The last time that Yolo County saw Ajay Dev’s case was in August 2009. Mr. Dev, having been convicted of 76 counts of raping his adopted daughter, was led away for 378 years.
While Mr. Dev was not in the courthouse this time, his case returned to Yolo County with the first part of an evidentiary hearing that could lead potentially to a new trial. His team, having had their direct appeal denied in 2017, has filed a writ of habeas corpus with significant new evidence that they are now presenting to the court, hoping to show Mr. Dev to be innocent of those charges.
But Deputy DA Steve Mount, about to retire next week, has no intention of making that easy. He challenged everything he could, including chain of custody.
In trial, Judge Tim Fall allowed the complaining witness to testify and translate a critical eight-second section of a pretext phone call. In her testimony, she claimed he admitted to having sex with her after she turned 18. The defense has always challenged that interpretation, but the judge did not allow a court-certified translator to testify. The defense’s own translator testified that the section was inaudible but inconsistent with words with a connotation to sex in Nepali.
The defense has now enhanced the audio and had a translator determine that it says something quite different than what the alleged victim testified to in 2009. Getting that evidence to the court has proven a bit difficult.
David Notowitz has worked in forensic audio enhancements since 2007, including 25 times testifying in court – although he told the attorneys on Friday that normally they simply stipulate to his work.
While Mr. Mount said, “I’m satisfied about his ability to testify” as an expert, he then challenged the foundation for any audio enhancements before allowing Mr. Notowitz to testify.
Mr. Notowitz told the court that he used Isotope Rx to enhance the audio, which uses a variety of filters to enhance the recording.
A key point – he was asked if these techniques were available in 2009. “Yes, very common actually,” he said.
Under cross-examination he held up well. Mr. Mount suggested that the software improved the enhancements over the last decade, but Mr. Notowitz held firm that most of the audio enhancements – the removal of background noise like pops and crackle – existed in 2009. What has changed, he testified, is “the user interface.” It is easier to use the filters, but he testified that they even had the same names a decade ago.
Mr. Notowitz further testified that he spoke to experts and confirmed that those tools were “super common” in 2008 and 2009 and “they were around for years.”
This is critical testimony because the petitioner for Mr. Dev, led by attorneys Ed Swanson and Britt Evangelista, want to be able to argue that this evidence was available for the defense in the original trial, but for the ineffective assistance of counsel.
Mr. Notowitz testified that he made eight different clips of the eight-second section of audio.
While he did not understand the Nepalese portion of that audio, he testified that he included some English so that he could evaluate the effectiveness of his changes.
He testified that while he did not understand the segment in Napalese, “I could hear a voice more clearly.” He also noted “that’s why I created eight versions of this audio,” in order to be sure that one of the versions would be clear to a listener who could understand Nepalese.
Roshan Bhatta testified that he had never testified in a legal matter before but had worked for years as a transcriber of audio. He is not court-certified, but later, Mr. Swanson clarified that California does not offer court certification for Nepali translators.
Mr. Mount once again objected to issues of chain of custody but allowed the testimony to go forward.
It turns out that Mr. Bhatta was the second translator used by the petitioners working with Mr. Notowitz’ eight-second enhanced audio.
Both translations are similar and, in fact, seemed to bolster the defense point that the audio at no point referred to an admission of guilt or even had a sexual overtone to it.
Mr. Bhatta translated it to mean “but you came with me since 18 years” as opposed to “if so why did you come with me since 18 years.”
He testified that he did not agree the word for “if so” was in the segment he translated – “not for this line.”
He added, “This line is what it is,” in response to whether he needed broader context.
Mr. Mount had him translate each word of Nepali into English. Mr. Bhatta testified that he selected the third of the eight audios but listened to them all and basically said that he couldn’t hear anything different.
He testified that he didn’t know the context of the statement, but reiterated that the translation was pretty straightforward.
Judge Janene Beronio will listen to the original audio. Mr. Mount was going to allow her to listen to the cassette, but she was not comfortable doing so, noting it was original evidence that would be operated on an old machine.
“That’s the original evidence,” the judge stated. “I don’t want to be responsible for it eating the evidence.”
Mr. Mount noted that the testimony itself “is full of holes” including on the chain of custody, but suggested that might fall to the weight of that testimony rather than its admissibility, which he seemed willing to eventually accept.
Trickier was scheduling. Mr. Mount, who handled the original trial, pushed at several points to be allowed to be there for the next stage. However, he is not only retiring next week but will be gone from late August until November and was unwilling to work in late August two days prior to leaving on vacation.
“I have a life,” he said. The judge, however, given a number of constraints with regard to visas and the availability of Nepali witnesses, was firm that the matter needed to go forward and told Mr. Mount she expected he could get Ryan Couzens up to speed in order to cross-examine a witness.
So the next hearing will be on September 6 and Mr. Swanson told the court that he would apprise Mr. Couzens as to who will testify with sufficient time to allow him to prepare.
—David M. Greenwald reporting