Three years after the conviction of Ajay Dev for the multiple counts of rape of his adoptive daughter and his sentence of 378 years to state prison, he and his attorney have filed their appeal.
Their appeal attacks both the facts of the case as well as the legal rulings used by Yolo County Judge Timothy Fall that the defense claims denied Ajay Dev of his right to a fair trial. This includes, most notably, the inclusion of the alleged victim’s interpretation of a 50-minute pretext call that meandered between English and Nepali, the judge’s failure to properly instruct the jury on the law, and the judge’s refusal to allow potentially exculpatory evidence.
This is the second of a three-part series. The first part, Sunday’s article, covers the defense’s account of the facts of the case, including critical areas that the defense says the court got wrong in the original 2009 trial. This second part will cover the defense’s legal arguments. And the third part will analyze the case in full.
In their legal arguments for the appeal, Mr. Dev’s legal team alleges that he was “denied due process and a fair trial by the trial court’s failure to instruct, sua sponte, on corpus delecti.”
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.”
However, 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.
The defense here notes, “The prosecution cannot satisfy” the burden of proving “the body of the crime itself” by relying exclusively upon the extrajudicial statements, confessions, or admissions of the defendant.”
The defense continues, “It is also reasonably probable that the jury solely relied on the pretext call evidence because the other evidence, primarily [AV’s] testimony and the pornographic evidence, were extremely weak and wrought with inconsistencies.”
Two jurors posted information on a website in response to the article. 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.”
The defense notes that “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.”
The defense argues, “The evidence presented against Ajay was nowhere near overwhelming. Rather, taken as a whole, the evidence was equally consistent with his innocence.”
The defense notes, for example, that a victim of serial rape would not develop sincere feelings of familial love, if her abuser started raping her two weeks into the relationship.
LOVE
The defense establishes evidence presented at trial showing AV in a happy home living with the Devs. They note the prosecution conceded this love in their closing argument, but the defense argues that the loving father-daughter bond that naturally develops starts at birth or early childhood and they argue, “It seems almost impossible to develop where, as here, the father and daughter relationship did not start until the daughter was 15 years old and, two weeks into the relationship, the father allegedly started molesting and raping his daughter two to three times a week for five years.”
The defense argues, “Therefore, since the evidence indisputably shows how much [AV] sincerely loved Ajay and Peggy, it seems less likely that her allegations could be true.”
PROFESSIONAL SCRUTINY
The defense establishes that the relationship of the Devs with AV was scrutinized by numerous professionals, starting with the Adoption Support Unit of the Department of Social Services (DSS) which instituted a 1999 home-study of the Dev home along with “required psychological and medical examinations of AV to determine whether AV suffered abuse or neglect.”
Writes the defense, “Based on these thorough examinations completed prior to the adoption, the Department determined there was no evidence of abuse and the Devs were suitable parents.”
They add, “Unlike other rape cases, the relationship between Ajay and AV, the alleged perpetrator and victim in this case, was scrutinized for potential sexual abuse by professionals specifically trained to identify this very type of misconduct.”
The defense notes, “Both the defense and prosecution experts… testified at trial that persons who have experienced trauma, such as being raped two to three times a week for five years, would most likely exhibit treatable symptoms.”
“Therefore the lack of evidence indicating any kind of abuse… supports the defense theory of the case that AV’s allegations were false.”
INCONSISTENCIES IN AV’s ACCOUNTS
The defense goes through the evidence on a number of the specific allegations showing them to be questionable and arguing that the AV’s “underlying truthfulness was highly questionable further supporting the defense theory that her allegations were, in fact, false.”
A prime example of this was her testimony that Mr. Dev forced her to watch the pornographic video on his computer when she was 15 years of age.
She testified that “it was particularly traumatic because he forced her to perform oral sex on him while watching the video which she had never done before and found incredibly disgusting.”
However, as previously noted, the defense produced evidence that demonstrated that the movie was not produced at the time that she alleged the incident to occur. There were a number of timeline problems here, as she alleged the attack to occur in one home when in fact, the timing was such that it would have had to have occurred in another.
Moreover, the laptop was not purchased until November 2001, two years after the alleged incident occurred, when the victim was 17, not 15. Furthermore, the evidence from a forensic evaluation of the Dev computer shows that the video in question, as well as other porn videos, did not appear on their computer until 2003, when AV was an adult.
Here the defense relies on testimony from the two experts that “a rape victim would remember ‘core details’ of a ‘marker’ event, such as the first time an abuser forced her to watch pornography and perform oral sex, and would report the details of such events consistently.”
The defense argues, “Concrete evidence established that [AV’s] memory of the core details of this traumatic event were both incorrect and/or inconsistent.”
The defense argues that AV “claimed that Ajay was showing her pornography from age 15 through age 19. However, the forensic evidence showed that the pornography had been downloaded onto the Dev computers and was viewed between April 2003 and November 2003.”
This period of time coincides with the period where the Devs suspected AV was having sexual relations behind their backs.
PRETEXT CALL TRIAL DISPUTE
The defense further alleges that the trial court erred by allowing the victim herself to translate the pretext call as her own expert. They argue this resulted in a violation of Mr. Dev’s “due process rights as the victim attributed admissions to appellant in direct conflict with the defense expert’s translation.”
Following the conversation between Mr. Dev and AV, the FBI was sent a copy of the tape to translate the conversation which was held in both English and Nepali.
“On March 20, 2009, the defense filed a motion opposing the translation arguing that it was inaccurate, based on opinions and speculation, and was not a literal translation of the recording,” the defense wrote, noting that the defense had attached an independent translation to demonstrate inaccuracies in the FBI translation.
During a pre-trial hearing, the attorneys advised the court that they were close to a stipulation regarding the discrepancies in the translations. However, writes the defense, “At the start of the trial, the parties’ attorneys advised the court that, while they had come to agreement with most of the translation, there remained one disputed phrase.”
Both sides requested that the trial court appoint a court-certified Nepali interpreter. Judge Fall told counsel, “We may be able to get somebody in. I don’t know.” However, the next day, Judge Fall reported that one translator was reluctant to be called into court to translate a document as opposed to interpreting testimony from one language to another.
The defense notes, “Without concrete resolution of the translation issue, the trial continued.”
Outside the presence of the jury, the trial court then asked both counsel whether “the transcript issue is straightened out enough to where we can go forward with this part of it?”
The defense would object to the use of the translation which now contained AV’s corrections, calling it “inaccurate.”
Judge Fall overruled the defense’s request: “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.”
The defense argues that, given the discrepancies, Judge Fall ruled that the jury would get a copy of both translations, but when the pretext call was played during the trial, the jury was only given the prosecution’s version.
“A trial refusal to appoint a certified interpreter pursuant to Evidence Code section 752 and its alternative decision to allow a biased uncertified interpreter testify, resulting in the admission of a transcript submitted to the jury during trial and deliberation… is reviewed for abuse of discretion.”
Evidence Code 752 states, “When a witness is incapable of understanding the English language or is incapable of expressing himself or herself in the English language so as to be understood directly by counsel, court, and jury, an interpreter whom the witness can understand and who can understand the witness shall be sworn to interpret for the witness.”
The defense argues that while Mr. Dev could understand the statements made in Nepali, they were “incapable of being understood by counsel, court, and jury without expert interpretation.”
In fact, the defense notes California law that clearly provides that “where there is uncontradicted evidence that the witness does not speak or understand English, it would be an abuse of discretion to fail to appoint an interpreter.” The defense adds that in this case, the recorded statement spoken in a language other than English, introduced at trial, and the failure to appoint an interpreter is also an abuse of discretion.
Furthermore, the defense argues, “The trial court abused its discretion by permitting [AV], a highly biased interpreter, to translate the portions of the pretext call spoke in Nepali.”
The defense notes that Judge Fall went so far as to advise the jury that AV qualified as an expert translator, justifying it with: “She.. speaks English and Nepali. She says that – and can tell you what was on there, and apparently she reviewed it, and this is part of her testimony now that this is what she heard, and it’s accurate under her understanding of the two languages as far as the translation goes, so that’s the state of the evidence we are now.”
The defense cites case law that suggests that, while the court can appoint “an uncertified interpreter at its discretion when a certified interpreter cannot be located, it cannot appoint a biased interpreter.”
They cite California Rules of Court, rule 2.890(c), “An interpreter must be impartial and unbiased and must refrain from conduct that may give an appearance of bias.” They note that there is no doubt in this case that AV was a biased interpreter.
The defense adds that this error was highly prejudicial as “the most significant disagreement” between the defense and prosecution, was “whether Ajay admitted having sex with [AV] when she was 18 years old.”
Thus, AV interpreted the disputed sentence as, “But you had sex with me when you were 18,” but the defense contests that this “was an impossible translation,” and the defense translator explained how the beginning sounds of what he heard are not the beginning sounds of any sexual word in Nepali.
The defense translator argues, “It was very difficult to hear this portion of the audiotape because there was a gap in the tape… Therefore, for all intents and purposes the word was unintelligible.”
The defense further notes that CALCRIM No. 358 misstated the law by advising the jury to view ambiguous statements made by the defendant on a recorded pretext call without caution.
“This is an incorrect statement of the law,” the defense argues. “Only unambiguous or undisputed recorded statements should be viewed without caution.”
CALCRIM jury instruction 358 states, “Consider with caution any statement made by the defendant tending to show his/her guilt unless the statement was written or otherwise recorded.”
The defense argues, “This is an overbroad statement of the law. The exemption for writings and recordings is not a blanket exemption.” Rather, the defense argues, citing case law, such statements “may not have to be viewed with caution if they are unequivocal or undisputed reproductions of a defendant’s out of court statements.”
The defense adds, “Writings and recordings can only justify the elimination of the cautionary requirement where they embody faithful reproduction of a defendant’s out of court statement.”
The defense argues that, in this case, there is a legitimate dispute as to what the defendant said and, therefore, the cautionary language of the jury instruction “misstates the law by allowing jurors to abandon caution in any and all cases where a defendant’s statement is written or recorded.”
EXCLUSION OF AV’s 2005 RECORD OF CONVICTION
Defense writes, “In an effort to present a defense to the charges alleged against Ajay and explain why AV would falsely accuse him of rape, trial counsel attempted, on numerous occasions, to admit evidence of a 2005 conviction against AV from Nepal for using a false date of birth to obtain her 1998 passport.”
The defense argues here that this conviction is critical to Mr. Dev’s defense because it showed not only AV’s propensity to lie, but it showed that she knew the Devs could reverse her adoption, which would result in her deportation to Nepal.
AV had a legitimate fear that the Devs could disinherit her, thus reversing her adoption. The defense argues this fear came to a head the day before she went to the police after she severed ties with the Devs over a heated argument about the break-up with her boyfriend.
Defense argues that the exclusion of the Nepali documents constitutes an abuse of discretion. The conviction affirms that AV was convicted of obtaining a passport with a false date of birth.
On March 20, 2009, before trial, the defense filed two motions to have the Nepali documents admitted as evidence. The first motion called for the trial court to take judicial notice of the two documents. The second requested that the court admit all of the Nepali documents for the jury’s consideration.
The prosecution never filed a formal motion in opposition to the admission of the documents, but nevertheless argued that the defense failed to properly authenticate the Nepali documents because there lacked attestation that the documents were the true and correct copy of the original Nepali court documents.
“Despite the defense rebuttal argument,” the defense writes, “the trial court denied the motions finding the defense failed to properly authenticate the documents because no declaration, stamp, or seal rendered the word ‘correct’ copy as part of its certification.”
Moreover, the trial court added the denial on the basis that it was “inappropriate to allow the defense to use the fact” that the victim had “lied about her birth to support its case-in-chief as opposed to simply impeaching her with a crime of moral turpitude.”
Here the defense cites Evidence Code section 452.5(b), “An official record of conviction certified in accordance with subdivision (a) of Section 1530 is admissible pursuant to Section 1280 to prove the commission, attempted commission, or solicitation of a criminal offense, prior conviction, service of a prison term, or other act, condition, or event recorded by the record.”
The defense argues here that Judge Fall abused his discretion by determining that Mr. Dev’s defense failed to provide a proper “chain of certification” pursuant to Evidence Code section 1530(a)(3).
They present a long argument based on the Evidence Code and case law on this point, and conclude that the trial court abused its discretion by refusing to take judicial notice of AV’s entire record of conviction.
“With proper authentication under Evidence Code section 1530, the trial court should have taken judicial notice of the verdict… and the appellate decision… under Evidence Code section 452.5.”
“The trial court also refused to take judicial notice of the Nepali record of conviction because it found there was no evidence the Nepali judgment resulted from a criminal versus civil proceeding,” they write. “The Nepali court documents however, make it very clear that the verdict came from a criminal proceeding.”
The defense argues that this failure prejudiced Mr. Dev and thus warrants reversal under both state and federal standards of prejudice.
COURT ERRED IN ADMITTING EVIDENCE OF ADULT PORN
The defense argued that the evidence of adult pornography to prove Mr. Dev was attracted to minors was completely irrelevant evidence that inflamed and confused the jury, and thereby caused reversible error.
In addition to three videos that AV claimed Mr. Dev showed her, forensic experts found a plethora of pornography on the Dev home computer. The prosecution, during pre-trial arguments, argued that the pornography, including the adult pornography, “was relevant to prove ‘intent to touch a minor.’ “
The court would admit the three videos AV claimed Mr. Dev showed her as a minor, and further “ruled that the remaining pornography, including adult pornography, would be admitted by title, description, and date.”
“With the exception of the ’18 & Confused’ movie,” the defense argues, “the adult pornography should have been excluded from trial because it had no bearing on whether Ajay was sexually attracted to minors.”
The defense goes on to argue that “even if the adult pornography could be attributed to Ajay, which is unclear from the evidence, it should have been excluded from the trial because it lacked a meaningful nexus to the crimes charged, as required by the California Supreme Court and United States Supreme Court.”
In fact, there is evidence offered by a defense expert that most of what the prosecution was calling porn, “were most likely the product of a ‘porn storm’ wherein unwanted and unsolicited porn advertising ‘pops-up’ appear on the computer without prompting from the user.”
The expert further argues that much of it came from a virus called “QcBar” which creates unwanted pop-up images related to pornography and that “there was no evidence that a user ever clicked on the icon images… to download them on Ajay’s laptop computer.”
“Many of the adult pornography movie titles did not accurately describe the content of the pornography,” the defense adds. “Consequently, Detective Hermann was permitted to submit a list to the jury describing the content of the adult pornography in detail. He was also permitted to testify on the content of the pornography where the defense disputed his written summaries.”
In general, the defense argues, “Character evidence like possession of legal pornography, is inadmissible against a defendant when ‘offered to prove his or her conduct on a specified occasion.’ “
The defense adds that the adult pornography found on Mr. Dev’s computers, even if attributable to him, had no bearing on the charges and therefore should have been excluded as irrelevant evidence.
The probative value of the evidence is substantially, they argue, outweighed by its prejudice.
The defense adds that the failure of Judge Fall to give a limiting instruction on the relevance of the adult pornography is further evidence of the prejudicial effect.
However, Judge Fall declined to do so, arguing, “There could be limiting instructions, if necessary, about the use of the pornography evidence for particular charges. Typically the attorney who is opposing the evidence argues that limiting instructions don’t work. I’ve heard that from prosecutors and I’ve heard that from the defense side as well. But the Courts of Appeal tell us they do work and that they’re appropriate to give.”
The defense never objected to such an instruction, and the defense argues, “Without any limiting instruction, the jury was permitted to draw whatever inference it wanted with regard to Ajay’s guilt.”
The defense further demonstrates that evidence showed that this pornography was viewed while Ajay was at work, therefore he could not have been the one to have shown the AV the pornography.
The bottom line for the defense, here, is that while Mr. Dev was acquitted on the pornography charges, allowing the evidence into the court had a prejudicial effect on the jury.
Later this week, we will have an analysis/commentary on the appeal.
—David M. Greenwald reporting
In any other rape case in Yolo County would you be so willing to look at the victim in the way you have in this case?
I don’t think so.
Take away the cultural and language differences with the same fact pattern and you would be rooting for the guy to spend as long as possible in prison.
Matt Rexroad
662-5184
“The defense notes that Judge Fall went as far as to advise the jury that AV qualified as an expert translator justifying it that “She.. speaks English and Nepali. She says that – and can tell you what was on there, and apparently she reviewed it, and this is part of her testimony now that this is what she heard, and it’s accurate under her understanding of the two languages as far as the translation goes, so that’s the state of the evidence we are now.”
By the criteria stated by Judge Fall, The accused would also have qualified as an expert interpreter being fluent in both English and Nepalese.
Should we then allow his translation as the only one presented to a jury ? If this is the full story, this is revolting . To allow imprisonment for over 300 years hinged largely on a translation provided by the accused who has much to gain from the charge ? Really ???
Matt Rexroad
“In any other rape case in Yolo County would you be so willing to look at the victim in the way you have in this case? “
It is not how I am looking at the victim that is the concern. It is how I am lookin at the evidence, the testimony, the potential motivators, and the discrepancies in the testimony that provide my level of concern. And yes, as regards another Yolo county rape case in which no cultural or language barriers came in to play, that of the alleged “railroad rape” case, I agreed with the jury that acquitted because of reasonable doubt.
Likewise, with the evidence as presented here ( granted I was not in the court room ) I believe that there is more than “reasonable doubt” about Mr. Dev’s guilt.
“By the criteria stated by Judge Fall, The accused would also have qualified as an expert interpreter being fluent in both English and Nepalese.
Should we then allow his translation as the only one presented to a jury ? If this is the full story, this is revolting . To allow imprisonment for over 300 years hinged largely on a translation provided by the accused who has much to gain from the charge ? Really ???”
Medwoman: think you mean ‘accuser’ and her not his translation?
If so, I agree!
Ajay Dev was not found guilty of pornography, but one juror’s statement in a blog illustrates that the pornography obviously prejudiced feelings toward him. This quote was in the Daily Democrat.
Dear True Person — the sickening child pornography on Dev’s computers tells me all I need to know about his “character.” He was apparently interested in pornography about father-daughter incest. I don’t think that shows good character.
I would like to add the primary care physician for the AV testified in court that she never saw any signs of abuse either.
The laws about court interpreters obviously need to be updated since they only seem to deal with the accused, accuser or witnesses not speaking/understanding English. This case obviously shows that there is a need to have the laws change with the times.
How the accuser can have so much power of a case in court is unbelievable especially given the jurors explanation for a guilty verdict.
Having worked with mandated reporters of child abuse, it is hard to believe that the mandated reporters in this case didn’t see any signs of abuse.
If Av lied on her documentation to be adopted, I doubt that the Dev’s would have had to be the ones to reverse the adoption. If the government was notified by anyone their would have been an investigation about it.
The prosecutor in the case should have had computer experts that could tell that the pornography on the computer was from a porn storm, by a virus and was not clicked on to open, it makes me suspicious about it’s use in this case.
I am confused by the comments of Mr. Rexroad:
[b]In any other rape case in Yolo County would you be so willing to look at the victim in the way you have in this case?
I don’t think so.
Take away the cultural and language differences with the same fact pattern and you would be rooting for the guy to spend as long as possible in prison.
[/b]
Where in the article, or comments made does anyone attack AV. What I see is an honest attack of the information used against Mr. Dev. There is almost a mild suggestion that those who want justice for Mr. Dev might be racist. Sorry, regardless of race, culture, or language I would want the defendant to have a proper defense and a fair judge and jury.
I find it interesting that those who defend the decision do not attack the facts, but tend to attack those defending Mr. Dev. If I was on a jury that placed a man behind bars for 378yrs. my interests would not be in defending my position, but instead would be to make sure I had done justice.
Rexroad
I would hope that when facts don’t seem to add in an accuser’s story that everyone including detectives, prosecutors and judges should be suspect of the story and delve into it a little harder. This case is not as cut and dry as you made it seem when you wrote about it on your blog. You seem to not care if there was an injustice done or not in this case. As a community we should all care about a system that is clearly broken and in need of fixing.
VICTIMS…legitimate victims possess no moral and/or legal incentive to repeatedly lie under oath, in order to justify their allegations.
I have been following this case now in the news for several years, and I find the details quite disturbing. Just the fact that the victim was permitted to act as translator for the most important piece of evidence in the case shound get the defendant an appeal. What I find most disturbing is Judge Fell’s allowing, in such a cavalier manner, something so inappropriate to occur.
This man got a 378-year sentence – that’s an incredibly harsh sentence, harsher than many murder sentences, and this case should be airtight to allow such a sentence to stand. According to the appellate brief, it is far from that – Mr. Dev deserves a new trial. Thanks very much David for your coverage of such an important news story in our community.
Sanctioning the plaintiff with the opportunity to both translate and interpret the Nepalese portion of the pretext call is tantamount to appointing a pyromaniac as Fire Marshall.
What legal weight, if any, should unverified, post trial, internet blog postings, be given, purportedly attributed to 2 of 12 jurors?
Question:
Was the victim’s translation incorrect? I don’t think it would be all that hard to find out using the trial transcripts.
[quote]Was the victim’s translation incorrect?[/quote]
This is from the Appeal Breif: “the defense interpreter and/or translator of the pretext call, emphatically testified that [Av]’s translation was incorrect and that it was impossible to translate Ajay’s statement as “[b]sex with[/b]” as suggested by [AV].”
http://www.seekingjusticefortheinnocent.com/index.php/ajay/ajay-news/legal-case/594-ajay-s-appeal-brief
Matt Rexroad
Your comment seriously concerns me given your law background. Of course, I would absolutely consider the victim, in any case. Isn’t that the job of the jury and the constitutional right of those on trial? My opinion has nothing to do with the race or ethnicity of the individuals involved. My opinion is solely did the person get a fair trial or not, and if not, then it is their constitutional right to have one.
You are an elected official who is to weigh both sides and make fair and sound decisions for the residents of Yolo County. This is just one position you have that I question your ability to do so and confirms not only what is wrong with the court system but other areas of Yolo.
[quote]the defense contests that this “was an impossible translation,” and the defense translator explained how the beginning sounds of what he heard are not the beginning sounds of any sexual word in Nepali.
The defense translator argues, “It was very difficult to hear this portion of the audiotape because there was a gap in the tape… Therefore, for all intents and purposes the word was unintelligible.””
[/quote]
Expanding on how the certified defense translator concretely ruled out any word that could possibly relate to sex. I quote from the Appeal Brief:
“He [a certified translator] testified that the sound of the word or phrase in dispute “starts with ‘K’.” That is, a hard “K” or “Ca” sound. [The translator] confirmed that the word for “sex” in Nepali starts with a “Ch” or “Cha” sound making it impossible for Ajay to have said “sex” in either Nepali or English.”
“On cross examination, the prosecution asked [the translator] if he had considered alternative words often used to convey “sex” in Nepali or Sanskrit such as “f[…]” or “slept with.” [The translator] rules these possibilities out by explaining even these words do not start with a hard “K” sound.”
“What legal weight, if any, should unverified, post trial, internet blog postings, be given, purportedly attributed to 2 of 12 jurors?”
As a retired attorney, I say none. But it does give us some insight into issues that were considered critical by the jurors.
“Was the victim’s translation incorrect? I don’t think it would be all that hard to find out using the trial transcripts.”
There appears to be some factors involved that made it difficult, including the lack of clarity of the recording. The translator for the defendant testified that the sound was inconsistent with any Nepalese word for “sex” while the AV translated it as “sex.” The Judge wouldn’t allow an independent translator to come in to testify on the key phrase.
The insight into the issues the jury found critical in coming to a guilty verdict is disturbing when taken into consideration some of the rulings the judge made. If in fact the two issues that the jury found compelling enough to convict Ajay were the disputed admission in the transcript interpreted by the accuser and the pornography on the computer being from a virus then this case hinged on evidence that should not have been allowed in court in the first place.
The Defense relied on the Nepali documents to explain why AV would fabricate the charges. In addition, the documents also clearly exposed AV’s proclivity to lie to officials for personal gain. The documents were an important element to the defense’s position that the charges were false.
The admission of said documents were denied on the basis of simple symantics. The documents in part had proper attestation with the words (keeping in mind this is coming from a foreign country), “I…certify that the following Nepali Document has been translated by the authorized body and also certify the seal and signature to be true and the official position of the Section/Production/Account/Administration Officer thereof.
Also, “I…certify that the authorized translation of the following Original Nepali Document to be true and the official position…”
The prosecution argued that the defense failed to properly authenticate the Nepali documents because there was no attestation…”true and correct” copy of the original Nepali documents.
The trial court agreed with the prosecution and denied the admittance of the evidence. The appellate brief details case law very effectively demonstrating that the proper attestation was made with the declaration of “true” rather than “true and correct,” The Defense also was willing to produce an expert to the court for questioning and provide a formal written declaration that the proper attestation was made, explaining the process of such documents in the Nepali court system, all of which Judge Fall refused to hear.
It seems, at best, rather frivolous to deny a defendant the right to put forth his theory of the allegations because of semantics. Had the defense been given the opportunity to put forth this evidence, it would have shown that the AV lied to her government in order to gain access into the U.s. (personal gain), and that her entry into the U.S. was fraudulent and could be revoked.
If she was willing to lie to gain entry, why wouldn’t she lie to keep her status, especially given the fact that the relationship with her “sponsors” had deteriorated and seemed irreparable?
This, coupled with all of the inconsistencies in her testimony made a strong argument for Ajay’s defense.
With the facts now being made public, it is sadly apparent how far the officials in this case were willing to go to get a conviction. They knew about the inconsistenies with the pregnancies, the declaration Ajay made on in the pretext call about the other boy impregnating her, the pornography “porn storm” that was never opened, and the fact that she kept changing her story AND the fact that she hada history of lying to government officials for personal gain!!! With all of that, NOT ONE PERSON paused and asked, what is really going on here? They ignored serious inconsistencies and prosecuted a case that really never should have gone to trial.
A commentary on the proceedings. I observed much of the Dev trial. I have also recently been following the Jodi Arias trail, which is televised daily in its entirety. There is one thing these two trials have in common–the prosecutors are/were both totally 100 percent focused on obtaining a conviction, with little regard for the guilt or innocence of the accused. It’s like watching a wrestling match of the wits– both sides just want to win. The “truth” really doesn’t seem to be at issue for either attorney–it’s all about winning the battle. It’s all a part of the game, and it’s all in a day’s work, it seems.
The big difference I have observed between the Dev and Arias trials can be boiled down to one very crucial component–the judge. The judge in the Arias trial (Judge Stephens) appears to be unbiased. She treats the witnesses and attorneys for both sides with respect and gentleness. She observes. She listens attentively. She carefully considers objections before responding with a ruling. She is quiet and reserved. Her personality and way of being in the world is a mystery. Her opinion as to the guilt or innocence of the accused is totally unknown (and irrelevant). As far as I can tell, she is simply there to ensure a fair trial and strict observance of the law. Not only that, she allowed the accused to sit on the stand for over two weeks, telling her side of the story ad nauseum. The trial is going on, and on, and on, with countless witnesses and hours and hours of testimony. And Arizona is one of five states in the country that allows the jury to ask questions of the witnesses, which means that opportunities for clarity for the jury is endless; they get the info they feel they need to make an informed decision.
Rather than publicly defame Judge Fall with a laundry list of things he did and did not do/allow, I will simply say this. Had Judge Stephens been presiding over this trial, and had the trial been made public via television, I am confident Ajay Dev would have been given ample opportunity to defend himself (e.g. more witnesses, more documentation, more proof entered in as evidence). The jury would have observed the judge speaking to the defense attorney and witnesses with respect, rather than condescension. The jury would have heard more testimony and would have had access to more information, including professional third-party translations of key evidence. The prosecutor would not have been allowed more time to present his case to the jury than the defense attorney did. In short, had a judge like Judge Stephens been presiding (with millions of people around the country observing with a critical eye), I contend Ajay Dev would have received a more fair and unbiased trial.
I think an important question that all law-abiding, tax paying Americans (particularly those who reside in Yolo county) should be asking themselves is why Jodi Arias, a woman who admitted to stabbing her boyfriend 29 times, should receive such a respectful, fair trial, while Ajay Dev, a man who has repeatedly denied these allegations from the moment he was accused, was treated “guilty until proven innocent” by the judge presiding over his trial.
And while it’s still just speculation at this point, I predict Jodi Arias, a person who admittedly shot a man in the face before stabbing him 29 times, will be convicted for less than 300 years in prison.
If you feel that Ajay Dev did not get a fair trial, or you feel someone needs to look at the facts of this case more in more detail, please sign the petition going to the attorney general. Over 1,100 people have already signed. You can go to the petition by clicking on the link near the top of this page or go to http://www.change.org/petitions/free-ajay-dev-a-victim-of-cash-for-convictions
I was reading the Statement of Facts in the Brief and saw AV’s communications to Ajay and Peggy. AV’s own words did not seem to depict an “abused” daughter. Instead it was of someone who loved her parents and wanted to reconcile with them. I don’t believe a sexually abused person would have written these words. It’s clear to me that there were parent/child problems but certainly no abuse.
AV arrived in the US 1/23/1999 and her adoption was finalized 12/6/1999. In June 2000 she gave Ajay a Father’s Day card that said, “Thanks for being my special and wonderful Daddy. I love you. AV (w/ a heart).”
One month after her 1st pregnancy (1/2003), she gave Ajay a birthday card. It said, “Hey, Dad – my taste in clothes and music may not be the same as yours. I may not always be around to help you with chores…I often fail to “tidy up” as often as should, and there have been times my attitude’s not really been that good. I know I sometimes say things that may strike you as absurd…But when I say “I Love You, DAD,” I mean it – EVERY WORD! Happy Birthday.” In her own handwriting she added, “I love you daddy. You are a very special part of me. Without you I would not be able to express my emotions and I would not be able to be myself. With all my heart and love[,] you[r] daughter AV.”
The day AV moved out from the Dev’s home (12/2003) she wrote Ajay and Peggy a note. It said, “Hi, Mom and Dad! Thanks for everything that you have give[sic] me, love, food, and house. I will keep in touch. Don’t worry! I love you very much. (a friend) came to pick me up! I might come back to pick up my bike later tonight. (w/a heart) AV.”
In a reconciliatory message to Ajay AV texted Ajay (12/4/2003), “dad, please call me, I miss u very much! I love u.” Another text (12/24/2003) to Ajay and Peggy, “Dad, mom I love u and miss u…”
In an email to Ajay (1/8/2004) AV attempts to repair her relationship with Ajay and Peggy after she learned she may be disinherited. The Brief states, “…AV told Ajay she missed him and Peggy “a lot,” but was deeply hurt and needed to cool down. She signed off, “miss you and love you. Your Daughter AV.”
In another email AV expresses her deep gratitude for everything Ajay and Peggy had done for her. It said, “The support that you have provided to me and the unconditional love that you have given me. You prove that to me by being there for me before and after I moved out…But one thing I can tell you, no matter what I will never give up and I will still try to be your daughter no matter how much you want to hurt me by asking the tough questions and putting me in the spot.”
The Brief states, “Juxtaposed with this sentiment, AV reiterated that “i like to live my life my way not someone else’s way” and told Ajay and Peggy that if they don’t want to accept this then there is nothing she can do about it because “[t]his is the way I deal with things.” AV closed the e-mail with the hope that, “we can still be a family and still talk. I do care about this family and I don’t know how else to show it or express it to you. I know I am probably not welcome there but I wish to come and see you guys some time.”
I know I am late in commenting. However, I was driving cross country, but I really wanted to make a comment on your first article under the topic “Under Nepali Legal” It stated that in May 2004 the AV requested that the legal case against Mr. Dev be dropped. Then in October 2005, one and half years later Det. Hermann asked the US Embassy to issue a waiver of police certificate allowing AV to re-enter the US for the purpose of testifying in the criminal trial against Mr. Dev. My question is, if the charges by the AV were dropped in 2004, how is it that she was needed to testify in a criminal trial? When was Mr. Dev officially charged? Was it BEFORE or AFTER the US Embassy was involved?
Eyes Wide Open –
That’s just it. She dropped the charges before she went to Nepal, shortly after (within a few months) of the formal complaint, and AFTER the seizure of the Dev computers. It is noteworthy that no charges were ever formally filed against Ajay even after they confiscated the computers. After she dropped the charges she went to Nepal to her sister’s wedding. While there, her passport was confiscated because of the case against her for fraud. She could not leave Nepal because the government of Nepal had confiscated her passport. She then (AV) contacted Det. Hermann at the Davis Police Department (the original investigating officer) and asked for him to help with her re-entry into the U.S. He contacted the Embassy and helped to facilitate the necessary Police Waiver for her to leave Nepal and re-enter the U.S., which was necessary because of the problems with her passport.
Formal charges were not filed against Ajay until AFTER she re-entered the U.S.
Perhaps the most compelling witness for the defense materialized in connection with testimony proffered by the family physician…Dr. Vivian Walker.
According to Dr. Walker…the plaintiff was examined on eight separate occasions inclusive of the five years and the 780 rapes that the plaintiff allegedly experienced while residing with the defendant.
Concordant with Dr. Walker’s personal examinations and supported by the plaintiff’s medical records; Dr. Walker testified that she neither detected nor recorded any pathology consistent with a patient suffering from physical or emotional abuse.
One can only imagine what would otherwise convince a jury of 12 adults that the plaintiff in the State v. Dev was nothing more than a duplicitous, serial prevaricator with neither a conscience nor a soul?
How is it that a trained, legal practitioner (see the prosecutor of record Steve Mount) is able to detect the the so-called praxis of lies perpetrated by defense witnesses on behalf of the defendant, yet…lack the investigatory acumen, intelligence and integrity to view his principal witness as a proven liar?
As someone who has known the Dev family for years, I am grateful that the details of the injustice done to Ajay and his family are now out in the open. I spent many weekends with the Dev family and (AV) during the years of the supposed rapes and never witnessed anything other than a loving family. I am a mandated reporter of suspected child abuse and am trained to recognize signs of abuse. There were none. During the timeframe of the alleged rapes, I spent at least one weekend with (AV) when her parents were out of town. She had multiple opportunities to ask for help or give clues. All she talked about was how much she missed her mom and dad and how she couldn’t wait for them to return. This is not how someone being raped multiple times a week would feel.
Please continue to support Ajay Dev and his family. These are incredible people suffering under a cloud of injustice. I have read Mr. Greenwald articles’ and I am continually dumb struck about this miscarriage of justice. It is my sincerest hope and prayer that the appellate court will see this travesty and right this terrible wrong.
Dear Matt Rexroad,
You could not be any more inaccurate with your two broad and unsubstantiated statements.
I do not “root” for the destruction of human life. That is a universal feeling that I, and I am sure many posting here agree with.
And please do not presume that a person’s culture, race, socio-economic standing, religious views, political alignment, or character may be affecting my feeling on this issue either. In fact, you should not assume any level of guilt will sway some inner animalistic lust for vengeance within me. I truly lament all who have suffered by the deeds of the guilty, and I truly lament the guilty victims who must now decay behind bars with no real hope of rehabilitation.
Having responded to your two dubious assertions, I would advise you to be careful when inciting emotional responses in yourself and others; especially when it pertains to matters of such dire importance. Emotionally elicited responses tend to cloud logic in the process. A case of this importance carries tremendous emotional weight on either side. Great effort is required to press aside the inevitable emotional road blocks, and see clearly the facts of the case – which stacked exceedingly high in one corner – and the blatant procedural misconduct.
I am assuming, Mr. Rexroad, that you have not ample time or curiosity enough to read any of the reporting in the above article (and other articles), or the various supportive links posted below them. Otherwise, Mr. Rexroad, the unbiased knowledge of this case that you could garner would greatly sour your enthusiasm to “root” for conviction, and halt your haphazard lumping of Ajay Dev with the sex offenders of Yolo County.
I know the society we belong to has not matured much beyond the glory days of Rome and its colosseum-driven entertainment, but I like to believe we can strive for a line of sophistication where the fate of another is not viewed as a trifle to amuse ourselves.
Imagine the justice that could emanate from a system embracing this philosophy.
Sincerely,
A plea to your intellect
I think that it is quite clear that this was not a fair trial for many reasons. From what I can gather there seems to be no factual evidence against Ajay. Again I would like to thank David for writing this article and bringing Ajay’s case to the attention of the public.