In his motion, Gressett's attorney, Michael Kotin, argued that Judge Carlos Ynostroza, a retired Alameda County judge, might not be able to be impartial towards Gressett because of his relationship to several witnesses in the case.
Ynostroza's daughter is a deputy district attorney in Alameda County, where Nancy O'Malley is the head district attorney.
Nancy O'Malley's brother, Dan O'Malley, is a candidate for district attorney in Contra Costa County and his wife, Mary Ann O'Malley, is the presiding judge in Contra Costa County. They are also both potential witnesses in the case.
The defense is arguing that it would be improper for Ynostroza to rule over any issues involving anyone in the O'Malley family because his daughter works for Nancy O'Malley.
The defense has subpoenaed Dan and Nancy O'Malley's phone records because they believe they could provide evidence proving that Gressett is innocent of the charges against him.
According to the motion, Ynostroza also has a second conflict of interest involving the alleged victim's father, who worked in the Alameda County Public Defender's office while Ynostroza was on the bench in Alameda County.
The alleged victim's father will also be called as a witness in the case.
When the case against Gressett was originally filed, the presiding judge at the time ruled that all judicial officers in Contra Costa County should be recused from the case.
Ynostroza, however, later allegedly sought advice from Mary Ann O'Malley about the case, which the defense has argued is improper.
The motion further alleges that Ynostroza frequently sits as a judicial officer in Contra Costa County and was doing so at the time the case against Gressett was filed, which would also go against the original judge's ruling to disqualify all judicial officers in the county.
Kotin also argued that Ynostroza improperly advocated against Gressett's motion to have his former attorney Daniel Russo appointed to represent him in two memos written to the California Court of Appeal and the California Supreme Court.
Gressett has been indicted on four counts of forced sodomy, four counts of sexual penetration by force, two counts of forcible rape, one count of forced oral copulation, one count of false imprisonment and one count of criminal threats against the victim during a lunch break at his Martinez home on May 8, 2008.
The indictment also charges Gressett with numerous enhancements, including allegations that he used an ice pick and a handgun and tied or bound the alleged victim during the assault.
