Happy Ending for Horror Story Evoked by (Former) Alameda County DA

JAMES A. SHORE AND ALEXANDER J. BUKAC
Partners
Messing Adam & Jasmine, LLP

In December 2024, the Alameda Superior Court dismissed criminal charges against Alameda Police Officer Eric McKinley arising out of the 2021 in-custody death of Mario Gonzales Arenales. McKinley’s dismissal, which follows the dismissal of two other officers in October — marks the end of a frenzied and misguided effort by the office of overzealous former District Attorney Pamela Price¹ to unfairly target peace officers. 

While the case history that unfolds below could be confused with an episode from The Twilight Zone, complete with buried evidence, secret affidavits and a turncoat witness — the lessons these authors seek to underscore are far more consequential. The McKinley matter emphasizes the dangers of politically motivated prosecutions of peace officers, especially when those motivations interfere with long-standing notions of prosecutorial integrity and due process.

Case Background

On April 19, 2021, Alameda Police Officers Eric McKinley, Cameron Leahy and James Fisher responded to reports of a disturbance in an Alameda park. Officers found a disoriented Gonzales, along with several shopping baskets containing what appeared to be stolen gallon jugs of liquor. Efforts to communicate with Gonzales were unsuccessful, and a struggle ensued when Gonzales resisted arrest.

Officers ultimately placed Gonzales prone to assist restraint. Gonzales lost consciousness, stopped breathing and was pronounced dead at a hospital soon after. Hospital records noted that Gonzales’ core body temperature was in excess of 102 degrees more than an hour after his death. 

The coroner determined the primary cause of Gonzales’ death to be the toxic effects of methamphetamine combined with the effects of morbid obesity and other preexisting conditions. Following an extensive investigation by the Alameda County Sheriff’s Office, then-District Attorney Nancy O’Malley declined to file charges against any of the involved officers, McKinley, Leahy or Fisher.

When former District Attorney Pamela Price took office in January 2023, the investigation was reopened, and all three officers were charged with involuntary manslaughter in April 2024 — one day before the expiration of the statute of limitations. Price, who had made police accountability the central tenant of her campaign, ignored the coroner’s cause of death and instead chose to rely on a second autopsy conducted by a pathologist hired by attorneys for the Gonzales family, which determined the cause of death was positional asphyxia.

Leahy and Fisher Are Dismissed

Under California law, the filing of a complaint charging a felony offense is not, alone, sufficient to make a prosecution timely. Rather, a felony prosecution is “commenced” when the defendant is arraigned on the complaint or an arrest warrant is issued.  Because Price filed charges against the officers mere hours before the expiration of the three-year statute of limitations, her office was required to — but did not — secure arrest warrants within that time period to ensure the prosecution was timely. 

Inexplicably, the probable cause declaration submitted to the court by the District Attorney’s Office merely identified probable cause to “detain” rather than “arrest.” It became apparent that the prosecution was aware it had made a fatal error and clumsily sought a redo.

At the August 2, 2024, arraignment hearing, which occurred before the same judicial officer who had endorsed the probable cause declarations, the assigned deputy district attorney sought the judge’s signature on an affidavit that was described as confirming the court had found probable cause to arrest. The court flatly rejected the prosecution’s request. The defendants never learned precisely what was presented to the court because the district attorney refused to provide a copy of the affidavit to the defense despite repeated explicit requests.

With the prosecution’s filing error laid bare, counsel for Leahy filed a motion to dismiss on behalf of all the defendants, arguing that the prosecutions were barred by the statute of limitations. The people claimed, among other things, that the court’s finding of probable cause to detain was the “functional equivalent” of an arrest warrant. The court was highly skeptical of the people’s position at oral argument and, in an October decision sharply critical of the district attorney’s missteps, agreed that the charges against Leahy and Fisher were barred by the statute of limitations. As to McKinley, however, the court ruled that the charges were timely because his absence from California while on a religious mission trip to South Africa tolled the statute of limitations. With Leahy’s and Fisher’s dismissal, McKinley’s focus turned to the merits.

McKinley Puts the Pressure On

The defendants had been seeking discovery from the district attorney from the outset — and many of those requests were simply ignored. The prosecution made its first substantive discovery productions in September, which were obviously deficient. With renewed focus on an upcoming preliminary hearing, McKinley waged a sustained campaign to secure basic, constitutionally required discovery from the recalcitrant and less-than-forthright District Attorney’s Office. Through a series of increasingly troubling email exchanges and telephone calls with the assigned prosecutor, it became clear that the District Attorney’s Office was either unwilling or unable to comply with its discovery obligations — threatening McKinley’s right to a fair trial and effective assistance of counsel.

McKinley’s efforts culminated in a detailed motion (which the court granted in large part) cataloging a litany of discovery violations and ongoing misconduct on the part of the district attorney. In the midst of the briefing on that motion, McKinley discovered both that Price, in her prior capacity as a private attorney, had an attorney/client relationship with members of the Gonzales family relating to the charged incident (a clear conflict of interest), and that a key prosecution witness had turned against the prosecution. In a startling turn of events, Dr. Bennet Omalu, a private physician (portrayed by Will Smith in the movie Concussion), who performed the second autopsy on Gonzales — and who was the linchpin for the prosecution’s entire theory of guilt — sought to quash a subpoena for his testimony and announced publicly that he believed the officers should not be prosecuted. Omalu had apparently met with the District Attorney’s Office prior to filing his motion to quash and informed prosecutors that the officers had done nothing wrong and should not be prosecuted. The District Attorney’s Office failed to promptly — or ever — inform the defense of this obviously exculpatory information.

Justice Prevails

Facing major discovery problems, a severely compromised expert witness, and a looming recusal motion to disqualify the entire prosecutor’s office, the district attorney moved to dismiss the case — just days after Price was ousted from office following the November recall vote. In self-serving statements at the dismissal hearing, the District Attorney’s Office publicly cast blame on Dr. Omalu, claiming, in effect, that he had single-handedly destroyed the prosecution.

In impassioned remarks at the hearing, McKinley’s counsel, James Shore, invoked the words of Justice Robert Jackson in observing the sanctity of a prosecutor’s role and called for an end to politically motivated prosecutions in the post-Price era: “I hope that the District Attorney’s Office will reset and recommit to seeking justice in the right way, at the right time, and without improper motive.”

McKinley, Leahy and Fisher are all back at work, having been cleared of any administrative misconduct following an extensive internal affairs investigation after District Attorney O’Malley initially declined to pursue criminal charges. Price’s vision for justice has been soundly rejected by Alameda County voters, and there is hope for a more even-keeled successor. 

Shore’s invocation of Justice Jackson at the dismissal hearing resonated with the court and many in attendance: “If the prosecutor is obliged to choose his cases, it follows that he can choose his defendants. Therein is the most dangerous power of the prosecutor: that he will pick people that he thinks should get it, rather than pick cases that need to be prosecuted.”   

Jackson’s words are as discerning as they are cautionary. Politics and prosecutorial power are a dangerous combination that must be avoided.

An Important Issue on the Horizon — California Penal Code § 835a and § 196

Although Dr. Omalu was the district attorney’s expert who made headlines, the prosecution’s case was also dependent on Seth Stoughton — a use-of-force expert who gained notoriety for his participation in the George Floyd case. Mr. Stoughton’s opinions in this matter were based upon his evaluation of the officers’ conduct — not according to California law — but rather according to vague and unspecified “generally accepted police practices.” Recent (and yet undeveloped) amendments to the California Penal Code make Mr. Stoughton’s avoidance of California law noteworthy.  

Historically, Penal Code § 835a simply provided that where there is reasonable cause to suspect commission of a public offense, an officer “may use reasonable force to effect the arrest, to prevent escape or to overcome resistance.” Effective January 1, 2020, § 835a was amended to direct, among other things, that “the decision by a peace officer to use force shall be evaluated carefully and thoroughly … in order to ensure that officers use force consistent with law and agency policies” (emphasis added). The meaning of § 835a is particularly important because Penal Code § 196 was simultaneously amended to define “justifiable homicide” as including “homicide result[ing] from a peace officer’s use of force that is in compliance with Section 835a.”

It remains unclear how § 835a’s reference to compliance with “agency policies” will affect both the prosecution’s and the court’s use-of-force analysis. Had the case moved forward, the court would have been asked to decide what the authors believe to be an issue of first impression: whether compliance with Alameda Police Department policy, which McKinley, Leahy and Fisher followed to a tee — rendered Gonzales’ death per se justified pursuant to § 196.  

Officer McKinley, the Alameda POA and this firm express their gratitude for PORAC LDF’s steadfast support of McKinley’s defense.

About the Authors

James Shore and Alex Bukac are partners with the law firm Messing Adam & Jasmine LLP, representing public-sector unions and their members in labor relations. Shore, Bukac and the other attorneys at Messing Adam & Jasmine LLP are PORAC LDF panel attorneys.

¹   Pamela Price was elected Alameda County district attorney and assumed office in January 2023. She campaigned on a platform that focused on ensuring that peace officers, in particular, were held accountable. One of her first orders of business after taking office was to ensure her newly created “Public Accountability Unit” conducted a review of alleged unlawful use-of-force cases in Alameda County for which the previous