work inside the criminal justice system.

Cookie Rudolfi, a professor at Santa Clara University’s School of Law and the former director for the Northern California Innocence Project, called London’s actions “criminal” and worthy of disbarment. Wiretapping a conversation between a defendant and members of their legal team, Rudolfi said, “violates one of the most sacred principles of the criminal justice system.”

However, Rudolfi added that O’Malley’s actions weren’t out of the ordinary in California. While Rudolfi was director of the Northern California Innocence Project in 2010, the organization and Pulitzer Prize-winning reporter Maurice Possley released a voluminous report on prosecutorial misconduct in California that found almost no consequences or discipline for prosecutor wrongdoing from 1997 through 2009.

For her part, O’Malley said the discipline imposed on London was “pretty severe,” although she declined to provide details. She said her office has issued updated training for attorneys and inspectors about the legality of such recordings.

 

Although O’Malley hasn’t stated publicly that she would be interested in the attorney general position, she has made her interest in the job known in private, according to multiple sources with firsthand knowledge of the situation. Over the years, several attorneys general have had ties to the East Bay, including Jerry Brown, Bill Lockyer, and Kamala Harris, a former prosecutor who once served with O’Malley in Alameda County. But O’Malley would be the first Alameda County DA to become state attorney general since Earl Warren in 1939.

Gov. Brown has yet to indicate who he might choose to replace Harris, but O’Malley appears to possess some advantages over her potential rivals. For example, Brown got an up close look at O’Malley’s work as district attorney when he was mayor of Oakland and lived in town. And he apparently was impressed with O’Malley’s commitment to prosecuting sex trafficking because in 2011, he named her to the California State Advisory Committee on Juvenile Justice and Delinquency Protection.

For her part, O’Malley has been a longtime admirer of Brown. In college, she wrote her senior thesis on him when he was a rising star in California politics.

Brown, however, has yet to say what traits he’ll be looking for in the next attorney general. And it’s possible that focusing on police misconduct and racial profiling will not be high on his list. He has rarely talked about police accountability as a governor and never made never made it a priority was he was attorney general or mayor of Oakland.

If O’Malley decides not to seek the California Attorney General’s position in the months ahead, she might once again face no opposition for Alameda County DA in 2018. Several of her chief deputies—including high-profile trial attorneys like Steve DalPorto, Christopher Lamiero, and her former assistant Jeff Rubin have left for higher paying jobs under Santa Clara County District Attorney Rosen.

As a result, O’Malley is virtually guaranteed to remain Alameda County’s district attorney for as long as she wants, given that there are no term limits on her office.

Robert Gammon contributed to this report.

Published Oct. 10, 2016 at 8:00 a.m.

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