MARTINEZ -- A judge on Wednesday dismissed the criminal indictment against Michael Gressett, a Contra Costa prosecutor who was charged with raping a junior colleague at his Martinez condominium in a case that has scandalized the District Attorney's Office for three years.
The judge said that while he found sufficient evidence to indict Gressett, state prosecutors introduced inadmissible evidence to the grand jury and failed to offer other evidence that would have cast doubt on the credibility of Gressett's accuser -- most notably that she received a $450,000 settlement from the county and "her alleged statement that she was raped by strangers."
"These cumulative errors violated (the) defendant's right to due process under the state constitution to not be indicted in the absence of a determination of probable cause by a grand jury acting independently and impartially," retired Santa Clara County Judge Thomas Hastings wrote in his 68-page order. He dismissed the 13-count felony indictment that alleged Gressett used a gun and ice pick in the commission of a rape.
The decision was a big victory for Gressett and his attorneys, Michael Kotin and Daniel Russo, who have contended since Gressett's 2008 arrest that the sex was consensual. They argued last month that the grand jury heard perjured and biased testimony and that Gressett, a former candidate for district attorney, had been railroaded by a politically motivated investigation.
The defense now awaits word on whether the state Attorney General's Office will re-file charges or seek an indictment from another grand jury. The state could do that at any time, said attorney general spokeswoman Lynda Gledhill, and also has 60 days to appeal Hastings' dismissal order.
"Everyone's relieved and now it's the attorney general's turn to make a decision," Russo said. "I want this to be over for my client."
Gressett, who had been scheduled to go to trial Feb. 14, is not commenting about the dismissal, Russo said. The 54-year-old veteran prosecutor and divorced father was facing life in prison had he been convicted in the case that divided the DA's office and was a central issue during last year's district attorney's race. He has been on paid administrative leave since February, when he won back his job with back pay and benefits at an arbitrator's hearing over his firing.
State prosecutors had told Hastings that they did not know about Gressett's accuser's $450,000 settlement with Contra Costa County, which coincidentally was approved by the board of supervisors the same day in October 2009 that the woman known as Jane Doe testified before the grand jury.
Former District Attorney Robert Kochly and his chief assistant, Brian Baker, had said they knew of the settlement but did not notify the state attorneys on the Gressett case.
The woman, now 32 and living out of state, testified as part of the dismissal motion in August that she filed her claim against the county in April 2009 because she believed that she was not hired as a permanent prosecutor in retaliation for reporting a sexual assault.
She said she told her supervisor that she was raped by Gressett during a lunch break May 8, 2008, but did not want to press charges at the time. The former District Attorney's Office administration has since been criticized for not taking action against Gressett until she changed her mind about pressing charges and went to Martinez police. Gressett was arrested as he walked to work in September 2008.
Contact Malaika Fraley at 925-234-1684. Follow her at Twitter.com/malaikafraley.