Sunday Commentary: If Reisig Wants to Be a Progressive Prosecutor – Here’s His Chance in the Dev Case

District Attorney Jeff Reisig has, strangely enough, two reputations.  Some will tell you he’s actually one of the more progressive prosecutors in the state.  That’s what an editorial in the Enterprise called him last year as he was running for reelection against someone who was far more progressive – and came very close to knocking him off.

My problem with the progressive prosecutor argument for Mr. Reisig is several fold: (1) he has opposed all of the major criminal justice reforms in the state; (2) he consistently charged cases criminally that many offices would never have touched and at times he charged them as felonies; (3) whenever he comes out in public, with the sole exception of Neighborhood Court, it is to oppose criminal justice reform; (4) he argued to continue the death penalty; and (5) he created in 2014 a Convictions Integrity Unit that has to this date not done anything it was purportedly supposed to do.

That last point is one that a lot of people don’t really understand.  There are conviction integrity units that have freed more people that innocence projects.  They go in, they find systematic problems with prosecutions, they identify innocent people and they exonerate them.

I believe there are 14 people at least who are sitting in prison from Yolo County who are innocent of the charges.  Right now, however, for one of them, Jeff Reisig has an opportunity to do something about it.  In my mind, this is his chance to prove that he really is progressive.

I am talking about Ajay Dev.  Ten years ago Deputy DA Steve Mount put Ajay Dev into prison based on false and misleading testimony from the complaining witness, but also primarily at least – if you read the declarations from the jurors in that case – from a pretext phone call in which Judge Tim Fall erroneously allowed the complaining witness to translate a conversation from Nepalese into English.

The complaining witness claimed Ajay said in this key eight-second clip, “But you had sex with me when you were 18.”  However, the defense translators testified that, although Ajay Dev’s statement was inaudible, they had ruled out the complaining witness’ translation because “he could hear the first syllable of the word in dispute which was incompatible with any Nepali word connoting ‘sex.’”

In order to prove this, however, the petitioner hired a sound expert, who testified on Friday that he used basic techniques available in 2009 to enhance the audio.  That allowed not one but two experts to translate the phrase in question to: “But you came with me since 18 years.”

During the hearing, Mr. Mount questioned the chain of custody and argued briefly that there were holes in the petitioner’s case, but he is now about to retire from his position and perhaps that will allow fresh eyes in the department to examine the evidence.

There are prosecutor offices that dig in when confronted with evidence of innocence and do everything to block it.  There are prosecutor offices that attempt to find out the truth and exonerate people themselves when they made a mistake.

So far Yolo County is acting like the former.  We saw that on display on Friday as Steve Mount challenged the chain of custody on recordings which he full well knows are fully verifiable by the judge – and the judge will attempt to at least listen to the Nepali audio and see if she hears what the defense experts are claiming is the Nepali.

Here’s the thing.  The key part of the testimony in the trial was the pretext call because it supposedly verified the complaining witness’ account by getting Mr. Dev to reportedly acknowledge his misdeeds.

The defense/respondents have claimed all along this was a mis-translation and now they have submitted evidence of that.

On Friday, first, we learned what the audio enhancer did to make the eight-second snippet of audio clearer.  Then we heard the translator tell the court what that section meant.

It turns out he was the second translator, but both reached similar conclusions and neither revealed anything that resembled an admission.

What did Mr. Mount do?  He argued that there were chain of custody issues.  He argued that they were full of holes.

What should he have done?  The DA’s office has a “Conviction Integrity Unit.”  Their job is to review and investigate “claims of innocence raised after a criminal conviction involving homicides, sex offenses and violent crimes.”

Once the defense brought this to their attention, they could have hired their own sound technician to enhance the audio, hired their own Nepali interpreter and saw if they agreed with Mr. Bhatta.

If they did, they probably would have enough evidence to have a new trial and probably, when they evaluated the evidence for trial, would have dropped the charges.

Mr. Mount shows no sign of being willing to do that.  Perhaps once Ryan Couzens – a notorious tough-minded prosecutor – listens to the witnesses in September, he will realize what we have for some time, that the case was flawed from the start and Mr. Dev is innocent.

Perhaps Jeff Reisig himself can step up and do the right thing.  We are not asking them to accept the petitioner’s account.  But why not hire their own expert and if that expert agrees, why not do the right thing and let this man out of prison after 10 years?

That would be the progressive thing for Jeff Reisig to do.  That would be the right thing to do.  Now the only question is, will he do it?

—David M. Greenwald reporting