Sticking by Ajay Dev: Sacramento-area Nepali community maintains innocence of convicted serial rapist—but why?
California appeals court hears rare oral arguments in case of Davis man sentenced to 378 years for sexually assaulting adopted daughter
The scales of justice are not done tipping for a Davis man convicted of rape in 2009—and a large number of supporters hope the balance sways in his favor.
Ajay Dev, 49, is currently serving a 378-year aggregated sentence in Mule Creek State Prison in Amador County for 46 counts of sexually assaulting his adopted daughter.
On October 19, hundreds of people who maintain Dev’s innocence filled the Third District Court of Appeal in Sacramento to hear rare oral arguments in a case that has drawn conflicting narratives since it surfaced more than a decade ago.
The accusations that Dev had serially raped his adopted daughter became public in 2005, following a police investigation. The victim (whom SN&R is not naming because she was underage when the alleged abuse began) says Dev started assaulting her soon after he and his wife adopted the girl from Nepal in 1999, when the victim was 16.
The young woman accused Dev, himself a Nepali immigrant, of raping her in his home, the homes of friends and relatives, and at a hotel while the family traveled in Thailand. She also said that Dev paid for her to have an abortion, which his attorney does not dispute. The abortion was one of two pregnancies she claimed his sexual violations caused. Dev’s supporters contend that the men she dated, not Dev, were the likely fathers.
A Yolo Superior Court jury convicted Dev of the crimes in 2009. But seven years after Judge Timothy Fall sentenced Dev to multiple lifetimes in state prison, faith in the Davis man remains intact—with relatives and many in the local Nepali community insisting the convicted serial rapist got a raw deal.
“I know that he’s innocent,” said wife Peggy Dev. “The accusation she made was so wild, and there were other people she said were witness to [the rapes] who are friends and family. They know that they didn’t witness any rape happen under their roof or in their presence. This didn’t happen.”
But what makes Dev’s supporters so sure?
During last month’s appellate hearing, Presiding Justice Vance W. Raye and two associate justices heard the court’s requested oral arguments from Dev’s lawyer, Lauren Eskenazi-Ihrig, and the California Attorney General’s Office, represented by Michael D. Dolida.
Arguing that her client’s right to a fair trial was irredeemably compromised through a number of missteps, Eskenazi-Ihrig contended that a recorded phone conversation between the accused and accuser—used to procure a search warrant and to convict Dev at trial—was inaccurately translated from Nepali by Dev’s accuser, who was also allowed to edit the phone transcript in parts.
The attorney general’s office doesn’t dispute that the victim was permitted to control and communicate a crucial piece of evidence that led to Dev’s conviction. Defending the phone translation as accurate in an appeal brief, the office contended that “the trial court was not obligated … to appoint a certified interpreter to translate the recorded pretext telephone call.”
The attorney general’s office maintains that the original conviction was based on enough evidence to corroborate the accuser’s claims. In a brief submitted to the appellate court, the office argued that the levels of proof needed for a fair conviction were reached, and reached appropriately.
Dolida reiterated that argument during oral arguments, telling justices that Dev essentially incriminated himself during the recorded phone call.
“When you have him saying ’I fucked her after she was 18’ … his whole defense falls apart,” Dolida told justices, referring to a portion of the translated recording.
Dev’s side disputes the translation as inaccurate, and says it shouldn’t have been considered at trial. “Our interpretation is [he said] ’you screwed me over,’” said Patty Pursell, Dev’s sister-in-law. “Their interpretation is that it’s sex.”
The disputed phone recording and how it was presented at trial is what made David Greenwald first suspect something was amiss with the case—and ultimately convinced him of Dev’s innocence.
“There were real serious legal issues involving the case,” said Greenwald, editor of the Davis Vanguard, an online nonprofit news outlet that follows the Yolo County court system. “It became clear that the judge really screwed up, especially on how to translate the pretext phone call. As it turns out, the pretext phone call is really the only actual evidence linking Ajay Dev to any sort of crime, and it’s ambiguous at best.”
At the appellate hearing, Eskenazi-Ihrig also argued that the prosecution improperly indicated that Dev had admitted guilt to his trial attorney in the form of a note, which was not produced. And she contended the original prosecutor made statements to the jury that Dev’s choice not to testify was evidence of his guilt—which is expressly prohibited by the Fifth Amendment.
“Here we have systematic errors,” Eskenazi-Ihrig told appellate justices. “At every step [Dev] is not allowed to defend himself.”
During the course of last month’s oral arguments, Associate Justice Louis Mauro acknowledged that it was possible for opposing parties to see the same evidence and reach different conclusions about how it was handled and how it should be interpreted. But, Mauro said, the onus for determining the truth lay with the original trial jury.
“That is the jury’s job,” he said, “to decide who they believe.”
Asked to review the case for SN&R, McGeorge School of Law professor Michael Vitiello says the fact that oral arguments were even solicited by appellate justices was an unusual—albeit not unprecedented—move.
Vitiello, whose scholarly expertise includes criminal law and appellate advocacy, said he had not encountered such a request in his own professional experience. The professor also noted the delicate judicial balance in dealing with cases of alleged sexual violence.
“It’s one of the most challenging, most difficult areas of the law,” Vitiello said. “Our impulses go in competing directions. We have a history of ignoring claims of sexual abuse and domestic abuse, so it may well be that we overreact and try to overcompensate in favor of the victim. On the one hand, we want to be sensitive to victims; on the other hand we do have false claims, and false convictions are a terrible thing. Convicting the innocent is something that our criminal justice system is supposed to protect against.”
Indeed, this case has toggled between both extremes, with Dev’s defenders attacking his accuser’s credibility.
Dev’s supporters say his accuser concocted the allegations against him after a falling out with the family over its disapproval of her dating choices, interference in other aspects of her personal life and, ultimately, in retaliation for withdrawing financial support.
Calling the claims against her client “fabricated,” Eskenazi-Ihrig said she thought it likely Dev’s accuser asserted rape to conceal the fact that she had sex outside of wedlock, a stringent taboo in Nepali culture.
Thus far, the local Nepali community has been most visibly on the side of the convicted. Dev’s supporters have organized under the moniker “Advocates for Ajay.” The group, spearheaded by Dev’s wife and Pursell, consists of hundreds of friends and relatives from the Sacramento-Davis Nepali community and from his former employment, as an engineer for the California Department of Water Resources.
Following oral arguments, more than 250 such advocates assembled for a two-hour vigil outside the appellate court on Capitol Mall. Pursell said the large support network speaks to Dev’s character.
“He was very involved in the community,” Pursell said. “There’s probably 20 to 25 that do most of the work [of Advocates for Ajay], but there’s been over a thousand people that have signed a petition and written letters. The people in the Nepali community knew her and they knew him. They know … this doesn’t jive at all.”
But support is not proof of innocence, says Nilda Valmores, executive director of My Sister’s House, a community support group for women escaping abusive situations. Valmores, who wasn’t familiar with the Dev case, said cultural differences in the Asian and Pacific Islander communities, which her organization focuses on, can make it difficult for a victim to be given fair consideration.
“There’s a whole [cultural] patriarchy that people are used to,” Valmores told SN&R. “There’s a cultural tradition where you’re not supposed to shame your family.”
Victims can also face communication barriers and isolation, she added.
“If the victim doesn’t know anybody, usually the perpetrator does—so there’s that challenge by itself,” Valmores said. “You’re dealing [with it] alone, you’re feeling alone … in a new country, in a new place.”
SN&R was unable to verify the victim’s current whereabouts, but Pursell said she resides in the United States outside of California.
The court had 90 days from October 19 to rule on Dev’s appeal. If the conviction is upheld, Pursell said the fight will continue to the Ninth District Court of Appeals. If it’s reversed, Dev could face a retrial on the original charges. The Yolo County District Attorney’s Office didn’t respond to requests for comment.
Dev’s wife told SN&R the legal process has exacted a toll on the couple and its four children. But the family counts one upside their onetime adopted daughter never had.
“You can see that we have a really strong support system,” Peggy Dev said, “so we’re blessed that way.”