Metropolitan News-Enterprise


Wednesday, August 26, 2009


Page 1


C.A. Reverses Disqualification of D.A. in Ex-Officer Prosecution




An Alameda Superior Court judge abused his discretion by disqualifying the entire District Attorney’s Office from prosecuting a former police officer solely because an employee of the office was prepared to testify to prior bad acts by the defendant, the First District Court of Appeal has ruled.

In a July 31 ruling, certified yesterday for publication, the court said Judge Michael Gaffey failed to consider less restrictive measures before ruling that the case of former San Leandro Patrol Officer Greg Cannedy had to be handed off to the attorney general.

Cannedy was accused in October 2006 of unlawfully detaining and inappropriately touching two women while on the job. The district attorney charged him in a March 2007 information with two counts of false imprisonment by violence and single counts of sexual battery by restraint, attempted sexual battery by restraint, and sexual battery.

Disqualification Motion

Defense attorney Michael Rains moved to disqualify the District Attorney’s Office based on the potential testimony of a stenographer in the office’s Hayward branch. The woman was prepared to testify that Cannedy—a onetime liaison between San Leandro police and the prosecutor’s office—had followed her home after a chance meeting at a local sports bar a few years earlier, pushed himself into her apartment after she answered the door, and started to kiss and touch her before she pushed him away and he apologized and left.

She said she told two co-workers, one of whom was her sister, of the incident but did not report it at the time because it would create an awkward situation at work and put her in a difficult position as the accuser of a police officer.

In moving to disqualify, the defense argued that because one of its own employees was going to testify, prosecutors were not fairly evaluating the credibility of the woman or the strength of the case.

Prior Contact

The defense also cited the fact that the defendant had prior contact, in the context of his work, with the deputy district attorney assigned to the case. Prosecutors responded that there was no basis for recusal because the victims had no relationship to the office, the conduct against the employee was beyond the statute of limitations, and that arrangements had already been to ensure that the employee was “walled off from the case.”

Gaffey, granting the motion, expressed concern that if the stenographer were to testify, other employees of the office might be called to impeach her credibility, putting the trial prosecutor in the awkward position of having to “vouch” as to which of its employees were credible.

Justice Patricia Sepulveda, writing for Div. Four, said Gaffey was speculating and that he employed an incorrect legal standard.

‘Extreme Step’

To disqualify an entire prosecutor’s office under Penal Code Sec. 1424, the justice explained, the defense must show that fair treatment by that office is unlikely; the mere potential for unfairness is not sufficient. “Recusal of an entire district attorney’s office is an extreme step,” she wrote.

Previous cases, she added, have specifically held that the fact that district attorney personnel may testify is not sufficient to require that an entire office be disqualified.

“Taken to its logical conclusion, if the trial court’s general reasoning were correct in this regard, the district attorney’s office would have to be recused whenever a potential witness was an employee, as credibility of witnesses is always an issue that the district attorney may have to argue,” Sepulveda wrote. “That is simply not what the statute, or settled case law, indicates.”

The jurist went on to note that Alameda County has a large district attorney’s office, with 11 branches and more than 150 deputy district attorneys, making it unlikely that a particular case would be prosecuted unfairly merely because an employee was a witness or a particular deputy knew the defendant.

Contrary to the judge’s conclusion that there were no alternatives, she added, Gaffey should have considered ordering that the case be transferred to another branch office or that further “walling-off” measures be undertaken.

The case is People v. Cannedy, A120293.


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