Commentary: Habeas Filing on Ajay Dev Answers a Number of Questions I Have Had about the Case

It was one of those pivotal moments in life for both myself and Ajay Dev – but for very different reasons.  For me, I sat in the courtroom in 2009 for the first time and was stunned when Judge Timothy Fall sentenced Ajay Dev to 378 years in a case that did not involve murder.  At that time, I did not know enough about the case to conclude what I have long since concluded – Ajay Dev did not do what he was accused of doing.

In the summer of 2009, Ajay Dev had been convicted of 76 counts related to accusations that, over about a five-year period, he repeatedly raped his adopted daughter.  The family contacted me shortly after the conviction and sat me down in their home to lay out the facts.

I didn’t know what to make of it.  The family told me of these incidents where he supposedly raped her, but there were witnesses present.  One time they were at a relative’s house and he supposed raped her on the living room floor that was filled with people.  Another time, he supposedly raped her in his bed with his wife asleep on the other side.

On the surface these claims seem ridiculous, but they seem so ridiculous you have to wonder – would someone make up such a transparently implausible scenario?

The jury was skeptical, according to posts on the internet.  However, whatever skepticism existed went away with the pretext call that appeared to have an admission of guilt by the defendant.

What convinced me was reading the appellate brief.  I was already skeptical of the case, but the handling of the translation of that pretext call, where Judge Fall lost his patience trying to use a court-certified Nepali translator and inexplicably allowed the alleged victim herself to translate – that was key in my decision making.

The lack of physical evidence of abuse has long troubled me.  The frequency of attacks, if they were rape, should have created physical trauma.  They didn’t.  Doctors examined her.  Found nothing.

The lack of witnesses also played a role.

But there have still been a number of lingering questions.  What was the context of the statement that was used to suggest Ajay Dev had admitted to the deed?  Why did the girl lie about it?  Did she feel remorse?

The Habeas petition contains a lot of answers.  The alleged victim (“AV”) in this case admitted to six people – all of whom have filed sworn declarations – that she was lying and had made up the charges because she was fearful of being sent back to Nepal, that she saw Ajay Dev as overbearing and, in general, had anger toward him.

They have six declarations from the people she told, contemporaneous to the allegations, that the allegations were made up and created in part because of anger as to how Mr. Dev was treating her, and in part because of the threat of being deported to Nepal.

Part of the problem with the pretext call was it was in both English and Nepalese.  It was also in part inaudible.  And Judge Fall made what should have been a reversible and grievous error of allowing the AV herself to translate it.

As translated by the AV at trial, Mr. Dev allegedly said on audio:  “But you had sex with me when you were 18.”  Sometimes “sex” was translated as the “f” word.

Writes lead attorney for Mr. Dev, Cliff Gardner, “The defense expert who translated the pretext call testified that, although Ajay’s statement was inaudible, he ruled out AV’s translation because he could hear the first syllable of the word in dispute which was incompatible with any Nepali word connoting ‘sex.'”

He notes, “The prosecutor relied on AV’s translation in urging jurors to convict.”

New technology has allowed them to enhance the audio from that recording.  Nepali translator Netra Darai, having listened to the newly enhanced recording, has determined that Mr. Dev did not state what the AV claimed.  Instead, Mr. Dev said, “If that (is) so, why did you come with me since 18 years?”

In other words, Mr. Dev is basically saying if he treated her so badly, why had she continued to live with him after she turned 18?

Meanwhile, the other big revelation was the January 2018 Facebook message sent by the AV’s sister to Sanjay Dev, brother of Ajay.

She said:  “[AV] want to take revenge and get to Amrika [sic]. . . . The only way to come to Amrika [sic] was to come testify against Ajay uncle. We did not know that he will be put in jail long time. Now AV say that if she helps she will go to jail and get deported. . . . AV has lied many times in the past. She had no choice. Police say to her they will help if AV testify for rape. . . . We know that she was not raped. . . . We also tell AV to tell the truth that this never happen but she scared now.”

But it wasn’t one witness – it was six.  They all gave declarations.  The jury had access to none of this during trial.  And the declarations by the witnesses are largely consistent with each other.

At times in the AV’s messages she expressed remorse, but it seems that fear is the overriding consideration as to why she has not come forward with the truth – even as Ajay Dev has been in prison for nine years, missed watching his sons grow up, seen his marriage fall apart, and more.

One person noted that she was angry because “she believed Ajay and his family had reported her for passport fraud.”  She told the family friend “that she would put Ajay in jail like he had put her in jail.”

It also appears she initially believed that telling the authorities would not harm Ajay, and that she feels badly about what happened, but not badly enough to tell the truth and face the consequences.

The result is something horrific.  Ajay Dev has spent nine years in prison.  He has missed seeing his sons grow up and only recently has he had contact visits with them.  He has, as stated above, also seen his marriage fall apart.

And all over a lie that was not fully believable in 2009, but continues to fall apart.

Will this evidence be enough to get the conviction overturned?  I have seen enough rulings in court to know better than to get hopeful.  Without physical evidence, it is hard to know what a court would do.  But there is now a stronger case than ever that Ajay Dev was innocent all along and that the victim knowingly lied in order to gain some measure of revenge, some measure of independence, and to remain in this country.

For me, knowing this all closes whatever doubts remained in my mind.  Understanding what was actually said during the pretext call was critical.  Understanding that the victim has admitted to lying and admits to the motivation is also critical.

That is evidence that the jury needed to have and I believe there is no way they would have convicted Ajay Dev in 2009 with those pieces of evidence at their disposal.

Is that enough?  That is the question.

—David M. Greenwald reporting

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