Legally Speaking With Pamela Price

Pamela Y. Price, Attorney at Law

Tag: Nancy O’Malley

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.

Powered by WordPress & Theme by Anders Norén