If there was hope that a series of evidentiary hearings in the decade-old Ajay Dev case would shed light on what happened in the years leading up to the 2009 conviction of Mr. Dev – on charges of raping his adopted daughter which led to a 378-year sentence, those hopes were dashed by the nearly six-hour hearing on Thursday that featured just one witness.
Petitioners representing Mr. Dev, Ed Swanson and Britt Evangelist, put on the first of what could be six Nepali witnesses on Thursday – although Mr. Swanson indicated at the end of the proceedings that the other five Nepali witnesses have not resolved their visa situation.
In the meantime, Bahvendra Yadev, a retired school master from the village of Boria, testified through an interpreter. At one point, Deputy DA Ryan Couzens, who has taken over for the retired Steve Mount, attempted to get Mr. Yadev to testify in English without assistance from the interpreter, but quickly acquiesced after a single question.
Under direct testimony, Mr. Yadev said that he knew the family of the alleged victim, who came to live with Ajay Dev and his wife in America as a teenager. She grew up in the same village as Mr. Yadev but did not attend his school.
In 2003-04, facing visa and passport troubles, the young lady returned to Nepal. It was in 2004, Mr. Yadev testified, that he had four conversations with the alleged victim.
He was with the alleged victim and her grandmother when the grandmother asked about the allegations of sexual assault, which was spreading throughout the whole village.
He asked if Mr. Dev sexually assaulted her and she responded, “No, nothing like that,” and she indicated that things would be resolved and she would go back to America.
She also indicated that there was tension in the home due to the fact that Ajay Dev wanted her to conduct herself as a Nepali girl with the accompanying cultural expectations, and the alleged victim wanted something closer to an American cultural environment.
Mr. Yadev said that “there might have been some misunderstanding” between Ajay and the girl. He said that Ajay Dev wanted to maintain the Nepali culture.
Mr. Yadev also ventured that someone who had actually experienced rape would not speak of it so easily.
He also noted that in 2003 she had praised Ajay Dev “as a very good father” who was “very loving.”
Mr. Yadev testified that he told her, “You are from a very good family – don’t soil the family name.”
Mr. Yadev testified that he had learned about the passport case, where the alleged victim was in trouble with Nepali authorities for fabricating her passport in order to be younger and be eligible for adoption in America. He said he did not learn about it at the time of the first conversation, but heard about it several days later.
About five to seven days later, he testified, they had another conversation at the grandmother’s home in which the alleged victim was very angry, blaming Ajay Dev and his family for the passport charges and indicating that she was worried she would not be able to get back to the U.S.
In a third conversation a few days later, she indicated, “Ajay and his family are doing this to me.”
At this point, she said she would “do anything including telling a lie, and renew (the rape) case she had withdrawn before” in order to get back at Ajay Dev.
In a fourth conversation, Mr. Yadev said that he told her why go back to the U.S. and have to deal with this case – stay in Nepal and get married.
On direct, Mr. Yadev told the court that, while he knew about Ajay Dev’s case, he only shared this conversation with a man whom he called an elder and who was also the uncle of the alleged victim.
He testified that at this point he really believed the case would resolve in Ajay Dev’s favor and that he had no access to attorneys in the U.S.
He indicated he had been willing to testify at the time, but was not contacted until 2018, at which point he gave a declaration about the conversations from 2004.
He also testified that Sanjay Dev, Ajay’s brother, managed the cost of travel but he said if he had to, he would have found a way to pay his own way. He wanted to do this “for someone I consider to be innocent.”
Direct examination lasted roughly an hour. Following a break, Mr. Couzens began his very lengthy and thorough cross-examination.
During the cross-examination, Mr. Couzens attempted to exploit the language barrier – at one point attempting to examine him without the interpreter. He seized on comments such as “people who experience rape don’t talk” and comments about rape allegations bringing shame to the Nepali family, as being a motivation for the alleged victim to claim that the rape never occurred.
Under cross, Mr. Yadev testified that he felt like the sexual assault allegations were false. He said this was due to the way she was talking. Mr. Couzens quickly seized on the statement that a victim of rape “would not hold their head high.”
Mr. Couzens focused his attention for some time on the cultural norms of Nepal regarding rape and false allegations of rape. At one point, he asked, “Wouldn’t that lead to her denying that she had been raped” if, by being raped, she would soil the name of her family? The judge, however, struck that question as prejudicial.
Mr. Couzens focused heavily on the financial contributions to the school. Here Mr. Yadev had testified that Mr. Dev’s father was a significant contributor to the school’s founding. Mr. Yadev indicated that most of the village had helped out, and, while Mr. Dev made a significant contribution, others had as well.
Mr. Couzens focused heavily on Mr. Yadev’s statements that the alleged victim should stay in Nepal and get married – suggesting that he had said it four or five times, while Mr. Yadev said it came up only once.
Mr. Couzens also implied that statements about staying in Nepal were at the behest of the Ajay Dev family – however, Mr. Yadev testified that, while he knew Ajay Dev and his family, they were not particularly close.
Mr. Couzens after lunch seized on the idea that Sanjay Dev had financed the trip and tried to allege that the family had influenced the testimony of Mr. Yadev. Here Mr. Yadev held firm – he had reached out to Sanjay Dev through the grandson of someone in the village to see if Mr. Dev would pay for his travel expenses, but he had not been in great contact with Mr. Dev’s family or talked to them about his testimony.
Earlier during a repeated exchange with the witness, Judge Janene Beronio told the petitioner, “I will allow the question until Mr. Couzens gets what he thinks he wants to here.”
After repeatedly insinuations, Judge Beronio later said she’s done with the line of questioning, and questioned where he was going. Even after the admonishment, Mr. Couzens continued to attempt to imply that Mr. Yadev was lying in order to fund his school (from which he is retired) or to get travel expenses to America.
Under re-direct, Mr. Yadev clarified that the alleged victim was a niece to one of the founders of the school – and her family helped to found the school.
He reiterated her initial comment was that “nothing like that had happened” and “it will be fine.”
She was afraid more of the fraud case and not getting back to the U.S. and she believed that the Dev family was responsible.
Most importantly, the witness believed that the alleged victim would “lie” in order to get back to the U.S.
There were also cultural tensions with Ajay Dev wanting her to act more Nepali, while she was acting more and more American.
“Yes, she adopted it (American culture),” Mr. Yadev testified. “The way she talked and the way she dressed.”
The two sides are battling over discovery, with Ryan Couzens wanting previously attorney-client privileged material from trial attorney Michael Rothschild. They have agreed on six items, but Mr. Couzens indicated he wanted everything as relates to the alleged victim.
They will brief Judge Beronio in the coming weeks and have a hearing on September 30. Meanwhile, the next evidentiary hearing is scheduled for October 18.
—David M. Greenwald reporting