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Judicial Error Lies at the Heart of Ajay Dev’s Wrongful Conviction

This article has been reprinted from The Davis Vanguard

(Editor’s note: This was written in 2013 and is republished today in the wake of this week’s oral arguments in front of the appellate court) – That Yolo County Judge Timothy Fall does not suffer fools lightly is a truth that is known throughout the Yolo County legal community and beyond.  Judge Fall runs the tightest and strictest courtroom in the county, bar none, and has no problem taking to task defense attorneys and prosecutors alike when they step out of line.

But, while counsel fear making a misstep in his presence, at the same time most respect his intellect and command on the law.  Long ago, he gained our respect when he tossed aside a Deputy DA’s attempt to close the courtroom to the Vanguard, arguing that freedom of the press was the hallmark of a free society.

So, I have always been troubled by the allegations and evidence that have emerged from the Ajay Dev case that Judge Fall made a series of critical errors that led to the wrongful conviction of Mr. Dev in 2009.

But all human beings have flaws, and sometimes these flaws get in the way of our better judgment.  We see a hint of that in another case involving Kyle Vigil, who would be originally convicted of attempted murder and sentenced to life for his role in a Woodland drive-by shooting.

In that case, one of the jurors acknowledged to defense attorney Jeff Raven that he had conducted an experiment using a broomstick.  The  juror had “told jury members that he had conducted an experiment at home where he sat in his car as a passenger and had a broomstick, pretending he was shooting at a house. The juror said that after his experiment, he felt that one of the shootings was intentional and deliberate.”

Judge Timothy Fall became aware of the problem and had a hearing acknowledging that the court received the affidavits from the two jurors, “which were competent evidence.”

Judge Fall found that, in performing the broomstick experiment, Juror No. 2 committed misconduct.

Judge Fall said, “Should the juror have done it? No. That’s an easy one. This is not the type of thing that if the juror had asked ahead of time, Judge, do you mind if I do this when I go home tonight that I would have said yes. I would have said, no, you cannot. You’re told not to do those types of things.”

The judge continued, “But the question is whether it is so unusual that it becomes prejudicial, and based on all of the evidence in the case, it cannot be seen to be unusual and prejudicial in that sense.”

When Mr. Raven attempted to argue with the ruling, Mr. Fall became both indignant and dismissive of the defense counsel’s claims.  Judge Fall decided that the verdict was not going to be overturned, he made his ruling, and that was that.

But the appellate court disagreed and overturned the verdict, arguing that the conduct of the juror clearly  “crossed the line into misconduct.”

In a way, this was a simple error in judgment by Judge Fall in ascertaining the line between harmless error and prejudicial misconduct.  But in another way, it shows a weakness in Judge Fall, in his impatience and his inability to reconsider his decisions in light of problems that may arise.

If you read the appellate brief in the Ajay Dev case, you see a similar problem – Judge Fall simply ran out of patience for resolving the translation issue, and he made a huge error – he allowed the victim to translate the contested portion of the pretext call.

When the defense objected to use of the transcription containing the alleged victim’s (AV’s) corrections, Judge Fall would overrule them with, “I’ve never had a completely accurate transcript ever on – anytime I’ve had a transcript used.  I will admonish the jury appropriately as I always do… but I’m going to let [the prosecution] go ahead and use the transcript.”

As the defense would argue in this case, “The trial court abused its discretion by permitting [AV], a highly biased interpreter, to translate the portions of the pretext call spoke in Nepali.”

Citing the California Rules of Court, Rule 2.890(c)(1), “An interpreter must be impartial and unbiased and must refrain from conduct that may give an appearance of bias.”

These are not small errors.  How could such a competent jurist like Judge Fall make them?  The appellate brief really tells the tale – there was a long and protracted argument between the defense and prosecution over the translation.  That argument focused on the interpretation of a single word – the most critical word in the entire exchange.

Prosecution, following the lead of the alleged victim, interpreted the disputed sentence as Mr. Dev acknowledging, “But you had sex with me when you were 18.”  The defense contests on the other hand, his “was an impossible translation,” and the defense translator explained how the beginning sounds of what he heard are not the beginning sounds of any sexual word in Nepali.

The defense translator argues, “It was very difficult to hear this portion of the audiotape because there was a gap in the tape… Therefore, for all intents and purposes the word was unintelligible.”

That mistake is compounded by the failure of Judge Fall to properly instruct the jury by instructing them to view ambiguous statements made by the defendant on a recorded pretext call with caution.

“This is an incorrect statement of the law,” the defense argues.  “Only unambiguous or undisputed recorded statements should be viewed without caution.”

In the appeal, the appellate attorney notes: “At a pre-trial hearing held on April 20, 2009, the parties’ attorneys advised the court they may be close to a stipulation regarding the discrepancies in the translations.”

However, at that point, “there remained one disputed phrase.”

Defense and prosecution at that point were willing to have the trial court appoint a court-certified Nepalese interpreter.

In response, the trial court advised counsel, “We may be able to get somebody in.  I don’t know.”

Defense wrote, “The following day, the trial court indicated it had spoken with the interpreter coordinator who stated she was contacting Nepalese translators in the Bay Area, but one translator said “he is reluctant to be called into a courtroom in order to translate a document as opposed to interpreting testimony from one language back.”

Judge Fall then stated, “I don’t know that it looks good to try to get one of the court interpreters to cover this for us…   Now, whether either of you can find a professional interpreting service that would send somebody in that has the credentials, I don’t know. It doesn’t look like that’s going to work for the way I was talking about.”

The defense objected and advised the trial court, “They’re mistaken. It is not interpreting a document. It is actually listening to a voice just like they would in court.”

The prosecution agreed, “It is an audiotape.”

The trial court then found, “At this point. I’m stumped, and I don’t want to try to figure out how to get the evidence on since it is not my evidence.  If either of you would like to talk to Chris Vanderford, who is our interpreter coordinator, that’s fine.”

So the trial would move forward, despite the inability to reach a resolution on the translation issue.

The defense continues, “Outside the presence of the jury, the trial court then asked both counsel whether “the transcript issue is straightened out enough to where we can go forward with this part of it?”

Defense counsel would object to the use of the FBI translation with corrections from the alleged victim, arguing these corrections were inaccurate.

It was at this point that Judge Fall overruled the objection, making the argument, as stated above, “I’ve never had a completely accurate transcript ever on – anytime I’ve had a transcript used.  I will admonish the jury appropriately as I always do… but I’m going to let [the prosecution] go ahead and use the transcript.”

The problem here is fairly clear.  There was a legitimate disagreement over the translation.  The judge worked with both sides to reach an agreement, and when the agreement was not reached, Judge Fall seemed to lose patience and put forth a solution that was patently unfair – allowing the witness, the alleged victim, a biased party, to put forth the translation, giving the jury very few tools for alternative interpretations.

The Evidence Code seems very clear that Judge Fall erred and that error might undo the entire verdict in this trial.

It is not our place here to determine what the judge should have done, but only to note that he did not do the right thing.

Based on this, we believe that the verdict will be overturned, but not after Mr. Dev will have had years in prison away from his wife and two young sons, time that he will never get back.  And because of the nature of the conviction, he has not been allowed physical contact with his sons and has never been allowed to hold his youngest son, who was born after his conviction.

—David M. Greenwald reporting