.County’s Top Cop Is a Scofflaw

DA Tom Orloff admits to regularly and illegally smoking cigars inside the main Oakland courthouse.

Alameda County District Attorney Tom Orloff has enjoyed a reputation over the years as a stand-up guy. So it was shocking when one of the best prosecutors in his office sued him last year for systematic sex discrimination. Last month, a judge threw out the case, but not before Orloff and his office’s image had been sufficiently tarnished.

Court records from the case reveal that over the years, particularly in the 1970s and ’80s, the DA’s office resembled a sort of West Coast version of Animal House, with white male prosecutors drinking regularly, swearing incessantly, making racist and sexist comments, posting pictures of scantily clad women on office walls, and feeling up female employees. And over the past fourteen years, Orloff has stood atop the office, smoking cigars in the courthouse three times a day, as if he were some fat-cat political boss, instead of the top law enforcement officer in the county.

“I think it’s shocking,” said Oakland lawyer Kathryn Dickson, who represents Assistant District Attorney Angela Backers in her sex discrimination case against Orloff. “It’s the courthouse. I mean if you walk into the courthouse or try to go there on a regular basis and start smoking, it’s a crime.”

Last week, Orloff told Full Disclosure that the revelation about his smoking in the courthouse was “embarrassing.” It’s also a misdemeanor. “To a certain extent, when I was doing that, it shined a bad light on me,” he admitted. Orloff said he never smoked in his own office, but used to do it in one of his prosecutor’s offices, and only when the window was open and the wind wasn’t blowing into the building.

However, Chief Assistant District Attorney Nancy O’Malley contradicts Orloff’s story. In a sworn deposition, O’Malley, the second-ranking prosecutor in the county and Orloff’s most significant defender in the Backers case, indicated that her boss regularly puffed on cigars in his own office in the courthouse and that she had told him about her concerns. “His office is relatively close to mine,” she explained in the deposition, “and I don’t want to breathe his cigar smoke.”

In addition, O’Malley testified that Orloff late last year approved the permanent transfer of a District Attorney’s Office employee to another office, because the woman suffered headaches and was forced to take sick time because of the cigar smoke. O’Malley also said that as of mid-December last year, when she gave her deposition, Orloff was still lighting up cigars in the courthouse at 12th and Oak streets near Lake Merritt.

In his own deposition, Orloff freely admitted that when he joined the office in the 1970s, it was like “a guy’s fraternity,” that included “quite a bit of drinking” and “was fairly raucous,” according to court records. But Deputy District Attorney Ronda Theisen testified that the office was more than just an old-boys club when she became a prosecutor in the 1980s. “I was coming there from being a Teamster on the loading docks at the Oakland Tribune,” Theisen said in her deposition, according to a summary of it in court records. “And I didn’t hear the kind of language that was very freely expressed, the sexist language, the homophobic language, the racially insensitive language, anti-Semitic language. It was like there were no censors in the DA’s office. … The DA’s office had this extraordinarily cavalier attitude towards women … there were pin ups, cheesecake photos on the walls. Men seemed to have no compunction about laying their hands on women.”

According to Orloff, the office’s culture “has changed tremendously” over the years since he was elected district attorney in 1994. That may be true, but former prosecutor Carrie Panetta, who was appointed last year to be an Alameda County Superior Court judge by Governor Arnold Schwarzenegger, testified that when she worked for Orloff from 1999 to 2007, she had concerns about the office’s continuing male-oriented culture and its impact on women. Panetta said in her deposition, according to a summary of it in court records, that she and other women were excluded from “male-only” events that provided opportunities for her male colleagues — but not female — to interact with male supervisors and managers. Panetta pointed to one of those events known as “Muster Madness” or “Muster Magic,” which essentially is a huge all-male party that includes dinner and lots of drinking and is held annually the night before the office’s mandatory meeting of all attorneys.

In addition, some current and former prosecutors testified that Orloff has a hot temper, regularly uses profanity in the office, and repeatedly referred to women in derogatory terms. Jim Anderson, the former head of the office’s death penalty team and Backers’ onetime supervisor, testified that Orloff referred to prosecutor Sandy Quist as “a bitch,” as in, “That bitch is causing grief to the troops.” Prosecutor Lisa Faria testified that after she discussed retirement benefits issues with other attorneys, Orloff phoned her and yelled at her: “What are you doing asking people about this? I should fucking let you have your fucking union and retire.” And both Panetta and Backers testified that Anderson once told them that Orloff referred to Quist as a “cunt.”

It should be noted that under Orloff, the District Attorney’s Office has earned a strong track record for convicting criminals and behaving ethically in court cases. In addition, the startling revelations that came out during the Backers case were not enough to convince Alameda County Superior Court Judge Patrick Zika that the DA had treated Backers unfairly because she is a woman.

Backers had claimed that Orloff denied her a promotion because of her gender, a charge that Orloff strongly denied. In his May 19 ruling, Zika described most of the evidence that Backers and her attorney Dickson had accumulated, including some of what has been just described, as having “little or no relevance,” and “taken as a whole, creates an exceedingly weak inference” that Orloff discriminated against Backers. In other words, just because the DA smoked cigars, rose to power in a culture of booze, racism, and sexism, continued to refer to women in derogatory terms, and turned a blind eye to all-male office events, does not mean that he denied Backers a job because of her gender.

After sifting through the evidence and conducting an extensive legal balancing test, Zika dismissed the case before it was to go to trial. He ruled that Backers could not overcome the fact that Orloff had a history of promoting women to top spots in the office, noting O’Malley’s position as second in command. The judge also pointed out that Orloff had previously promoted Backers from a deputy to her current position as assistant district attorney.

But Dickson argued that Backers, despite her sterling record as a prosecutor, had reached “the glass ceiling” in the District Attorney’s Office, and could not shatter it because of Orloff. She also said that Backers’ lawsuit has netted positive results, and that several women had received promotions since it was filed. Orloff’s senior staff, she said, now includes two women, an African American and an Asian American. Still, she indicated that Backers may appeal the judge’s decision. She argued that Zika overstepped his authority by weighing all the evidence before trial and should have allowed a jury to decide the case. “I have a strong belief that the judge made reversible errors,” she said.

To which Orloff responded: “That woman is so full of shit.”


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