Analysis: Court Transcripts Show Mr. Couzens Setting Up the Ambush
When Ryan J. Couzens, Deputy DA in Yolo County, walked into court early Monday morning on the 28th of October, it seemed he had two plans in mind – one was to complain that he had been wronged by the petitioners and the other was to lay a trap to, in his mind, expose the witness Sangita Dev – and by extension to expose the petitioner, Ajay Dev, as a manipulative con man.
The case of Ajay Dev is now ten years old. In August 2009, he was sentenced to 378 years in prison after being convicted by a Yolo County jury of 76 counts of rape and other charges involving his adoptive daughter. But supporters of Mr. Dev have long maintained that he was wrongly convicted.
To that effect, his attorneys, Ed Swanson and Britt Evangelist, have attempted to introduce evidence showing that the court mistakenly allowed a misinterpretation of the pretext phone call, and also that the alleged victim admitted in real time to fabricating the story.
Deputy DA Ryan Couzens has no intention of re-examining the evidence on which Mr. Dev was convicted, and instead is attempting to put up roadblocks to Judge Janene Beronio granting Mr. Dev a new trial. As usual, while Mr. Couzens is wily and cagey, he has not been altogether successful in manipulating the proceedings.
Ryan Couzens Spends 20 Minutes Complaining about the Notes Turned Over by Attorneys for Petitioner
In the previous hearing Mr. Couzens requested discovery from the petitioner – which he was entitled to – of material from trial counsel due to claims of Ineffective Assistance of Counsel.
As he explained on September 12: “The core of the habeas – at least one of the arguments is that Mr. Rothschild was incompetent or ineffective because he didn’t call specific witnesses to impeach the credibility of (alleged victim). So any communications regarding (alleged victim) are going to be relevant because they’re going to give context to that strategic on the one hand or ineffective decision by Mr. Rothschild.”
On the 28th, Mr. Couzens raised the point: “I’ve received a couple of caches of discovery from the defense, but in the way of statements, I’ve got some stuff that’s undated and, in part, unusable.”
In part, Mr. Couzens received investigator notes and interviews that occurred.
In short, he got “lawyer’s notes from the interview” and he complained: “A lot of it is not intelligible, so I don’t know what it says.”
As Ms. Evangelist explained, “the notes were turned over. He’s got everything I have as far as statements from this witness.”
Mr. Couzens responded: “So here’s my issue. Page 89 of discovery, you can’t read half of what’s on that page. So the order to provide statements wouldn’t be meaningful unless those statements are intelligible.”
After the judge questioned what he found unintelligible, Mr. Couzens then stated, “I’m not saying we shouldn’t take the testimony today, I’m saying at some point, I would like that in an intelligible form, and when it was taken and by whom.”
Mr. Swanson, after a long give and take, added: “I’ll just say I’ve never been through an experience like this where the day on which we met, if it was the 8th or the 12th, that becomes an issue in the case. I cannot imagine what relevance that it has to any cross-examination we’re going to hear today, but we have been diligent in making sure that what we write down in these interviews, we produce to the People.”
He added, “There’s no notes that we took that he doesn’t have.”
Mr. Couzens was offered a chance to clarify the notes with a note taker. He wanted more.
“I would like things deciphered,” he stated. “I’d rather not call counsel as a witness if I don’t have to. I’d rather just get an intelligible statement.”
At this point Judge Beronio was getting frustrated. She told Mr. Couzens: “Well, have her read it to you. If you can’t read it, she can read it to you.”
A bit later she asked, “What do you want me to do this morning?”
Mr. Couzens responded: “I’d like you to order her to produce this in an intelligible form.”
Judge Beronio asked: “What, you want her to sit down and type it out?”
Mr. Couzens replied, “Yes.”
Mr. Swanson stated, “Your Honor, this is unprecedented.”
Judge Beronio said, “Have Ms. Evangelist read it to you. I’m not going to make them type it out, and I’m not going to delay these witnesses.”
Mr. Couzens of course was not satisfied with this. Throughout the hearings, he would passive-aggressively make comments.
For instance, he asked one witness, “Do you know what that means, what I just described?” When she answered “no” he responded, “I don’t either.”
Just to make his point.
Part Two – Laying the Trap
Sangita Dev was the first cousin of the alleged victim in this case. She also ended up, in 2009, marrying Ajay’s brother, Sanjay. In a conversation she had with the alleged victim in the village of Boria in 2004, the alleged victim said that Ajay had not raped her.
“She said to me that he has never done that to me and he has not even touched me, things like that,” she said. The alleged victim claimed that she had made these allegations because “she was angry with Ajay and Peggy, she was upset.”
However, she didn’t tell either Ajay or Sanjay until 2018 about this conversation. When Ajay found out, he was furious at her and for several months did not see her in prison or talk with her on the phone.
She testified that the trigger was a threatening Facebook message that she saw. She explained, “In 2018, Sanjay got an email from (alleged victim)’s sister on Facebook.” She testified that it was this exchange that got her to come forward.
The timeline here is important. The Facebook post was January 3, 2018, and again January 7, 2018. She then tells Sanjay in February, but does not speak to Ajay Dev again until April 11, 2018 – when she has about six or seven phone conversations with him in advance of her meeting that day with the investigator.
It is at this point that Mr. Dev appears to be caught on audio recordings – coaching her on what to tell investigators.
But first she testified to both Mr. Swanson and Mr. Couzens that that no member of the Dev family told her what to say in her testimony.
Mr. Couzens asked the following question and then laid the trap.
He asked: “Did – did anyone from Mr. Dev’s family tell you what to say?”
“No,” she responded.
Finally, Mr. Couzens patiently set forth the trap: “Isn’t it true that Ajay Dev has told you every single syllable of everything that you should say, for example, to the investigator?”
She responded, “No.”
He would go on to ask: “Do you remember Mr. Dev specifically telling you tell them that, in 2008, you were contacted by Ajay’s lawyer to give testimony, but when you went to the embassy, you were denied Visas. You told the Visa officer that you were going to testify in the trial, and that you did not want to give the details of the testimony to the Visa officer because Ajay’s attorney advised you, directly or indirectly, to keep it confidential?”
He then would ask her: “Do you remember Ajay telling you the same date, 4/11 of 2018, him actually telling you what to say? She told me – she is (alleged victim) – repeatedly that she was happy and had a job at Peggy’s work. Tell her – this is you – tell her – the investigator – that you would have heard some stuff from her because you are her first cousin?”
Still later: “Isn’t it true that over the course of many conversations, Ajay Dev gave you a boatload of information that you were trying to remember and get right when you were asked?”
He would then state: “So you testified under penalty of perjury that he did not suggest anything to say, and yet you admitted that here you are asking what you should say if she asks a pretty tough question?”
The phone conversations certainly call into question whether she was coached, although it is notable that none of the questions – at least to this point – touch on the core of her testimony, which is that the alleged victim admitted that she had lied in a meeting in Boria in 2004.
Lunch ended the morning session – and the attorneys for Mr. Dev, caught off guard, attempted to figure out where this all came from.
After lunch Ed Swanson stood at the podium and addressed Judge Beronio, indicating that the People had given them about 80 hours of phone conversations, the majority of which was in Nepali, and he said, “We listened to what we could in English.” He had assumed that it was an English portion that was missed, but it wasn’t: “I haven’t seen any of this, and it wasn’t produced to us, it wasn’t turned over.”
Mr. Swanson called this “entirely inappropriate.”
Mr. Couzen explained that he didn’t turn it over to the petitioner “because the law doesn’t require me to. It’s not discovery, it’s not evidence; it’s our work product. That’s entirely our work product.”
He then stated, “What the line of questioning showed is that her entire testimony is contrived. I specifically didn’t turn over the transcript – which is our work product – because I wanted to ask her about it, and sure enough, she said oh no, Mr. Dev never told me anything of what to say.”
He added, “I appreciate that they’re upset at the line of questioning, because it shows that Sangita Dev is just lying about every single syllable that she’s talking about because it was all fed to her by Ajay Dev, but there’s absolutely no authority to state that we should turn it over.”
Mr. Swanson stated, “We can’t proceed with a – with a conversation that I can’t comprehend, and that has been translated and transcribed and I can’t comprehend. I cannot possibly represent my client in this setting without being able to understand the conversation that a witness is being cross-examined on.”
Mr. Swanson simply wanted Mr. Couzens to turn it over, then look it and proceed. He pointed out that they had no way to determine “whether it’s accurate or not” and pointed out “this case has, as a central issue, whether translations are accurate…”
Mr. Couzens responded, “He’s forgetting that his solution is to get it translated just like we got it translated. That’s all he has to do. He hasn’t been denied the evidence, I gave him the evidence. He can’t – he can’t piggyback on our industry to help him prepare his case.”
Ultimately, Mr. Couzens did not want to turn over the translation, he wanted to be able to complete his cross-examination, but Judge Beronio ruled against him and stopped the proceedings which are now set to resume on December 16.
Judge Beronio clearly was not happy with this. The judge told Mr. Couzens “there no reason that (the prosecution} has to have this done by ambush.”
She said, “I think what bothers me about this is that we’ve continued this because the People said I need more, I need more, I need more, and I have ordered the Petitioner to go through boxes and boxes and boxes and get you what you want. So they’ve been busy doing that while you’ve been working on this and not sharing it with them, or not giving them a chance to get it translated.”
She would add, “A big problem in this case – a huge problem in this case – is whether or not the translation in the first place was a problem.”
It is interesting – Judge Beronio becomes at least the second judge to admonish Mr. Couzens for using ambush techniques.
In 2011 in the ill-fated Kalah trial, it was, ironically enough, Judge Timothy Fall (the trial judge in the Dev case) who did so. Judge Fall in the Kalah case admonished Mr. Couzens that there is a reason why there are discovery rules in trials and that “in California Courts we not do trial by ambush.”
Mr. Couzens is correct on his right to withhold impeachment material, but he might not be as clean as he has let on. The 80 hours were turned over to the petitioners on October 11, about a week prior to the previous hearing scheduled for October 18.
But the recordings had a problem and the recordings were not operative. It took Mr. Couzens and his staff another ten days to fix and return them. That gave the petitioners just a few days prior to the hearing to have Ajay Dev’s brother listen to the Nepali and attempt to determine if there was something there.
It is hard to know what else is contained in the recordings. But in the bigger picture, Sangita Dev apparently told one of the witnesses in real time about her conversation with the alleged victim. Moreover, there are at least six witnesses in total that will testify – and the others were in Nepal, not available for Mr. Dev to speak to by phone.
—David M. Greenwald reporting