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 Nepalese, the judge’s failure to properly instruct the jury on the law, and the judge’s refusal to allow potentially exculpatory evidence.
What follows is a three-part series. The first part, today’s article, covers the defense’s account of the facts of the case, including critical areas that the court got wrong in the original 2009 trial. The second part, later this week, will cover the defense’s legal arguments. And the third part will analyze the case in full.
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 FACTS IN DISPUTE
In the appeal, the defense represents a long interplay where we see mounting tensions between AV and the Devs over her lifestyle and cultural expectations. In an email, Mrs. Dev wrote to her family back in Nepal: “Ajay and I expect [AV] to follow our rules of not dating or having sex before marriage..” Moreover, AV violated Nepali cultural expectations, as AV herself noted at trial “in our culture kids don’t get out of the house, especially girls, until they get married.”
Tensions led at that time to allegations of physical abuse by the Devs toward AV, and she accused them of slapping her and being unable to control themselves physically during periods of anger.
This confrontation, building for some time apparently, came to a head on January 31, 2004, as Mr. Dev emailed AV’s current boyfriend and “told him that he must respect the family’s cultural values if he wants to be involved with [AV] romantically.”
The following day, the boyfriend told AV “that he broke up with her because of” Mr. Dev’s email and AV was outraged.
A day after the break up, AV went to the police and, for the first time, accused Mr. Dev of rape.
THE PRETEXT CALL
Of all the issues facing the appeal, one of the most central is that of the pretext call. Two jurors claim that the phone call was central to their guilt verdict.
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 family has always disagreed with this interpretation. According to the family, the phone conversation, recorded on behest of Davis Police Detective Mark Hermann, was partially in English and partially in Nepalese. They believe that that phone conversation was misinterpreted.
According to the family, “The DA’s interpretation of what Ajay was saying to the accuser… was totally and completely false. Any misunderstanding is due to language and cultural issues which are often times lost in the translation process. Ajay was trying to explain to the accuser how our legal system works demonstrating that if a statement like this was made it could possibly ruin both her life and his. He was NOT admitting to rape.”
The family contends that the phone conversation lasted 50 minutes, during which the defendant denies the charges at least 27 times.
The Vanguard has never been able to have the recording independently evaluated. However, the appellate brief provides the most detailed information to date.
The appeal argues that on the evening of February 4, 2004, AV supervised by Davis Police Detective Mark Hermann initiated “the pretext upon which they hoped to obtain a recorded admission from Ajay [Dev] corroborating [AV’s] that Ajay had raped her two to three times a week for five years from ages 15 to 20 years of age.”
“No such admission was obtained,” the appellate attorney writes.
According to the brief: “‘The Pretext for the call, devised by Detective Hermann, involved a lie that [AV] went to her school counselor and admitted she had three abortions, but refused to tell the school counselor who the father was. [AV] intimated that Ajay was the father and hesitantly told Ajay, “l did not really tell her anything about us should I tell her, about you and me daddy?”
Apparently, Mr. Dev did not know what to think of these new allegation and believed AV “was attempting to frame him because she was so enraged about the break up…”
What would follow is roughly thirty minutes of back and forth. AV’s “accusations became more direct: ‘You had sex with me, ever since I was 15.’ “
Mr. Dev would repeatedly deny these allegation responding, “[AV] it’s wrongly accused.” She responded, “How is that wrongly accused? Didn’t you do that to me, when..” He responded, “I did not.”
“Are you lying?” she asked. “No, I am telling the truth.”
It is a strange conversation.
Writes the attorney: “Throughout the call, Ajay implored [AV] not to frame him out of revenge…” At approximately 30 minutes into the call, “Ajay’s parents, who could overhear Ajay’s side of the call, told Ajay to speak Nepali… They did not trust [AV] and feared she was trying to frame him.”
The critical moment comes when she asked, “How is my life re… ruining daddy?” To which he angrily responded that her life could be ruined “because you have fucked me after 18 years of your age.” AV replied, equally indignant, “Ok so?” After a long pause, Mr. Dev stated, “That means you have given me consent,” which AV denied.
Writes the defense: “The prosecution and defense disputed the meaning of this highly ambiguous exchange at trial.”
They continued, “What was not in dispute however was [AV’s] comment made seconds later: that she was angry at Ajay because he would not admit that any of her allegations were true.”
Mr. Dev: “Talk softly, why are you talking so angrily?”
AV: “Because I want you to talk to me. I want you to say it.”
The defense is arguing here that if he had just admitted to having sex with her earlier in the phone call, what need does she have to continue to attempt to convince him to admit to having sex later in the conversation.
They point to an ambiguous statement where AV alleges that Ajay purportedly said, “But you had sex with me when you were 18.”
At trial, “The defense expert who translated the pretext call testified that Ajay’s statement was inaudible, but was able to decisively rule out [AV’s] translation because, although mostly inaudible, the expert could unmistakably hear the first syllable of the word in dispute which was incompatible with any Nepali word connoting ‘sex.’ “
The defense notes AV’s frustration as she continues to push him, “Why don’t you admit?”
Mr. Dev would push back, arguing that “her allegation would eventually be disproved by medical records which would surely expose the real person who impregnated her.”
Mr. Dev would argue, “You had abortion when you were 18 years old and they have the record. When they have the record, they will understand with which boy did you go with to give name.”
AV would only respond that “the boy’s name is not there” – she did not dispute that she had been impregnated by the boyfriend.
NEPALI LEGAL TROUBLE AS MOTIVATION TO PRESS CHARGES
Following this call, the Devs would hire legal counsel and, at the behest of counsel, they initiated their own investigation of AV’s life in Nepal.
In May of 2004, AV wrote a letter to the DA requesting that the police “withdraw the case against” Ajay Dev. A month later, AV was arrested in Nepal attending her sister’s wedding on charges that she had lied about her date of birth on her 1998 passport. She would be charged with passport fraud and jailed for 19 days.
Writes the defense, “Without her passport [AV] would have no way of re-entering the United States and, as a result, risked losing her legal residency status and her path to American citizenship.”
In June 2005, AV was convicted of passport fraud in Nepal and she would not be allowed to re-enter the United States without a waiver of police certificate.” In October, at the behest of Detective Hermann, “The U S. Embassy in Nepal issued a waiver of police certificate allowing [AV] to re-enter the country.”
The Embassy did so because [AV] planned to testify in the Ajay Dev criminal case.
During the trial of Ajay Dev, AV testified that Mr. Dev raped her two to three times a week for five years from the age of 15 to 20. She testified that he first inappropriately touched her in early February 1999, within weeks of her arrival.
AV testified that Mr. Dev laid down behind her while she was on the couch, pressed his pelvis into her backside, touched her breasts over her clothes. After a few minutes, she got up and walked away. Mr. Dev allegedly instructed her not to tell anyone.
A month later, Mr. Dev carried her to his bedroom, and attempted to undress her as she tried to escape. She said he held her down, undressed her, and proceeded to have intercourse with her.
From this point on, she testified that Mr. Dev raped her “without fail, two to three times a week for five years.”
She testified that for the first six months, he raped her only when his wife was out of the house, but thereafter he would rape her while his wife was asleep.
AV alleged that Mr. Dev forced her to watch a pornographic video, “Eighteen and Confused.” She claimed it was shown on Mr. Dev’s laptop but there were serious discrepancies with the story.
She claimed she was shown it when she was 15 in 1999, but evidence at trial showed the video did not exist until January 2000 and the laptop was not purchased until November 2001.
During trial, AV estimated Mr. Dev forced her to have oral sex about three times a month or 30 to 50 times over the course of three years. She testified, “All I remember is resisting him and feeling disgusted.”
However, when she spoke with Detective Hermann in February 2004, she adamantly denied that Mr. Dev ever forced her to perform oral sex on him. She explained during the videotaped interview, “[b]cecause I just thought it was disgusting to do – put his thing in. I never – I mean, it’s disgusting to put that thing in my mouth… I wouldn’t do it.”
The defense notes, “Officer Briesenick testified that when [AV] reported the charges against Ajay on February 2, 2004, she never included any allegation relating to oral copulation.”
AV would testify that a number of rapes and assaults occurred outside of the Dev home and in the homes of relatives including one where she testified that she slept on the living room floor with her cousins and was raped while they were in the same room.
She also testified that she was raped on the floor at a relative’s home near Monterey as Mrs. Dev slept in the bed adjacent to them.
In both incidents, AV “could not remember other details of the incident.”
The defense notes, “At the preliminary hearing, [AV] testified that no rapes ever occurred when she was sleeping in the same bed as Peggy [Dev].” However, “At trial… [AV] testified that Ajay was able to rape her in the same bed as Peggy on two occasions without waking up Peggy…”
The defense notes that AV told Detective Hermann that the rapes stopped once she moved out. However, during the trial she testified that Mr. Dev raped her at Motel 6 after she moved out of the Dev home.
The defense writes, “Specifically, she testified that Ajay picked her up at her apartment, and although she thought they were going to the park, he took her to the motel. [AV] testified that she voluntarily followed Ajay into the motel room as she believed they would just talk.”
The defense continues, “Despite having been raped 500 to 700 times, [AV] stated she gave Ajay the ‘benefit of the doubt.’ “
The defense adds, “[AV] testified she had nightmares about this experience and, it was so traumatic, she would never forget it.” They note, “Although the rape occurred January 12, 2004, [AV] admitted she did not initially tell the reporting officer, Officer Breisnick, about this rape on February 2, 2004 or Detective Hermann February 3, 2004 because she didn’t remember it.”
The defense notes that the prosecution attempted to explain delays in reporting a number of the rapes along with her inconsistencies through expert testimony from Dr. Anthony Urqiza. Dr. Urquiza argued that children suffering from Child Sex Abuse Accommodation Syndrome (CSAAS) “may experience entrapment, accommodation and delayed and unconvincing disclosure.”
However, the defense’s expert countered that, noting that CSAAS is not recognized by the AMA or psychological or psychiatric associations and that research has undermined its legitimacy.
AV testified during trial that Mr. Dev impregnated her three times as the result of the 500 to 700 times he raped her during the five-year period. The defense argues that these pregnancies occurred during an 11-month window when AV was between 18 and 19 years of age. She insisted during trial that the pregnancies could have only occurred due to Mr. Dev since she was not having sex with anyone else.
However, this contention was directly contradicted by one of her boyfriends who testified that they were having sex at least once a week at his mother’s home during the fall of 2003. “The defense argues, “The evidence also showed that [AV] was dating ‘Sid’ during her first two pregnancies, from November 2002 through May 2003, and dating ‘Araz’ during the third pregnancy scare in November 2003.”
The defense notes, “[AV] offered no explanation as to why she only got pregnant during times in which she was dating older males [that] Ajay and Peggy forbade her to see or why she never got pregnant from ages 15 to 17 even though she was fertile and claimed that Ajay rarely wore condoms during these alleged rapes.
—David M. Greenwald reporting