Commentary: The Case for Commuting the Sentence of Ajay Dev

We are rapidly coming up on the 10-year anniversary of the conviction of Ajay Dev and his 378-year sentence for allegedly raping his adopted daughter over a five-year period of time, now over 15 years ago.  Many, including the Vanguard, believe that Mr. Dev was wrongly convicted of this crime and recent evidence has emerged to corroborate the notion that the girl lied in order to avoid being deported to Nepal.

However, an appellate court  in 2017 denied an appeal and the case is currently in the midst of consideration for a Petition for Habeas Corpus.  At the same time, attorneys for Mr. Dev have submitted a request to now-outgoing Governor Jerry Brown to commute his sentence.

Yesterday the Marshall Project had a special article on the consideration that Governor Brown makes when considering pardons and clemency in such cases.

That article notes: “Brown’s clemency decisions focus on people facing what the governor seems to view as systemic injustices.”

“It’s a recognition that people can, and do, change—even after committing terrible crimes,” Evan Westrup, a spokesman for Brown, said in a statement. “It’s also a recognition of the radical and unprecedented sentencing increases and prison building boom of the 80s and beyond as well as the diminished role of parole as a vital ingredient in California’s system of sentencing and rehabilitative process.”

Among the people who have received clemency recently: Southeast Asian immigrants who came to the United States as children and who face deportation unless granted a pardon; non-citizen military veterans who were deported for crimes committed after their service; and prisoners serving life without parole, who were given hope of release.

“It really ties in with Brown’s attitude toward criminal justice,” said Anoop Prasad, an attorney who represents a group of Southeast Asian immigrants seeking pardons. “He realizes that California made major mistakes, and he was partly responsible and is trying to walk it back.”

Governor Brown should consider the case of Ajay Dev.  In 2009, Ajay Dev was wrongfully convicted in Yolo County Superior Court of sex crimes against his adopted daughter that resulted in a 378-year prison.  The jury found Ajay guilty of 76 of 92 counts.  The Third District California Court of Appeal affirmed the judgment on January 12, 2017.  The timely-filed Petition for Rehearing was denied on February 3, 2017.  The California Supreme Court denied the Petition for Review on April 19, 2017.  Since then new evidence has been submitted as part of a Habeas petition that illustrates Ajay’s innocence.

As noted in the petition as well as numerous Vanguard articles, the key evidence that led to wrongful conviction was a pretext phone call that supposedly corroborated the alleged victim’s testimony.

Here Judge Timothy Fall erred by allowing the victim to translate the conversation that meandered from English to Nepali. The key statement that the jury relied upon was, “But you had sex with me when you were 18.”

New technology has allowed Ajay’s defense to enhance the audio from that recording.  A Nepali translator listened to the new enhanced recording and has determined that Ajay did not state what the alleged victim claimed.  Instead, Ajay said, “If that (is) so, why did you come with me since 18 years?”

Appellate attorney Cliff Gardner argues: “The prosecutor’s argument that this portion of the pretext phone call constituted an admission that petitioner had sex with [S. Dev] is simply wrong.  In assessing the pretext call, and counsel’s arguments, it is critical for the jurors to have an accurate translation of the pivotal portions of the call.”

The Habeas petition also presents new evidence that the alleged victim lied.  There is the January 2018 Facebook message the alleged victim’s own sister sent to Ajay Dev’s brother Sanjay: “[AV] want to take revenge and get to Amrika [sic]. . . . The only way to come to Amrika [sic] was to come testify against Ajay uncle. We did not know that he will be put in jail long time. Now AV say that if she helps she will go to jail and get deported. . . . AV has lied many times in the past. She had no choice. Police say to her they will help if AV testify for rape. . . . We know that she was not raped. . . . We also tell AV to tell the truth that this never happen but she scared now.”

The alleged victim (AV) told her cousin Sangita Dev that Mr. Dev neither raped her nor inappropriately touched her.  In 2004, Ms. Dev asked the alleged victim whether “Ajay is raping you?”  To that the AV responded, “Nothing happened.”  “Ajay did not rape or touch her,” she wrote in a declaration.

When Ms. Dev expressed concerns that Ajay Dev would get in trouble, the AV explained, “No, nothing will happen to Ajay.”

Sangita Dev explained that “because the AV was her first cousin she was too scared to initially come forward because she felt like it would be going against her family.  In fact, Sangita’s mother told

her to not to get involved in this ‘family mess’ and to ‘keep my thoughts to myself.’”

The AV told longtime family friend Dinesh Deo about the allegations and “AV explained to him that she believed Ajay and his family had reported her for passport fraud.”

The AV told Mr. Deo “that she would put Ajay in jail like he had put her in jail.”

While it is the belief of many that Mr. Dev was wrongly convicted, from the perspective of the governor, his decision should come down to this: by next summer, Mr. Dev will have already served ten years of the extraordinarily long and unjust 378 prison sentence.  Murderers often are sentenced to far less time and eligible for release far sooner.

Mr. Dev had no prior criminal record and the record indicates Mr. Dev “Ajay is a role model inmate and his record affirms he is the type of inmate that should be considered for commutation of sentence.”

Mr. Dev said “Ajay had no previous record and was never accused of any wrongdoing.  Before this wrongful conviction, Ajay was a productive citizen.  He was an engineer for the state of California Department of Water Resources.  Ajay was happily married with a child, and another on the way. There are hundreds of people that are willing to speak to his good moral character and many have written letters of support which are attached.  He is a kind, gentle, good man that has helped many in the community as both a leader and volunteer.

“Ajay’s good character stands out at the prison too. Ajay has a perfect record with no incidents.  He is respected by staff, prisoners and leadership at Mule Creek State Prison.  Both the Warden and Assistant Warden fully supported Ajay’s application to be granted contact visitation rights to his minor two sons.”

Governor Brown in his final days of office can right a tremendous and overwhelming injustice in our system by freeing Ajay Dev and allowing his still young sons to experience life with their father.

—David M. Greenwald reporting

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