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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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. David Greenwald

        Who her? The complaining witness or alleged victim? There is a huge industry standard against printing the names of sexual assault victims – I’m not going to go against that even in this case. The Vanguard in general doesn’t print the names of victims or even civilian witnesses in its court coverage. I did put a few names out there of the people who signed declarations lend it credibility.

        1. Howard P

          Well if she (AV) is truly a “victim”, then Mr Dev or someone is guilty of sexual assault.  If not, she is a brazen, self-serving ‘victimizer’, correct’?

          Would you have Mr Dev released, and her free to go her merry way, anonymously?  If she is posting on Facebook, she has pretty much waived her anonymity.

          1. David Greenwald

            I think at this point my concern is not in punishing her, but in getting Mr. Dev out of prison and back to his family.

  1. David Greenwald

    Howard – ask yourself what is more important – punishing her or getting Ajay Dev out of prison?  By holding the threat to punish her over her head, you give her an incentive to never come forward and admit the truth

    1. Howard P

      Ahhh… a ‘plea bargain’… she recants, with full immunity for her acts/lies, and she gets her way… I get it.

      Agree, if falsely accused/convicted, priority #1 is justice for Mr Dev.

      Does send a clear message that you can falsely accuse someone, have them “do time”, and as long as you eventually recant, “no harm, no foul”, though…

      Guess you’ve never been falsely accused of a crime, had it investigated, somewhat tarnishing your “rep”, and then having the accuser recant, and have no consequences for the false accuser…

  2. Jerry Waszczuk

    What is interesting in this rape case that the victim  was raped so many times and did not get pregnant.  Normally rapists and their  victims don’t use protection . Victim was a young woman and having  forced  sex for so many times is questionable alone how she as a victim  protected herself or how he solve this problem not to impregnate her. Just thought . If they used protection than it is traceable .  I don’t remember if anything was written about in the court documents .

      1. Jerry Waszczuk


        Other guys are others guys not Dev .  I understand  from your response that  never was proven that she got pregnant with Dev and no  such allegations were presented in the  court papers  against Dev . Right ?

        1. David Greenwald

          It is one of the disputed facts in this case. She claims that he got her pregnant and she got an abortion. There was never evidence presented in trial that the pregnancy was the result of him. And the defense argued that the pregnancy tracked with times that she was known to be sexually active with other guys (not Dev). The defense notes that he was allegedly raping her for several years prior to getting pregnant and the only time she did was when she was sexually active with other boyfriends. There was never DNA or other evidence to establish a physical link.

          Here is a key fact, the medical records indicate a miscarriage in January of 2003 and an abortion in May of 2003. In November of 2003, she had a negative pregnancy test.

          However, she claimed, when asked by the prosecutor, Deputy DA Steve Mount, at the preliminary hearing that she had had no sexual relations with anyone other than Mr. Dev. But that evidence was directly contradicted by testimony from 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.”

        2. Howard P

          Oh, please, tell me it was an error saying the Dep DA’s last name was really “Mount”…

          This is serious, tho’, and, as appears likely, if Mr Dev is innocent, he should be released ASAP.

        3. Jerry Waszczuk


          Mr. Dev  got 378-year prison sentence and  the  two  California   Appellate Courts denied his Petitions for Rehearing and Petition for Review . If it would  be 5, 10 or even 20 years than maybe would  be acceptable but 378 years should  be considered  more seriously  and the  Petitions for Rehearing and Review should be granted regardless . It is beyond imagination. 

          If I will tell that 3DCA  in my civil appeal rejected  the Respondent Brief (UC  Brief ) for not citing record on appeal and 3 DCA  blamed me  for  the UC lawyer crime.   Petition for Rehearing when I pointed this out or 3DCA complemented in the opinion my dismissed attorney who stole my $ 20,000 retainer  and was prosecuted in the State Bar . This how the 3DCA clerks armed with Justices rubber stamps serving justice .  DENIED .   I don’t believe that  that after two appellate courts denied Petition for Review  , the  some translation errors in Dev’s case will help him to reverse the 378 years sentence. If the victim  of  alleged rape would not volunteer and state under oath that she made up  whole story.   378 years .

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