DA backs away from policy to halt informal talks with public defenders

Judge says office can’t limit time or place for informal discussions

Hours after receiving a letter from the county’s chief public defender that said she “overstepped” her authority — with an appeals court ruling to back it up — Alameda County District Attorney Nancy O’Malley withdrew her policy halting informal discussions between county prosecutors and public defenders, according to emails obtained by this newspaper.

O’Malley’s policy change is the latest move in a back-and-forth that has essentially pitted the entire Alameda County DA and public defender’s offices against one another. It started this month when assistant public defender Richard Foxall filed a failed motion to recuse the DA’s office from a murder case. The motion argued that misconduct was so rampant in the office the defendant, Shawn Martin, couldn’t receive a fair trial.

The short-lived policy instructed O’Malley’s deputy district attorneys to not engage in informal talks with public defenders outside of a courtroom, without a judge and court reporter present. It was widely taken as a response to Foxall’s motion, which a Superior Court judge struck down last week.

But days after the policy was enacted, Chief Public Defender Brendon Woods wrote O’Malley a letter telling her that “you may have overstepped your authority as District Attorney.” Woods cited a 1988 appeals court case that ruled on a near-identical issue in Orange County, when the county district attorney sought to impose a similar policy.

“May the prosecution dictate the place and manner in which court-supervised settlement negotiations take place? Under the separation of powers doctrine, we hold it may not: It is the responsibility of the judicial branch to manage the processing of cases under the guidance of the Constitution, the Legislature, and the Judicial Council,” Fourth District Appellate Court justices wrote in the 1988 case.

The same day he wrote the letter, Woods wrote an email to his staff that said O’Malley had notified him the policy was rescinded. The email adds, “we have also agreed to sit down and discuss some of the issues we are facing.”

Asked for comment on the motion, O’Malley

issued a written statement saying only that she was pleased Foxall’s motion failed. Woods issued a written statement through a spokesman saying he was pleased O’Malley’s policy hadn’t lasted long.

“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,” Woods wrote.

Foxall’s motion cited several examples where appellate court justices either noted that an Alameda County prosecutor had made an error or reversed a conviction based on a prosecutor’s words or actions. Foxall wrote that from a “short review,” he found 20 examples where a county prosecutor had committed “misconduct,” six of whom were cited for it multiple times.

O’Malley announced her policy days later in a letter to Woods. While she didn’t specifically cite Foxall’s motion, O’Malley said she was responding to “false and misleading accusations

against my Office, which has a great reputation,” and that those accusations “have created a hostile and unworkable relationship with the Public Defender’s Office.”

On Friday, Superior Court Judge Allan Hymer denied Foxall’s motion, saying in court that it appeared to be “engendered out of frustration” and that there was no evidence the deputy district attorney assigned to prosecutor Martin had ever committed misconduct.