Supervisor Matt Rexroad has stirred these waters before. Nearly two years ago, responding to an effort to petition his office, among other elected officials, Mr. Rexroad posted this description: “This summary was put together for me and others regarding the case of Ajay Dev.”
He then added, “The facts below are exactly why I will not be asking for an investigation into the case.”
This week, the Vanguard released a three-part series first describing and then analyzing the appeal filed in the Ajay Dev case. We have to be cautious, of course, until we see the Attorney General’s response, but as I remarked this week, there are a number of very troubling findings in the appellate brief that, at least on the surface, appear well-supported both in fact and in law.
Mr. Rexroad is certainly entitled to believe the DA’s account of the facts of the case. But whether that account survives the scrutiny generated by an appellate court remains to be seen.
Nevertheless, I am troubled by a comment made by Mr. Rexroad.
“In any other rape case in Yolo County would you be so willing to look at the victim in the way you have in this case?” he asked rhetorically before responding: “I don’t think so. Take away the cultural and language differences with the same fact pattern and you would be rooting for the guy to spend as long as possible in prison.”
Seeking clarification, I emailed him, pointing out at least two other cases in which the Vanguard deeply questioned the claims made that supported the rape allegations.
I feel like people can reasonably question my views, but I think I have been pretty consistent about them.
“You are not getting it,” he said. “If the victim is having their other sexual experiences examined to cast doubt on (whether) the incident in question took place — that is not cool.”
The problem is that I think Mr. Rexroad is misreading these claims. The claim is not that the AV was sexually promiscuous, therefore she “wanted” it.
This is not even a case where the defense is arguing that the rape victim went out and proceeded to have sex with someone else in a short time frame after allegedly being raped – though one can at least imagine that would cast doubt on allegations of forcible rape.
This actually goes a lot further than that, because the sexual history and activities are used to refute direct accusations as well as demonstrate inconsistencies in her account of what happened.
There are two central contentions here, critical to the case. The first is that AV claimed “she had gotten pregnant three times while living at the Devs” and second she “insisted Ajay (Dev) was the only person that could have impregnated her during this time period because she did not have sex with anyone else.”
However, this contention was directly contradicted by one of her boyfriends who testified that they were having sex at least once a week at his mother’s home during the fall of 2003. The defense argues, “The evidence also showed that [AV] was dating ‘Sid’ during her first two pregnancies, from November 2002 through May 2003, and dating ‘Araz’ during the third pregnancy scare in November 2003.”
The defense notes, “[AV] offered no explanation as to why she only got pregnant during times in which she was dating older males [that] Ajay and Peggy forbade her to see or why she never got pregnant from ages 15 to 17 even though she was fertile and claimed that Ajay rarely wore condoms during these alleged rapes.”
The appellate attorney writes: “At trial, neither AV nor the prosecution were able to explain how AV only got pregnant or had pregnancy scares within a narrow window of time which perfectly coincided with her dating and having sex with older boys behind” the parents’ back. “Similarly, neither AV nor the prosecution could explain why, given AV’s allegation that Ajay [Dev] raped her approximately 300 to 340 times from ages 15 to 18, AV never got pregnant nor had any pregnancy scares.”
This is not an argument then that the AV was sexually active and could not have been raped, but rather this is an argument that her statements were either false in the case of not having sex with anyone else, or inconsistent – and these inconsistencies are critical to establishing any external evidence that these rapes occurred.
As the defense argues, “The fact that AV only got pregnant during the periods she was dating [lists names of three males] and never got pregnant during the three year period proceeding her sexual independence when Ajay was allegedly raping her two to three times a week, demonstrably supports the fact that AV’s allegations were patently false.”
AV is therefore not having “other sexual experiences examined to cast doubt on (whether) the incident in question took place,” AV is having other sexual experiences examined because she made specific accusations such as the pregnancy and her lack of sexual activity that were false and needed to be contradicted.
There is a huge difference there. Linking the pregnancies to other males weakens her case that Mr. Dev impregnated her. This is crucial evidence that undermines a core contention that could have corroborated her case.
We can, of course, contest the reasoning behind the defense’s arguments here, but the point here is that this is a fair point and the introduction of her sexual history is used to contradict – directly – her claims, and to bolster the defense’s claim that she simply made up these allegations.
—David M. Greenwald reporting
David: You are exactly right. Once AV alleged that Ajay impregnated her 3x, the defense had to show that she was sexually active with boys during that time. She claimed no sex with any boys, and her boyfriend contradicted her testimony.
In your first article, you talked about the pretext call. During this call AV admits to being impregnated by a boy. In fact, this is one of the rare times AV speaks in Nepali (maybe so Detective Hermann cannot understand what she is saying?)See quotes from your article below.
“Mr. Dev would argue, “You had abortion when you were 18 years old and they have the record. When they have the record, they will understand with which boy did you go with to give name.”
AV would only respond that “the boy’s name is not there” – she did not dispute that she had been impregnated by the boyfriend.”
I spent some of Friday and Saturday reading the Dev brief, while I did not get through it all because it is quite long, it is very compelling. David I want to say, I think you have written a fair accounting of what I have read so far. One thing that stands out loud and clear is the timeline. I don’t see how the prosecutor could have charged Ajay with pornography the way they did since the evidence to support it came over a year after the the charged “crimes”.
The timeline also makes it very clear that the boyfriends and the pregnancies coincided. So how could the prosecutor believed AV when she said it only could have been Ajay that impregnated her?
The last part of the timeline shows how close in time the breakup between AV and her boyfriend and the rape allegations are.
The timeline goes right along with what is presented in your story and what I have read so far in the brief.
I find it perplexing that the prosecutor believed the AV over her boyfriend about having sex, why else would he have charged Ajay for the pregnancies?
I wonder if Rexroad has seen the timeline, I’m sure he hasn’t read the brief. Blindly believing the prosecutor without question is something we expect from a friend or family member, but not someone who presumes to be “for the people.” He is obviously not objective enough to investigate the DA’s office when he comes back with the comments he made in your blog.
Just wondering if Rexroad had anything to say about the prosecutorial misconduct or any of the judges rulings?
The case of Ajay Dev is one of the worst miscarriages of justice I have ever seen. The so-called criminal justice system in California’s Central Valley counties would do justice to a Stalinist Kangaroo Court. These prosecutors and judges have no respect for the law either in fact or in spirit. Juries are poorly informed and instructed and think the law is made by the courts and the prosecutors. It’s a rats nest of far right prejudice and corruption where accused is convicted and the truth means nothing. Disgusting.
Here is the link to the timeline:
http://www.seekingjusticefortheinnocent.com/images/ajay/legal/TimelineWeb_2012-07-15_ave.jpg
I think it would be impossible for Rexroad to be impartial enough to be in charge of an “independent” investigation of the DA’s office. With all that you have written about this case in the last week it is odd that he didn’t comment on anything other than the defense bringing the AV’s sexual past up. Did he say he read anything you wrote before he posted that comment? While I wasn’t at the trial and only know what I have read, it seemed pretty clear to me that the AV’s sexual past was brought in to show she may have lied about who impregnated her.
How many different people have requested some sort of investigation about the DA’s office? It seems like quite a few.
Supervisor Rexroad’s jejune commentary demonstrates his objectionable lack of discretion to properly distinguish the difference between an inquiry into matters concerning the plaintiff’s promiscuity, and her well-documented prevarications regarding said promiscuity–in relation to the pregnancies the plaintiff allegedly suffered at the hands of the defendant.
For future reference, Supervisor Rexroad should take under serious advisement and consideration to restrict the application of his less than cogent analysis and legal opinions to a more suitable legal domain.
Traffic Court.
I don’t see how personally attacking Rexroad or anyone else moves the conversation on this topic. While I understand how family and friends can be upset by what has happened to Ajay I don’t believe Rexroad needs to be the target of your wrath. I would hope that comments can be much more constructive in keeping this story alive because I have found it to be the most interesting topic that David has written about. David, I am looking forward to any updates that you can provide.
Just to clarify I agree with Themis. My purpose here was not to attack Matt Rexroad, but rather to address his point and criticism.
Thanks Themis, sometimes what we write isn’t exactly how we mean it to come out. I was just questioning if Rexroad has actually heard the other side of the story before making his comments.
I think the point is to look at the evidence in the case. If you take the time to read the brief, you will see that there are a number of contributing factors that led to Ajay Dev being wrongfully convicted.
There are over 1,100 people that have signed a petition asking that this case be investigated. The appellate brief and all kinds of evidence from the trial has been put out for public scrutiny.
Why?
Because Advocates for Ajay want people to understand that a terrible mistake has been made, and we need to help fix it.
Sorry. I forgot to put the link to the brief. Here it is.
http://www.seekingjusticefortheinnocent.com/index.php/ajay/ajay-news/legal-case/647-ajay-dev-case-and-facts
Also, here is the link if you would like to sign the petition:
http://www.change.org/petitions/free-ajay-dev-a-victim-of-cash-for-convictions
@Logos, why are you mixing up civil & criminal legal words of art?
A criminal defendant is presumed innocent. Mr. Dev had a number of chances to prevail, a preliminary hearing, a motion to dismiss at the end of the prosecutions case during his jury trial and a motion to vacate the verdict when the jury convicted. after it went up on appeal he is no longer presumed innocent. the verdict is presumed correct especially if insufficiency of the evidence is the claim. in claims of conflicting evidence, it is again presumed that the jury’s judgement on such was correct. thats what supervisor rexroad seems to have been trying to say. language and culture aside, the jury simply believed the prosecution’s case inconsistencies and all. tough to overturn.
Unfortunately, in today’s lock them up & throw away the key culture, the presumption of innocence is no longer there. Add to that the fact that prosecutors have immunity with no oversight other than the bar many people have been railroaded. Look to the Innocence Project for the proof, and they only deal with a fraction of the cases.
I doubt that most people realize that an appeal only deals with procedural errors. This fact unfortunately makes it difficult for most to overcome as the appellate court doesn’t reweigh the evidence.
From reading David’s article the errors seem very egregious. It seems Mr. Dev has a real chance at winning.
I meant to say the errors in Mr. Dev’s case.
The fact that Mr. Rexroad not only failed but actually refused to ask for an investigation into the Dev case, in spite of hundreds of Yolo voters crying “foul,” brings with it the smell of a huge, rotting rat. It seems that cash-for-convictions influences a much wider swath of Yolo County officials than previously thought.