Tuesday, February 8, 2011

BREAKING NEWS: CoCo DA Ordered to Rehire Accused Prosecutor

By John Geluardi
Tue, Feb 8, 2011 at 2:06 PM

An independent arbitrator has ordered Contra Costa County to rehire former Deputy District Attorney Michael Gressett, who was fired in 2009 following questionable claims that he raped a co-worker during a lunch break.

Arbitrator Norman Brand heard ten days of testimony last year in the case and released a 26-page ruling on Tuesday morning. In the ruling, Gressett is to be immediately reinstated with full back pay and receive retroactive payment for retirement benefits. He also is to be reimbursed for medical insurance he paid for since he was fired 17 months ago. In the ruling Brand heavily criticized the alleged victim in the case as well as former District Attorney Bob Kochly, his administrative staff, and criminal defense attorney Dan O’Malley, who was a candidate for district attorney in the 2010 election.

Brand wrote that the alleged victim, known as “Jane Doe,” cast doubt on the rape allegations against Gressett when she failed to show up at his arbitration hearing despite repeatedly agreeing to testify. He further wrote that there is reason to believe Jane Doe was untruthful when she claimed Gressett violently raped her at his Martinez condominium in May 2008.

Brand writes that Jane Doe was a contract prosecutor at the time of the alleged rape and was aware she was not a strong candidate for a permanent job. He further suggested she may have used the rape allegations as a way of negotiating a permanent job with former District Attorney Kochly. When Kochly ultimately did not give her a permanent job, she filed a complaint against the county based on the rape and was secretly awarded $450,000. The county did not notify the grand jury of the settlement nor was it disclosed to Brand during arbitration. Such a large pay off, Brand wrote, cast serious doubts on Jane Doe’s grand jury testimony and her various accountings of the rape to investigators, which were rife with conflicting details.

“The stories Jane Doe told to different people are significantly inconsistent, they conflict with direct testimony, and they are not supported by the documentary evidence,” Brand wrote in his decision. “Moreover, Jane Doe had — as the DA knew — a strong motivation to lie.”

In a stunning rebuke of Kochly, Brand said the former DA and his administrative staff did not think Jane Doe’s allegations were credible, but may have pursued charges against Gressett for political reasons. Gressett had run for district attorney several times in the past, including in 2002 when he ran against Kochly.

There was a more than four-month lag time between Jane Doe’s reporting of the rape and Gressett’s arrest. Kochly has never explained why he initially took no action against Gressett. But now that silence has apparently spoken volumes to Brand. Based on Kochly’s arbitration testimony, Brand wrote the former DA “feared the political as well as the litigation consequences.” And that “Mr. Kochly’s fears, expressed by him and his subordinates, demonstrate how Jane Doe’s story of rape got her special consideration for hiring. His complete inaction also demonstrates he lacked conviction that Jane Doe was telling the truth.”

Brand further wrote that the DA’s investigation into the sexual assault was deeply flawed and seemed designed to arrive at a pre-determined conclusion. “The DA’s investigation into the allegations against (Gressett) was directed only toward finding evidence to support the charges. Exculpatory evidence was ignored; contradictions in testimony were not explored; the law enforcement protocol for handling cases involving a prosecutorial agency was not followed.”

Brand also criticized Dan O’Malley a well-connected criminal defense attorney who ran for DA in 2010. O’Malley is the son of former District Attorney Bill O’Malley and was Kochly’s chosen successor. But O’Malley’s name kept coming up in the charges against Gressett. For example, Jane Doe never reported the alleged rape to police or her superiors at the DA’s Office. Instead, she hired O’Malley’s partner Tom McKenna, an attorney who is mostly known for defending drunk drivers. Later, O’Malley’s new law partner, Tom O’Connor, made a deal with prostitute Jessie Deguzman to testify at arbitration that Gressett offered her money for sex. In exchange, O’Malley’s partner saw that her boyfriend, a violent criminal named Roy Gordon, was released from jail under questionable circumstances. Gordon was subsequently arrested in relation to a home invasion robbery and Deguzman later recanted the claim, refused to testify at the arbitration and apologized publicly to Gressett.

While the ruling is good news for Gressett, the California Attorney General's Office is still prosecuting him for thirteen counts of rape based on Jane Doe’s questionable claims. Deputy Attorney General Peter Flores is heading up the case against Gressett, but the Express was unable to immediately reach him for comment. Last week, prior to the release of Brand’s ruling, Flores said the case against Gressett was still moving forward.

Newly elected District Attorney Mark Peterson has recused the DA’s Office from participating in the case and in a letter dated January 21, criticized Flores for using county prosecutors to investigate a rape case that they may well be called on to testify in. He also suggested he seek the phone records of some members of Kochly’s staff to determine if there is exculpatory information that may help exonerate Gressett.

Contacted at his home, Gressett would only say: “It’s still not my turn to talk yet.”

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