Judge re­con­sid­ers plea deal

Ex-ex­ec­u­tive’s do­mes­tic vi­o­lence charges, bar­gain raise im­mi­gra­tion con­cerns

The Mercury News - - Local News - By Tracey Ka­plan tka­[email protected]­yare­anews­group.com

Af­ter a pub­lic out­cry over a tech ex­ec­u­tive’s fa­vor­able plea bar­gain in a do­mes­tic vi­o­lence case, a judge Thurs­day will take a sec­ond look at the deal while ac­tivists call­ing for it to be scrapped rally out­side the court­house.

Abhishek Gat­tani had faced two felony counts of do­mes­tic vi­o­lence in Santa Clara County Su­pe­rior Court for al­legedly beat­ing his wife, Neha Ras­togi. But pros­e­cu­tors, cit­ing dif­fi­cul­ties in prov­ing the case, agreed to let the for­mer CEO of the startup Cuberon plead no con­test to a felony “ac­ces­sory af­ter the fact” and mis­de­meanor “of­fen­sive touch­ing’’ — even though it would be his sec­ond con­vic­tion re­lated to al­le­ga­tions of do­mes­tic vi­o­lence.

Un­der the deal, Gat­tani would serve 15 days in jail, spend five months pick­ing up trash along the free­ways on week­ends and po­ten­tially avoid de­por­ta­tion to his na­tive In­dia.

Like “Emily Doe,’’ whose speech de­cry­ing Stan­ford stu­dent-ath­lete Brock Turner’s light sen­tence be­came a vi­ral rallying cry against “rape cul­ture,’’ Ras­togi’s state­ment on the web in April about her hus­band’s plea deal drew sym­pa­thy.

The case also has been men­tioned by At­tor­ney Gen­eral Jeff Ses­sions as an ex­am­ple of a per­mis­sive im­mi­gra­tion sys­tem he plans to whip into shape.

The main or­ga­nizer of the rally, Papiha Nandy, said she hopes that a strong turnout from the Indo-Amer­i­can com­mu­nity in the high­pro­file case will send a much­needed mes­sage.

“Do­mes­tic vi­o­lence is kept un­der wraps, we do not talk about it,” she said, re­fer­ring to the large im­mi­grant com­mu­nity from South Asia in the Bay Area.

“Do­mes­tic vi­o­lence has to stop, and as a com­mu­nity it’s time to stand up against it, act and speak up to spread the mes­sage that it won’t be tol­er­ated at all.”

Af­ter the out­cry about the case, Judge Al­li­son M. Dan­ner, who was not in­volved in the mat­ter when the plea was ne­go­ti­ated, in late April or­dered a full pro­ba­tion re­port and said she would lis­ten to mul­ti­ple au­dio record­ings that Ras­togi claimed show a pat­tern of abuse dat­ing back more than 10 years, in­clud­ing re­cent threats to kill her and the cou­ple’s tod­dler.

Dan­ner later ques­tioned whether there was a fac­tual ba­sis for the ac­ces­sory af­ter the fact charge. The charge has ap­par­ently never been used in a do­mes­tic vi­o­lence case in this county be­fore and is widely viewed as a le­gal fic­tion de­signed to put a felony con­vic­tion on Gat­tani’s record.

In a five-page brief filed Mon­day, pros­e­cu­tors ar­gue that the law re­quir­ing the judge to find a fac­tual ba­sis for a no-con­test plea has noth­ing to do with whether Gat­tani’s con­duct meets the ele­ments of the charge. The test, they said, is whether Gat­tani un­der­stood the facts and con­se­quences of what he was do­ing ear­lier this year when he pleaded no con­test.

How­ever, pros­e­cu­tors have a backup plan in case the judge dis­agrees. Gat­tani could plead no con­test to felony false im­pris­on­ment or some other felony charge Thurs­day, al­low­ing the judge to sen­tence him, pos­si­bly un­der the same terms as the plea deal.

How­ever, sen­tenc­ing could be post­poned if Gat­tani hes­i­tated to plead to false im­pris­on­ment be­cause a con­vic­tion might in­crease his risk of be­ing de­ported and also hurt his chances of ob­tain­ing shared cus­tody of the cou­ple’s daugh­ter. Gat­tani’s at­tor­ney, Mike Paez, de­clined to com­ment.

If Gat­tani re­fuses to plead to any­thing other than the ac­ces­sory charge, the case would pro­ceed to trial.

Pros­e­cu­tors have said the only ev­i­dence Ras­togi pro­duced of her in­juries over the years were pho­tos of faint bruis­ing and red­ness, which don’t rise to the trau­matic-con­di­tion stan­dard typ­i­cal for a felony con­vic­tion.

But if the case doesn’t set­tle, the District At­tor­ney’s Of­fice could add mul­ti­ple mis­de­meanor counts to the crim­i­nal com­plaint, al­leg­ing that Gat­tani vi­o­lated a peace­ful-con­tact or­der in place from his first con­vic­tion. If Gat­tani were found guilty of vi­o­lat­ing the pro­tec­tive or­der, it could af­fect his chances in fam­ily court.

In 2013, at the re­quest of both Gat­tani and Ras­togi, pros­e­cu­tors re­duced a mis­de­meanor do­mes­tic vi­o­lence charge against him to dis­turb­ing the peace af­ter Ras­togi re­canted her ac­cu­sa­tions.

The in­ci­dent was wit­nessed by a mail car­rier, who called po­lice. Gat­tani com­pleted a 52-week do­mes­tic vi­o­lence class and at the cou­ple’s re­quest was re­leased early in 2015 from for­mal pro­ba­tion and had his con­vic­tion ex­punged.

COUR­TESY NEHA RAS­TOGI

Pic­tured are Neha Ras­togi and her hus­band, Abhishek Gat­tani.

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