DA Price may face new recusal fight in Steven Taylor case

The Alameda County DA's office may have put its prosecution of a fatal police shooting in jeopardy by posting about it online, a judge said Friday.

Attorneys in the Steven Taylor manslaughter case have been sparring since last year when Michael Rains, representing former San Leandro cop Jason Fletcher, sought to have the DA's office recused.

Fletcher shot Taylor during a call for service inside the San Leandro Walmart in 2020. He is now facing criminal and civil charges, including a $10 million lawsuit from Taylor's family.

Rains said Pamela Price spoke too strongly about the Fletcher matter during her campaign for DA for her office to be fair about the case.

Judge Thomas Reardon rejected that motion in May but, in a hearing Friday, said he is now "quite concerned" about a photograph the DA's office posted in October.

That's when the office announced it was pushing to have Rains and his law firm disqualified from the case, meaning they could no longer represent Fletcher.

The DA's office says Rains got privileged information about the Fletcher case from Butch Ford, a veteran Alameda County prosecutor who has since left the office and now works for Brooke Jenkins in San Francisco.

The DA's office later slapped Ford with a misdemeanor charge in connection with the same allegations. He has disputed any wrongdoing. The case remains pending.

Rains, too, says no information was shared inappropriately.

DA Price photo renews recusal concerns

After hearing from both sides Friday morning, Judge Reardon ruled that Rains and his firm, Rains Lucia Stern St. Phalle & Silver, could stay on the case, in part because of Fletcher's constitutional right to choose his counsel.

During the discussion, prosecutor Zachary Linowitz brought up a Facebook photograph from the DA's office that appeared prominently in a declaration by Rains.

Linowitz told the judge that the photograph, of DA Pamela Price, himself and members of the Taylor family, was "irrelevant" and should not be allowed into evidence.

"We're gonna get to that photo — because I'm quite concerned about it," Judge Reardon said, cutting him off.

Eventually, after addressing several other legal matters, the court turned its attention back to the photograph and an accompanying social media post.

Reardon first reminded Linowitz of the hearing in May 2023 where Rains had sought to have the DA's office removed. That would have put the attorney general's office in charge of the prosecution.

"It was a close decision in denying that motion," the judge told Linowitz on Friday.

Reardon noted that, while Rains had provided substantial evidence that Price had posted online about the Fletcher case during her campaign, that activity seemed to have stopped after the election.

"There wasn't anything about … 'trading on' this particular prosecution since she took office," the judge said he had determined last year.

Judge "stunned" by DA photo with Taylor family

Given that conversation, as well as case law regarding DA's office recusals, Reardon said he had been "quite concerned to see the photograph and the related posting by your boss essentially, quite frankly, making a political point about her having filed this motion and attaching to it a photograph of herself as district attorney with members of the alleged victims' family wearing commemorative T-shirts."

"Not only is your boss in the photograph but you're in the photograph," Reardon told Linowitz.

"I'm concealed by shadow but, yes, I'm in the photograph," Linowitz replied.

"Concealed by shadow — I don't know what you're talking about," Reardon said. "You're quite prominent."

Reardon said he thought everyone had been on the same page after the May hearing, but now signs pointed to "backsliding."

"It actually stunned me to see that photograph," Reardon said.

The judge said Price seemed to be "doubling down" by making public comments about the Fletcher case despite having been "on notice," due to last year's recusal motion, that she was under scrutiny.

Judge: "Does there need to be a posting?"

Reardon asked Linowitz why he shouldn't reconsider the Rains recusal motion in light of the social media post.

Linowitz argued that Rains' alleged conduct had been the "intervening circumstance" that prompted the post.

"Does there need to be a posting?" Reardon asked him. "Does there really need to be a posting? Hay is being made of this."

Linowitz said Price had a right to comment on the matter, adding, "She's a political figure."

"I know she is, but at some point that must give way," Reardon said. "At some point, you wait until after you're victorious and then you make your point."

DDA Linowitz: "This is what political figures do"

Linowitz argued that the post was not about Fletcher, but about the "egregious, unethical conduct of an attorney."

"Of course the district attorney can do that," Linowitz told the judge.

"She can do a lot of things — as a matter of physics," Reardon said.

"We have an ethical obligation to amplify their voices," Linowitz said, of the Taylor family. "Ms. Price had every right to take a picture of the victim's family and the deputy district attorney on the case. This is what political figures do."

Reardon said there is a "fine line" between appropriate remarks on the campaign trail and what may become "overzealous commentary" after the election.

"The obligations once they take office are heightened," the judge said.

DA comments could prompt venue change request

Reardon also said that it's one thing for a sitting district attorney to make general comments about political issues, such as the need for more proactive crime-fighting, for example.

Raising questions about a particular case is another matter.

"Once you start to do it on the back of a particular defendant … [and] cloud that individual's ability to get a fair trial, then the court gets concerned," he said.

"You're buying yourself a motion to change venues, and those happen all the time," he added.

Reardon also noted that, historically in Alameda County, elected district attorneys have largely limited their remarks about open cases to the filing of charges.

"They understand that the idea is to let the process carry the day and unfold," he said. "Their obligation is to bring charges.… not to create a publicity storm, if you will."

Linowitz said no one had complained when Price made comments about the recent killing of Oakland Police Officer Tuan Le.

And he said SF DA Brooke Jenkins often makes "very bold comments about active cases."

Linowitz said people were only "suddenly" making an issue of the commentary "because it's Pamela Price and because it's Alameda County."

Reardon said he had been on the bench since the '90s and seen three elected district attorneys at work.

"I never saw any of them do this, or anything close to this," he said.

"I don't know if they had computers back then," Linowitz retorted. When the judge asked him to repeat the comment because he hadn't heard it, Linowitz decided to withdraw it instead.

Judge: Jason Fletcher "needs to go to trial"

While most of the discussion involved Reardon and Linowitz, the defense team also weighed in.

Attorney Michael Morguess, of Rains Lucia Stern, pushed back on the idea that the DA's office Facebook post only implicated Rains.

"It links him to the Ford case and speaks directly on the Fletcher case. This wasn't just a comment about an attorney," Morguess said. "And it strikes me as amazing that Mr. Linowitz doesn't see how smearing the attorney for the defendant affects the defendant."

Morguess urged Reardon to issue an order to put the DA recusal matter back on the table.

"You would be well within your discretion to issue that order," he said. "The attorney general maybe needs to be here."

Reardon ultimately declined to go that far.

"This matter needs to go to trial," he said, noting that it has been nearly four years since Steven Taylor was killed.

Turning to Linowitz, he added, "You and your boss have my thoughts on the tenuousness of my decision."

The attorneys agreed to return to court to proceed with trial April 15.

Reardon urged them to be ready on that date to "stop this other nonsense" and "have 12 citizens of this community resolve this matter."

Reardon also urged the lawyers to dial back the rhetoric and focus on moving forward.

"Everybody thinks this is unprecedented. That's what they told me in May," he said from the bench. "The outrage is substantial."

Mike Rains said little during the hearing, letting colleagues Morguess and Julia Fox take the lead.

Before leaving, however, he did tell the court that he now plans to renew his request to have the Alameda County DA's office recused from the Fletcher case.

Alameda DA’s office recused by judge from Butch Ford case

The judge said DA Price’s “overarching comments” about the case had been “outside the realm of what is normal in a criminal proceeding.”

The Berkeley ScannerEmilie Raguso

Entire DA's offices are rarely recused from criminal cases because the legal bar to justify that decision is a high one.

But it's already happened once in Alameda County this year — and for the first time anyone could remember.

On Jan. 3, a different Alameda County Superior Court judge issued a recusal order in the Butch Ford case, saying DA Price's comments about it had been "outside the realm of what is normal in a criminal proceeding."

The DA's office has appealed that decision and the matter remains under review.

How are the Butch Ford and Jason Fletcher cases related?

The Ford and Fletcher cases have become somewhat interwoven in the past year because Rains used a declaration from Ford in his effort to have the DA's office recused in May; the DA's misdemeanor case against Ford, which was filed in July, hinges on that declaration.

Here's how it came about.

In January of last year, Ford had a conversation with then-colleague Kwixuan Maloof about the Fletcher case. Maloof had just come into the DA's office with the Price transition team and, at the time, headed the unit in charge of the Fletcher prosecution.

A short time later, Price put Ford and a handful of his colleagues on administrative leave, alleging misconduct but never substantiating it, Ford has said.

Rains, whose firm represents police unions, was selected to represent the prosecutors who were put on leave.

While he was on leave, Ford filed a discrimination claim against Price and other members of her team.

Several portions of that claim, which described conversations with Maloof, were incorporated into Ford's declaration. That document was a small piece of the lengthy document Rains filed last year to have the DA's office removed from the Fletcher case.

Read more about Pamela Price on The Scanner.

The DA's office later filed a misdemeanor case against Ford, saying he committed misconduct by sharing confidential material with Rains.

Ford and Rains say there was nothing privileged about what was shared.

On Friday, Reardon was careful to steer mostly clear of the Ford case in his remarks.

"I'm certainly not going to opine on the substance of the case against Mr. Ford," he said. "That's not before me. That has its own life and legs if you will."

But he did take a moment to reflect on an element of the Ford matter: whether what he shared with Rains was protected material.

"I'm not convinced that the substance of this conversation between Mr. Ford and Mr. Maloof is work product. It doesn't seem to me to be such," Reardon said. "It certainly is a matter of some dispute as to whether or not he violated the law."