A Troubled Rape Case 

The high-profile rape charges against Deputy District Attorney Michael Gressett are tainted by questionable facts, unorthodox prosecutorial conduct, and the unmistakable whiff of politics.

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A forensics team recovered Jane Doe's DNA from the handle of an ice pick in Gressett's condominium and on handcuffs in his bedside table. Authorities confiscated about 200 tablets of Viagra, a small amount of marijuana, and several guns that Gressett kept in his condominium, most of which belonged to his father.

Daniel Russo, Gressett's lead attorney, said the lack of evidence in the case is so significant that charges should never have been brought against his client. "These prosecutors simply are not grounded in reality," he said. "A careful reading of the statements, police reports, and the forensic evidence shows that this case is a complete fraud. If Michael Gressett was a tattooed, sex-registered felon, they would not have filed this case. They just wanted to destroy him."

Jane Doe took an unusual route when she decided to report the alleged rape. She did not go to the police directly. Nor did she go to her or Gressett's bosses. Instead she went to a private attorney named Tom McKenna. She later told investigators that she chose McKenna because if she ever woke up next to a dead body, "Tom McKenna is my guy."

But McKenna is best known for handling drunk-driving cases and is not generally considered to be the type of attorney one would approach in such a case. However, McKenna's partner at the time was Dan O'Malley, who happens to be running for district attorney next year. And O'Malley's connections in Contra Costa County and the district attorney's office are well-established.

O'Malley is the son of former District Attorney William O'Malley and the brother of Alameda County District Attorney Nancy O'Malley. He is a former Superior Court judge and is married to the current presiding judge of the Contra Costa County Superior Court, Mary Ann O'Malley. And his connections run deep in Kochly's administration. The district attorney has officially endorsed O'Malley as his replacement in next year's election and O'Malley regularly plays golf with Assistant Chief District Attorney Paul Sequeira.

Gressett's attorneys say they suspect Jane Doe was lying when she told investigators she went directly to McKenna. They believe O'Malley was actually her go-to guy, and have subpoenaed the phone records of McKenna and O'Malley to prove it. And according to investigator's notes, during drinks with several co-workers shortly after her meeting with McKenna, Jane Doe told Deputy DA Theresa McLaughlin that she had gone to O'Malley because her father is good friends with his sister.

Jane Doe has said in her various statements that she delayed reporting the alleged assault because she thought the case would be un-winnable and because she didn't want her father to know. But investigators' notes reveal that she had dinner with her father about four hours after the alleged assault took place. Gressett's attorneys suspect that she told her father about her allegations that night and that her father, a retired Alameda County public defender, contacted Dan O'Malley, who arranged a meeting between her and McKenna. They also suspect that O'Malley contacted the DA's office behind the scenes, which they hope to prove by obtaining his phone records. O'Malley has hired an attorney to fight their subpoena.

"As far as the alleged victim, it looks like this is yet another untruth," Gressett's lawyer Cardoza said. "She can never seem to tell what actually happened. It's always a story of convenience."

Perhaps the single most troubling aspect of the case against Gressett is the way the district attorney's office reacted to the news that one of its employees had been violently raped. On May 12, 2008, four days after the alleged assault, Assistant Chief District Attorney Sequeira was notified of the accusations. Two days later, according to investigation notes, he sent Kochly a memo. But neither Kochly nor Sequeira took any more action for four and a half months, which is highly unusual given the serious nature of the allegations.

Jane Doe told investigators that she wanted Gressett fired, but did not want to file a criminal complaint. Nonetheless, Kochly should have assured the safety of his employees and the public by immediately putting Gressett on administrative leave until they found out exactly what had happened.

It is the responsibility of a district attorney to immediately report any serious incident of workplace violence to law enforcement, said W. Scott Thorpe, the chief executive officer of the California District Attorney's Association. Thorpe noted that he has no direct knowledge of the Gressett case, "but normally a report of workplace violence, depending what it is, should go directly to law enforcement."

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