In 2009, Yolo County Judge Timothy Fall sentenced Ajay Dev to 378 years in prison after he was convicted of raping his adopted daughter over a five-year period of time.
Ajay Dev’s appellate lawyer writes in the brief: “In sum, Ajay’s trial was wrought with grievous errors at every stage of the trial – during the presentation of evidence, during closing argument, and during deliberations. That is, at every turn Ajay’s trial was severely compromised,” denying him of his Fifth and Fourteenth Amendment rights to a fundamentally fair trial.
Mr. Dev has already spent four and a half years in prison for a crime that his supporters believe he did not commit. Last year the Vanguard analyzed the appeal in three parts (Part 1, Part 2, Part 3).
In the opening salvo, the defense argues that it was a series of events stemming from the Devs’ lack of approval of the adoptive daughter’s sexually active lifestyle and a false date of birth on immigration and adoption forms that ultimately led the alleged victim in this case to file false rape allegations against Mr. Dev – the day after he interceded, leading to the break-up between the alleged victim (referred to henceforth as AV) and her boyfriend.
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.”
The appeal argues, “The facts highly suggest that AV’s allegations were false. Had Ajay [Dev] been given a fair trial, these facts would have clearly come to light. Since he was not given a fair trial, reversal and a new trial are required.”
The defense argues that the prosecution relied on three pieces of evidence to convict Mr. Dev: the pretext call, the victim’s allegations, and pornographic evidence “which was used to support the intent elements of the sex-related crimes and two separately charged pornography charges.”
The defense notes that the pretext call involved a one-hour conversation between AV (the alleged victim) and Ajay, spoken in both English and Nepali. While Ajay explicitly denied having sex and/or raping AV on this recorded call, there were two highly disputed statements in the call, spoken in Nepali, which the prosecution argued were admissions of sex with AV after she reached the age of 18 and, in closing, “relied on these statements in an attempt to persuade the jury that these ‘admissions’ somehow retroactively applied to ages 15 through 18 as well.”
“In contrast, the defense translator gave expert testimony that the statements were not necessarily admissions of sex,” they write. Mr. Dev’s statements made during the pretext call “were admitted as non-hearsay pursuant to Evidence Code section 1220.”
The defense argues, “The trial court, however, failed to instruct the jury pursuant to CALCRIM No. 359.” This jury instruction says that the jury may only rely upon out-of-court statements by the defendant if there is also other evidence showing the crime was committed. As a consequence, they argue, “the jury was improperly permitted to rely solely on the pretext claim to convict” Mr. Dev.
In the reply brief, they argue that the Attorney General’s office, in their response brief, “concedes that the trial court erred by failing to instruct the jury pursuant to CALCRIM No. 359 prohibiting the jury from convicting a defendant exclusively on any statement he or she may have made out-of-court. Respondent argues, however, that this claim fails because the error was harmless.”
However, the attorneys for Ajay Dev argue that this response “ignores the effusive weaknesses in the prosecution’s case. In this regard, Respondent fails to address the undeniable and systematic inadequacies of the prosecution’s case-in-chief and, instead, simply concludes, without any analysis, that AV’s testimony and her pregnancies were sufficient to render the errors in Ajay’s case harmless.”
Indeed, they argue, “By ignoring the flaws in the prosecution’s case, Respondent implicitly concedes that the inconsistencies and implausibility of AV’s testimony rendered the case against Ajay extremely weak.”
They add, “Respondent also fails to dispute the plethora of the inconsistencies in AV’s testimony which equally render the prosecution’s case-in-chief extremely weak.”
Another core contention by the appellate attorneys is that the trial court erred in permitting the victim to translate the pretext call as an expert and failed to appoint a certified interpreter to translate the call.
The AG’s office responds “that the trial court had no obligation to appoint a certified interpreter to translate the Nepali portions of the pretext call because, according to People v. Aguilar (1984) 35 Cal.3d 785, 793, Evidence Code section 752 only requires a certified interpreter in three instances none of which apply to Appellant trial.”
The appellate attorneys counter that “Aguilar only applies to the California Constitution’s requirement to provide a defendant an interpreter in order to satisfy due process requirements.”
They continue that in this case, while the appellate may have been fluent in English, “there is no dispute that the jury could not understand his statements made during the pretext call when he spoke in Nepali. Therefore, given the minimum requirement that trials be conducted in English, the trial court should have appointed a certified interpreter to translate the non-English portions of the pretext call. Under Respondent’s interpretation of the law, the trial court has no obligation to ensure that the evidence introduced by the prosecution, claiming to be an admission by the defendant, be interpreted by a certified interpreter. This result is simply absurd.”
“Respondent appears to concede that the Nepali portions of the pretext call required English interpretation. However, rather than requiring a certified interpreter, Respondent argues that AV was qualified to interpret the pretext call,” the attorneys write.
They note that the ruling by the trial court designated AV as “a qualified interpreter.”
Furthermore, “Respondent attempts to minimize the impact of AV’s bias by arguing that, even as an expert witness, any bias would have been neutralized by cross examination which exposes this type of unavoidable bias wherein an expert is called and retained by either the prosecution or defense.”
“However, this is not a case where bias simply resulted from one party retaining the services of an expert in an effort to support its theory of the case,” the appellate attorneys argue. “Rather, as uncontradicted by Respondent, AV specifically initiated the pretext call for the sole purpose of eliciting an admission from Ajay. Therefore, it is hard to imagine an expert in a more biased position – not only because AV was the alleged victim in the case which, alone, would be more than enough to disqualify her as an expert interpreter, but because she was asked to translate an inaudible portion of the pretext call affording her the opportunity to fabricate an admission unchallenged.”
They argue that Ajay Dev was prejudiced greatly by this error. The respondents would counter that he did not suffer prejudice because the “defense called expert Shakti Aryal to translate the disputed portions of the pretext call spoken in Nepali.”
However, conveniently, they argue, “Respondent white-washes the fact that Aryal testified that the portion of the tape wherein AV attributes an admission to Ajay was essentially ‘inaudible’ because there was a ‘gap’ in the tape leaving AV’s ‘expert’ testimony, in large part, unchallenged.”
They argue, “In this regard, it seems unfathomable that being allowed to translate the only unambiguous admission of sex, albeit after AV turned 18, would not severely prejudice Ajay. Moreover, the fact that, after this alleged admission, the pretext recording clearly shows that AV repeatedly criticized Ajay for not admitting anything, a point never made by the defense and thus probably missed by the jury, supports the strong possibility that AV and the prosecution exploited an opportunity to fabricate an admission against Ajay. In these circumstances, this error was prejudicial under any measure.”
They continue: “Clearly, if AV believed Ajay’s use of the word ‘f-ed’ was an admission of sex, she would have never excoriated him for refusing to admit the allegations. Secondly, after the alleged ‘sex with’ translation, AV again excoriated Ajay for not admitting it stating, “I just wanted to ask you about things, but you aren’t. Definitely you are not telling me anything about this. I am gonna go.”
“Therefore, despite AV’s translation to the contrary, AV’s own statements made during the pretext call establish that Ajay never made an admission of sex or rape. In fact, according to AV, he never admitted ‘anything.’ Respondent completely fails to explain or address this undeniable point in the record.”
As the Vanguard noted in its analysis last year, It appears from reading the appellate brief and the interchange that 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.”
This was the entire trial, if you believe the word of the jurors posting on the Woodland Daily Democrat site following the trial.
One said, “Yes, her testimony was difficult to swallow. If for her testimony alone, he would be a free man. The phone call is what put him where he is now. I am confident that we made the correct decision.”
Another said, “In the pretext call, Ajay admitted to having sex with the victim after she was 18. The exact quote is ‘You f$#*ed me after age 18, that means you gave consent.’ The entire defense was that no sexual relationship occurred and that it was a story made up by the victim. With his admission, that defense was completely disregarded.”
As the defense notes, “The prosecution found the pretext call so significant it devoted most of its closing argument to Ajay’s out of court statements made during the pretext call” and the prosecution argued that deliberations “needed to start with the pretext call … you start with what he admits to, you start with the threats and the discussion.”
In a press release sent out this week, advocates for Ajay Dev ask, “Have you ever come across a case where hundreds of people march year after year to support a convicted rapist?”
They continue, “Of course not! But hundreds of people have been marching over the last 5 years and over 1,000 people have signed a petition of support for Ajay Dev because the case against him has been a grievous injustice. “
Friends, co-workers, family members, neighbors and others with first-hand knowledge of this injustice will be holding a vigil on Friday, April 18, 2014 from 11:45 am – 12:15 pm at the Third Appellate Court 914 Capitol Mall, Sacramento, CA, where his appeal is currently being considered.
“The wrongful conviction of Ajay Dev is a tragedy of catastrophic proportions. A young woman from Nepal chose to make false claims against her adopted father, Ajay Dev, in order to stay in the United States,” they write. “The accuser’s testimony was full of inconsistencies. Her medical records, her doctor, and her adoption social worker all revealed that there was no evidence of rape or other sexual assaults, even though she claims the alleged rapes happened approximately every other day for a period of 5 years (over 550 rapes). The trial court allowed the accuser to be the translator of a pretext call in which she inserted an alleged admission used to convict Ajay, even though an accredited translator disagreed.”
They conclude: “We ask you to come on Friday, April 18th to witness, report and acknowledge the public outcry, demanding that this injustice be corrected.”
Appellant’s Reply Brief filed March 19, 2014: To read click here.
—David M. Greenwald reporting
Thank you David for posting this article.
You make a very valid point when you show that the jurors admitted to using the pretext phone call as their sole reason for finding Ajay guilty. The prosecutor claims that AV’s testimony and pregnancies were also evidence, but forgets to say that Ajay was not found guilty of any pregnancies so that “evidence” hold any weight. AV’s testimony was full of inconsistencies–even the jurors admitted that her testimony was problematic.
That AV was allowed to translate the pretext call when she is extremely bias, is inexcusable. Taking advantage of the inaudible line and saying that it is an admission of guilt shows that she took advantage of her position. It is very telling that right after this inaudible line, she excoriated Ajay for not admitting anything.
The “victim” was allowed to do her own translating in court, eve though there are many qualified interpretors in Northern CA. This one aspect of the trial makes me almost nauseous. Judge Fall, the D.A. and the defense lawyer should have insisted on a professional interpretor. I am praying for justice.
P.S. Mr. Dev’s number of loyal supporters are impressive, but I do not believe that popularity alone should sway our criminal justice system. Quiet, shy people, without many supporters, have also been wrongfully accused and prosecuted. I am happy to see the support for Mr. Dev. But I hope & pray that the quiet, humble, less social people of this world are also heard, when they are wrongfully accused. Mr. Dev’s supporters are displaying their belief that he has good moral character. They are also dismayed at some of the legal issues in his case. I hope he has many supporters on Friday, but I also pray for the wrongfully accused who are behind bars and forgotten. Let’s not forget that California leads our nation in wrongful convictions.
D.D. I agree that there are many forgotten innocent people sitting in prison for various reasons, lack of support, lack of funds or simply procedural bars that don’t allow them legal recourse to win their freedom. The Innocence Project has raised concerns over 12 people they know are innocent, but their is no current legal recourse for them to win their freedom besides clemency from the governor.
California needs to create a better way for people to get relief. Texas and some other states have created a review panel. California is way behind the times.
I also want to add that Ajay was not found guilty on the porn charges that were mentioned either.
I too pray for the wrongfully accused who are behind bars and forgotten as DD reminds us. My hope is that the fight for Ajay Dev will enlighten people in our community that the legal system does make mistakes sometimes.
The Courtwatch that the Vanguard has established has publicized problems in the legal system and sometimes helped to resolve issues before they become wrongful convictions. Thank you David.
David, this is the second time I can remember you mentioning judges losing patience in the court room. The other time had to do with a defense attorney making objections (and if I remember correctly that case was reversed at the appellate level). Considering these are peoples lives at stake it seems that if a judge doesn’t have the patience to take the time to get things right in the courtroom, maybe its time to retire.
I was wondering if you have been able to interview any of the jurors. It would be very interesting to hear what they have to say about this case.
I have not had an opportunity to speak with any of the jurors. If any are out there, I would love the opportunity.
The only thing I can say is wow. I believe we put too much faith in the courts and our justice system. Let’s face it we, (as in society in general), do not really focus on the criminal system – we want to run a way from it. Let’s face it how many people want to get out of jury duty. But when we don’t get involved, people’s lives are thrown away for nothing. Who is to blame? All of us.
I have an overwhelming sense of sadness for this man. I hope he finds his freedom. And I also agree with D.D. there are a lot of innocent people sitting in prison who have been subject to our “blind” legal system. We need to pull the blinders off and look at what is happening. Yes, people are people and we all make mistakes, judges, juries and attorneys, but we are talking about people’s lives, where a mistake costs someone their life. We don’t tolerate it in the medical field, we should not in the legal field either.
that’s a long sentence to impose for such thin evidence. the pretext call is ambiguous and confusing at best. shame on fall for allowing such confusing evidence to be presented. her testimony was unconvincing according to the jurors. there was no other evidence.
David, I remember the first time we met and I told you about Ajay’s case. It was right after Ajay’s conviction. I was in a complete state of shock. I didn’t know where to begin or how to express myself. I’m sure I left you perplexed, confused and probably doubting what I was saying. But I knew if someone took the time to look into his case, not just a cursory look but study the facts, they would see that Ajay was innocent. Thank you for taking the time, for reading the briefs and for relating what you have learned and heard to the public.
This ordeal has been a nightmare I would never wish on anyone. I’ve seen families fall apart trying to cope with wrongful convictions. I’ve seen people suffer strokes and read about others suffering heart attacks due to the stress. I’ve met a man where Ajay currently is, whose has been exonerated but is still sitting in prison over 1 year later because his local DA decided to appeal his exoneration. It is not an easy road and there is no road map to guide you through the legal maze. We are at the mercy of the legal system and DA’s who have ultimate control with no oversight.
I’ve heard you criticized for being harsh on the DA. The public doesn’t know the half of what goes on. You’ve reported on the pretext call as that is what the public is most concerned with and I greatly appreciate your coverage. The public doesn’t know, but it’s in Ajay’s brief, that the Deputy DA in Ajay’s case also fabricated another admission. Having the AV translate and insert an admission into the pretext call wasn’t enough for him. So, the Deputy DA stated during closing arguments that Ajay also admitted to raping the AV in Bangkok in a note written to his attorney. As clearly explained in the brief this is an absolute fabrication and misconduct by the Deputy DA. There is so much more, but I’m already too long winded. Here is the link to the website for those who would like to know more.
http://www.seekingjusticefortheinnocent.com/index.php/ajay/ajay-news/legal-case
A dispassionate and comprehensive review of the criminal case imposed by the state against Mr. Dev reveals the conspicuous absence of any forensic (empirical) evidence, which would categorically confirm that the AV (alleged victim) was ever physically or emotionally abused by the defendant.
Conversely, unlike the accuser in the State v. Dev–it remains perfectly reasonable to presume that true victims have neither motive nor moral incentive to provide false testimony under oath, in order to seek and secure justice for alleged transgressions (heinous or otherwise) perpetrated against their person.
Mr. Dev’s conviction stands as a contemptible deformation of the legal system for its abject failure to shield an innocent man from mendacious prosecution, on behalf of a malicious, opportunistic, serial prevaricator.
The Dev family case brings another aspect of our treatment of “victims” to mind. So Mr. Dev is jailed on the basis of an apparently very flawed process. I cannot help but wonder what help has been offered by our judicial system to the true “victims” in this case, Peggy Dev and her family. And, if ultimately exonerated, what help will be extended to the “victim” who has had more than 4 years of his life taken away, Mr. Dev ?
Hello Peggy.
I am praying for your family. My biggest prayer this week is that Mr. Dev will not be tempted to accept a deal where he must register as a sex offender for the rest of his days. I pray that he does not take a deal to help the d.a. save face. I pray that he and your family are strong enough to not be swayed by aggressive district attorneys who have egg all over their faces. Be strong, believe in your husband, don’t let the bullies sway you. Peace.
One thing that needs to be pointed out is to what length one can go just for immigration benefits. I am not talking about an individual trying to cross border between Mexico and US. Many do not know what quite a number of Asians and Africans have done just to get into this country. Some have lied, cheated, bribed, pretended to be fiancé or spouse, pretended to join a church and be a Christian, as well as have used different agencies such as VAWA (violence against women’s act) with false reports just to get a visa. Anything and by any means, just get to America is the goal. The reason is obvious. It is only because of money making opportunities. It can be extremely difficult for those who were kicked out of the country. They were already here and were enjoying the freedom and money. Losing all of it and with no opportunities back home, will make them even more desperate to come back to this country. By any means necessary becomes their primary goal. I have seen this first-hand.
Sorry, I am late in the discussion. First of all, thank you David for printing specifics on the pretext call as it was such a critical part of the case. Another thing I’d like to mention about the pretext call is that while these two supposed admissions were the most highly disputed in which the case turned, there were many changes AV made to the pretext call…not just these two…that could be argued to some extent changed the tone of the conversation and thereby, by inference, Ajay’s “perceived” state of mind. At trial, the defense focused only on a few of the changes made by AV. As this article points out, the Prosecution spent most of his closing argument on the Pretext call. He went through the call as if he was Ajay, speaking to his state of mind and what he was thinking. There is no doubt in my mind that the Prosecution capitalized on all of the AV’s changes when arguing before the jury asking them to start with the discussion of the pretext call.
Another point not previously brought out is that Judge Fall only allotted so much time for the trial, and was a stickler to keep to his schedule. The prosecution took up the bulk of time to present it’s case and the Defense was left with little time to present it’s case and had to ‘rush’ through witness testimony and its presentation of evidence. Whereas the prosecution had ample time to emphasize certain arguments, the defense did not.