It was with great anticipation that, seven and a half years after Ajay Dev was convicted in 2009 of raping his adoptive daughter and was sentenced to 378 years, we would finally get to see the appellate court weigh in. Alas, the ruling by the appellate court was disappointing to say the least.
While the Vanguard and many of the family’s supporters believe Mr. Dev was wrongly convicted in a patently unfair trial, the Third District Court of Appeal writes, “Based on our review of the entire record, we are confident defendant received a fair trial. The testimony of a single witness can support a conviction if that testimony is believed by the jury. Defendant claims the victim lied, but it was the responsibility of the jury to review all the evidence, including the witness testimony, and determine which evidence it found credible and dispositive.”
That was always going to be a problem in the appeal – the judges made clear that weighing which evidence was credible ultimately fell to the jury.
At the same time it is disappointing that the court failed to acknowledge a fundamental fact about this case – the jurors to a person acknowledged that they convicted based solely on the pretext phone call – and the pretext call itself is the centerpiece of the dispute.
It is equally troubling that when the court states, “Our review of the record establishes that defendant’s convictions are supported by substantial evidence,” they themselves go on to misstate the record in the recorded phone conversation between the alleged victim and the defendant.
They say that “defendant made statements that he deserved to be put in prison, that he threatened to kill the victim and himself, that the victim’s life would be ruined because she had sex with defendant after she turned 18 and thus had consented, that they met together at a motel, and that nothing would happen because the victim had no proof.”
The court writes, “There is also evidence regarding pornographic materials found on a laptop and computer tower in defendant’s house.” The court writes this, completely ignoring that Mr. Dev was in fact acquitted on that charge.
To simplify the analysis, the court ruled on ten contentions raised by the defense.
First, the court stated that the trial court erred in not instructing with CALCRIM No. 359, but “the error was harmless because there is sufficient independent evidence of the crimes.” At issue here is the lack of independent evidence of a charged crime “in connection with the use of statements he made during the recorded pretext call.”
The court finds this error harmless, but how are we to know? The appellate attorneys have apparently talked to each of the jurors and concluded, as have we for some time – the pretext call is the basis for the conviction.
As we have often reported, two jurors posted information on a website in response to the article after the conviction. 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.”
This is the centerpiece in the entire trial.
The defense maintains that the trial court erred in failing to appoint a certified Nepali interpreter to translate the statements defendant made during the pretext call, and it abused its discretion in permitting the victim to act as an “uncertified interpreter” of those statements.
Here the appellate court rules that the trial court “was not obligated to appoint a certified Nepali interpreter, and did not prejudicially err in allowing the victim to testify regarding statements made in the pretext call, because there was no witness or party who could not speak or understand English, and it was for the jury to decide witness credibility and resolve conflicts in the evidence.”
This is the biggest problem in the entire case. The central piece of evidence is what Ajay Dev said at that moment in Nepalese.
The critical moment, as interpreted, 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 f—ed 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, in the disputed portion, 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.’”
If she had just obtained a confession, she didn’t act like it. 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.”
It is troubling that the court is okay with allowing the complaining witness to translate the conversation into English on this key point. This is not a credibility issue, it is a matter of translation and an independent expert was needed in order to get this right. A man is in prison for 378 years based on this exchange and the judge did not have the patience to make sure they got it right.
Third, the defense believes that the trial court erred in instructing the jury with CALCRIM No. 358 because, according to defendant, the instruction directed the jury that all recorded statements made by defendant could be viewed without caution.
The appellate court disagrees with “defendant’s characterization of CALCRIM No. 358, and the last sentence of that instruction does not apply to the parties’ dispute about the interpretation of defendant’s recorded pretext call statements.”
The defense contends that the trial court erred in excluding evidence of the alleged victim’s 2005 Nepal record of conviction. Here the appellate court rules that “defendant fails to show that the purported Nepal court records were admissible or subject to judicial notice, and the claims he raises for the first time on appeal are forfeited.”
This is the first of a series of troubling rulings by the appellate court – they basically take the position that the defendant is not allowed to challenge this because it was not raised at trial. That means any insufficient defense allegations cannot be raised at the appellate level. They can be raised at the next stage of habeas, but that is still several years off.
The appellate brief alleges that the trial court erred in admitting evidence of adult pornography. Here again, Mr. Dev was acquitted on the pornography charge, but “defendant’s claims in connection with the admission of adult pornography are forfeited because he did not make a specific objection on the grounds asserted on appeal in the trial court.”
The same thing with point six, that “the prosecutor committed misconduct in arguing that a person using a file-sharing website cannot inadvertently or unknowingly obtain child pornography,” where the court rules, “defendant failed to preserve his prosecutorial misconduct claim for review because he did not object at trial to the challenged remarks, and it was not error to admit People’s exhibits 44-A, 44-B and 44-C.”
The court erred “in excluding evidence of an e-mail which purportedly showed that defendant was at work when someone accessed child pornography on his home computer” to which the court rules, “the trial court did not err in excluding the proffered e-mail because defendant failed to establish the foundational requirements for its admissibility.”
Objection eight is that “the prosecutor committed misconduct by commenting on defendant’s failure to testify” to which the court ruled, “read in context, there is no reasonable likelihood the jury would have construed the prosecutor’s remarks as a reference to defendant’s failure to testify.”
Nine was “the trial court violated defendant’s constitutional rights by refusing to hold an evidentiary hearing to settle a proposed statement with regard to a missing jury note and whether the jury received certain trial exhibits during deliberations.” The court ruled that “no prejudicial error is demonstrated in the settled statement proceedings.”
Finally the defense argued for a new trial “based on the cumulative effect of the asserted errors in this case.” The appeals court rejects this claim.
At the next stage, the habeas corpus level, issues of ineffective defense counsel can be raised, but it is troubling at this stage that the appellate court can simply reject three or four critical potential errors on the basis that they are forfeited because they are raised for the first time on appeal.
The biggest issue in this case remains the decision by Judge Fall to allow the complaining witness to be the interpreter for the critical exchange. That the appellate court was okay with this remains troubling.
Is an innocent man in prison? That belief was bolstered even further when I met Ajay Dev in prison this weekend for the first time.
—David M. Greenwald reporting