Sworn testimony by Robert Kochly, the former district attorney of Contra Costa County who is being sued by a well-known prosecutor for his role in bringing bogus rape charges in an alleged political scheme, could prove costly for taxpayers. In his testimony, Kochly comes across as a bumbling and indecisive administrator, according to court documents, and attorneys in the case say his answers to questions asked under oath lacked credibility.
Kochly is the lead defendant in a multimillion-dollar lawsuit brought by Michael Gressett, one of his former prosecutors, who claims that Kochly conspired with his top two administrators — ex-prosecutors Brian Baker and Paul Sequeira — to maliciously go after him for the 2008 alleged rape of a co-worker, Holly Harpham, then a junior prosecutor in the DA's office. Contra Costa County is also a defendant in the case.
Veteran prosecutor Gressett, 57, initially filed the federal lawsuit in 2012 shortly after a judge dismissed the criminal charges against him. In his lawsuit, Gressett alleges that Kochly and his top administrators targeted him as part of a nasty campaign tactic designed to boost the political fortunes of Kochly's chosen successor, former prosecutor and judge Dan O'Malley, and to sling mud not only at Gressett, but also at veteran prosecutor Mark Peterson, who supervised Gressett and was a candidate for DA in the 2010 election against O'Malley. Three county investigators are also named as defendants.
In his deposition, taken in April, Kochly depicts himself as a fatigued, disengaged, and indecisive leader during the largest and most lurid public scandal in the history of the DA's office. Kochly's testimony also raises questions about his lack of action when the rape allegations were first made in May 2008 and whether he knowingly withheld evidence from a criminal grand jury that a secret, and still unexplained, $450,000 payment had been made to Harpham.
The case is expected to go to trial next year. Gressett's attorney, Gary Gwilliam of the Oakland-based law firm Gwilliam, Ivary, Chiosso, Cavalli & Brewer, has deposed most of the top defendants in the case, and Kochly, 67, is perhaps the most critical because he was ultimately responsible for the actions of his prosecutors.
In Kochly's 289-page deposition, which Gressett's attorneys provided to the Express, Contra Costa County's former top prosecutor attempted to answer one of the case's most pivotal questions: Why did he wait nearly five months to arrest Gressett and begin an investigation into Harpham's claims of being raped at gunpoint in Gressett's condo? Kochly said he initially moved slowly when Harpham reported the rape to him on May 14, 2008, six days after the alleged assault, because Harpham was refusing to go to the police or give an administrative statement. Furthermore, she had hired a private attorney as a go-between with Sequeira — her supervisor and Kochly's third in command. The unusual role of Harpham's attorney, who happened to be O'Malley's law partner, made a course of action even more unclear, Kochly said, because he wasn't sure if Harpham, whose probationary contract was about to expire, was just seeking a sexual harassment claim or perhaps looking to use the rape allegations to leverage a permanent job in his office.
Kochly also said he worried about opening old political wounds from previous election campaigns. Gressett was a popular prosecutor who had run three times for the office of DA, challenging the smooth succession of prosecutors who had controlled the office for decades. Furthermore, Gressett was good friends with Peterson, his supervisor and also a former candidate for DA. "I was certainly concerned that however that came out, people were going to say, 'Oh, this is all about politics of the past,'" Kochly said in the deposition.
The case was complex, but Kochly essentially described himself as being immobilized by uncertainty despite his 35 years of experience as a prosecutor. Kochly claimed in his deposition that after two months of inaction, he decided to seek advice. He asked Southern California-based attorney Marty Mayer to write him an opinion letter advising him what his responsibilities were. "Well, I got a letter of opinion back from Marty Mayer in mid-August, I believe, that said I definitely had a duty to investigate, even if my victim was still not willing to do so voluntarily," Kochly said.
Gwilliam said Kochly's testimony about the delay is troubling and lacks credibility, because Kochly because he was such an experienced prosecutor. If Kochly had any doubts about what to do, he could have gotten advice from the county counsel. "He should have ensured the safety of the employees in his office by treating this as an administrative issue and interviewed both Gressett and Harpham immediately," Gwilliam said. "Why the hell would he sit on his ass waiting for some outside attorney who knows nothing about Contra Costa County to tell him what to do?"
Gwilliam contends there was a political motive for the inaction: Kochly, Sequeira, and Baker thought they could use the rape allegations to fire Gressett, whom they disliked, and hurt Peterson's chances in the DA's race at the same time. In the deposition, Kochly flatly denied this accusation. "That never crossed my mind," he said.
But the deposition reveals that Kochly could have difficulty convincing a jury that he tells the truth. For example, he had difficulty explaining his role in a mysterious $450,000 payment to Harpham. In April 2009, Harpham filed a Department of Fair Employment and Housing Act claim against the county. In her sparse, two-page complaint, Harpham claimed Kochly had created a hostile work environment because she was made to continue working with Gressett and that Kochly retaliated against her for reporting the alleged assault by not hiring her.
The county mediated Harpham's claim and then on October 6, 2009, the board of supervisors approved the $450,000 payment to her during a closed-session meeting. But Kochly, Baker, and Sequeira — who all had knowledge of the settlement — then failed to report the payout to the grand jury investigating the rape allegations. The withholding of that important evidence kept the grand jury in the dark about Harpham's possible motives. It also ultimately resulted in the charges against Gressett being dropped.
In his deposition, Kochly claimed that he was unaware of the settlement, even though he had testified previously that he had attended both the mediation and the supervisors meeting during which the payment was approved. "I testified that I was present at a closed session of the board of supervisors," Kochly said, "but I don't believe I ever testified that I was present when they voted to approve it." Gwilliam said that Kochly's testimony creates serious credibility problems for the county. "He had to know Harpham's payment was approved. He helped mediate the settlement, and he was at the meeting. There was simply no excuse to keep that evidence from the grand jury," Gwilliam said.
Peterson won the election and Kochly quietly, and somewhat ignominiously, retired in 2010. He is expected to give a follow-up deposition in the coming months.
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