Sunday Commentary: Judicial Error Lies at the Heart of Ajay Dev’s Wrongful Conviction

Ajay Dev's young son speaks in 2011
Ajay Dev’s young son speaks in 2011

(Editor’s note: This was written in 2013 and is republished today in the wake of this week’s oral arguments in front of the appellate court) – That Yolo County Judge Timothy Fall does not suffer fools lightly is a truth that is known throughout the Yolo County legal community and beyond.  Judge Fall runs the tightest and strictest courtroom in the county, bar none, and has no problem taking to task defense attorneys and prosecutors alike when they step out of line.

But, while counsel fear making a misstep in his presence, at the same time most respect his intellect and command on the law.  Long ago, he gained our respect when he tossed aside a Deputy DA’s attempt to close the courtroom to the Vanguard, arguing that freedom of the press was the hallmark of a free society.

So, I have always been troubled by the allegations and evidence that have emerged from the Ajay Dev case that Judge Fall made a series of critical errors that led to the wrongful conviction of Mr. Dev in 2009.

But all human beings have flaws, and sometimes these flaws get in the way of our better judgment.  We see a hint of that in another case involving Kyle Vigil, who would be originally convicted of attempted murder and sentenced to life for his role in a Woodland drive-by shooting.

In that case, one of the jurors acknowledged to defense attorney Jeff Raven that he had conducted an experiment using a broomstick.  The  juror had “told jury members that he had conducted an experiment at home where he sat in his car as a passenger and had a broomstick, pretending he was shooting at a house. The juror said that after his experiment, he felt that one of the shootings was intentional and deliberate.”

Judge Timothy Fall became aware of the problem and had a hearing acknowledging that the court received the affidavits from the two jurors, “which were competent evidence.”

Judge Fall found that, in performing the broomstick experiment, Juror No. 2 committed misconduct.

Judge Fall said, “Should the juror have done it? No. That’s an easy one. This is not the type of thing that if the juror had asked ahead of time, Judge, do you mind if I do this when I go home tonight that I would have said yes. I would have said, no, you cannot. You’re told not to do those types of things.”

The judge continued, “But the question is whether it is so unusual that it becomes prejudicial, and based on all of the evidence in the case, it cannot be seen to be unusual and prejudicial in that sense.”

When Mr. Raven attempted to argue with the ruling, Mr. Fall became both indignant and dismissive of the defense counsel’s claims.  Judge Fall decided that the verdict was not going to be overturned, he made his ruling, and that was that.

But the appellate court disagreed and overturned the verdict, arguing that the conduct of the juror clearly  “crossed the line into misconduct.”

In a way, this was a simple error in judgment by Judge Fall in ascertaining the line between harmless error and prejudicial misconduct.  But in another way, it shows a weakness in Judge Fall, in his impatience and his inability to reconsider his decisions in light of problems that may arise.

If you read the appellate brief in the Ajay Dev case, you see a similar problem – Judge Fall simply ran out of patience for resolving the translation issue, and he made a huge error – he allowed the victim to translate the contested portion of the pretext call.

When the defense objected to use of the transcription containing the alleged victim’s (AV’s) corrections, Judge Fall would overrule them with, “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.”

As the defense would argue in this case, “The trial court abused its discretion by permitting [AV], a highly biased interpreter, to translate the portions of the pretext call spoke in Nepali.”

Citing the California Rules of Court, Rule 2.890(c)(1), “An interpreter must be impartial and unbiased and must refrain from conduct that may give an appearance of bias.”

These are not small errors.  How could such a competent jurist like Judge Fall make them?  The appellate brief really tells the tale – there was a long and protracted argument between the defense and prosecution over the translation.  That argument focused on the interpretation of a single word – the most critical word in the entire exchange.

Prosecution, following the lead of the alleged victim, interpreted the disputed sentence as Mr. Dev acknowledging, “But you had sex with me when you were 18.”  The defense contests on the other hand, his “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.”

That mistake is compounded by the failure of Judge Fall to properly instruct the jury by instructing them to view ambiguous statements made by the defendant on a recorded pretext call with caution.

“This is an incorrect statement of the law,” the defense argues.  “Only unambiguous or undisputed recorded statements should be viewed without caution.”

In the appeal, the appellate attorney notes: “At a pre-trial hearing held on April 20, 2009, the parties’ attorneys advised the court they may be close to a stipulation regarding the discrepancies in the translations.”

However, at that point, “there remained one disputed phrase.”

Defense and prosecution at that point were willing to have the trial court appoint a court-certified Nepalese interpreter.

In response, the trial court advised counsel, “We may be able to get somebody in.  I don’t know.”

Defense wrote, “The following day, the trial court indicated it had spoken with the interpreter coordinator who stated she was contacting Nepalese translators in the Bay Area, but one translator said “he is reluctant to be called into a courtroom in order to translate a document as opposed to interpreting testimony from one language back.”

Judge Fall then stated, “I don’t know that it looks good to try to get one of the court interpreters to cover this for us…   Now, whether either of you can find a professional interpreting service that would send somebody in that has the credentials, I don’t know. It doesn’t look like that’s going to work for the way I was talking about.”

The defense objected and advised the trial court, “They’re mistaken. It is not interpreting a document. It is actually listening to a voice just like they would in court.”

The prosecution agreed, “It is an audiotape.”

The trial court then found, “At this point. I’m stumped, and I don’t want to try to figure out how to get the evidence on since it is not my evidence.  If either of you would like to talk to Chris Vanderford, who is our interpreter coordinator, that’s fine.”

So the trial would move forward, despite the inability to reach a resolution on the translation issue.

The defense continues, “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?”

Defense counsel would object to the use of the FBI translation with corrections from the alleged victim, arguing these corrections were inaccurate.

It was at this point that Judge Fall overruled the objection, making the argument, as stated above, “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 problem here is fairly clear.  There was a legitimate disagreement over the translation.  The judge worked with both sides to reach an agreement, and when the agreement was not reached, Judge Fall seemed to lose patience and put forth a solution that was patently unfair – allowing the witness, the alleged victim, a biased party, to put forth the translation, giving the jury very few tools for alternative interpretations.

The Evidence Code seems very clear that Judge Fall erred and that error might undo the entire verdict in this trial.

It is not our place here to determine what the judge should have done, but only to note that he did not do the right thing.

Based on this, we believe that the verdict will be overturned, but not after Mr. Dev will have had years in prison away from his wife and two young sons, time that he will never get back.  And because of the nature of the conviction, he has not been allowed physical contact with his sons and has never been allowed to hold his youngest son, who was born after his conviction.

—David M. Greenwald reporting

About The Author

David Greenwald is the founder, editor, and executive director of the Davis Vanguard. He founded the Vanguard in 2006. David Greenwald moved to Davis in 1996 to attend Graduate School at UC Davis in Political Science. He lives in South Davis with his wife Cecilia Escamilla Greenwald and three children.

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  1. Davis Progressive

    there was a lot of error in this case, most of it by judge fall.  what this article doesn’t mention is that fall hasn’t been doing criminal cases for a few years and that’s a good thing.

  2. Tia Will

    As a professional who has to deal with sometimes suboptimal translation on a daily basis in my clinic, I have some thoughts about the depth and breadth of the error of how the translation and the “pretext call” as a whole was handled.

    1. The significance of the lack of clear audibility and loss of body language on this pretext call.

    As a doctor, when the interpreter for a non English or non Spanish speaking patient is not present in the room but rather is translating over the phone, a great deal can be lost in the translation. The interpreter cannot see our facial expressions, what part of the exam is being performed and sometimes cannot even tell if I have asked a question, or made a tentative statement. It is my obligation to try to clarify. But very often, I find that I have to rely on other factual evidence ( chart review, tests that have been done, and my physical findings) to come to an accurate diagnosis since it is not clear to me whether or not the translation is accurate.

    2. The importance of unbiased translation.

    I have had the startling experience of having had a Spanish interpreter ( who clearly did not know that I have a working knowledge of Spanish) inform a patient that my medication instructions were wrong and that I was prescribing too high a dose. There was quite a bit of embarrassment all around when I reiterated the correct dosing in Spanish. If an interpreter is willing to insert their own opinion into a professional interaction of this type, how much more likely is it that someone with a strong personal interest in the outcome would lie about what is being said ?

    Again, what one must rely on as a professional is not only the highly subjective statement of an interpreter, but a totality of all of the evidence when accuracy is at stake. It would seem to me unconscionable that in a system in which one is deemed innocent until proven guilty that a conviction based on absolutely nothing more than the word of one woman with an extremely biased position could possible stand.

    My thoughts are with the Dev family.

  3. tj

    Lots of problems in the Yolo courthouse.  Judge Mock snorted loudly when a witness said jurors shouldn’t make up their minds before hearing trial testimony.  Understandable since his wife was an attorney in the DA’s office, and Mock’s response wasn’t in the transcript since the DA’s wife was the court reporter.

    I think conflicts like these should be announced prior to each and every hearing and trial.

  4. WeAreTheCheese

    The article, published 3 years ago, has been right about everything so far. This was clearly a major error on the part of Judge Fall leading to the conviction of an innocent man. This grave error also broke up a loving family for many years now. And certainly, somewhere along the appeals process, justices will clearly see how flawed the proceedings and ultimately the conviction of this man were. We can only hope the Third Appellate Court will take a stand, otherwise this innocent man will have to spend much more time in prison until the 9th Appellate Court will review his case.

    Ajay Dev’s Appeal will be happening in 2 days at 9:30am at the Third Appellate Court, 914 Capitol Mall, Sacramento, CA. Advocates for Ajay will be filling the courtroom and hosting a corresponding march at 11:00 am at the East end of the Downtown Mall – K Street & 7th Street in Downtown Sacramento with signs and banners (The march is 4 blocks) and reaching the Appellate Court (9th Street and Capitol Mall) at 11:40 am.  A vigil will be held  from 11:40 am until 1:00 pm.

    Join in and support this innocent man if you can!

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