Judicial Error Lies at the Heart of Ajay Dev’s Wrongful Conviction
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- Published on Tuesday, 18 October 2016 17:24
- Written by AFA
This article has been reprinted from The Davis Vanguard.
(Editor’s note: This was written in 2013 and is republished today in the wake of this week’s oral arguments in front of the appellate court) – That Yolo County Judge Timothy Fall does not suffer fools lightly is a truth that is known throughout the Yolo County legal community and beyond. Judge Fall runs the tightest and strictest courtroom in the county, bar none, and has no problem taking to task defense attorneys and prosecutors alike when they step out of line.
But, while counsel fear making a misstep in his presence, at the same time most respect his intellect and command on the law. Long ago, he gained our respect when he tossed aside a Deputy DA’s attempt to close the courtroom to the Vanguard, arguing that freedom of the press was the hallmark of a free society.
So, I have always been troubled by the allegations and evidence that have emerged from the Ajay Dev case that Judge Fall made a series of critical errors that led to the wrongful conviction of Mr. Dev in 2009.
But all human beings have flaws, and sometimes these flaws get in the way of our better judgment. We see a hint of that in another case involving Kyle Vigil, who would be originally convicted of attempted murder and sentenced to life for his role in a Woodland drive-by shooting.
In that case, one of the jurors acknowledged to defense attorney Jeff Raven that he had conducted an experiment using a broomstick. The juror had “told jury members that he had conducted an experiment at home where he sat in his car as a passenger and had a broomstick, pretending he was shooting at a house. The juror said that after his experiment, he felt that one of the shootings was intentional and deliberate.”
Judge Timothy Fall became aware of the problem and had a hearing acknowledging that the court received the affidavits from the two jurors, “which were competent evidence.”
Judge Fall found that, in performing the broomstick experiment, Juror No. 2 committed misconduct.
Judge Fall said, “Should the juror have done it? No. That’s an easy one. This is not the type of thing that if the juror had asked ahead of time, Judge, do you mind if I do this when I go home tonight that I would have said yes. I would have said, no, you cannot. You’re told not to do those types of things.”
The judge continued, “But the question is whether it is so unusual that it becomes prejudicial, and based on all of the evidence in the case, it cannot be seen to be unusual and prejudicial in that sense.”
When Mr. Raven attempted to argue with the ruling, Mr. Fall became both indignant and dismissive of the defense counsel’s claims. Judge Fall decided that the verdict was not going to be overturned, he made his ruling, and that was that.
But the appellate court disagreed and overturned the verdict, arguing that the conduct of the juror clearly “crossed the line into misconduct.”
In a way, this was a simple error in judgment by Judge Fall in ascertaining the line between harmless error and prejudicial misconduct. But in another way, it shows a weakness in Judge Fall, in his impatience and his inability to reconsider his decisions in light of problems that may arise.
If you read the appellate brief in the Ajay Dev case, you see a similar problem – Judge Fall simply ran out of patience for resolving the translation issue, and he made a huge error – he allowed the victim to translate the contested portion of the pretext call.
When the defense objected to use of the transcription containing the alleged victim’s (AV’s) corrections, Judge Fall would overrule them with, “I’ve never had a completely accurate transcript ever on – anytime I’ve had a transcript used. I will admonish the jury appropriately as I always do… but I’m going to let [the prosecution] go ahead and use the transcript.”
As the defense would argue in this case, “The trial court abused its discretion by permitting [AV], a highly biased interpreter, to translate the portions of the pretext call spoke in Nepali.”
Citing the California Rules of Court, Rule 2.890(c)(1), “An interpreter must be impartial and unbiased and must refrain from conduct that may give an appearance of bias.”
These are not small errors. How could such a competent jurist like Judge Fall make them? The appellate brief really tells the tale – there was a long and protracted argument between the defense and prosecution over the translation. That argument focused on the interpretation of a single word – the most critical word in the entire exchange.
Prosecution, following the lead of the alleged victim, interpreted the disputed sentence as Mr. Dev acknowledging, “But you had sex with me when you were 18.” The defense contests on the other hand, his “was an impossible translation,” and the defense translator explained how the beginning sounds of what he heard are not the beginning sounds of any sexual word in Nepali.
The defense translator argues, “It was very difficult to hear this portion of the audiotape because there was a gap in the tape… Therefore, for all intents and purposes the word was unintelligible.”
That mistake is compounded by the failure of Judge Fall to properly instruct the jury by instructing them to view ambiguous statements made by the defendant on a recorded pretext call with caution.
“This is an incorrect statement of the law,” the defense argues. “Only unambiguous or undisputed recorded statements should be viewed without caution.”
In the appeal, the appellate attorney notes: “At a pre-trial hearing held on April 20, 2009, the parties’ attorneys advised the court they may be close to a stipulation regarding the discrepancies in the translations.”
However, at that point, “there remained one disputed phrase.”
Defense and prosecution at that point were willing to have the trial court appoint a court-certified Nepalese interpreter.
In response, the trial court advised counsel, “We may be able to get somebody in. I don’t know.”
Defense wrote, “The following day, the trial court indicated it had spoken with the interpreter coordinator who stated she was contacting Nepalese translators in the Bay Area, but one translator said “he is reluctant to be called into a courtroom in order to translate a document as opposed to interpreting testimony from one language back.”
Judge Fall then stated, “I don’t know that it looks good to try to get one of the court interpreters to cover this for us… Now, whether either of you can find a professional interpreting service that would send somebody in that has the credentials, I don’t know. It doesn’t look like that’s going to work for the way I was talking about.”
The defense objected and advised the trial court, “They’re mistaken. It is not interpreting a document. It is actually listening to a voice just like they would in court.”
The prosecution agreed, “It is an audiotape.”
The trial court then found, “At this point. I’m stumped, and I don’t want to try to figure out how to get the evidence on since it is not my evidence. If either of you would like to talk to Chris Vanderford, who is our interpreter coordinator, that’s fine.”
So the trial would move forward, despite the inability to reach a resolution on the translation issue.
The defense continues, “Outside the presence of the jury, the trial court then asked both counsel whether “the transcript issue is straightened out enough to where we can go forward with this part of it?”
Defense counsel would object to the use of the FBI translation with corrections from the alleged victim, arguing these corrections were inaccurate.
It was at this point that Judge Fall overruled the objection, making the argument, as stated above, “I’ve never had a completely accurate transcript ever on – anytime I’ve had a transcript used. I will admonish the jury appropriately as I always do… but I’m going to let [the prosecution] go ahead and use the transcript.”
The problem here is fairly clear. There was a legitimate disagreement over the translation. The judge worked with both sides to reach an agreement, and when the agreement was not reached, Judge Fall seemed to lose patience and put forth a solution that was patently unfair – allowing the witness, the alleged victim, a biased party, to put forth the translation, giving the jury very few tools for alternative interpretations.
The Evidence Code seems very clear that Judge Fall erred and that error might undo the entire verdict in this trial.
It is not our place here to determine what the judge should have done, but only to note that he did not do the right thing.
Based on this, we believe that the verdict will be overturned, but not after Mr. Dev will have had years in prison away from his wife and two young sons, time that he will never get back. And because of the nature of the conviction, he has not been allowed physical contact with his sons and has never been allowed to hold his youngest son, who was born after his conviction.
—David M. Greenwald reporting
Top Prosecutors Breaking the Law
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- Published on Monday, 17 August 2015 09:21
- Written by AFA
The State Attorney General in Texas and Pennsylvania are both being indicted. Texas State Attorney General, Ken Paxton is being indicted on felony securities and fraud charges. Pennsylvania State Attorney, Kathleen Kane is being indicted for leaking grand jury proceedings to the media to smear political opponents.
Click here to read The Daily Beast article.
"Kids For Cash"
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- Published on Wednesday, 05 February 2014 11:35
- Written by AFA
Democracy Now interviewed Jamie Quinn who caught up in Pennsylvania's corrupt "kids for cash" judicial system when he was 14 years old. We wrote about this story earlier but to refresh your memory, Judge Mark Ciavarella was convicted of accepting bribes for putting juveniles into detention centers operated by PA Child Care and a sister company, Western Pennsylvania Child Care.
Click here to read the interview.
Intimidation in Orange County DA Office
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- Published on Saturday, 04 April 2015 16:03
- Written by AFA
The Orange County District Attorney's Office was issued a strong condemnation from The County Bar Association for trying to intimidate a Superior Court judge. The District Attorney's Office made excessive attempts to disqualify Judge Thomas Goethals from trials. The denunciation of Tony Ruckauckas's office comes at a time when several murder cases have begun to unravel following the discovery of violations in a jailhouse informant program and the emergence of shocking allegations that county prosecutors have been obstructing justice in multiple cases for some time.
Click here to read the article.
Michael Morton An Innocent Man
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- Published on Wednesday, 18 December 2013 19:19
- Written by AFA
Michael Morton spent 25 years in prison and lost the privilege of raising his young son because the prosecutor withheld critical evidence that would have exonerated him in the murder of his wife. Unfortunately being innocent isn't enough as Michael states "Innocent people think that if you just tell the truth then you've got nothing to fear from the police, if you just stick to it that the system will work, it'll all come to light, everything will be fine."
Click here to read more about Michael Morton.
Judge Accuses Prosecutor of Perjury
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- Published on Friday, 20 February 2015 09:54
- Written by AFA
In late 2013, California Judge Alex Kozinski, a member of the 9th circuit court declared there was “an epidemic” of prosecutorial misconduct “abroad in the land,” and that, “Only judges can put a stop to it.” Now Judge Kozinski and the 9th circuit panel have suggested a prosecutor be tried for perjury. Some of the allegations against the prosecutor are:
- DDA Spira putting on the false testimony that the informant didn’t receive a deal during Baca’s first Riverside County trial.
- Spira himself lying on the stand when confronted on this question in Baca’s second Riverside County trial.
- DDA Vinegrad soliciting Spira’s false testimony
- The California Attorney General’s Office vehement attempts to keep the transcript of the informant’s subsequent sentencing, which made the existence of the actual deal clear, secret and out of the hands of the State Court of Appeals
- The California Attorney General’s Office complete failure to investigate, discipline, or bring charges against either Spira or Vinegrad for their conduct.
Click here to read more
What Happens When Prosecutors Cheat?
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- Published on Sunday, 07 April 2013 22:15
- Written by Advocates For Ajay
When ProPublica analyzed more than a decade's worth of New York state and federal court rulings, they found more than two dozen cases where city prosecutors had committed misconduct harmful enough to throw out convictions. Unfortunately prosecutors are not routinely referred for investigation due to their misconduct even though their actions cause devastating results.
Click here to read part 1 of the ProPublica story.
Click here to read part 2 of ProPublica story.
Police Authoritarianism
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- Published on Thursday, 15 January 2015 11:42
- Written by AFA
In northwest Miami, a law student was pulled over when an officer heard him playing an anti-police song on his car radio. The officer cited a non-existing noise law to issue him a ticket. Knowing the officer was wrong, Cesar Baldelmar questioned the legality of the ticket. That is when the officer wrote up a slew of other citations for him. The article goes on to question how much freedom do we really have when police and governments go too far in their use of authoritarianism.
Click here to read the story.
Case Law Favors Prosecutor in Misconduct
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- Published on Friday, 18 January 2013 16:43
- Written by Advocates For Ajay
California State Bar Judge Patricia McElroy decided not to strip the license to practice law from a prosecutor accused of professional misconduct. The Santa Clara County prosecutor claims he didn't withhold evidence on purpose. Prosecutor Benson was accused of concealing a videotape of a medical examination of the "victim" from the defense attorney until after the trial and then lying about it under oath.
Click here to read the article
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Judging the Judges
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- Published on Tuesday, 11 November 2014 12:35
- Written by AFA
There are more and more stories about judges making controversial and/or racist comments while in court or during speeches. When should these comments be considered in deciding if a judge can be impartial while on the bench or if these comments constitute judicial misconduct since the judge clearly has a bias.
The Intercept has a story on Judge Edith Smith, who has served as a judge since 1985. Over the course of her service, she has made statements such as: A sleeping lawyer isn't necessarily a bad criminal defense lawyer, there is a correlation between the decline of personal shame and bankruptcy filings and straying from religion is the cause of corruption in the legal system. None of those statements were enough to alarm legal ethicists, it was a speech given last year in which she used improper and racist comments to a group of law students that finally sparked an investigation.
Click here to read The Intercept article on Judge Edith Jones.
New Evidence Produced Days Before Planned Execution
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- Published on Tuesday, 25 September 2012 11:50
- Written by Advocates For Ajay
Former Philadelphia prosecutor Andrea Foulkes repeatedly stated she did not have evidence that would have helped the defense in the Terry Williams death penalty case. After years of appeals where she continued to deny having information that may have aided the defense, she finally testified about a note not given to the defense before saying, "It looks like notes about an interview. That is my handwriting." She continues, "Touched on privates," Foulkes said, reading from her notes. "Brought boy home and told him not to say anything. Heard from others about possible incidents." At trial the jury never heard about the sexual abuse the defendant suffered by the victim and found Terry Williams guilty of murder sentencing him to the death penalty.
Click here to read the full story.
Corrupt Philadelphia Judge
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- Published on Sunday, 05 October 2014 13:13
- Written by AFA
The FBI used an elaborate sting to catch a corrupt Philadelphia judge. Joseph Waters pleaded guilty to both mail fraud and wire fraud. This is a very interesting story you need to read to believe.
Click here to read more in The Daily News.
Judges and Attorneys Want Integrity In Legal System
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- Published on Saturday, 08 September 2012 20:58
- Written by Advocates For Ajay
In an unusual move, nearly 70 former federal judges and prosecutors filed an "amicus" legal brief backing a $602,000 award for damages to a doctor who was wrongly convicted due to prosecutorial misconduct. The award was thrown out by a federal appeals court but the group feels that in this case the damages award was appropriate.
Click here to read the full story.
Police Misconduct Goes Unpunished
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- Published on Friday, 19 September 2014 13:49
- Written by AFA
In New York each year, the Civilian Complaint Review Board investigates thousands of complaints from people who say they were shoved, choked, hit, or had guns waved in their faces by police officers. Most of these cases are just dismissed due to insufficient substantiated evidence, but in the 14% of cases where the board "substantiates" complaints, punishment is not guaranteed. The NYPD can choose to pursue an administrative trial, or it can do nothing at all.
Click here to read more.
Prosecutorial Misconduct Running Rampant
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- Published on Friday, 10 August 2012 10:46
- Written by Bill Pursell
A study done by the Chicago Tribune found that between 1963 and 1999 the courts dismissed the conviction in 381 homicide cases because prosecutors held back evidence that would prove the defendant’s innocence, or because of false testimonies. In all of these cases, not a single prosecutor was castigated for these courtroom deceits.
DA's List Of Bad Cops
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- Published on Sunday, 14 September 2014 13:45
- Written by Becky Cox
A Brady Index is a list of law enforcement officers that are still on the job but not trusted to be be good witnesses at trial. This can be due to such things as misconduct, complaints, lying, cover-ups of crimes, drug charges, and sexual battery just to name a few. These lists are supposed to be made public but in some counties they are kept secret.
To read more click here.
Study: Prosecutors Not Disciplined for Misconduct
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- Published on Monday, 30 July 2012 00:08
- Written by Brandi Grissom, The Texas Tribune
In 91 criminal cases in Texas since 2004, the courts decided that prosecutors committed misconduct, ranging from hiding evidence to making improper arguments to the jury, according to data that the Innocence Project released on March 29, 2012.
None of those prosecutors has ever been disciplined.
“It paints a bleak picture about what’s going on with accountability and prosecutors,” said Cookie Ridolfi, founder of the Northern California Innocence Project, who researched misconduct data in Texas and other states.
At a symposium on March 29, 2012, at the University of Texas at Austin, exonerees Michael Morton of Texas and John Thompson of Louisiana, along with lawyers and legal scholars, will discuss the need for increased accountability for prosecutors nationally and in Texas. The symposium is part of a national accountability campaign by the New York-based Innocence Project.
Prosecutorial misconduct has become a national issue in the wake of the high-profile exoneration cases of Thompson and Morton.
Thompson, who was convicted of murder in 1984, was freed from Louisiana’s death row after investigators found biological evidence that proved his innocence. The evidence had been concealed in the Orleans Parish district attorney’s office for 15 years. A jury awarded him $14 million — $1 million for each year he spent in prison. The U.S. Supreme Court reversed the award in a 5-4 ruling last year, deciding that the prosecutor was not liable.
Morton served nearly 25 years of a life sentence before DNA results showed last year that he was innocent. His lawyers discovered that Ken Anderson, who oversaw Morton’s case as the Williamson County prosecutor in 1987, did not turn over evidence that could have led to his acquittal.
A rare court of inquiry is scheduled to begin in September and will investigate whether Anderson committed criminal prosecutorial misconduct. Anderson has said that while he regrets that the judicial system made mistakes in Morton's case, he did nothing wrong.
“There’s no disincentive for a prosecutor to do it unless he or she has an internal moral code themselves,” Ridolfi said. In a study of California cases, her organization reported that from 1997 to 2009, courts found 707 instances of prosecutorial misconduct. There were just six instances in which prosecutors were disciplined.
As more inmates are being freed based on DNA evidence, Ridolfi said, more cases of misconduct are being identified. Although it is often the same prosecutors who repeatedly engage in misconduct, she said, the problem reflects poorly on the entire justice system.
“It’s basically bringing down the integrity of all the district attorneys’ offices,” she said.
In Texas, Ridolfi said, she found only one instance in which a prosecutor was publicly disciplined, and it took place before the time period her group studied. Terry McEachern, who prosecuted the infamous Tulia drug cases in which black defendants were convicted of drug charges concocted by a rogue investigator, received a two-year probated suspension of his law license in 2005 and a $6,225 fine.
Morton and his lawyers have said that they hope his case will prompt lawmakers and the State Bar of Texas to implement policies that hold prosecutors accountable for misconduct.
Rob Kepple, executive director of the Texas District and County Attorneys Association, said prosecutors are also discussing the issue of misconduct but have not reached a consensus about the scope of the problem or potential remedies.
State Sen. Rodney Ellis, D-Houston, said most prosecutors seek to do justice, but that when they make mistakes, there ought to be consequences.
“Society entrusts prosecutors with tremendous power in order to provide justice,” Ellis said in an email. “Yet that tremendous power cannot go unchecked, which is what seems to be the case all too often.”
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This article, written by Brandi Grissom originally appeared on March 29, 2012 in The Texas Tribune at http://trib.it/H0xY1g.
Judicial Conflict Of Interest
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- Published on Thursday, 26 June 2014 10:49
- Written by AFA
There are rules in place regarding federal judges hearing cases they have a financial conflict of interest in, regrettably that hasn't stopped them from ruling in such cases. The Center For Public Integrity found 26 cases in the past three years where federal judges had some type of financial interest in a case before them.
Click here to read the article.
Politics Corrupting Courts
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- Published on Friday, 27 July 2012 11:55
- Written by Advocates For Ajay
Judge Michael Murphy, who was appointed to the bench by New Mexico Gov. Richardson in 2006, was indicted in 2011 on bribery charges for allegedly offering political assistance for campaign contributions. He was also secretly recorded making vulgar remarks about gay people and Latinos describing himself as: "rude, crude and socially unacceptable."
Click here to read the full article.
650 Cases of Misconduct
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- Published on Saturday, 12 April 2014 22:53
- Written by AFA
According to the Project On Government Oversight, over a 12 year period, there were 650 cases of misconduct committed by federal prosecutors, judges, and other officials at the Justice Department. Between 2002 and 2013, 400 of the misconduct cases were considered "reckless" or "intentional" by OPR. In 2012, the office received over 1,000 complaints and other correspondence about Justice Department employees (over half of these complaints came from incarcerated individuals) and opened 123 inquiries and investigations.
To read the article click here.
To read the report by POGO click here.
When Judges Take Bribes
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- Published on Wednesday, 25 July 2012 10:27
- Written by Advocates For Ajay
Two judges in Pennsylvania accepted bribes to send an estimated 5,000 teenagers to private detention centers. Many were first time offenders like 17 year old Hillary Transue, an excellent student who had never been in trouble before but was sentenced to three months in a juvenile detention center. Her crime was for mocking the assistant principal of her high school.
Click here to read the full story.
