A few weeks ago it seemed likely to occur, but now it is official – Ajay Dev, convicted of rape of his adopted daughter in 2009 and sentenced to 378 years in prison, will now receive an evidentiary hearing in Yolo County Superior Court, in front of Judge David Reed, to consider new evidence of potential innocence. The only question seems to be when.
On April 24, at 9 am, Mr. Dev’s attorneys are scheduled for a hearing in Yolo Superior, where it is believed they will discuss the date for an evidentiary hearing.
While the DA responded that several of the defense claims are not timely, they acknowledged that possible new evidence of innocence warranted an evidentiary hearing.
Attorney Cliff Gardner filed his motion for a writ of Habeas Corpus on three different grounds, but it appears the second ground, new evidence that “would more likely than not have changed the outcome at trial,” will be the basis for the evidentiary hearing.
The DA, in their response to the motion, asked the court to reject Claim I (ineffective assistance of council) for lack of timeliness, and Claim III “summarily for lack of anything to cumulate given the failure of Claim I.”
However, they invite the court to conduct an evidentiary hearing on Claim II. They note, “Claim II may survive the untimeliness bar solely to the extent it actually asserts — no matter the statutory standard — that the evidence meets the standard for relief required by the U.S. Constitution.”
The evidence here is substantial. While an appellate court in 2017 denied the direct appeal, that direct appeal did not consider new evidence.
The key evidence presented at trial that the defense says led to a wrongful conviction was a pretext phone call that supposedly corroborated the alleged victim’s testimony.
Here Judge Timothy Fall erred by allowing the victim to translate the conversation that meandered from English to Nepali. The key statement that the jury relied upon was, “But you had sex with me when you were 18.”
New technology has allowed Ajay’s defense to enhance the audio from that recording. A Nepali translator listened to the new enhanced recording and has determined that Ajay did not state what the alleged victim claimed. Instead, Ajay said, “If that (is) so, why did you come with me since 18 years?”
Appellate attorney Cliff Gardner argues: “The prosecutor’s argument that this portion of the pretext phone call constituted an admission that petitioner had sex with [S. Dev] 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.”
The Habeas petition also presents new evidence that the alleged victim lied. There 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.”
A big factor here is that it appears at this time that the evidentiary hearing when it occurs will be in front of Judge David Reed rather than Judge Fall. In their appeal the appellate attorneys had argued that Judge Fall made serious judicial errors including, most damaging, allowing the “alleged victim herself to interpret the critical evidence of the pretext call.”
—David M. Greenwald reporting