Attorneys for Ajay Dev are seeking to overturn the conviction from 2009 that resulted in a 378-year prison sentence when the jury found Mr. Dev guilty of 76 of 92 counts involving the alleged rape of his adopted daughter. But in a 102-page filing by the lead attorney, Cliff Gardner, as part of their petition for Writ of Habeas Corpus, the defense presents the statements of six people to whom the alleged victim admitted prior to trial “that the sexual allegations were not true.”
The appellate attorney, among other things, was also able to present a new translation of the now infamous pretext phone call, casting the court-accepted translation in a new light.
All of this comes about 18 months after the 3rd District Court of Appeals denied Mr. Dev’s appeal in early 2017, and nearly nine years after a Yolo County court convicted Mr. Dev of raping his adopted daughter over a five-year time period.
Mr. Gardner, in his petition, notes that there is one thing that both the defense and prosecution agreed upon during trial – the credibility of the victim’s testimony would determine whether the jury acquitted or convicted.
As the prosecutor said during the trial, “No (Alleged Victim), no case.” The defense writes: “The prosecutor candidly recognized that jurors would have to find (AV) was lying in order to find Ajay not guilty. Mr. [Steve] Mount argued in his closing, “For the defendant to be innocent… (AV) would have to be making this up…”
The attorneys for Mr. Dev now have evidence to demonstrate that “in determining whether (AV) should be believed, the jury did not have the full story, or anything even close.” They add, “It turns out prior to trial, (AV) admitted to at least six different people that the sexual allegations were not true.”
Mr. Gardner adds, “Jurors deciding if AV lied never heard this evidence, or any of the other new evidence establishing that AV was simply not credible.”
Perhaps the most damning evidence to that effect is the January 2018 Facebook message the alleged victim’s own sister sent to Ajay Dev’s brother Sanjay: “[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.”
The alleged victim (AV) told her cousin Sangita Dev that Mr. Dev neither raped her nor inappropriately touched her. In 2004, Ms. Dev asked the alleged victim whether “Ajay is raping you?” To that the AV responded, “Nothing happened.” “Ajay did not rape or touch her,” she wrote in a declaration.
When Ms. Dev expressed concerns that Ajay Dev would get in trouble, the AV explained, “No, nothing will happen to Ajay.”
Sangita Dev explained that “because the AV was her first cousin she was too scared to initially come forward because she felt like it would be going against her family. In fact, Sangita’s mother told her to not to get involved in this ‘family mess’ and to ‘keep my thoughts to myself.’”
The AV told longtime family friend Dinesh Deo about the allegations and “AV explained to him that she believed Ajay and his family had reported her for passport fraud.”
The AV told Mr. Deo “that she would put Ajay in jail like he had put her in jail.”
The AV also told Bhabedra Yadav, a friend of her grandmother’s, that she had lied when she accused Ajay of sexual assault. He was in the home with her and others and someone asked about the rape allegations against Ajay. “The AV said the allegations were not true.”
The AV explained that Ajay was a good father to her, but “he was very controlling and wanted her to live like a Nepali woman… AV admitted that she filed the false rape allegations to scare Ajay but that she had withdrawn the allegations and hoped to reconcile with him.”
When the friend expressed concern about Ajay, the AV “became angry” and said, “If I have to speak a lie for my life I shall speak, I cannot live in Nepal.”
The AV told Ranjana Deo, a good friend, that, in order to return to the US, she had to reinstate the sexual assault allegations against Mr. Dev.
Mr. Gardner writes: “Ranjana saw AV again when AV returned to Nepal in 2004. At this time, AV was having trouble with the Nepali courts over her passport. She was very angry with Ajay because she believed that he had reported her to the Nepali authorities. AV told Ranjana that a detective in America was going to help her return to the United States but she would need to testify against Ajay in return. AV said that the detective told her that if she did not testify there would be no way for her to return to the United States.”
The AV told her good friend Shweta Deo she was “furious” with Ajay “because he contacted her boyfriend who then broke up with her. She then filed a police report alleging that Ajay sexually abused her. She explained that she did this to find a way to stay in America even without Ajay’s help.”
However, “she felt badly that she had falsely accused Ajay and so she later withdrew her allegations.”
The passport was then taken away from her and she reopened the case so that she could return to the US. “AV said it would be easy for her to lie about the sexual abuse allegations because she had boyfriends so she knew about sex.”
The sixth witness was her own sister, who emailed Sanjay Dev.
Those familiar with the case will recall that the key evidence that supposedly corroborated the alleged victim’s story was from a pretext phone call. Judge Timothy Fall had allowed the victim herself to translate the sprawling conversation that meandered from English to Nepalese. The appellate case attacked the judge’s ruling, as the family and attorneys have always believed that she had mistranslated the passage.
The key statement, as translated by the AV, had Mr. Dev stating, “But you had sex with me when you were 18.”
Writes Mr. 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, he said, “If that (is) so, why did you come with me since 18 years?”
Mr. Gardner argues: “The prosecutor’s argument that this portion of the pretext call constituted an admission that petitioner had sex with AV is simply wrong. In assessing the pretext call, and counsel’s arguments, it was critical for the jurors to have an accurate translation of the pivotal portions of the call.”
Finally, much was made of the claim during the appellate hearing that Mr. Dev admitted to the rape to his own attorney during the preliminary hearing.
Mr. Gardner argues this is false and presents a declaration from trial attorney Michael Rothschild: “Mr. Dev never told me there was a rape or any sexual contact in Bangkok. My questioning of AV at the preliminary hearing was only a matter of strategy.
“If she denied that a rape occurred in Bangkok, I would argue to jurors this undercut her testimony. I would have argued that it was not believable Mr. Dev would rape her 2-3 times a week for several years but not do so when they were traveling alone together and staying in a hotel in Bangkok.
“If AV changed her testimony, as she did, and testified that she was raped in Bangkok, then I would have yet another inconsistency to use to prove her not credible at trial. The prosecutor’s suggestion that Mr. Dev told me he raped AV in a hotel room in Bangkok is simply false.”
—David M. Greenwald reporting