At the court on Friday morning as Judge Janene Beronio was deciding when to schedule an evidentiary hearing in the ten-year-old case of Ajay Dev, who was sentenced ten years ago on 76 counts of rape to 378 years in prison, the issue came up about how to handle the transcript of the pretext call.
Suddenly Deputy DA Steve Mount was shouting – yes, literally shouting in court, “We deny every aspect of it…”
Then later, as he announced there would be no prosecution witnesses when the hearing begins on July 26, “this is just like putting forward evidence at trial” he explained.
Fair enough that the deputy DA who prosecuted this case ten years ago wants to question the veracity of the evidence being put forward by attorneys for Ajay Dev as they argue he did not get a fair trial in 2009, but why is he shouting in court and why is he shouting in court over this?
It is enough to make the casual observer wonder if Mr. Mount can be objective about new evidence – strong evidence that points toward innocence.
The defense has a problem here and they may well need cooperation from the district attorney’s office. As Ed Swanson, representing Mr. Dev in this matter, pointed out to Judge Beronio, getting six witnesses here from Nepal may prove difficult. They may not qualify for a normal visa due to their lack of resources.
Mr. Swanson indicated that a tourist visa is very hard to obtain. He is going to reach out to the US Embassy in Nepal. If that fails, he would need the DA’s help, as they could be paroled into the US.
Steve Mount agreed that his office would help, but he threw some roadblocks in the way. “Don’t need them now if we couldn’t get them ten years ago,” he said firmly. He did allow, “If their efforts fail, then they can turn to us.”
What about an alternative, via Skype, the judge asked.
“Not appropriate,” Mr. Mount said.
Mr. Mount pointed out that if the claim by the defense is ineffective assistance of counsel, and right now they are unable to get them to the states to testify, it raises the question as to whether the defense could have had them here a few years ago.
But there are all sorts of problems with that logic – including changes in immigration laws. Ed Swanson, for his part, argued that they would have been able to attend ten years ago, moreover, he believes there is case law that would allow them to testify via Skype even now.
That will definitely trigger a fight. But really, should it?
A man has been convicted of a crime and sentenced to 378 years in prison – a life sentence. What has emerged in the ten years since his trial is powerful evidence that he did not do this.
As Cliff Gardner, Mr. Dev’s Habeas attorney writes in their brief, “post-conviction investigation has shown that in determining whether (the AV) should be believed, the jury did not have the full story, or anything even close.”
The alleged victim (AV) “admitted to at least six different people that the sexual allegations were not true.”
Writes Mr. Gardner, “the new evidence presented and discussed in the Petition for Writ of Habeas Corpus shows that prior to trial, (the AV) repeatedly admitted to family and friends that she lied about the allegations. Jurors deciding if (the AV) lied never heard this evidence, or any of the other new evidence establishing that (the AV) was simply not credible.”
Keep in mind these are witnesses that have absolutely no reason to embellish or attempt to impugn the alleged victim. They are close family members and friends of her. In one case, it is her own sister. This is powerful evidence that the alleged victim fabricated this account and that she admitted as much contemporaneously. And neither the jury nor the prosecution was aware of it.
Is Deputy DA Steve Mount interested in the truth here? Is he concerned that, through his actions ten years ago, he may have sent an innocent man away from his wife and children for the rest of his life on the basis that his complaining witness fabricated her story and that the jury never got to weigh evidence establishing that?
Right now it doesn’t appear that that would be the case. In their Habeas petition response they argued that the defense claims of ineffective defense were not timely. During the hearing on Friday, he was skeptical about the new translation, the enhanced recording and argued that they needed to establish the chain of custody and authenticate the evidence.
He also argued that that if efforts to get the witnesses here proved difficult if not impossible, he would object to allowing them to come forward in other ways.
But for me it is the fact that he stood there shouting in court about matters of witness questioning that casts doubt on any notion that he will objectively weigh new evidence, and if possible re-consider his stance from ten years ago that Mr. Dev committed this crime.
After all, if the defense can show that during the pretext call that Ajay Dev did not say “you had sex with me when you were 18,” but rather, “if that [is] so why did you come with me since 18 years?” And if six witnesses with no reason whatsoever to lie come forward to say that the alleged victim admitted to fabricating the story, then Mr. Dev is innocent and Mr. Mount in the interest of justice should be working to get the innocent man he put in prison released.
Instead, he is arguing legal technicalities and standing in the way of evidence of innocence getting admitted into the court record.
His shouting it does not strengthen his case – it shows he is not objective.
—David M. Greenwald reporting