California’s attorney general quietly decided not to independently review Alameda County District Attorney Nancy O’Malley’s clearing of two Fremont police officers who fatally shot a teenage girl in Hayward in 2017, this news organization has learned.
O’Malley came under fire last year after she accepted a $10,000 re-election campaign donation from the Fremont police union while her office was investigating Fremont officers’ role in that and another fatal shooting.
In March 2018, O’Malley said in an interview she would ask Attorney General Xavier Becerra to review her office’s investigation of the shooting that killed 16-year-old Elena Mondragon of Antioch “to remove even the slightest appearance of impropriety.”
A spokesperson for Becerra’s office said in an email last year it was conducting a review of O’Malley’s decision not to file charges against the two Fremont officers who fired the fatal shots during a covert task force operation that went awry. The officers are Sgt. Jeremy Miskella, who is the president of the Fremont police union, and Detective Joel Hernandez.
Becerra’s office isn’t reviewing the case after all.
“We subsequently declined to conduct the requested review to avoid the appearance of a conflict of interest,” the office said, explaining that California Department of Justice officers were part of the same task force — the Southern Alameda County Major Crimes Task Force — as the officers involved in the shooting.
The attorney general’s office told O’Malley of the decision to not review her case soon after her request was made, the office said. Neither Becerra nor O’Malley informed the public the review was dropped.
Becerra declined an interview request and O’Malley did not respond to a request for comment.
When asked who should review cases of local district attorneys if not the attorney general, Becerra’s spokesperson said another county district attorney could “provide independent oversight.”
John Burris, a civil rights attorney who has filed a wrongful death lawsuit against the city of Fremont on behalf of Mondragon’s family, said even if Becerra’s office did review the case, he likely would have sided with O’Malley.
“It’s a wink and blink,” Burris said Monday.
“I put no legitimate stock in (O’Malley’s) sense that she wanted an independent investigation,” he added. Her asking Becerra to review the case is like “passing the case off to your mother, your brother, or your family member,” Burris said.
“I don’t think any of (Mondragon’s) family members could realistically expect a different outcome if it was done by another local district attorney’s office or the attorney general’s office,” he added.
O’Malley’s campaign reported the $10,000 donation from the Fremont Police Association on Nov. 8, 2017. Less than a month later, on Dec. 6, her office cleared Fremont Officer James Taylor of any wrongdoing in the February 2017 fatal shooting of Nana Adomako.
And on Feb. 13, 2018, O’Malley’s office cleared Miskella and Hernandez in the killing of Mondragon.
O’Malley previously didn’t respond to inquiries about why she requested a review for the case involving Mondragon, but not Adomako.
The family of Adomako is also suing the city of Fremont over his shooting death.
In the March 14, 2017, confrontation, Miskella and Hernandez were part of an operation trying to capture Rico Tiger, who was wanted for violent armed robberies.
The two officers fired their rifles at a moving car Tiger was driving, with Mondragon and two others inside, when Tiger tried to run them over to escape, according to police. Mondragon was hit by several bullets and later died. Rico was later captured and O’Malley’s office is charging him with Mondragon’s murder.
Miskella and another officer didn’t turn on their body cameras during the operation, and Hernandez wasn’t wearing one, though it’s still unclear whether he was assigned one.
In the February 5, 2017, shooting, Taylor said he was punched repeatedly by Adomako after attempting to place him in a wrist lock. When Taylor released his police dog for assistance, the dog instead bit the officer. Taylor fired three shots in close range, killing Adomako.
The Fremont police union’s $10,000 donation was the biggest amount given by any law enforcement union to O’Malley’s 2018 campaign. The Oakland Police Officers Association donated $9,500 and the Deputy Sheriffs’ Association of Alameda County $8,500.
The union for Livermore police officers donated $2,500 and the San Leandro and Berkeley police unions gave $1,000 each.