In August 2009, Ajay Dev was sentenced to 378 years after a Yolo County jury found him guilty of 76 of 92 counts of rape, sexual assault and improper sexual conduct with an adopted daughter – a distant cousin from Nepal.
As he writes in a lengthy 22-page letter on the eve of the 10th anniversary of his trial and conviction, “From day one, I have maintained my innocence to every charge. I stand before God and do solemnly swear on the oath of my natural born life that I am an innocent man falsely accused, tried and convicted of crimes I did not commit.”
His direct appeal was denied a few years ago, but his attorney, Cliff Gardner, has filed a Writ of Habeas Corpus, and while the DA has responded that some of his requests are untimely, he has agreed there should be an evidentiary hearing on possible new evidence which we have laid out in detail in previous articles – including an enhanced version of the critical pretext call that played a vital role in Dev’s initial conviction, as well as communications from friends and family members communicating in real time with the alleged victim, which seems to acknowledge her fabrication of the charges.
As Mr. Gardner points out: “Post-conviction investigation has shown in determining whether [AV] should be believed, the jury did not have the full story or anything even close. It turns out that prior to trial, [AV] admitted to at least six different people that the sexual allegations were not true.”
These six individuals gave “statements under the penalty of perjury” that the alleged victim “lied about the sexual allegations.”
Mr. Gardner presents forensic and documentary evidence that “directly undercuts [AV’s] credibility and confirms both the motive [AV] had for making up the allegations and the defense theory presented at trial.”
It is not enough to show evidence of innocence, however – it must be shown that the trial itself was unfair and here the Habeas shows that the defense was not able to present that evidence at trial due to rulings by Judge Fall that were improper.
In his letter, Ajay Dev recounts the 3500 nights he has spent in prison as of January 24, 2019.
“Ten years of my life have been unnecessarily wasted. I miss my family, the life I had. I should be home with my sons and family, not in prison laboring over legal documents and revisiting the wrong done to me over and over again. Much has been taken from me. Fatherhood to two young sons denied. Family hearts broken, separated, and financially strained in legal fees. Dreams and future stolen. Friendships broken. Freedom lost. I have committed no crime; crime has been committed against me. I’m serving time in a house of justice, yet there is no justice for me,” he writes.
“After the verdict, the guards handcuffed me and swiftly escorted me out of the courtroom. I looked at my one-month pregnant wife and whispered ‘I love you’ as I was rushed out the door of the courtroom,” he writes.
It took until February 26, 2017, before he would finally be allowed to hug his own children.
“Due to the nature of the charge I was convicted of, only non-contact visits with minors are allowed. It was my very first time to hold my younger son in my arms. He was already 7 years old. My elder son, Kishan, was only 15 months old when my freedom was stolen,” he explained.
In his letter he details the jury deliberation process that they have learned through extensive investigation.
One of the keys to the guilty verdict was the pretext phone call.
“That was the only thing we have to go on,” one wrote.
Another said, “Pretext (call) was the only evidence we convicted him on.”
Still another: “If Ajay had not admitted to doing it on the taped phone call, he would be a free man right now.”
Another, a fourth: “In the pretext call, Ajay admitted to having sex with the victim after she was 18. 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.”
But as Ajay Dev points out in his letter and the appellate brief – and the Habeas brief point out – there was no admission.
Ajay Dev writes: “The fact is there was NO admission in the pretext phone call by me throughout the call. I directly denied [AV’s] allegations at least 25 times.”
During the call, even the AV acknowledged that he had not admitted to anything.
Mr. Dev writes: “It is incomprehensible that any admission of sex by me in the pretext call could be true when, according to [AV’s] own words spoken in English in that very phone call she claimed I refused to admit to anything with respect to her allegations of rape or sexual abuse.”
During the post-conviction interview with the jury, one of the jurors said “the prosecution and the jury focused on Ajay’s statements and not on [AV’s] statements” in the pretext call.
The critical error that occurred during the trial was that the court allowed the alleged victim herself to translate a single sentence, spoken in Nepali by Mr. Dev.
The key statement that the jury relied upon was: “But you had sex with me when you were 18.”
However, as Mr. Dev points out, “The defense translator said this part of the tape was Inaudible, but he could rule out [AV’s] insertion of ‘sex with’ because he could hear the first syllable of the word in dispute which could not be any word meaning sex. The prosecutor relied on [AV’s] translation of this alleged admission in the pretext phone call to urge jurors to convict.”
Through forensic work by the post-conviction attorneys and investigations, the defense has now been able to enhance the audio from the recorded phone call.
The Nepali translator now hired has listened to the new recording and conclusively determined that the AV’s translation is not correct.
Instead, Mr. Dev said: “If that (is) so, why did you come with me since 18 years?”
In other words, rather than admitting to having sex, he is questioning, if he had treated her so horribly, why she continued to live with them after she turned 18.
Mr. Gardner argues: “The prosecutor’s argument that this portion of the pretext phone call constituted an admission that petitioner had sex with [AV] is simply wrong. In assessing the pretext call, and counsel’s arguments, it is critical for the jurors to have an accurate translation of the pivotal portions of the call.”
You can read the full letter: ADev’s Public Letter 2019
—David M. Greenwald reporting