Meme from the Court Victim Network

Federal judge says Cox case can go forward

Jurist also says ties are close between dismissed rape case and receivership

November 11, 2021

By GREG LITTLE Editor

A federal judge has ruled the case filed by Mariposa County resident Jerry Cox against the county can proceed.

In fact, United States District Court, Eastern District of California Judge Anthony Ishii made several points in his recent ruling about the case, including how felony rape charges may indeed have been tied to a receivership case against Cox.

The 49-page document covers a wide variety of issues related to the Cox case, including several orders granting some motions by the county but also denying key motions made by the lawyers representing the county.

The Cox case dates back nearly seven years in Mariposa County and involves many issues, from the Mariposa County Superior Court allowing the sale of Cox’s property to proceed to Cox alleging the county has been out to get him the entire time, the main reason he filed the federal action.

One matter which the court did clarify is Mariposa County would be liable should Cox eventually win the case. Cox had sued both the county and the Mariposa County Sheriff’s Office in the matter, but the judge removed the sheriff’s office from the suit, saying it is part of the Mariposa County umbrella.

The order written by Ishii was in response to the county asking for dismissal of the charges. He did grant some of the dismissals, but it seems the meat of the matter remains on the table for the federal court case to proceed.

Variety of issues

Trying to unpack everything involved in the case is a major task because of the variety of issues involved.

Cox has been the focus of two major cases in Mariposa County.

One was the felony counts filed against Cox, alleging he raped and held captive a woman he met on the dating website farmersonly.com. He was eventually exonerated of those charges, but not after spending two years with them hanging over his head as well as the fact he could have spent the rest of his life in prison should he have been convicted.

The other case involves a receivership, which in California is when a court orders an independent receiver to take control of a property, mainly to get violations fixed and get it back into working order. Cox was found in violation of 101 building code violations on his property, the Bison Creek Ranch which is owned by JDC Land Co., a limited liability company. Cox is the sole owner of the company — another factor involved in the case.

Eventually, the court ordered Cox’s property to be sold, which did happen. The property sold for around $700,000 and Cox has contended all along its value was double that amount. That dollar amount is crucial in an upcoming hearing set for Nov. 20 in Mariposa County Superior Court.

It will be the discharge hearing in the receivership case — where the judge will decide how the proceeds of the sale are distributed. The receiver, Mark Adams of California Receivership Group, is seeking nearly the entire amount of the sale, which would leave the county taxpayers on the line for the money it has already spent in the case. There is also taxpayers’ money being spent in the federal case, though that amount has not been released.

The amount spent by the county in the receivership case has also not been officially released, but a court document filed in the case indicates it is pushing $250,000.

In the beginning

One of the main issues involved in the federal case is about the felony charges filed against Cox by the county.

It dates back to November 2015 where Ashley Harris had been staying at Cox’s ranch after they met on the dating website.

In the ruling handed down by the federal judge, that part of the case is outlined in detail. It says on Nov. 13, 2015, Cox informed Harris she would have to vacate a cabin because he was going to have vacation guests staying on the property.

Cox said Harris was “upset” about having to leave and that’s when he says she brought up the rape allegations — which were later proven to be false in another court hearing.

Harris, the documents said, left the property with Darlene Windham, who was also staying on the property. They both went to a local bar and had drinks, the report says, and then went to the local California Highway Patrol office where Harris made the allegations she was raped and held captive at Cox’s ranch. The document states the “CHP officer noted that Harris had been drinking and that there were text messages on her cell phone contradicting her claims.”

At that point, the CHP officer turned over the case to the Mariposa County Sheriff’s Office for jurisdictional reasons. Deputies William Atkinson and Wesley Smith took over the case from that point.

Cox claims that Atkinson falsified police reports and other records “by misrepresenting exculpatory statements by Windham, who was ‘extremely skeptical’ of Harris’s story and who had informed Atkinson and/or Smith that Harris had lied about her alcohol intake and that Harris’s ‘sexual relations with Cox were purely consensual …,’” according to the documents from the federal court.

Later on Nov. 13, 2015, a county deputy arrested Cox at the direction of Atkinson and Smith, without a warrant and based solely on “Harris’s fabricated and uncorroborated story,” the documents say, citing Cox’s counsel.

The documents states that on Nov. 14, 2015, Atkinson signed an affidavit for a warrant to search the property that contained false statements by Harris but omitted Cox’s denials and Windham’s statements to Atkinson “that she had not witnessed or heard anything unusual between Cox and Harris while sharing the cabin with them during the period in question.”

It states that also on Nov. 14, Atkinson interviewed Harris for a second time. During that interview, Atkinson obtained Harris’ cell phone number and informed her he needed her cell phone to download conservations with Cox.

“Atkinson did not, however, take possession of Harris’s cell phone — or download its content — at the time,” states the document signed by the federal judge.

Two days later, former Mariposa County District Attorney Thomas Cooke filed a criminal complaint against Cox comprising of 11 felony charges, plus enhancements. (That would later be amended to be 16 charges.)

On Nov. 25, Harris was interviewed by Smith and a deputy district attorney. During that interview, Harris made reference to exchanging messages with Cox on farmersonly.com and her cell phone and to contacting witnesses through Facebook.

“The deputy district attorney took snapshots of a selection of text messages between Harris and Cox on Harris’s cell phone, but did not take possession of the phone, download records from the phone or photograph any exculpatory text messages evidencing the consensual nature of the relationship between Cox and Harris,” the document reads.

Three months later, in February 2016, Cooke amended the charges to allege 16 felonies against Cox, including rape, sodomy and kidnapping.

In April, Cox brought a motion to enforce a request for discovery materials, including messages between Harris and Cox in the possession of the prosecutor.

The county filed a response to the motion “stating it was unable to produce the records in question because the Department of Justice was still analyzing the defendant’s phone and computer.”

In May, Cox brought a motion seeking all messages relating to Harris, Cox or the property in possession of Harris’s mother, which was likely a phone.

Harris’s mother, the document states, avoided the service of the subpoena and “Mariposa County made no efforts to obtain exculpatory evidence from her.”

The document states that later, records obtained by Cox showed that Harris was in regular communication with her mother (and others) through her cell phone during the period she claimed to have been held captive on the property.

In June, county officials provided the forensic download of Cox’s phone to his defense counsel. The records were given six months after Mariposa County completed the download in December 2015 and contained 22 messages between Harris and Cox during the period in which Harris claimed to have been held against her will, the document states.

Two months later Cox was granted an order from the court to subpoena Verizon Communications. Records from Verizon ultimately showed Harris had sent and received 166 messages in the period between Nov. 10-13, 2015 — the same period she said she was held captive and raped — and had no access to a telephone.

On Oct. 14, 2016, county officials conducted a search of the property for building, health and safety code violations — one day after that warrant was signed by former Mariposa County Superior Court Judge Dana Walton, who handled the receivership case until his retirement earlier this year. Cox claims, according to the federal document, the warrant was “based on affidavits containing false claims from the criminal case.”

The county has maintained from the beginning the cases were not connected — a point the judge calls into question.

In March 2017, Cox’s legal team produced documentation the Department of Justice did not conduct the forensic download of Harris’s phone until Dec. 8, 2016. It states Harris maintained possession of her phone for a year prior to the download. Cox’s legal team also said when analyzed, there were no messages on the phone after Nov. 13, 2015 — when Harris said she began being held captive.

In addition, an analysis conducted by Cox’s defense further showed that at least 49 messages between Cox and Harris that appeared on Cox’s cell phone did not appear in the county’s download of Harris’s cell phone.

On June 2, 2017, Harris testified in a deposition for another case that she had never been a victim of sexual assault or abuse.

On Aug. 14, 2017, the district attorney dismissed all criminal charges against Cox while the civil action involving the building codes continued, the federal document states.

In its filing, the county asked the federal judge to dismiss claims involving the property because they claim it is JDC Land Co. that owned the property, not Cox. But the judge said that because of the nature of the search warrant, it also involved Cox.

In the search warrant, signed by Walton and supported by many department heads in the county, it authorized officials to inspect “essentially everything,” according to a note made by Ishii.

Not only was it ordered the interior and exterior of all buildings could be inspected, it also includes “all … drawers, cabinets, papers and electronic files” on the property.

The judge wrote that “at least some of those papers and electronic files presumably belonged to Cox and arguably implicated his interests as an individual, independent of JDC’s interest.”

The judge concluded: “The court therefore declines to dismiss any claims regarding the property for lack of standing and will grant leave for JDC to be joined in this action as a plaintiff.”

More rulings

Another ruling by the judge did relieve the sheriff’s office from the federal case, however, the judge writes because the sheriff’s office is under the auspices of the county, it is the county who will be “the sole municipal defendant on each such claim.”

The county also argued that some of the claims alleged by Cox are past the statute of limitations, but the judge disagreed, saying he would not dismiss “at this juncture,” claims against the county on the “grounds they are time-barred.”

In the federal document, the judge outlines a timeline related to this issue.

On Feb. 22, 2016, the criminal complaint against Cox was amended to allege 16 separate felonies with enhancements, and Oct. 14, 2016 — while the criminal charges were still pending — Mariposa County and the Mariposa County Sheriff’s Office executed a search of the property pursuant, allegedly, to a warrant based on an affidavit executed by Atkinson and containing allegations from the criminal case.

The document states while the inspection “was putatively ‘civil’ in nature, Cox contends that it was ‘intertwined’ with the criminal case and the county defendants themselves take the position in briefing this motion that claims involving the criminal case and claims involving the receivership are ‘related claims’ arising from ‘the same transaction, occurrence or series of transactions or occurrences.’”

A few pages later in the document, the judge again addresses the issue of whether the two cases are related. The county, the judge writes, argues that Cox cannot state a substantive due process claim based on code enforcement activity because the county has an interest “in preventing health and safety hazards by enforcing the housing code.”

But, the judge writes, this argument “… fails to address the allegations involving the criminal case (or the alleged nexus between the criminal case and code enforcement action), and in any event, Cox has set forth allegations supporting a reasonable inference that code enforcement action was undertaken ‘with the purpose to harm [him] for reasons unrelated to legitimate law enforcement objectives.’”

A telling sign

It was in that paragraph written by the judge where he referenced a footnote as part of his reasoning.

That footnote, in full, is as follows:

“The county defendants’ contention that the receivership action did not ‘coincide with the county’s failed criminal case against Cox’ is odd. Doc. No. 45-1 at 23:19-26. The relevant timeline, as alleged in the complaint, is as follows: February 22, 2016, the county adds five felonies to the criminal complaint against Cox; June 20, 2016, the county finally provides the forensic download of Cox’s phone to Cox’s defense counsel, allegedly showing 22 messages between Harris and Cox during the period in which Harris claimed to have been held against her will; August 8, 2016, the Mariposa Superior Court authorizes Cox’s defense to issue a subpoena to Verizon that ultimately shows Harris sent and received 166 text messages during the period in which she claimed to have been held against her will; October 14, 2016, Mariposa County executes a civil search warrant to inspect the property; March 7, 2017, the county provides Cox with a download of Harris’s cell phone showing that dozens of text messages involving Cox had been deleted; March 13, 2017, the county brings a motion to place the property in receivership, based on 101 putative building, health and safety code violations; June 2, 2017, Harris testifies in another case that she had never been a victim of sexual assault or abuse; and August 14, 2017, the county dismisses all criminal charges against Cox on its own motion, while the receivership action continued.

“In the court’s view, the timeline leaves little room to argue that code enforcement action with respect to the property did not coincide with the criminal case against Cox. Further, the court again notes the county defendants’ contention on this motion that the claims in this case arise from ‘the same transaction, occurrence, or series of transactions or occurrences’ as the receivership action.”

The judge ruled the county’s motion to dismiss “will therefore be denied as to Cox’s substantive due process claim under the Fourteenth Amendment.”

In a later part of the document, the judge does rule Cox’s claim for equal protection will be dismissed “to the extent it is predicated on the criminal case” but allows Cox time to amend his claim.

In a related matter, Cox also claims he was denied equal protection based on the code violation portion of the case.

The judge agreed it should be allowed.

Though the judge agreed with the county that “selective enforcement alone is insufficient to state and equal protection claim,” he further writes: “… but the complaint also alleges that scores of determinations as to code compliance were deliberately fallacious and that those deliberately fallacious determinations led not only to confiscation of the property, but also to Cox’s financial and reputational ruin.”

Thus, the judge wrote, “the county defendants’ motion to dismiss will therefore be denied to the extent Cox’s equal protection claim arises from code enforcement.”

Another part of the document addresses Cox’s third claim alleging violation of his Fourth Amendment rights.

The county claims the alleged violations should have been directed at the district attorney, who is not named in the action and that his claims against Atkinson and Smith are time-barred because they arise from actions that took place in 2015. It also claims, the judge wrote, the property was owned by JDC and, regardless, it should be dismissed “because the search was conducted with a warrant.”

However, Cox claims the fact searches were conducted with warrants is irrelevant because he has “clearly and properly alleged that those warrants were defective, overly broad, based on falsified evidence and devoid of probable cause in fact.”

The judge said the county’s claim that the district attorney is the “proper defendant” is “without merit, since the claims implicating the Fourth Amendment can be brought against state actors other than prosecuting attorneys.”

The judge denied the county’s motion to dismiss.

A Fifth Amendment claim by Cox was dismissed by the judge who said he could find no reason to hold the “conduct of the superior court or the receiver liable by the county.”

More claims

Another claim by Cox alleges conspiracy on the part of the county.

The judge ruled that a section of the code involving conspiracy will be dismissed, however, he also said Cox will have the ability to amend the claim, and the county would also have that flexibility should that take place.

Further, the judge wrote the county does not “squarely address Cox’s contention” he has stated as a conspiracy claim.

“Thus, to the extent the county defendant’s motion seeks dismissal of conspiracy claims under Section 1983, it will be denied. The foregoing also applies to Cox’s conspiracy claim as alleged against Harris.”

Another major point of the lawsuit involves qualified immunity, an issue which has been the subject of much debate in the country when it comes to police officers and the liability they may encounter while performing police duties.

The county argues that Atkinson and Smith “are entitled to qualified immunity” because they had probable cause to arrest Cox on Nov. 13, 2015, based on the allegations from Harris; that the search warrant executed the next day was conducted based on a judge-issued warrant; and the district attorney found probable cause to charge with Cox with rape on Nov. 16, 2015.

“This argument, however, fails to address alleged wrongdoing on the part of deputy defendants with respect to falsification, destruction and suppression of evidence, and in any event, the court is not prepared to find at this juncture that deputy defendants acted with probable cause in arresting Cox or searching his property,” wrote the judge.

The judge said Cox claims that Harris was obviously intoxicated (and wearing makeup intended to look like a bruise) at the time she made her accusations against Cox; that the CHP officer who interviewed Harris did not believe she was telling the truth; and that Harris’s claim that she had been held captive by Cox was decisively contradicted by cell phone records readily available to the deputy defendants prior to Cox’s arrest.

It also notes that Cox claims the deputies ignored eyewitness testimony that contradicted Cox’s claims; that Atkinson falsified evidence to secure the warrant for the Nov. 14, 2015, search; and that Atkinson failed to take account evidence generated from that search showing that the cabin to which Harris claimed to have been confined had a functional landline telephone and doors and windows that unlocked from the inside.

“The fact that a warrant was issued prior to Nov. 14, 2015, search may constitute a prima facie showing of probable cause for the Nov. 15, 2015, search, but Cox is entitled to rebut that showing (particularly in light of his allegation that the warrant was based on false information furnished by Atkinson) and, regardless, it does not speak directly to the question of whether there was probable cause for the arrest,” wrote the judge. “The fact the district attorney decided to file charges similarly does not settle the question of whether there was probable cause for actions taken prior to that point by the deputy defendants.”

In his decision, the judge wrote “Cox has adequately alleged that the deputy defendants were involved in violations of his constitutional rights. The county defendants have not shown that the rights in question were not of the sort known to reasonable law enforcement officers, and the court therefore cannot find on this motion that either Atkinson or Smith is entitled to qualified immunity on Cox’s Section 1983 claims.”

The final part of the document addresses Cox’s six claims for slander of title, breach of fiduciary duty, intentional interference with prospective economic advantage, conversion, negligence and negligent hiring, training and supervision. These claims fall under the umbrella of the California Government Claims Act, which basically goes toward injury, damage or other losses incurred.

In the end, the judge dismissed those claims by Cox.

The judge, who signed his order on Oct. 26, has not yet set another court date.

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