(From Press Release) – 378 Years Gone in the Blink of an Eye!
That is what hundreds of people are hoping to witness. For seven years, Advocates for Ajay have marched, demonstrated, petitioned, written letters, given radio and television interviews regarding the wrongful conviction of Ajay Dev who was sentenced to 378 years. On Wednesday, October 19th, the Third Appellate Court has requested oral arguments in Ajay’s appeal (a very rare request by the judges) and hundreds of supporters will be there to witness this significant event.
The oral arguments are at 9:30am. followed by a march and vigil to be held outside the Third Appellate Court at 11:45-1:00pm. Appellate Court, 914 Capitol Mall, Sacramento, CA. We invite you to come and report on this event.
Have you ever come across a case where over 1,000 people are supporting a convicted rapist who has been sentenced to 378 years? Probably never.
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.
The accuser’s testimony was full of inconsistencies. Her doctor and social worker 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 750 rapes). The crime of rape usually has no witnesses, but this case is different because she claims that some of these rapes happened while other people were present. Those people unanimously agree that this never happened.
The trial court allowed the accuser to translate a pretext call spoken in Nepali in which she inserted an alleged admission used to convict Ajay, even though an accredited translator disagreed.
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.
The following is Vanguard Analysis of Ajay Dev’s Appeal, Part II from March 2013:
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 [not] 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.
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.”
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 oral 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 section 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 jury instruction 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