Lawyer's Malicious Rape Prosecution Suit Has Bite

     (CN) - Police and county officials must face claims from a former California district attorney who said he was maliciously prosecuted for the alleged rape of a colleague, a federal judge ruled.
     While working as a deputy district attorney for Contra Costa County in 2008, Michael Gressett was arrested and indicted on charges that he raped a contract DDA when consensual sex got out of hand one afternoon in 2008.
     Gressett was charged with 12 felony counts of sexual assault and fired in 2009.
     The case against him was dismissed in 2011, however, when a judge ruled that prosecutors failed to tell a grand jury that Contra Costa paid his accuser a $450,000 settlement.
     An arbitrator ordered Gressett reinstated, finding that the evidence supported allegations that political animosity tainted his investigation.
     In a 2012 complaint, the Martinez-based lawyer noted that, at the time of the alleged rape, he had been publicly supporting a candidate for the DA's office whom the outgoing prosecutor, Robert Kochly, opposed. The DA allegedly wanted to be succeeded by Daniel O'Malley. Both Kochly and O'Malley are also named as defendants.
     Gressett said the defendants conspired to prosecute him on the false allegations to secure O'Malley's election in 2010. O'Malley then allegedly used the case against Gressett in his campaign.
     The complaint also included as defendants various individuals who contributed political and financial support to O'Malley's campaign. Gressett noted that O'Malley's sister became the district attorney for Alameda County, and that her office in turn hired the chief of the Martinez police.
     U.S. District Judge Edward Chen dismissed the defamation and malicious prosecution claims in May, ruling Gressett failed to establish a "plausible claim" that the defendants participated in a "putative conspiracy."
     On Wednesday, Chen found Gressett "adequately" pleaded malicious prosecution claims against O'Malley.
     The defendants are not entitled to qualified or absolute immunity, according to the ruling.
     "Mr. Gressett is not seeking to hold the county liable based on Mr. Kochly's prosecutorial acts; rather, he is seeking to hold the county liable because Mr. Kochly was part of a conspiracy, and the non-prosecutorial acts of his co-conspirators are attributable to him," Chen wrote. "Hence, the court cannot, at this juncture, dismiss the claims against the county."
     In denying O'Malley's motion to strike, the judge noted that Gressett adequately pleaded malicious prosecution claims against the prosecutor.
     "To the extent Mr. O'Malley suggests that Mr. Gressett should have provided at least some evidence in support of his position, the court finds that this would in effect be a motion for summary judgment, and Mr. Gressett is entitled to conduct discovery before being put to the burden of opposing such a motion," the 11-page ruling states.
     A case management conference in the lawsuit is slated for Jan. 23.
     Gressett's accuser said she had been meant to have lunch with the lawyer on the date of the attack, but that he instead drove her to his house.
     Though sex was allegedly consensual at first, the woman said she began to protest when Gressett forcefully grabbed her and penetrated her anally.
     The woman said Gressett eventually put a gun to the back of her head, handcuffed her, and used an ice pick to insert ice in her anus and vagina.
     Gressett then allegedly instructed the woman to shower, forced her to engage in oral, vaginal, and anal sex, and then returned her to the office.