by David M. Greenwald
Oakland, CA – Superior Court Judge Allan Hymer rejected a motion by Richard Foxall of the Alameda Public Defender’s Office to recuse the DA’s office from prosecuting the murder case involving Shawn Martin.
Martin faces a new trial after an appellate court threw out his 2017 conviction. 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 0r in bad faith is immaterial as there is no claim of prosecutorial misconduct before us.”
“This was not the only time the court pointed out the role that the prosecutor’s misconduct played in the reversal,” Foxall continues. “It did not find error in giving the instructions but in the 
trial court’s failure to respond to the misconduct of the district attorney.”
But the court on Thursday rejected these contentions.
“I don’t think in this particular case that this case arises merely to an extent where one can say that misconduct so permeates the district attorney’s office as shown by the several cases cited where the appellate court has agreed that there is misconduct, that the district attorney’s office is so permeated with committing misconduct that the district attorney assigned to this case would be required if not ordered to commit misconduct thereby interfering with the defendant’s right to a fair trial,” Judge Hymer said in his oral ruling following nearly an hour of arguments by the Public Defender, District Attorney and a representative from the AG’s office.
He said that the defense has not explained how the defendant would not get a fair trial in this case, noting “there has been absolutely no showing that the prosecutor assigned to this case has ever committed misconduct in the past.”
Instead, the judge felt that the motion has been “engendered out of frustration of offering a more stringent deal that was offered before trial of the first case.”
“That has nothing to do with whether the defendant will receive a fair trial in this case,” Hymer added. He cited case law showing that “the likelihood that the defendant would not receive a fair trial must be actual, it cannot merely be apparent.”
In his motion, Foxall argues, “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 of misconduct by some attorneys in the Alameda County District Attorney’s Office that has gone uncorrected and unpunished.”
In his arguments before the court on Thursday, Foxall said, “I didn’t file this motion lightly. I believe this motion is meritorious.”
He said that over the past year, citing three cases including this one, “I have become more and more concerned about the behavior of (the DA’s office). These are three cases… in which the appeals court explicitly overturned based on misconduct.”
He noted that during a meeting with Assistant DA David Stein, he was “lacking all concern that the appellate court found the behavior of one of his lawyers improper.” He said, “His response to me was we got a conviction the first time, why should I be concerned?”
He was not concerned at all, “that it was obtained the first time, in part by misconduct.”
Michael O’Connor, the Assistant DA currently working the case, was dismissive of the motion, arguing, “This is not a legitimate motion.”
Instead, he said “what this is is a license to hurl reckless accusations and invectives against the Alameda County District Attorney.”
He dismissed the charges as “reckless” and said, “We stand on a long tradition, for over a century a belief in integrity is our life’s story.”
O’Connor declined to go step by step over the cases, saying, “For the simple reason that even if they were true, and for the most part we contend they’re at best distorted, it would not establish the prima facie case that the defendant needs to establish a hearing.”
He noted that 1424 exists for the reason of showing the prosecuting office has a conflict or a bias specific to the defendant in question that would result in an unfair trial.
These, he said, involve either overly “emotional investment” or “excessive embroilment,” whereas here the defense has spent most of its time “talking about conduct that’s unrelated to this case.”
Deputy Attorney General Joyce Blair largely concurred.
“What evidence is there in this case that the law recognizes where the defendant is unlikely to get a fair trial?” she asked. “That’s the real question here.”
Here she argued that “the law is very clear that past misconduct, particularly in other cases is no remedy for recusal.
“Recusal is not the remedy,” she said. There is no case law, she argued “that error in other cases supports recusal in this case.
“Any error in other cases cited by defense counsel is irrelevant,” she said. “We don’t need an evidentiary hearing on that issue—because it’s completely irrelevant.”
In response to the motion filed by the Public Defender’s office, DA Nancy O’Malley announced to Public Defender Brendon Woods that “the District Attorney’s Office will no longer engage in informal discussions with the Public Defender staff.”
That directive was rescinded prior earlier in the week, on Tuesday.
In a statement from Public Defender Brendon Woods, he expressed disappointment in the judge’s ruling.
“We’re disappointed with the judge’s ruling today,” Woods said in a statement to the Vanguard.
He added, “But we are pleased the DA’s office has rescinded its short-lived policy of refusing to informally negotiate cases with us. That will help us to clear the backlog of cases exacerbated by COVID. We also look forward to talking with the DA’s office about some of the issues raised in the motion in Mr. Martin’s case.”
The case now heads to trial on Monday where Martin faces retrial on second degree murder charges.
—David M. Greenwald reporting
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