Legally Speaking With Pamela Price

Pamela Y. Price, Attorney at Law

Tag: Nancy O’Malley

Prosecute Anthony Pirone

Bart Officer Anthony Pirone, holding Oscar Grant’s head down with his left hand,
with his left knee on Grant’s neck, moments before Oscar was shot in the back

In February 2011, Attorney John Burris called me and asked me to help him with a police misconduct case. It was the Oscar Grant case. There were 4 motions to dismiss the case filed by Bart and the numerous officers that John’s firm had sued. My firm’s assignment was to oppose the motion to dismiss Anthony Pirone. We did so successfully and kept him in the case.

Anthony Pirone was one of the first officers to arrive on the Bart platform in response to a call. Pirone immediately focused on Oscar and his friends, racially profiled them, punched and kneed Oscar repeatedly, and finally jumped down on Oscar with his full, 250-pound body weight, pushing Oscar face-down onto the concrete platform and pressing his knee on Oscar’s neck; all the while taunting Oscar by calling him a “nigger” and a “bitch-ass nigger.”

Anthony Pirone committed a hate crime against Oscar Grant. He is the one who literally set into motion the action that caused Johannes Mehserle to kill Oscar Grant. Yet, then District Attorney Tom Orloff made a decision not to charge Anthony Pirone with anything. Bart fired Pirone but he walked away a free man. 

Everyone who saw the videotapes of the events on that Bart platform knew what Pirone did. Everyone included me, my staff, the judge and all of the lawyers involved, including then Chief Assistant District Attorney Nancy O’Malley. The civil lawyers were subject to a protective order in 2009 (meaning we could not talk publicly about everything we saw and knew) but DA Nancy O’Malley was not.

DA Nancy O’Malley knew in 2009 that Anthony Pirone was a liar. When she became the DA in September 2009, she did not re-open the case. Instead, she chose to turn a blind eye to Pirone’s racist torture of Oscar Grant because Oscar Grant was just another Black kid whose life did not matter. 

Just like Jody Woodfox’s life did not matter. Jody Woodfox was shot in the back by an OPD officer in July 2008, and O’Malley’s office covered up the murder for 12 years. Just like Alan Blueford and Kayla Moore and so many others, including brown, white and indigenous people like Andrew Moppin, James Greer, Joshua Pawlik, Jacob Bauer and Elena Mondragon. 

The family of Oscar Grant and our community are calling on O’Malley now to charge Anthony Pirone with felony-murder. This is the same rule applied to thousands of Black and Brown residents of Alameda County to coerce unfair plea bargains. The same rule used to incarcerate people for decades whose punishment did not come close to the crime. O’Malley has discretion but it should not be used unfairly or applied unequally. Simple Justice. That is all the family is asking for. 

Please support this demand for fair justice! Please sign the Petition and spread the word! 

TELL DA NANCY O’MALLEY TO CHARGE ANTHONY PIRONE WITH THE FELONY MURDER OF OSCAR GRANT III

Follow The Money

#Justice for George Floyd Poster

This week, San Francisco is leaning way forward in criminal justice reform in the wake of the murder of George Floyd.

San Francisco District Attorney Chesa Boudin, joined by Diane Becton, the first Black woman District Attorney in Contra Costa County, George Gascon, the former SF District Attorney and San Joaquin County District Attorney Tori Verber Salazar called for the California State Bar to pass an ethics rule prohibiting prosecutors from accepting political donations and endorsements from law enforcement agencies and police unions.

Wow! This hits home in Alameda County. They decided to “Follow the Money!”

2018 – Follow The Money

In 2018, Republican Alameda County Sheriff Greg Ahern gave $50,000 to a campaign committee supporting incumbent District Attorney Nancy O’Malley.  Ahern has been widely criticized for his cooperation with Immigration and Customs Enforcement (ICE) officials. He gives immigration status information on people in the county jail to ICE, and sets releasees up to be picked up by ICE. He also signed a letter in support of Trump’s appointment of Jeff Sessions to Attorney General. 

DA O’Malley is the only check on Sheriff Ahern, a fact that is particularly significant today. You see, Sheriff Ahern just placed Alameda County under curfew and is arresting peaceful protestors everywhere! Under Ahern’s leadership, the Santa Rita County Jail has earned a reputation as “the most dangerous place in the County.”

In 2018, political committees formed by law enforcement unions spent over $200,000 to help DA O’Malley hold onto her seat. Donors included local and state police unions of every size from around the state. Many of them also gave directly to O’Malley’s campaign.

In the last few days of the 2018 campaign, these political committees sent hit pieces with graphic images of child molesters throughout southern Alameda County to scare primarily white folks in believing that I was “soft on crime.” Apparently, it worked.

A Clear Conflict of Interest

Elena "Ebbie" Mondragon killed by Fremont Police in March 2017
Elena “Ebbie” Mondragon, Credit: CBS SF

DA Nancy O’Malley also accepted a $10,000 contribution to her DA campaign from the Fremont Police Officers Association. She received it at the same time she was investigating Fremont officers – including the union president – for the murder of 16-year-old Elena “Ebbie” Mondragon. Naturally, O’Malley cleared all of the officers of any wrongdoing after she got the contribution.

In 2018, Sacramento DA Anne Marie Schubert accepted $13,000 in campaign contributions from the Sacramento police union while she investigated them for the murder of Stephon Clark. Needless to say, her office did not charge any of the officers involved in that killing.

On a press call Monday, Contra Costa County District Attorney Diana Becton acknowledged “We work very closely with law enforcement and we have to evaluate whether some of those same officers have committed crimes. . . . Across California there are dozens of law enforcement unions, representing rank and file police officers, sheriffs’ deputies, and correctional officers. and these unions play a major role in state and even local politics.”

According to courthousenews.com, Becton notes the current rules of professional conduct say elected prosecutors should avoid soliciting support from attorneys representing accused officers, and should recuse themselves from prosecutions that could give rise to a conflict of interest. But they are not precluded from benefiting financially or politically from groups that pay the attorneys’ fees for accused officers.

Too often, prosecutors act as if they are above the law. They rarely recuse themselves. They routinely fight efforts for independent outside investigation of cases where officers are accused of using deadly force.

Police Own Our Cities

Last year, the San Francisco Police Association spent over $700,000 trying to buy the DA election. As I pointed out then, every American city, county and state has a powerful police association, whether it be city police, county sheriff or state correctional officers. They defend crooked cops and threaten elected officials.

Technically, it is a union formed to advocate for better working conditions and pay for officers. In the real world, however, POAs are laser focused on doing whatever it takes to control elected officials. POAs are political action committees that spend millions of dollars every year to influence elections.

In every city, county and state, the POAs band together to reinforce repressive and racist policies. As we can see, these policies undermine the fabric of the community. In every progressive challenge to the status quo, look for the POA to be fighting back and holding the line. Usually in lockstep with the local District Attorney.

Waking Up the Democratic Party

In a real surprise twist, somebody is waking up the Democratic Party. Following the press release by Boudin, Gascon, Becton and Verber Salazar, the California Progressive Caucus took a position. In a call to action, the Caucus said:

“Since the power of the Democratic Party rests in good measure on its ability to raise almost unlimited cash that can be funneled into campaigns, that is where we should start with solutions. We must decline money from law enforcement organizations and stop funneling money to those Democrats that refuse to make Black lives a priority. We must declare loudly when law enforcement organizations are opposing measures to save Black lives and then we must mobilize support to counter them.”

In August 2018, Shaun King lamented the absence of the Democratic Party in the fight for criminal justice reform. He asked “Does the Democratic Party really care about black people or do they just want our votes?” In fact, the Democratic party has been heavily invested in the fight for criminal justice reform. Only on the wrong side of history – on the side of the police.

The California Progressive Caucus knows how to “follow the money.” Calling out centrist Democrats who accept police union money is a welcome development. Too often, police unions have been able to use their money to buy protection for bad cops and repressive policies.

Unfortunately, Alameda County is not alone in trying to protect bad cops and racist practices. Still, as San Francisco and Contra Costa and San Joaquin counties move forward, maybe we’ll take another look around. In the light of George Floyd’s murder, we know that is way past time “wake up. “

Death in San Leandro

Steven Taylor, Killed by Police  in San Leandro
Steven Taylor Killed by San Leandro Police, April 18, 2020
Photo Courtesy of S. Lee Merritt

Death in San Leandro

I live in Oakland California about 3 miles from San Leandro California. San Leandro is what some call a “bedroom community” to Oakland. It’s a City where restrictive covenants and land use permits were used to stop Black people from moving from Oakland to San Leandro. Local celebrity Brian Copeland tells the story of how he grew up in San Leandro when it was 94% white. Copeland wrote a play and a book about it.

Most folks in the East Bay know San Leandro’s history. So when San Leandro police shot and killed Steven Taylor in a Walmart store on a Saturday afternoon, it was not a surprise. Steven Taylor was allegedly mentally ill, with a diagnosis of schizophrenia and bipolar disorder. He appears to be in a mental health crisis when 2 San Leandro police officers approach him. He refused to put down a bat and pulled away as the officers tased him. They then shot and killed him in front of dozens of shoppers. The video shows that an officer actually tased Steven Taylor as he lay on the floor bleeding to death.

This is the second recent police killing in San Leandro. On June 11, 2019, San Leandro police shot Anthony Gomez, an unarmed allegedly intoxicated Latino man. An officer shot him from the street as he stood alone on his mother’s front porch. Officers claimed he had a block of wood in his hand that looked like a gun.

Mental Illness Should Not Be A Death Sentence with Police

There is an increasing recognition that mental illness is a reason to spare people not from responsibility for their crimes but from the ultimate sanction of death. Simply put, a mental health crisis should not be a death sentence.

Gwen Woods and her son, Mario Woods
Courtesy: ABC News

Steven Taylor’s murder in San Leandro is so so reminiscent of the murder of Mario Woods by police in San Francisco.

The same month that San Leandro police shot and killed Anthony Gomez, Walnut Creek police shot and killed 23-year-old Miles Hall. Walnut Creek is another almost all-white enclave in Contra Costa County. Hall’s family members reportedly sought mental health assistance from police in the days before he was shot by two officers who came to his home. Miles Hall was Black.

California’s New Law

In California, a new law changed the standard for use of deadly force, effective January 1, 2020. The law is based in part, on the recognition that “individuals with physical, mental health, developmental, or intellectual disabilities are significantly more likely to experience greater levels of physical force during police interactions, as their disability may affect their ability to understand or comply with commands from peace officers. It is estimated that individuals with disabilities are involved in between one-third and one-half of all fatal encounters with law enforcement.”

The new law allows the use of deadly force by a law enforcement officer only when the officer reasonably believes that deadly force is necessary to defend against an imminent threat of death or serious bodily injury to the officer or another person. The impetus for the Legislature to pass the law was the murder of 22-year-old Stephon Clark. Clark was an unarmed Black man shot dead in Sacramento after officers mistakenly thought they saw a gun. He was shot 8 times, including 3 times in the back, in his grandmother’s backyard. Assemblywoman Shirley Weber wrote and pushed for AB392 in response to the murder of Stephon Clark.

Steven Taylor’s murder in my Assembly District 18 provides an early test for the new law. Regrettably, the person in my district who will interpret the new law is District Attorney Nancy O’Malley. DA O’Malley has never prosecuted a cop in Alameda County for murder.

Death in Alameda County

Between 2010 and 2015, at least 6 people died at the hands of police in Alameda County: Hernan Jaramillo, Roy Nelson, James Greer, Kayla Moore, Mark Bennett and Martin Harrison.

Hernan Jaramillo was allegedly having a mental health crisis and begged officers for his life. Video footage was not released by police until 2 years after his death. It shows Mr. Jaramillo pinned to the ground by officers who ignored his cries of “I can’t breathe.” (Sound familiar??) DA O’Malley did not even investigate Mr. Jaramillo’s death because she did not have a policy to investigate in-custody deaths that don’t involve shootings.

In March 2017, Fremont police officers shot and killed Elena “Ebbie” Mondragon, a 16-year-old passenger in a botched police attempt to arrest the driver of the car. Ebbie was shot 5 times with AR-15 styled rifles when plainclothes officers fired into the moving vehicle.

While the DA’s investigation was pending, O’Malley accepted a $10,000 donation from the Fremont police union to her re-election campaign. Shortly thereafter, she cleared the shooters – the Fremont police union president and another officer – of any wrongdoing in Ebbie’s death. She ruled that the shooting was “justified.”

2018 Police Killings in Oakland

In January 2018, a BART police officer ran from the West Oakland BART station onto the street and shot Sahleem Tindle in the back. Tindle was unarmed at the time. O’Malley declined to bring any charges. In March 2020, however, a jury found BART liable for wrongful death and awarded Sahleem Tindle’s family $6.34 million dollars.

In March 2018, Oakland police shot and killed Joshua Pawlik. A federal court monitor ruled that the police essentially executed Mr. Pawlik, when they woke him up and shot him as soon as he moved. Again, O’Malley’s investigation exonerated the officers and she released her report a year later in conjunction with OPD. She released her report on the same day that OPD released theirs with the same conclusion – no fault. The fallout from Mr. Pawlik’s murder ultimately led to the firing of former OPD Chief Anne Kirkpatrick. The settlement of the lawsuit by Mr. Pawlik’s family for $1.4 million is pending.**

The Conflict of Interest

Our experience with DA O’Malley in Alameda County is a clear example of the conflict of interest that district attorneys experience when asked to hold police officers accountable. O’Malley’s investigation of Mr. Gomez’ death is not yet finished almost 9 months after police shot him on his mother’s front porch. Clearly, Mr. Gomez’ death and determining whether police acted justifiably or wrongly is not a priority for DA O’Malley.

Maybe if DA O’Malley had taken the San Leandro police shooting of Anthony Gomez seriously, Steven Taylor would still be alive?

Fortunately, there is a solution. I have introduced a resolution to the Alameda County Democratic Party Central Committee to support Steven Taylor’s family’s call for an independent investigation into his murder. The resolution calls upon the California Attorney General to “investigate, manage, prosecute or inquire about any incidents of use of deadly force by law enforcement officers to ensure that the laws of the State are being adequately enforced and in particular, to ensure compliance with AB392 codified as Penal Code Section 835a.”

The Oakland East Bay Democratic Club, Wellstone Democratic Renewal Club, John George Democratic Club and the Coalition for Police Accountability also support the resolution. It is based on Article V, Section 13 of the California Constitution which allows the Attorney General to supervise and supercede the powers of every District Attorney. The resolution was passed unanimously by the Alameda County Central Committee.**

A Test for California Law

Steven Taylor’s murder will be one of the first cases to “test” the enforcement of California’s new law for use of deadly force. If the Attorney General accepts the call, he could create a statewide standard for police accountability when deadly force is used.

The murder of Steven Taylor happened in our Assembly District 18. Therefore, I called upon the leaders of our Assembly District to support the resolution at the Central Committee. Both Assemblymember Rob Bonta and his former District Director and Alameda City Councilmember, Jim Oddie have a vote. Central Committee member and San Leandro City Councilmember Corina Lopez has already pledged her support of the resolution.

I am hopeful that the leaders of our community and Attorney General Xavier Becerra will be found standing on the right side of justice. Hopefully, accountability for police use of deadly force will be established before another person is killed unnecessarily.

** This piece was updated to reflect that the Alameda County Democratic Party unanimously passed the resolution on May 6, 2020 and that a settlement payment of $1.4 million by the City of Oakland to the Pawlik family is pending.

Only 16 Votes

Credit: Gabriella Angotti-Jones for The New York Times

Tiffany Caban’s Election – Part 1

Tiffany Caban is losing her election to Queens District Attorney by only 16 votes. Only 16 votes could decide the race. The criminal justice system in Queens impacts 2.4 million people. The race highlights the dangers of “provisional ballots” and the power of absentee ballots.

Election officials initially tossed out an estimated 2,500 provisional ballots. Some people registered too late to vote in the primary election. Others moved and did not re-register in time. Some voters forgot to sign and swear they were registered Democrats. On the flip side, usually the most reliable and conservative voters cast absentee ballots. Absentee voters vote early and those votes usually decide the race. That conventional wisdom may prove true in Queens.

What’s At Stake in Queens

Tiffany Caban’s race for District Attorney has captured the attention of the nation. Her story, in case you missed it, is an original American story. She’s young, a mere 31 years old, of Puerto Rican descent, a former Public Defender and the first in her family to graduate from college. Bringing all of her real life and world experience, she put together a broad coalition of progressives, formerly incarcerated folks, sex workers and undocumented immigrants.

New York based Working Families Party, Real Justice PAC, Color of Change, Our Revolution and Democrats for Socialist America (DSA) also supported Tiffany. Philadelphia District Attorney Larry Krashner, Singer John Legend, Bernie Sanders, Elizabeth Warren, Alexandria Ocasio-Cortez, former NY gubernatorial candidate Cynthia Nixon and the New York Times newspaper all endorsed Tiffany.

Only 1 major labor union endorsed Tiffany Caban.

According to the New York Times, the Queens District Attorney’s office is woefully out of step with the community it serves. The office features high racial disparities in prosecutions and routine violations of the right to counsel. It has no dedicated unit to address wrongful convictions and no oversight of abusive landlords.

Who is Melinda Katz?

Melinda Katz, Tiffany’s opponent, is an established player in New York politics. Melinda has been the Queens Borough President for 6 years. She will be termed out when her term expires in 2021. She is running for her 6th elected office in 25 years. In her long political career she has not shown any interest in criminal justice reform. She has not led any challenges to mass incarceration in New York.

In 1995, Melinda voted as a member of the New York State Assembly to reinstate the death penalty. On the City Council, she voted to increase penalties for low-level offenses and create a new category of crime (gang recruitment). She also favors increased police surveillance in city schools. Every elected member of Congress from New York except one, and NY Governor Andrew Cuomo endorsed Melinda.

Not surprising, big labor unions like SEIU, Teamsters, Firefighters and the building trades all support Melinda Katz. Melinda has no courtroom experience even though she is a lawyer. Her last real gig was as a lobbyist for real estate clients at Greenberg Taurig. The firm has a scandalous history, including a$7.6 million fine in 2006 levied by the Federal Deposit Insurance Corporation to settle allegations that the firm helped cover up a bank’s financial misconduct. Greenberg is also Rudy Giuliani, former NY mayor and current Trump surrogate’s old law firm.

The Democratic Party Favorite

Here’s how one local writer described Melinda’s ties to the Queens Democratic Party:

Katz has also cemented her ties to the Queens Democratic Party, which is often criticized as one of the last bastions of calcified political power in the city. The Party protects and promotes its own and, in any race, brings to bear a large cadre of local, state, and national elected officials that originated from its ranks or owe it some allegiance, as well as the allies of those officials, other local party officials like members of the state committee, political club members, and others.

The Queens Democratic Party was previously headed by Congressional representative-turned-lobbyist Joe Crowley, who lost to Alexandria Ocasio-Cortez and has been fundraising for Katz.”

According to one commentator, Melinda Katz ran on the traditional campaign of fear and racism. As she notes, “Law-and-order feminists have long used the idea of professional white women’s safety and reputation against young women activists of color.” Yet, she’s ahead by only 16 votes.

The Wrong Side of History

In August 2018, Shaun King lamented the absence of the Democratic Party in the fight for criminal justice reform. He asked “Does the Democratic Party really care about black people or do they just want our votes?”

The reality, reflected in the Queens DA race, is that the Democratic Party is very much present. On the wrong side of history. This was obvious in the 2018 Alameda County District Attorney race. According to the local Democratic Party Chair, Robin Torello, incumbent DA Nancy O’Malley “fights for our Democratic values of justice, equality and civil rights everyday.”

Credit: Pamela Price for District Attorney 2018

Every one of O’Malley’s answers are inconsistent with the California Democratic Party platform. Nonetheless, the Alameda County Democratic Party Central Committee, the Sierra Club and Senator Kamala Harris all endorsed O’Malley. After that, less than 100 days after winning re-election with financial and logistical support from the Democratic party machine, O’Malley endorsed the anti-choice Republican candidate for State Assembly over a Democrat. Fortunately, the Republican lost her seat.

Only 16 Votes

I pray that Tiffany Caban can get at least 17 more votes. Still, the hard lesson for progressives is that we have to “flip” the party. We have a chance to do just that in Alameda County in March 2020. If you are not a registered Democrat, you must re-register and do it early.

One estimate is that a million independent voters (registered as “no party preference”) in California risk not being able to vote for president or local Democratic party representatives in the March primary. In other words, independents who want to change the status quo in March 2020 best re-register to vote as a Democrat. You can change it back later.

In California, the drop dead date to re-register to vote by mail in the primary is January 15, 2020. So, you can only vote by mail for local Democratic party officials if you are a registered Democrat by January 15, 2020. If you want to vote in person, the final date to re-register to get a Democratic ballot is February 17, 2020.

Across the country, we see this is where “the petal meets the metal.” We really need everyone to “#DEM-ENTER” ASAP.

If you can please help Tiffany pay for the recount in the Queens DA race, go to her webpage at cabanforqueens.com and make a contribution. Tiffany is a corporate-free candidate.

“I Reject the Chief’s Conclusions”

“I reject the Chief’s principal conclusions in this matter.”

Those few words summarize the February 19, 2019 report by Oakland’s Compliance Director, Robert Warshaw. Those few words should end the career of OPD Chief Anne Kirkpatrick in Oakland.

Robert Warshaw 2016 – Credit: Darwin Bond Graham

The proverbial “straw that broke the camel’s back” should be the OPD cover-up of the murder of one Joshua Pawlik. A year ago, on March 11, 2018, Mr. Pawlik was shot 22 times with AR-15 rifles by four (4) OPD officers. His crime – he had a gun.

I have long come to know that if you have a gun and you encounter a policeman in Oakland you will die. Mr. Pawlik’s case is so very similar to that of Demouria Hogg. Both men were apparently asleep when awakened by OPD officers. Both men had guns in their possession and they were immediately shot and killed when they woke up. A gun is a death sentence.

Or, consider consider the case of Alan Blueford who was alleged to be found near a gun and shot dead. Or the case of Sahleem Tindle, who was also observed near a gun and shot dead.

If you are even near the gun, and there is an OPD or Bart officer present, you will die. If they think you have a gun, you will die.

Mr. Pawlik’s murder, however, disturbed Mr. Warshaw. Mr. Warshaw is the Court-appointed monitor, who for the last 10 years has been getting paid to monitor OPD under the Negotiated Settlement Agreement aka our Consent Decree. What seems to have disturbed Mr. Warshaw is that there is a video of the murder which OPD ignored. Apparently, the video is inconsistent with the officers’ statements.

According to to Mr. Warshaw, the OPD investigators did not

(a) did not use the video to question the officers;

(b) did not address the inconsistencies between the video and the officers’ statements; and

(c) used their questions to support the justification of the officers’ actions.

According to Mr. Warshaw, the video shows minimal movements by Mr. Pawlik, consistent with someone waking up. The video “does not show an overt threatening action on his part.”

Why Fire the Chief?

According to Mr. Warshaw, Chief Kirkpatrick went “above and beyond” in her efforts to discount the video evidence and exonerate the officers. Chief Kirkpatrick also rejected the disciplinary recommendations of the department’s internal Executive Force Review Board for the officers and the commander in charge of the situation, Sgt. Francisco Negrete. According to Chief Kirkpatrick, Sgt. Negrete’s “errors in judgment” were not significant enough to sustain the recommended discipline even though they likely cost Mr. Pawlik his life.

Chief Kirkpatrick came to Oakland in the midst of one of the worst police misconduct scandals in our history involving the murder of an officer’s wife, sex trafficking and the rape of a minor by police officers. So far, we have 3 lawsuits arising out of OPD’s cover-up of various parts of this criminal activity. Chief Kirkpatrick’s only response to our troubles was to promote the commanders who led the cover-ups and close the promotional ceremony to the public.

These are the men that she has come to rely upon and protect as the Chief.

Oakland police Chief Anne Kirkpatrick greets officers as she arrives to the Ascension Greek Orthodox Cathedral of Oakland to attend a department promotion ceremony in Oakland, Calif., on Friday, July 14, 2017. The promotions of Roland Holmgren to captain, John Lois to assistant chief and Kirk Coleman to captain has raised eyebrows after the trio were referenced in a damning report about how OPD mishandled the Celeste Guap investigation. (Anda Chu/Bay Area News Group)

Chief Kirkpatrick claimed that she came to Oakland as “a reformer.” But she admitted to reporters in her first press conference that she had not even read the Consent Decree and she had no plan for how to comply with it and end Court oversight. Apparently, she still has no plan. And it would appear that Mr. Warshaw has lost all confidence in her judgment.

Where Do We Go From Here?

Whether the Chief goes or stays, the City will pay. We will pay.

The City paid $1.2 million to settle the civil lawsuit for the murder of Demouria Hogg. Mr. Pawlik’s family has already filed suit, and no doubt, we will pay to settle that case. Federal Judge Orrick, upon receiving Mr. Warshaw’s report, appointed his own investigator to take another look at Mr. Pawlik’s murder. His Order directs the City to start paying for this investigation.

We will continue to pay for Mr. Warshaw’s services. Since his appointment in 2009, we have paid his two companies more than $8 million, on average almost $1 million a year. The Chief’s base salary is a whopping $270,000 a year. The four officers who fired 22 rifle shots at Mr. Pawlik are still on the payroll.

On March 6, 2019, District Attorney Nancy O’Malley issued her report simultaneously with OPD’s report, finding no problems with the investigation and exonerating the OPD officers. Nothing new there either.

I say, fire the Chief and let’s hold the monitor accountable for holding our police accountable. He seems to be the only one with any official power interested in doing so at the moment.

The Political Power of Incumbency

The Political Power of Incumbency

Oakland Mayor Libby Schaaf

Why is it so difficult to defeat an incumbent politician? Because the incumbent:

(a)  has more money so she can buy a campaign,

(b) is automatically endorsed and supported by the party machine,

(c) is usually endorsed and supported by the mainstream media, and

(d) is usually able to convince people that she will do better in her next term fixing the things she ignored in her last term.

Oakland’s Women In Power

Of the 10 largest cities in California, Oakland has the highest percentage of women serving on the City Council.  Yet, Mayor Libby Schaaf clearly lacks a commitment to maintaining female leadership on the Council. In the 2018 general election, all of Mayor Schaaf’s first rank choices for City Council were men. Schaaf’s consistent vocal attacks on two of the strong women on the Council – Rebecca Kaplan and Desley Brooks – are legendary. With the defeat of Councilwoman Brooks by one of the three Schaaf-backed candidates, there is only one Black woman on the Council.

Fortunately, the defeat of  Mayor Schaaf’s major ally on the Council – Councilmember Abel Guillen – by community-backed challenger Nikki Fortunato Bas maintains the same number of women on the Council.

Desley Brooks Is the Exception to the Rule

Despite Desley Brooks’ defeat in this election, the power of incumbency generally rules the day. In 2016, despite a ballooning housing crisis and horrifying episodic accounts of police misconduct, all five (5) incumbent Councilmembers were re-elected.

Councilmember Larry Reid was first elected to the City Council in 1996. He has held the seat for 21 years.  He has served as the Chair of the Alameda County Transportation Commission and President of the Joint Powers Authority overseeing the Oakland Coliseum. Under his stewardship, East Oakland is facing an economic crisis fueled by the loss of both the Warriors and the Raiders. Indeed, East Oakland is trapped in a morass of potholes, illegal dumping and economic stagnation. The prolonged construction of the BRT line through the heart of East Oakland has accelerated displacement of longtime residents and destroyed small businesses.

Of course, Reid and District 4 Supervisor Nate Miley both endorsed and supported Mayor Schaaf’s re-election. Why not – look at how much she has done for East Oakland!

Incumbents Are the Rule

Sept. 9, 2016. (AP Photo/Terry Chea)

In 2018, all of the incumbent Board of Supervisors supported District Attorney Nancy O’Malley’s re-election. They helped her in spite of her horrible record of racial bias and unwavering support for police murders and misconduct.

O’Malley was also endorsed and aided by the Alameda County Democratic Party. Yet, her policies, practices and allegiances are clearly against our democratic values.

Look at our political structure in Alameda County.  Most of the Board of Supervisors are long-term incumbents:

Keith Carson    Elected 1992 – 26 years in position

Scott Haggerty Elected 1996 – 22 years in position

Nate Miley  Elected 2000 – 18 years in position

Wilma Chan  Elected 1994 – 2000, 2010 -present – 14 years in position

Richard Valle  Elected 2012 – 6 years in position

Women are the majority in Alameda County but we only have 1 woman on our Board of Supervisors. By comparison, both Contra Costa and San Francisco have a female majority on the County Board of Supervisors.

In Alameda County, as in most places, the power of incumbency “trumps” any commitment to your constituents. It often compels you to support the status quo without regard to the needs of the community. If you are in the boat, you do not want to be the one to rock the boat. So you sit silently by, even when the boat repeatedly crashes against the hard rocks of the shore.

Too many of our elected incumbents sit by silently while lives are lost, families are destroyed and communities are displaced. Because you see, their elections do not rest on the power of the people – their elections are assured by the power of incumbency.

Why I’m Running For DA

My friends’ first question is not why am I running for DA. The first question is “have you lost your mind?”  No, I have not lost my mind.  I know who I am and I know why I’m running.  So here it is.

No Police Accountability

Exhibit ACourt-Appointed-Investigators-Report-on-City-of Oakland’s Response to Allegations of Officer Sexual Misconduct.  This scathing report exposes the total lack of accountability we have in Alameda County for police misconduct. It is particularly disturbing because OPD is under a consent decree that requires the Criminal Investigation Division (CID) Commander to inform the DA of possible criminal conduct by officers. Yet, neither the City Attorney nor the District Attorney have taken any responsibility to enforce this provision of the Consent Decree. This persistent problem has cost our City millions of dollars.

Our DA says she had no knowledge of the investigation of police sexual exploitation going on right under her nose. The Court’s report verifies this claim. Nancy O’Malley had no idea that sex trafficking by the police was happening in Alameda County. It has been reported that two investigators in her office were part of the problem. She says she was completely unaware of the ongoing investigation until she read about it in the newspaper. To me, that is a gross dereliction of duty on her part.

When Officer Brendan O’Brien killed himself in September 2015 and left a note, he was still under suspicion of killing his wife. The question is why the DA did not ask “what’s in the suicide note?

Courtesy: Josh Edelson/AFP/Getty Images

The Court report leaves no doubt that various members of OPD, certainly including former Chief Sean Whent, the Internal Affairs Division and CID Commanders engaged in obstruction of justice. When asked if she intended to investigate anyone for obstruction of justice, DA O’Malley said flatly “no.” Surely, this is why OPD felt completely comfortable covering up these crimes. There simply is no history of accountability for police officers in Alameda County.

“Is this because I was little?”

The Court finds that OPD did not properly investigate because of “an implicit but evident bias against the victim.” The report says “put simply, CID and IAD wrote off this victim.” Regrettably, I observed a similar bias in the DA’s response. While our County’s female leaders did not come right out and blame the victim, no one acted like they gave a damn about Jasmine. It was as if her exploitation was not taken seriously. Ultimately, the DA left Jasmine to languish in a Florida jail for 17 days.

Sept. 9, 2016. (AP Photo/Terry Chea)

When DA O’Malley famously announced “I would charge these officers but I don’t have a witness,” Jasmine was facing a felony and 15 years in prison. She was tricked into going to Florida in the first place by the Richmond Police Department.

The fact is the Richmond police sent DA O’Malley’s star witness across the country. Richmond PD placed Jasmine in a situation where she was held against her will, assaulted and arrested because she wanted to come home.  If I were the DA, I would absolutely demand a thorough investigation of possible witness tampering. I would absolutely do everything in my power to hold whomever sent my witness to Florida accountable. More importantly, I would do everything in my power to bring her home. The same bias that OPD exhibited was obvious in the DA’s response to Jasmine’s incarceration in Florida – they wrote her off.

No Criminal Justice Reform

In 2014, Proposition 47 passed in Alameda County by almost 74% of the voters. We recognize that we cannot solve our problems by locking everyone up. DA O’Malley vigorously opposed Proposition 47.  She called it “a frightening fraud with irrevocable and far-reaching consequences.” How can we expect her to implement legislation she considers “a frightening fraud?”

In 2012, California voters passed realignment legislation to reduce the numbers of people in prisons and bring them home. The measure, Proposition 36, passed in Alameda County with 78.6% of the vote.  Yet, in 2016, DA O’Malley proposed to spend only $1.72 million of her $73 million budget on re-entry services.

In 2015, the DA’s office prosecuted almost 41,000 adults and 1001 juveniles.  Ninety-three percent (93%) of the adult cases reviewed for charging resulted in some type of prosecution. So, if you get arrested in Alameda County, there is a 93% chance that you will be prosecuted for something. In contrast, Homeless Court meets six times a year and helps about 300 people a year.

The vast majority of the prosecutions (59% – almost 29,000 cases) were for misdemeanor crimes. The misdemeanor numbers include thousands of women arrested for prostitution. In 2015, the Safety Net Program – a program to create a safety plan for at-risk and high-risk victims of commercial sexual exploitation – only reviewed 83 cases.

The New Jim Crow in Alameda County

In 2015, almost 1500 juvenile cases were presented to the DA. Of those 1,001 (67%) resulted in prosecutions. Felony arrests of African-American kids were a startling rate of 25 per 1,000 compared to 2.3 per 1,000 for White kids. Only 112 kids were referred to a restorative justice program. Only 80 kids participated in our Collaborative Mental Health Court. In 2014, Alameda was one of only 9 counties in the State where the DA only charged Black or Latino kids as adults. “The New Jim Crow” is alive and well in Alameda County.

Why We Have to Make A Change

We have got to change the picture of justice in Alameda County. The days when the DA can “talk the talk” and not “walk the walk” have to be over. As Adam Foss says, we need prosecutors who want to change lives, not ruin them. We need better public safety outcomes. Alameda County has the 4th highest homicide rate for young people (ages 10-24) in the State. Whatever she’s doing is not working.

Donald Trump and Jeff Sessions are about sending folks back to jail.  Since 2012, we have rejected that approach in Alameda County. We want to bring people home and rebuild families and restore our community. We want to end the horrendous racial divide that has infected our judicial system. We want to treat and teach our kids how to be kids. That’s how we need to spend our money – by investing in our people. We need Justice Done Right in Alameda County.

Hypocrisy in Alameda County

Credit: Alameda County Sheriff’s Dept.

Former Livermore Police Officer Daniel Black is on trial.  He is one of dozens of Bay Area police officers who allegedly abused their power to sexually exploit my former client, Jasmine.  Black admits that he had multiple sexual encounters with 19-year-old Jasmine.  He claims the sex was part of “a private relationship” with Jasmine.  Black’s alleged conduct took place in April 2016 while the Oakland Police Department was trying to cover up Jasmine’s sexual exploitation by OPD officers.

In September 2015 OPD Officer Brendan O’Brien committed suicide and left a note “naming names.”  O’Brien’s suicide exposed the commercial sex trafficking of young women by law enforcement throughout the Bay Area.  Daniel Black was not one of the men named in the note.  Apparently he was not aware of the ongoing OPD cover-up and investigation. He is accused of going to Richmond to get Jasmine in April 2016, and using food and alcohol to compensate her for having sex with him.

Felonies and Misdemeanors

Penal Code Section 266i (a)(2) provides that any person who “[b]y promises, threats, violence, or by any device or scheme, causes, induces, persuades, or encourages another person to become a prostitute” is guilty of pandering. Dan Black’s sexual exploitation of 19-year-old Jasmine was “pandering” her under the law.  The fact that someone has previously engaged in prostitution is not a defense to the charge.  Penal Code Section 266 is a felony.

Dan Black is on trial for five (5) misdemeanors.  He is charged with engaging in prostitution, engaging in lewd conduct in public and giving alcohol to a minor (under age 21).  Misdemeanor charges carry far less severe punishment than felony charges.  Misdemeanor convictions can include unsupervised probation or no jail time.  Felonies usually include some type of prison or jail time and significant restrictions of your constitutional rights, including the right to vote.  Dan Black is not charged with any felonies.  He is not charged under California’s human trafficking law.  This is very strange.

Proposition 35 – Californians Against Sexual Exploitation Act

In 2012, California voters passed Proposition 35.  The law passed by a huge margin. 81.3% of voters said yes.  Prop. 35 is intended to fight commercial sex trafficking, particularly as it affects minors.  It changed the law to include more crimes in the definition of human trafficking, increase penalties for trafficking, provide more services for victims, change evidence rules in trafficking cases, require law enforcement training in human trafficking, and expand requirements for sex offenders.  As a result of the voters, Prop. 35 includes a violation of Penal Code Section 266.

Alameda County District Attorney Nancy O’Malley was a major supporter of Prop. 35.  Yet, none of the Bay Area police officers who sexually exploited Jasmine face charges under Prop. 35.  Not a single one.  This is the worst sex scandal to ever rock Bay area police departments.  This scandal cost Oakland 3 police chiefs in nine days.  These crimes will cost the City of Oakland and the County of Alameda millions of dollars.  Yet, none of the police officers charged in Alameda County are facing sex trafficking charges.  Not a single one.  It is as if Prop. 35 does not even exist.

Prosecutorial Discretion and Overcharging Crimes

What makes this situation even more bizarre is that prosecutors routinely overcharge defendants.  The practice of overcharging has become one of the hallmarks of our criminal justice system – a way to ensure that the system can actually function.  The only way the Courts can handle the number of cases charged by prosecutors is by getting plea bargains.  If every criminal defendant insisted on going to trial and refused to “take a deal”, the system would totally collapse.

In his book Why Innocent People Plead Guilty, Jed S. Rakoff writes that “our criminal justice system is almost exclusively a system of plea bargaining, negotiated behind closed doors and with no judicial oversight. The outcome is very largely determined by the prosecutor alone.”

There are no written regulations controlling the prosecutor’s exercise of his charging power in California or anywhere else in the United States.  There is no established or meaningful process for appealing the prosecutor’s exercise of his charging power. The result is that an estimated 95% of all criminal cases end with a plea bargain.

Credit: New York Review of Books

Jed Rakoff cites the case of Brian Banks from Long Beach, California.  Banks, who had been a high school football star with a scholarship to USC at the time of his arrest, served five years in prison for rape and kidnapping charges.  Brian did not actually commit the crime.

 

Brian Banks accepted a plea bargain under the advisement of his original lawyer.  He was freed in 2012 through the efforts of the Innocence Project.

Comparing Brian Banks’ case to Daniel Black’s case may seem like comparing apples to oranges.  But the real difference is that Brian Banks was charged and convicted of a crime he did not commit, while Dan Black is not charged at all with crimes he admits he committed.  Is this a case of “white privilege” or “badge privilege?”  Something is definitely wrong with this picture.  The artist in Alameda County is our District Attorney.

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