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), “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 that “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 council 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 and 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
David: Thank you for posting this article. This has been a devastating case to watch–to see how easily someone could be found guilty when you know absolutely that the accuser was lying. I never would have believed this could happen in America until I witnessed it personally.
Ajay not being able to see his two sons grow up because of this wrongful conviction has been one of the biggest tragedies.
Even the guards at the prison have let people know that they realize that Ajay does not belong there. They trust Ajay and have allowed him to teach math to inmates so the inmates can get their GED.
So many people realize that this was a wrongful conviction, and yet, it will take years to undo.
[quote]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.[/quote]
I do not want to make any assumptions, so I am going to try to clarify first before going emotionally ballistic over this. Does this mean that he has not been allowed physical contact with his prepubertal male children because he has been ( under highly dubious circumstances) convicted of having sex with a teen aged girl ?
Even if Mr. Dev were guilty, what purpose could possibly be served by not allowing him proctored contact with his prepubescent and infant sons ? Who do we believe is being protected by this restriction ?
Who do we believe is being “punished” ? It is the completely innocent children of Mr. Dev that are being punished far beyond anything their father may be experiencing whether innocent or guilty. Do we really, as a society see this degree of completely thoughtless, family destroying cruelty as “justice” ? Is anyone else as completely appalled by this travesty as I am ?
Thanks again, David, for remembering this egregious error by Judge Fall. I have never doubted Ajay’s innocence and look forward to his eventual release. Soon, I hope. How amazing it is how a simple error can affect so many peoples’ lives so immensely!
OK, it would appear that I am not quite done with my rant yet.
Men who have been convicted of crimes posing far more danger to our society than that which Mr.Dev is convicted of are allowed conjugal visits with their wives. So it would appear to me that our society places a far greater value on a couple having sex than it does the bonding of an infant to its father.
How twisted is that ?
“I do not want to make any assumptions, so I am going to try to clarify first before going emotionally ballistic over this. Does this mean that he has not been allowed physical contact with his prepubertal male children because he has been ( under highly dubious circumstances) convicted of having sex with a teen aged girl ?”
Yes that is what has happened according to accounts from the family.
I am wondering if any of our prison officials, or anyone more knowledgeable than I am in this area of the judicial or penal system could clarify on what reasoning or rules such a policy is based ?
Fight Against Injustice wrote:
> to see how easily someone could be found guilty when
> you know absolutely that the accuser was lying.
I may have missed this, but why do so many people seem to know “absolutely that the accuser was lying”?
Then medwoman wrote (about Mr. Dev not seeing his kids):
> I am wondering if any of our prison officials, or anyone
> more knowledgeable than I am in this area of the judicial
> or penal system could clarify on what reasoning or rules
> such a policy is based
I’m no expert on the prison system, but other than when someone is punished for doing something behind bars I’ve never heard of a prison not letting someone see his kids (even rapists and killers).
Fight Against Injustice wrote:
> to see how easily someone could be found guilty when
> you know absolutely that the accuser was lying.
I may have missed this, but why do so many people seem to know “absolutely that the accuser was lying”?
Then medwoman wrote (about Mr. Dev not seeing his kids):
> I am wondering if any of our prison officials, or anyone
> more knowledgeable than I am in this area of the judicial
> or penal system could clarify on what reasoning or rules
> such a policy is based
I’m no expert on the prison system, but other than when someone is punished for doing something behind bars I’ve never heard of a prison not letting someone see his kids (even rapists and killers).
“I may have missed this, but why do so many people seem to know “absolutely that the accuser was lying”?”
I will give you a short answer to a long question and that is that the family has maintained for years that a number of the specific incidents that she described were implausible logistically, plus there was a lack of physical evidence of abuse over a long period of time, and from what I can see is that the only piece of evidence other than the victim’s own account is the contested pretext call.
The judiciary in California is troubling.
There are only two requirements a California attorney needs to be a judge. 7 years practicing law, and a good friend to appoint them.
Unlike state licensed nurses, social workers, group home administrators, fire fighters and on & on; there is no exam required to be a judge. While judges attend a school—the lack of a comprehensive test, more ambitious than the state BAR, allows any miscreant on the bench. Intelligence is not rewarded in progressive California, the herd requires followers to cash out on their loft pay, perks and retirement benefits all paid for by US.
Our benches are so littered with incompetent,unethical, back slapping “judges” —-all compounded by no external and independent oversight of judges. We have judges policing judges.
And the Yolo bench has some whoppers!
1) Donna M. Petre
2) Steve Basha
3) David Rosenberg
My overall favorite is now retired judge, Donna. M. Petre, as the presiding judge, the court & BOS, knowingly appoint now Sacramento probation chief, Don L. Meyer, from Calaveras out from under a falsified investigation over the alleged civil rights violations of youth of color in a state licensed group home.
Judge Petre, later acting with the grand jury then concealed that matter for investigation. Because the court itself was accused of wrongdoing, which is well within the purview of a grand jury operating under the statues & Constitution (penal & civil)—but our courts have neutered the grand jury.
Several other current judges, like former county council Steve M. Basha, who recommended the appointment of Chief Meyer, (knowingly) also covered up the false investigation report. Isn’t Basha a juvenile judge? If he is, why would Basha conceal a juvenile’s legal claim? Judge Rosenberg, in subsequent grand jury filing’s maintains the cover-up.
White & powerful has its perks in Yolo. Represented by Reisig & DA Hendersen, who yep, refused to investigate.
Judges are pack animals & Yolo county has a rabid, ruthless pack, dishing out justice for all but themselves.
South of Davis,
I would invite you to read the appellate brief, which details some of the blatant contradictions with her “story.” It also gives one a deeper insight into the case and how Ajay eventually got convicted.
To expound on David’s comment, not only the family, but close friends and acquaintances have had first hand experience with the accuser that flatly contradicted her testimony in the record. It was obvious to many who have had personal dealings with her that she was lying.
One of the questions I found going thru my mind was how is it possible that so many people independently came to the same conclusion…that she was lying? The fact of the matter is she lied (on record)about incidents involving a great number of people. When they heard her version of the facts, they knew she had been lying because they were present. A good example of that is the fact that testified she was raped at Ajay’s brother’s home in Chico, CA. She testified that she spent the night when the rape happened. Both his brother and his EX-WIFE (married to another woman at the time of the allegation) knew that she had never spent the night in their home…ever!!! They knew “absolutely” that the rape at their home did not occur and were ready and did testify for the defense.
Another thing that I find interesting is that Peggy’s entire family, including myself, have fought for Ajay’s innocence. The point being that we are not related to Ajay and have no “natural bias.” We also have had personal experiences, and just as important, have painstakingly combed thru the mountains of evidence and trial record. It was a slow process, and you would expect that at some point in time there would be SOMETHING, some fact or piece of evidence that supported the prosecution’s theory. Funny thing is, the deeper you dug into the evidence, the facts did not corroborate the prosecution’s case, but in fact supported the defense’s theory of the case.
On another note, yes Ajay has not been allowed contact visits with his two sons because of the nature of his crime. There have been appeals to the Warden and the Prison Board, but they have not been successful.
Medwoman:
When you go to visit Ajay in prison, you see him in a large room where there are other children and adults. Ajay can be sitting within arms reach of children he doesn’t know, but he cannot have his own children in the room. The room has guards around the perimeter so there should be no real issue. Before a prisoner can come into this common area, they are strip searched and again upon leaving. Even if they leave just to use the facilities, they go through the strip search. Not allowing Ajay to see his children makes no sense based on the security of the room and the fact that other children can be there.
There is a provision that allows non-victim children to be seen by someone who has been convicted of rape, but it is up to the discretion of the warden. Although numerous letters have been sent on Ajay’s behalf, the warden has not wanted to allow the visits because it would set a precedent. The warden then feels he would have to allow others the same privilege.
[quote]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.[/quote]
David, I think you hit this perfectly. It is pretty disturbing that a person conducting a trial can be so impatient in the first place when they have someone’s life in the balance. The two examples you give of Judge Fall’s impatience and faulty rulings in Kyle Vigil and Ajay Dev are definitely cause for concern.
After your last series of articles on the Ajay Dev case I was intrigued enough to read the AOB posted on the website. There are quite a few other rulings that the judge made that are disturbing aside from the one you pointed out.
We need to really look at the work of a judge when elections come around, there a few here that need to be replaced.
jake wallace:
It is frightening to consider the lack of regulations and oversight in a system that determines the fate of others.
Judges in CA, as you say, are not held to high standards, and lack credible oversight.
Similarly, prosecutors are given very very long leashes which are not often reigned in even when they commit malfeasance. Simply look how many prosecutors suffer punishment for withholding evidence, or for mischaracterizing the nature of evidence before the jury.
And what degree of oversight is there in the vast number of cases decided in the prosecutor’s office; a place where they obviously wield immense power?
“My children are growing fast and I am missing out on one of my biggest dreams – joy of fatherhood. When I hear that [my sons] are not feeling well or got hurt, it pains me deeply. I would have held them, kissed their “aawee”, wiped their tears, comforted them, protected them and loved them tenderly. They are my heart and soul.”
“Do you know that tears rolls down my cheeks for no reason sometimes? I am really hurting and in so much pain…there is no denying. But I don’t want the world to know my weaknesses.”
I was going through some of Ajay’s letters that he wrote me from prison and came across these words. The tenderness within them captured my attention and the painful emotions gripped my heart.
This is Ajay’s reality. A reality that should not be his to claim.
For those who are new to Ajay’s tragic story, you can learn more about it on these sites:
http://www.advocatesforajay.com
http://www.seekingjusticefortheinnocent.com
https://www.facebook.com/pages/advocatesforajay/108746072551331
http://www.change.org/petitions/free-ajay-dev-a-victim-of-cash-for-convictions
” 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.”
Link, please, for those of us who missed this.
Go about half way down to where it says:
“bloggers all over the place, blogging about this case ([url]https://davisvanguard.org/index.php?option=com_content&view=article&id=3915:former-west-sac-pd-officers-employment-status-raises-flags-and-controversy-in-galvan-case&Itemid=100[/url])”
And a commentary on it ([url]https://davisvanguard.org/index.php?option=com_content&view=article&id=3918:the-truth-will-set-you-free-a-lesson-in-democracy-and-open-government&Itemid=100[/url])
A first year law student can easily discern the bias and imbedded prejudice attendant to Judge Fall’s egregious decision to sanction the Plaintiff’s translation of the highly contentious portion of the audiotape.
Notwithstanding the objection by the defense, essentially, Judge Fall transformed the AV into an expert with regards to admitting her interpretation of the audiotape (to the detriment of the defendant) into evidence.
Unequivocally, an independent, licensed interpreter is the rigorous minimum with which the state should have been compelled to employ, in order to guarantee the defendant’s right to a fair trial.
Impatience on behalf of Judge Fall is neither an excuse nor a remedy within the prescribed canon of law.
Does not Judge Donna Petre, Judge Steve Basha, Judge Rosenburg’s conduct with DA Hendersen & Reisig—- all “protecting” now Sacramento Probation Chief, echo the Lorenson case?
WE, the PEOPLE, have no one protecting us.
Please take a close look also at the case of Lorenson v. Superior Court, 35 C.2d 49 (1950), where the California Supreme Court ruled on page59 and 60 of the case that “A conspiracy with or among public officials not to perform their official duty to enforce criminal laws is an obstruction of justice an indictable offense at common law.” This means that if judges deliberately fail to report criminal violation by other, such as judges, as they are required by California Code of Judicial Conduct, Canon 3D, the silent judge just joined a conspiracy to obstruct and pervert justice.
All the Stockton FBI would say is they found the case “very disturbing.”
http://jurypower.org/grand-jury-power-mainmenu-29/grand-jury-power-to-charge-corruptcriminal-public-officials-mainmenu-31.html