It has been over a month since the last hearing on October 28 ended as the petitioner accused Deputy DA Ryan Couzens of hiding the ball with the transcript – and it appears it will be some time longer before the evidentiary hearing in the 10 year old Ajay Dev case continues.
Mr. Dev and his attorneys have been seeking a new trial through a petition for Habeas Corpus and Ed Swanson and Britt Evangelista have put on witnesses showing that the pretext phone call call that formed the basis for the 2009 conviction was erroneously translated at trial and that the complaining witness admitted in real time to lying about the allegations that resulted in the conviction on 76 counts of rape and 378 years in prison.
But as we learned on Monday, that will still take some time. In a conference call with Ed Swanson at his office and Mr. Couzens in the court room in front of Judge Janene Beronio, they acknowledged that they met and conferred and agreed to share the costs for a full translation in which they would pick 8 calls between Ajay Dev and the witness Sangita Dev – each lasting 15 minutes.
The cost would be shared with it costing $3600 a piece for the translation.
While they estimated about three weeks time, with the holidays, and other obligations that put the next hearing at February 10 at 8:30 moving to Department 6 where Judge Beronio will preside next year.
The hearing on October 28 was proceeding toward lunch when Ryan Couzens asked Ms. Dev, a first cousin of the alleged victim in the case and married to the brother of the defendant, was asked, “did anyone from Mr. Dev’s family tell you what to say?”
“No,” she responded.
But Mr. Couzens had transcripts showing otherwise and accused the witness, “Isn’t it true that Ajay Dev has told you every single syllable of everything that you should say, for example, to the investigator?”
Following lunch, Mr. Swanson got the court’s attention.
“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. Couzens demanded to be able to complete his cross-examination of the witness. But the judge was not hearing it.
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.”
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 February 10, admonishing Ms. Dev not to speak to anyone including her husband about her testimony.
—David M. Greenwald reporting