By David M. Greenwald
Citing a “troubling and extensive pattern of misconduct” by “some prosecutors which the District Attorney of Alameda County has failed to seriously address,” Alameda County Assistant Public Defender Richard Foxall will move for recusal of the Alameda County DA’s Office in a motion that will be heard on Monday morning.
In response, in a letter from DA Nancy O’Malley to Public Defender Brendon Woods, the DA announced that “the District Attorney’s Office will no longer engage in informal discussions with the Public Defender staff.”
Foxall writes, “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 0f misconduct by some attorneys in the Alameda County District Attorney’s Office that has gone uncorrected and unpunished.”
In his motion, Foxall highlighted cases in which the courts have found misconduct by the prosecutor who handled the defendant’s first trial and the failure of the courts to discipline him for misconduct.
He noted that, in fact, the attorney has “been lauded by his office, including being named CDAA Prosecutor of the Year while Nancy O’Malley was the President of that organization.”
He also highlighted instances in which the courts have found “misconduct by other Alameda County prosecutors who apparently have also faced no discipline.”
Finally, they identified: “At least one instance of misconduct outside of trial that has been verified and resulted in discipline amounting to a three-week 
cessation of duties.
“Just in the last calendar year, at least three felony cases, including this one, were overturned in part or in whole because of misconduct by local prosecutors,” Foxall continues. “Because the goal 0f this motion is to ensure that defendant receives a misconduct-free trial, we have framed the issue in office-wide terms rather than by individual moral failings.”
Foxall argues that “counsel brings to the attention of the court the failure of the district attorney to engage in good-faith negotiations as evidence that the office has an irremediable conflict.”
The case involves a murder trial from 2017 in which Shawn Martin was charged with murder in connection with a 2014 incident. 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.”
The court wrote, “We do not fault the trial court for using the approved CALJIC instruction; this instruction is still legally valid. The fault, however, lies in the prosecutor ’s incorrect argument and the trial court’s failure to correct it.”
Foxall continues, “Twice before the verdict, defense counsel urged the trial court to take steps to correct the misconduct. Had the court heeded his warnings, there would have been nothing for the court to correct, or, more accurately, fail to correct, when it was abundantly clear that the jury was misled and confused by the prosecutor’s argument.”
Foxall continues to note a conversation in January of 2021 where the “supervising attorney indicated that he would make no offer to Mr. Martin, and that, should Mr. Martin make an offer of twenty-one years, the district attorney would not accept it.”
Back in 2017, Judge Homer asked the district attorney to consider making an offer to the defendant.
Writes Foxall, “The supervising attorney’s subsequent conduct indicates that he refused to even accept an offer that he had previously extended to Mr. Martin.” He indicated that “he would only consider an offer from the defendant that ended in life.”
The DA put forth a 15-to-life offer which had already been rejected by defense, which Foxall argues is evidence of failure to negotiate in good faith.
In response to this motion, DA Nancy O’Malley sent a letter to Public Defender Brendon Woods.
“The District Attorney’s Office has always operated with the highest degree of integrity, honesty and honor in carrying out its duty. We are fair and have been very proactive in our efforts to work collaboratively with the defense bar and the court during these challenging times of COVID,” she writes.
She explains that “due to circumstances of late, the District Attorney’s Office will no longer engage in informal discussions with the Public Defender staff.”
O’Malley clarifies that they are not halting their efforts to resolve cases.
“If there are to be any discussions regarding offers made to resolve cases, we will readily appear in court with the Judge present and a court reporter, if possible,” she writes.
However, she continues: “It is very unfortunate that it has come to this. Regrettably, false and misleading accusations against my Office, which has a great reputation, and false and misleading accusations against me and against members of the Office have created a hostile and unworkable relationship with the Public Defender’s Office.”
O’Malley said, “We will not lower ourselves to the level of pointing out unethical, unprofessional and dishonest conduct by members of the Public Defender’s Office, or against you, the appointed Public Defender. Instead, we will continue to carry out our duties as mandated under the law.”
In an email to another publication, Woods called the letter “disappointing.”
“Instead of saying that she will address the problems, her response is essentially saying we will not talk to you anymore,” Woods said. “If we can’t informally try to resolve cases, the court backlog—which has been exacerbated by COVID—is only going to get worse.”
Woods earlier this week charged that, while many of the county prosecutors conduct themselves in an ethical manner, “we do know about 20 lawyers employed by their office now that, according to the court of appeals, committed misconduct in trials.”
The motion will be heard on Monday morning in Alameda County Superior Court.
—David M. Greenwald reporting
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