Marin DA's office in turmoil amid lawsuits, staff attrition, case backlog

Two former employees have filed discrimination lawsuits against the Marin County District Attorney's Office, bringing more turmoil to an organization beset by serious staff attrition and a relentless case backlog exacerbated by the pandemic.

The lawsuits against District Attorney Lori Frugoli and key staffers could cost millions of dollars in damages or settlements. They also pose a time-consuming distraction for an office that is too overwhelmed to respond to document requests or resolve cases efficiently, according to defense lawyers.

"These lawsuits are sad to see," said Douglas Horngrad, a prominent defense attorney in Marin. "With the en masse deputy district attorney departures, many years of institutional knowledge has been lost. This has caused further court dysfunction occasioned by coronavirus, and created a perfect storm."

"This has all been very bad for the administration of justice in Marin County," he said. "It's poisonous for DA morale, unsettling for the defendants, challenging for the bench and frustrating for the defense bar."

One of the lawsuits is from Cameron Jones, a prosecutor who was hired last year and fired in June. The suit alleges that Jones, who was one of the few Black lawyers at the office, was singled out for a negative employment review because he raised concerns about "officewide concerns of structural issues, COVID-19 setbacks and unprecedented backlog of jury trials."

Jones, who was assigned to the misdemeanor team, alleges his immediate supervisor was overwhelmed with her own work and unavailable for guidance with his cases. He said the supervisor, after disagreeing with Jones on a case decision, told Frugoli and another top manager he could not be trusted.

The lawsuit says Jones received a bad employee evaluation, signed by Frugoli and Chief Deputy District Attorney Rosemary Slote, that was based on "defamatory hearsay statements." He said Slote did not perform such evaluations on "similarly situated teammates, who are white female attorneys."

"Defendants, and each of them, terminated Mr. Jones' employment as a preemptive effort to discredit Mr. Jones should he further inform the authorities of his discovery of a systemic failure, resulting in failure to meet prosecutorial obligations and acts of discrimination within the District Attorney's office in Marin County," the suit says.

Jones' attorney, the civil rights lawyer Charles Bonner, filed the lawsuit on Nov. 21 in federal court in San Francisco. The 53-page lawsuit alleges conspiracy to interfere with civil rights, retaliation for the exercise of free speech, wrongful termination and other violations.

The suit seeks up to $18 million in general and punitive damages.

The defendants in the lawsuit are Frugoli; Slote; Shari Goldman, who was Jones' misdemeanor supervisor before going on maternity leave; and Deputy District Attorney Tom McCallister, who took over the misdemeanor team when Goldman left.

Frugoli, in a written statement, said, "I want to make it clear to the people of Marin County that I find racism in any form to be abhorrent. I do not condone prejudice or racism on any level."

"I am unable to discuss the details of the pending lawsuit; however, I want to be clear that Equity and Diversity are at the core of our mission, and I intend to continue those efforts in the community," she wrote.

Slote received a letter from the county saying that an independent investigation conducted by an outside law firm cleared her of discrimination against Jones. The letter said the outside investigator, Sandy Fu, a lawyer with the Oppenheimer Investigations Group in Berkeley, concluded by a "preponderance of the evidence" that Slote did not give Jones a negative review or fire him because of race or gender.

"Mr. Jones' allegations are false," Slote said. "Mr. Jones was a probationary employee and I submitted a fair and complete performance evaluation of his work which considered serious complaints about his job performance by several of his DA colleagues and our justice partners."

Goldman, who left this year to work for a San Francisco law firm, did not respond to a request for comment. Neither did McCallister.

'Widely-known bias'

The other lawsuit was filed by Amy Nagy, a former investigator for the office. She alleges that a supervisor, Jonathan Madarang, subjected her to "numerous demeaning, sexist, discriminatory and harassing references," including calling her "an idiot."

Nagy, a former Novato police officer then known by her maiden name Yardley, also alleges that Madarang twice passed her over for an assignment at the Northern California Computer Crimes Task Force. Instead, he promoted male investigators who were far less qualified, she said.

Nagy alleges she raised her concerns with Frugoli and the district attorney did nothing. Nagy also alleges that Frugoli has a "widely-known bias" against working mothers in the office and said pregnant staffers could not do as much work. At the time of the alleged remark, Nagy, unbeknownst to Frugoli, was pregnant.

"During Frugoli's time in office, at least eight female attorneys have resigned from the District Attorney's office in just the last two years, numbers far greater than would occur with normal turnover," the lawsuit alleges. "Numerous of them have raised internal complaints with Marin about gender and pregnancy discrimination."

"This has deprived the District Attorney's Office, and the residents of Marin County, of the services of skills of numerous talented, highly-capable female attorneys," the suit says.

Nagy submitted her resignation in September after about five years at the DA's office. She left in October.

The 49-page lawsuit was filed in Marin County Superior Court on Nov. 14. It alleges pregnancy discrimination, workplace harassment, failure to prevent discrimination and other violations. The suit seeks unspecified damages.

"I take these cases seriously," Frugoli said. "Upon learning of the allegations immediate remedial action was taken."

Frugoli said she could not comment further on Madarang's employment status or whether an investigation was ordered into Nagy's allegations. She said it was a confidential personnel matter.

Madarang did not respond to a request for comment.

Nagy's lawyer, Jon King, has also filed a brief in federal court in San Francisco, where Marin County recently filed a motion trying to get a consent decree lifted in a 1980 discrimination lawsuit by the Marin chapter of the National Organization for Women. The decree calls for the county to increase its number of women employees, and the county says it has fulfilled its goal.

The Nagy lawsuit shows the county's "victory lap for its treatment of women in the workforce" is unwarranted, King wrote in his brief.

The county, citing employee confidential laws, denied a public records request by the Independent Journal for the investigative report on Jones' allegations and for the performance reviews on Jones and Nagy.

Marin County Counsel Brian Washington said county lawyers will represent the lawsuit defendants "as long as they acted within the scope of their duties."

"That determination will be made shortly after the litigation is officially served and initiated," he said.

'Flood tide'

The lawsuits arrive as Frugoli prepares to start her second term on Jan. 2. After narrowly winning election in 2018, she ran unopposed this year. Her next term has been extended from four years to six under a new state law that shifted the election cycle for county officials.

Frugoli's first term, which started in January 2019, coincided with extraordinary pressures on the criminal justice system. The political climate was moving toward more leniency in criminal cases, prompting legislative reforms and litigation for revised sentences. The pandemic hit in March 2020, causing scheduling upheaval and bogging down the flow of cases in court. George Floyd was killed by a Minneapolis police officer in May 2020, setting off widespread protests and demands for social justice.

"I've never seen the criminal justice system under so much pressure from external factors," said Charles Dresow, a defense attorney in Marin. "It's very challenging for the criminal justice system to catch up. New cases keep coming in. It's a system at flood tide, and the levee's getting ready to break."

At the same time, the Marin County District Attorney's Office has been losing experienced prosecutors at an exceptional clip.

Seven prosecutors have departed so far this year and four left last year, according to the county's employment department. None was of retirement age. Many have gone to work for other law enforcement agencies such as the state Office of the Attorney General, the state Department of Justice and the San Francisco Police Department.

By comparison, for the nine-year period from 2012 to 2020, the office lost 16 prosecutors at a rate of one to three per year, and several of those were normal retirements.

The office has a budgeted staff of about 80 people, including about 30 prosecutors, and annual expenses of about $18 million, according to a county budget report. The office is recruiting for five prosecutor openings, Frugoli said.

The 2022-24 "budget workplan" for Frugoli's office includes initiatives on discrimination, hate crimes, equity and "cultural competency."

Several prosecutors who left in the last two years did not respond to requests for comment or declined to speak on the record. However, defense attorneys describe a climate where prosecutors are so overworked and backlogged that it has become nearly impossible to get timely reports or plea decisions.

As the cases drag on, defendants have unresolved charges hanging over their heads, victims get no closure and court calendars remain stuffed.

Referrals and filings

In the three years before the pandemic, the DA's office received about 7,600 to 8,600 referrals a year from law enforcement agencies seeking charges. The numbers dropped to 6,875 in 2020 and 6,847 last year. This year, the office is on pace for about 7,300 referrals.

Of those referrals, the office filed about 3,600 to 4,100 cases a year in the three years before the pandemic. Filings fell to 2,960 in 2020 and 3,048 last year. The office is on pace for more than 3,200 filings this year.

Most of the cases are misdemeanors, but even misdemeanors require hours of investigation, research and negotiation.

Morgan Daly, a Marin lawyer who represents defendants and crime victims, said the talent drain at the DA's office means fewer experienced deputy district attorneys with the discretion to make reasonable deals. She said the deficiency is a burden on defendants, victims, the courts and the taxpayers.

"One might assume that the turmoil within the DA's office is a windfall for the defense," Daly said. "The efficient administration of justice requires that attorneys on both sides of the aisle assess the merits of a case and are able explore opportunities for settlement that are in the best interests of defendants and victims alike."

"Cases are constantly being reassigned within the DA's office due to staffing issues," she said. "Misdemeanor DDAs are in back-to-back trials and spread too thin to address all the cases assigned to them. Even when dealing with the DDA assigned to a case, decisions often have to be up the chain of command to a supervisor who may know little about the case and doesn't spend time in the courtroom."

Marin County Public Defender David Sutton said staffing problems are not isolated to the district attorney's office. He said his office is interviewing for two positions and recently had as many as four attorney vacancies.

Sutton said some lawyers have struggled adapting to the pandemic or wish to leave criminal law or take jobs at other offices.

"Obviously when you're short-staffed it affects caseloads and case management and burnout," he said.

Frugoli said the problem goes beyond Marin County.

"Our office, like many DA's offices across the state, has lost many experienced prosecutors during and after the pandemic," she said in a written statement. "Cases require significantly more time to review and prepare than they did in the past and we take our responsibilities seriously. Statewide, the staffing shortage of prosecutors has gotten so dire that one California DA's office recently put out a call for volunteers from other counties to help them with jury trials."

"The shortage is not just due to the so-called 'great resignation,' but that is definitely a part of the picture," she wrote. "We are working with the County and are currently actively recruiting (and competing with other offices) for attorneys and other staff positions. During the pandemic we have had low numbers of applicants and many have turned down job offers for positions in other counties."

Dresow, the defense attorney, said involvement in the criminal courts is a "life-altering" experience and people need resolution so they can move on.

"The backlog of cases is causing a significant delay in the ability of the parties to take action to find justice," he said. "Justice delayed is justice denied — for everyone."