Analysis: 3rd DCA Rubber Stamps Dev Conviction

It was with great anticipation that, seven and a half years after Ajay Dev was convicted in 2009 of raping his adoptive daughter and was sentenced to 378 years, we would finally get to see the appellate court weigh in.  Alas, the ruling by the appellate court was disappointing to say the least.

While the Vanguard and many of the family’s supporters believe Mr. Dev was wrongly convicted in a patently unfair trial, the Third District Court of Appeal writes, “Based on our review of the entire record, we are confident defendant received a fair trial.  The testimony of a single witness can support a conviction if that testimony is believed by the jury.  Defendant claims the victim lied, but it was the responsibility of the jury to review all the evidence, including the witness testimony, and determine which evidence it found credible and dispositive.”

That was always going to be a problem in the appeal – the judges made clear that weighing which evidence was credible ultimately fell to the jury.

At the same time it is disappointing that the court failed to acknowledge a fundamental fact about this case – the jurors to a person acknowledged that they convicted based solely on the pretext phone call – and the pretext call itself is the centerpiece of the dispute.

It is equally troubling that when the court states, “Our review of the record establishes that defendant’s convictions are supported by substantial evidence,” they themselves go on to misstate the record in the recorded phone conversation between the alleged victim and the defendant.

They say that “defendant made statements that he deserved to be put in prison, that he threatened to kill the victim and himself, that the victim’s life would be ruined because she had sex with defendant after she turned 18 and thus had consented, that they met together at a motel, and that nothing would happen because the victim had no proof.”

The court writes, “There is also evidence regarding pornographic materials found on a laptop and computer tower in defendant’s house.”  The court writes this, completely ignoring that Mr. Dev was in fact acquitted on that charge.

To simplify the analysis, the court ruled on ten contentions raised by the defense.

First, the court stated that the trial court erred in not instructing with CALCRIM No. 359, but “the error was harmless because there is sufficient independent evidence of the crimes.”  At issue here is the lack of independent evidence of a charged crime “in connection with the use of statements he made during the recorded pretext call.”

The court finds this error harmless, but how are we to know?  The appellate attorneys have apparently talked to each of the jurors and concluded, as have we for some time – the pretext call is the basis for the conviction.

As we have often reported, two jurors posted information on a website in response to the article after the conviction.  One said, “Yes, her testimony was difficult to swallow. If for her testimony alone, he would be a free man. The phone call is what put him where he is now. I am confident that we made the correct decision.”

Another said, “In the pretext call, Ajay admitted to having sex with the victim after she was 18. The exact quote is ‘You f***ed me after age 18, that means you gave consent.’ The entire defense was that no sexual relationship occurred and that it was a story made up by the victim. With his admission, that defense was completely disregarded.”

This is the centerpiece in the entire trial.

The defense maintains that the trial court erred in failing to appoint a certified Nepali interpreter to translate the statements defendant made during the pretext call, and it abused its discretion in permitting the victim to act as an “uncertified interpreter” of those statements.

Here the appellate court rules that the trial court “was not obligated to appoint a certified Nepali interpreter, and did not prejudicially err in allowing the victim to testify regarding statements made in the pretext call, because there was no witness or party who could not speak or understand English, and it was for the jury to decide witness credibility and resolve conflicts in the evidence.”

This is the biggest problem in the entire case.  The central piece of evidence is what Ajay Dev said at that moment in Nepalese.

The critical moment, as interpreted, comes when she asked, “How is my life re… ruining daddy?”  To which he angrily responded that her life could be ruined “because you have f—ed me after 18 years of your age.”  AV replied, equally indignant, “Ok so?”  After a long pause, Mr. Dev stated, “That means you have given me consent,” which AV denied.

Writes the defense: “The prosecution and defense disputed the meaning of this highly ambiguous exchange at trial.”

They continued, “What was not in dispute however was [AV’s] comment made seconds later:  that she was angry at Ajay because he would not admit that any of her allegations were true.”

Mr. Dev: “Talk softly, why are you talking so angrily?”

AV: “Because I want you to talk to me. I want you to say it.”

The defense is arguing here that if he had just admitted to having sex with her earlier in the phone call, in the disputed portion, what need does she have to continue to attempt to convince him to admit to having sex later in the conversation?

They point to an ambiguous statement where AV alleges that Ajay purportedly said, “But you had sex with me when you were 18.”

At trial, “The defense expert who translated the pretext call testified that Ajay’s statement was inaudible, but was able to decisively rule out [AV’s] translation because, although mostly inaudible, the expert could unmistakably hear the first syllable of the word in dispute which was incompatible with any Nepali word connoting ‘sex.’”

If she had just obtained a confession, she didn’t act like it.  The defense notes AV’s frustration as she continues to push him, “Why don’t you admit?”

Mr. Dev would push back, arguing that “her allegation would eventually be disproved by medical records which would surely expose the real person who impregnated her.”

Mr. Dev would argue, “You had abortion when you were 18 years old and they have the record.  When they have the record, they will understand with which boy did you go with to give name.”

It is troubling that the court is okay with allowing the complaining witness to translate the conversation into English on this key point.  This is not a credibility issue, it is a matter of translation and an independent expert was needed in order to get this right.  A man is in prison for 378 years based on this exchange and the judge did not have the patience to make sure they got it right.

Third, the defense believes that the trial court erred in instructing the jury with CALCRIM No. 358 because, according to defendant, the instruction directed the jury that all recorded statements made by defendant could be viewed without caution.

The appellate court disagrees with “defendant’s characterization of CALCRIM No. 358, and the last sentence of that instruction does not apply to the parties’ dispute about the interpretation of defendant’s recorded pretext call statements.”

The defense contends that the trial court erred in excluding evidence of the alleged victim’s 2005 Nepal record of conviction.  Here the appellate court rules that “defendant fails to show that the purported Nepal court records were admissible or subject to judicial notice, and the claims he raises for the first time on appeal are forfeited.”

This is the first of a series of troubling rulings by the appellate court – they basically take the position that the defendant is not allowed to challenge this because it was not raised at trial.  That means any insufficient defense allegations cannot be raised at the appellate level.  They can be raised at the next stage of habeas, but that is still several years off.

The appellate brief alleges that the trial court erred in admitting evidence of adult pornography.  Here again, Mr. Dev was acquitted on the pornography charge, but “defendant’s claims in connection with the admission of adult pornography are forfeited because he did not make a specific objection on the grounds asserted on appeal in the trial court.”

The same thing with point six, that “the prosecutor committed misconduct in arguing that a person using a file-sharing website cannot inadvertently or unknowingly obtain child pornography,” where the court rules, “defendant failed to preserve his prosecutorial misconduct claim for review because he did not object at trial to the challenged remarks, and it was not error to admit People’s exhibits 44-A, 44-B and 44-C.”

The court erred “in excluding evidence of an e-mail which purportedly showed that defendant was at work when someone accessed child pornography on his home computer” to which the court rules, “the trial court did not err in excluding the proffered e-mail because defendant failed to establish the foundational requirements for its admissibility.”

Objection eight is that “the prosecutor committed misconduct by commenting on defendant’s failure to testify” to which the court ruled, “read in context, there is no reasonable likelihood the jury would have construed the prosecutor’s remarks as a reference to defendant’s failure to testify.”

Nine was “the trial court violated defendant’s constitutional rights by refusing to hold an evidentiary hearing to settle a proposed statement with regard to a missing jury note and whether the jury received certain trial exhibits during deliberations.”  The court ruled that “no prejudicial error is demonstrated in the settled statement proceedings.”

Finally the defense argued for a new trial “based on the cumulative effect of the asserted errors in this case.”  The appeals court rejects this claim.

At the next stage, the habeas corpus level, issues of ineffective defense counsel can be raised, but it is troubling at this stage that the appellate court can simply reject three or four critical potential errors on the basis that they are forfeited because they are raised for the first time on appeal.

The biggest issue in this case remains the decision by Judge Fall to allow the complaining witness to be the interpreter for the critical exchange.  That the appellate court was okay with this remains troubling.

Is an innocent man in prison?  That belief was bolstered even further when I met Ajay Dev in prison this weekend for the first time.

—David M. Greenwald reporting

About The Author

David Greenwald is the founder, editor, and executive director of the Davis Vanguard. He founded the Vanguard in 2006. David Greenwald moved to Davis in 1996 to attend Graduate School at UC Davis in Political Science. He lives in South Davis with his wife Cecilia Escamilla Greenwald and three children.

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41 thoughts on “Analysis: 3rd DCA Rubber Stamps Dev Conviction”

  1. Becky Cox

    David, I agree that the court allowing the victim to be a court translator because she speaks English and the defendant speaks English is a serious issue. The court and the jurors obviously don’t speak Nepali, this is a serious flaw in the system. There is no allowance for any circumstance when the defendant and the victim speak more than one language and the jury doesn’t.

    1. David Greenwald Post author

      The court’s view here is basically dependant on the credibility of the complaining witness, the problem is that the jury was not in the position to tell something that actually is quite objective.

      1. dwein

        Becky Cox hit the nail right on the head.  How at least 2 of the 3 appellate judges couldn’t figure this out is mind boggling to me.  As I listened during oral arguments it was clear that they they were skirting this issue entirely.  Baffling.

        1. Jaroslaw Waszczuk

          Dwein

          Becky Cox is right but other true was that it was Dev’s defense attorney responsibility to provide a  sworn expert witness and translator in Nepali language   during the legal process and  the trial to properly defend the client .  Attorney knew what charges were and what Dev was facing if convicted .  The court , prosecutor , jury in such case is not the preschool or Milo in UC Davis to play around.

      2. Jaroslaw Waszczuk

        David

        I am assuming that  you remember Polanski’s case and his acclivities with the  underage girl. In USA. Polanski had a lot of money for good lawyers .  He did not take a risk to comeback to USA .  Mr. Dev underestimated  the American justice system. In USA is no  mercy from justice system  for such behavior .. Instead of sending his adopted daughter back to  Nepal and trying to prevent her to comeback to USA he should hire lawyer and  turn himself to authorities after learn that she is ready to blow whistle on him . Most likely it would cost him less prison .. 378 years is a death sentence.

        1. David Greenwald Post author

          Ajay is innocent and unfortunately never believed he would be convicted and never believed that the daughter would tell such a tale.  There are a lot of lessons perhaps to learn, yours isn’t one.

        2. Jaroslaw Waszczuk

          David,

          You could believe what you want to belive . If you believe that Dev is clean and the court made some kind political decision and that the  courts are corrupted  than don’t sit on the fence. Advise  Dev’s attorney to file the complaint against judges , justice for bias and prejudice. Picture showing kids protesting up front of courts or Capitol  will not  do any good . 378 years in prison won’t be fixed by  the DV’s articles .

          1. David Greenwald Post author

            Complaints against a judge are useless and the family is well aware of both the judicial error and prosecutorial misconduct in this case.

        3. Jaroslaw Waszczuk

          David

          Ask Alice _Mary Coleman if is useless .  She dismissed  Judge Chang n Keyzer’s and she won the case .  I  know a lot about  the Court Rubber Stamps decision’s  . However  this the death and life cases and you don’t argue about Nepali language and adopting the girl to make her help family in Nepal . This is a  completely irrelevant argument.

          1. David Greenwald Post author

            That’s different – that’s dismissing a judge, not filing a complaint seven years after the fact.

  2. Jaroslaw Waszczuk

    David

    Ia m not talking seven years after , I am talking  7 years ago prior the trial .  Look at the fact how everything  was unfolded . This girl was smarter than Dev anticipated and she went after him.  In Nepal most likely he  will get away with such love for adopted daughter. He blew his good life away . The most what   incriminated Dev was the hard porn on his commuters  involving teenage girls regardless if was acquitted or not of these charges  . In the  Federal Court he has a slim chance . I was dealing in the  UC  Davis Medical Center with  one guy case who was sentenced by the Federal Court for having child porn images  on his commuter . If you would  presents some parts of the Attorney General Brief on the appeal than folks which writes on the DV  would flip after they would read it .

    1. David Greenwald Post author

      The problem is you don’t know this case very well. Ajay was acquitted on the porn charges by the jury because the defense showed forensically that he didn’t download the porn, it was spamware. But for some reason both the AG and Appellate Court have raised that as evidence. Even though it was completely discredited and the jury acquitted him.

      1. Howard P

        And, you know this case so well, David, you KNOW he is innocent… yeah… I BELIEVE he is either innocent, and/or not guilty, and I believe he is (and was) no threat to the so-called “victim”, nor to society… but I do not claim to KNOW that.

        My gut tells me that the “victim” perjured herself, and is worse than … well, don’t want to set off the filters… if the testimony she gave is indeed false, I hope she gets tried and  a given 2X the sentence, compared to the accused, currently in prison.  And that he be exonerated… factually found not guilty/innocent of what he was charged with…

        1. Jaroslaw Waszczuk

          Howard

          What a terrible country we are living where  the innocent people were being thrown into prison for 378 years. Te  24 million felons  were sent to prison in last 15 years . You could only imagine how many of these 24 million were were falsely accused and the “America Mean Justice ” destroyed their lives.

          No to go into case detail the Attorney General in the Respondent’s Brief on page 54 and 55 wrote about the alleged   Prosecutorial Misconduct. 

          As explained by the California Supreme Court in Jones, “a defendant cannot complain on appeal of misconduct by a prosecutor at trial unless in a timely fashion —and on the same ground — the defendant made an assignment of misconduct and requested that the jury be admonished to disregard the impropriety.” (People v. Jones, supra, 29 Ca1.4th at p. 1262.)
          Here, appellant did not object during trial to the prosecution’s alleged false offer of proof, nor did he request that the jury be admonished. 

          1. David Greenwald Post author

            When I visited Ajay this weekend, he said he thought probably 60 percent of the people in prison with him were guilty of the crime they were accused and deserved their sentence. Another 30 percent were guilty of a crime, but did not deserve their sentence. He thought 10 percent were innocent. If that latter number is closed to true – that would be a huge number of people sent to prison who were innocent.

            You’ve hit on the problem in the appellate process – they can’t challenge misconduct that was not challenged during the trial. That means any time there was ineffective defense, they are unable to appeal and have to wait for the Habeas petition. Do you not see that as a problem?

        2. David Greenwald Post author

          This case is so weak, that in order to bolster it in the briefs and in the appellate ruling, they used discredited evidence. When I met with Ajay this weekend, he made a great point to me. What the jury convicted him on was the nebulous claim that he raped her twice a week for five years. Every time they had a concrete date and time or could use science, he was acquitted.

        3. Jaroslaw Waszczuk

          David

          This was a most important thing to complaint and challenge  the investigators , prosecutors , judge and jurors. The case has many black holes which should be uncovered during the investigation and during the preparation to  the trial . If you were accused of raping  the adopted daughter 700 times than you should be prepared for the worse . I am handling myself  two appeals  in civil cases and if you would read my motions or objections  I filed in the Superior Court you would  than you would find out  that I was preparing myself for the appeal and I did hesitated in my motion to point miscarriage of justice ,  fraud upon the court and I did not hesitate to ask Judge during the court hearing if I have to go outside the Court House and shut myself to make him look for true seeing that the  University of California lawyers  acting like the  UC is  the   owner of the Sacramento Superior Court.  I won two civil cases myself  representing myself on  appeals in 3DCA but I had everything  in the record what I should have and Justice from the 3DCA during the oral arguments did not give any chance to opposite party lawyer . He told him , That it ‘ We know the law in 3DCA . The opposite party lawyer was the super  lawyer from the Littler Mendelson law corporation who wasted my lawyer together with judge during the 5 days trial and I had to take over. If you see misconduct and prejudice you have to point at  and for the  record  file the complaint, motion , notice of objection , dismiss the judge  . Other wise you have 5 % slim chance on the appeal . Habeas petition is the last resort .

  3. Bill Pursell

    I can’t see this appellate court ruling as anything but a deliberate effort to move this case out of their hands with little or no consideration of the issues put forward.

    Finding no issue with the accuser translating the pretext phone call by saying everyone present in the courtroom speaks and understands English is a stunning and inexplicable twist of the intended perspective of the defendant’s complaint.

    If translators are only necessary where a live human is speaking a non-universally understood language in the courtroom, then all criminals should communicate over the phone and email in non-universally understood languages and then translate their own recorded communications in trial. Apparently the 3rd DCA finds no problems with this scenario. 

    Much of the rest of the rulings are essentially that the defense failed to raise objections at the appropriate time during the trial causing the claims to be “forfeited”. These dismissals are completely anathema to the idea of an appellate court. Appellate courts are designed to handle objections made about court preceding after the fact, not just about those made during the trial itself. Again, the 3rd CDA is apparently fine with misconduct if the appealing party did not self-police. This raises the question of why the 3rd DCA even exists.

     

    Thanks for doing the absolutely least you possibly could. Through your lethargy, apathy and/or pusillanimity you have become complicit in the ongoing trauma of an innocent man’s life 3rd DCA.

  4. Jaroslaw Waszczuk

    Appellate courts are designed to handle objections made about court preceding after the fact, not just about those made during the trial itself. Again, the 3rd CDA is apparently fine with misconduct if the appealing party did not self-police. This raises the question of why the 3rd DCA even exists.

    Bill

    Where you getting such stuff. Are you taking about the  which were not submitted to lower court prior or during the trial ? What are you talking about  ?  Check the 3DCA case Doket and look what was filed , denied and granted by the 3DCA

    http://appellatecases.courtinfo.ca.gov/search/case/dockets.cfm?dist=3&doc_id=1917454&doc_no=C062694

     

     

  5. Eric Gelber

    Bill Purcell said: “Appellate courts are designed to handle objections made about court preceding after the fact, not just about those made during the trial itself.”

    That’s not true. While there are exceptions and they have some leeway, the general rule is that appellate courts may consider only evidence, objections, and legal arguments that have been raised in the trial court.

      1. Jaroslaw Waszczuk

        Thank you, Eric… that is my understanding, as well…

        Howard

        Do you understand  that the  3DCA erred by affirming the lower court decision.? If so why ?

        As explained by the California Supreme Court in Jones, “a defendant cannot complain on appeal of misconduct by a prosecutor at trial unless in a timely fashion —and on the same ground — the defendant made an assignment of misconduct and requested that the jury be admonished to disregard the impropriety.” (People v. Jones, supra, 29 Ca1.4th at p. 1262.)

        Here, appellant did not object during trial to the prosecution’s alleged false offer of proof, nor did he request that the jury be admonished.

    1. David Greenwald Post author

      Yes that’s why Habeas is the more likely route of success, but it doesn’t make it any less frustrating because years keep ticking away.

      1. Jaroslaw Waszczuk

        David

        That means any time there was ineffective defense, they are unable to appeal and have to wait for the Habeas petition. Do you not see that as a problem?

        This is  a big problem but you know perfectly how it go in courts . You have to watch this stuff especially when you  are the  accused party with  such serious charges  . You can’t neglect , ignore or believe you would  petted by the  prosecutor and the court will be apologizing  to you with bouquet of flowers.
        II see from the appeal ‘s doket  that lawyer filed motions for augmented record and the  motions  were granted . It did not help Dev’s a lot on the appeal .  I am curious whether Plaintiff  in the case went after  Dev for damages with the civil lawsuit . Did she  ever file a  civil lawsuit against Dev and Dev’s  wife  ?  Normally  victims in such cases are filing civil lawsuits for damages  and demanding monetary compensation. This  is also victim’s  credibility .  The civil case  could show completely  different picture . The case is very strange and bizarre and unbelievably damaging  to the Defendant’s and his  family life and to the Plaintiff if it is true what is in court record .

        When I met with Ajay this weekend, he made a great point to me. What the jury convicted him on was the nebulous claim that he raped her twice a week for five years. 

        I think it was every other day for two years . This he whole point . If jury heard such accusation backed by the prosecution witnesses  and police investigation it was not much important for jury whether she was raped every other day or every other week . When jury got convinced hat Dev  had sex with adopted daughter regardless whether it was forced or consented sex after she was 18 years old , the jury was on her side. The 378 years is speaking for itself that the jury wanted to send the guy away for the long time regardless if had sex 100 times with her or one time only . That how I see  it how he was sentenced to die in prison.

        I like to read Tia’s opinion about this case . She is smart she is a Doctor and woman .

        1. David Greenwald Post author

          No, the alleged victim never filed a civil suit. It is also my understanding that when asked why she wouldn’t recant (some of her claims were farcical, requiring her to have been raped in a room full of sleeping people on multiple occasions) – she allegedly said that she would never recant because she would be deported. (As opposed to she wouldn’t recant because her testimony was the truth).

        2. Jaroslaw Waszczuk

          David

          Have you been present at the trial ? I guess that seal record never was unsealed  for the public by looking at 3DCA Docket.  This case is deeply rooted in Nepal. This is a different world over there  than Nepali diaspora in USA.  I am looking at this 15-16 years girl in 1999 as a victim of her own parents and family which gave  her away. If she would be one year old and adopted then it would be a different story .  I think we all know only  part of the story. Maybe you should contact or I will contact  Dr. Phil . He is doing investigations in the foreigner country  in such cases or similar cases . He has lot of resources to get to the bottom of such journey .

          1. David Greenwald Post author

            It would be helpful if you didn’t make statements which are untrue, such as her parents giving her away.

  6. Jaroslaw Waszczuk

    David

    I am basing my statements on the court’s record.

    What is untrue ? . The biological parents legally gave her  for adoption to distant relatives .  It  appears from the court record that this girl or Plaintiff was 16 and she was  already in high school in Nepal taking in considerations that  that after she arrived in USA she attended the  American High School without any problem. I lived in poor communist country but I never would send my 16 old daughter to any country to live even with own brother or sister with exception to  one month vacation. That it . Would you ?

    After a few months of acclimating to the United States, Sapna began attending school as a ninth-grade student at the local middle school. (4 RT 746.) During the following school year, Sapna attended Davis High School as a tenth-grade student. ((4 RT 748.)

    This was not a normal adoption . This was a fraud to get her to America by falsifying her birth record and she apparently participated in this fraud. This how the whole problem started . If she would be 18  when she arrived in USA  and her record was falsified  than she would find herself in Detention Center and she would be shipped back to Nepal. I think that the defense lawyer made   great  mistake to bring to the court attention the falsification of  her birth record as the legal argument against her.    The research attorney in the Courts of Appeal are  the top notch legal experts .

    If she was in high school in Nepal than  she was quite smart girl and she  knew what is going on . The half  a women population are illiterate in Nepal. It means that she access to education in Nepal.

    I heard about  the  similar Uncle and Nice case from the  UC  Davis Medical Center .  Uncle escaped prosecution but getting plane ticket and exiled himself to Fiji. Similar ethnicity as Nepalis  ( Hindu or Indian )

    1. David Greenwald Post author

      Well you took from the court record but gave it your own spin which is actually completely inaccurate: “I am looking at this 15-16 years girl in 1999 as a victim of her own parents and family which gave her away.”. This implies a lot of inaccurate things. Her parents sent her to the US to live with a relative and be adopted. They did so ostensibly to get her an education, however they didn’t give her away and they worked as partners with the Dev’s until some sort of falling out occurred…

      1. Howard P

        I thought, in CA, the natural parent(s) have to “give up their rights”, for an adoption to occur… so, if,

        Her parents sent her to the US to live with a relative and be adopted. 

        is true, her parents’ intention to “give her away” is also true… am I missing something?

         

    2. David Greenwald Post author

      “I think that the defense lawyer made great mistake to bring to the court attention the falsification of her birth record as the legal argument against her. ”

      The was the whole motivation for her rape story. By becoming a victim of crime and testifying she was able to get resident status and ultimately citizenship.

      1. Jaroslaw Waszczuk

        Hi David

        I read again all briefs more carefully and I concentrated my attention   to the Appellant Opening Brief (AOB) which should be  a key to  get a new trial for Ayaj Dev. (AD)    However , how  the AD’s lawyer presented the  picture of  AD in the AOB  and his reasoning  for adoption of  16 years old (AV) , the  adoption process and circumstances how she was adopted placed AD in the the  unfavorable light. The all briefs shows that AD case  is  the unfinished case  regardless if AD  is guilty or not. (He got 378 years) I did  not witness the court  the court trial and I had no liberty to hear and see  witnesses’ cross examination by defense attorney and prosecutor than hard to say where the mistake or many mistakes were made. The case is rooted in Nepal and for example it would be interesting to find why  the victimized (AV) did  not cry to her  biological parents and sisters about her horrible experiences  in America. Or  if she cried  to her biological parents about AD than why they were quiet about . They had constant contact with AD .

          1. David Greenwald Post author

            If she’s shown to have perjured herself then that’s one thing, until then it’s the Vanguard’s policy not to print names of victims or alleged victims.

        1. Jaroslaw Waszczuk

          David

          No problem .  I understand why DV  has  such policy .  The full names of all involved parties are  in  the Attorney General Respondent’s Brief .

        2. Howard P

          I understand the distinction, David… thx…

          I assume that it comes to her being charged with perjury (short of conviction), that rule will no longer apply…

        3. Jaroslaw Waszczuk

          Howard

          Howard 

          The appeal was not about the  S.D.  perjury.  The appeal was filed by Ayaj Dev’s attorney to get a new trial for Dev who is sentenced for 378 years of prison time.  Alleged by you  S.D’s perjury would be a good a  point if S.D would  write declaration  stating that she made up whole story because of many reasons. Defense lawyer done lot of good work for Ayaj Dev  but his defense fell apart due to underestimating  the seriousness of the accusations and allegations and other factors which lead to 378 years in prison .  I would think that 378 was a misprint or the Court used the calendar from the different planet if I   would not  deal with the  law myself .

          You could find  in the AOB the following statements about  the  PERJURY . The AOB is based on the Yolo County Superior Court record. Ajay Dev’t cannot do much about the  accuser’s  untrue  statements or  her contradictory statements. Dev was acquitted  of any charges against him

          AOB Page No 90-91

           California courts have long recognized the inherent dangers of introducing out of court statements attributed to the defendant. (People v. Ford (1964) 60 Ca1.2d 772, 800.) Specifically, courts have recognized that:
          ·        It is a familiar rule that verbal admission should be received with caution and subjected to scrutiny, as no class of evidence is more subject to error or abuse. Witnesses having the best motives are generally unable to state the exact language of an admission, and are liable, by the omission or the changing of words, to convey a false impression of the language used. No  other class of testimony affords such  temptation or opportunities for unscrupulous witnesses to  TORTURE  THE FACTS OR COMMIT OPEN PERJURY, as it is often impossible to contradict their testimony at all, or at least by any other witness than the party himself.
          AOB Page No. 111.
          ·        D. The Trial Court Rejected Every Effort The Defense Made To  IAdmit Sauna’s Nepal Record of Conviction.
          On March 20, 2009, before trial, the defense filed two motions to have the Nepali documents admitted as evidence. In the first motion, the defense asked the trial court to take judicial notice of two documents: (1) the July  26, 2005 Nepal bench verdict against S. for obtaining a passport with a false date of birth (Exhibit 502); and (2) the Nepal appellate decision affirming the conviction and finding she had COMITTED PERJURY ;
           
          AOB Page No. 117-118
          ·        On April 27, 2009, the defense filed a formal motion for reconsideration based on a supplemental declaration from Mr. Sharma which more thoroughly explained that “the red seal from Shree Law Books Management Board’ constitutes a warranty that the documents in the Nepali language are in fact an official record of The Nepali court and that the English translation is both conducted by the official branch of the Ministry of Law, Justice and Parliamentary affairs in Nepal and is accurate” (8 CT 2328; 9 CT 2338) Specifically, MR. SHARMA’S SUPLPLEMENTAL DECLARATION, SIGNED UNDER PENALTY OF PERJURY, STATED:
          ·        On April 29, 2009, the defense filed another supplemental declaration to support its motion for reconsideration. (6 CT 1665-1667) This declaration came from Harishchandra Ghimire, the First Secretary of the Embassy of Nepal in Washington D.C. AND STATED UNDER PENALTY OF PERJURY:
          AOB Page No.  221
           
          ·        Pursuant to the settlement investigation, Juror No. 1 recalled that the jury submitted a note during deliberations regarding the testimony of one of the victim’s friends. Specifically, whether the jury could take the testimony for the truth. (1 ACT (2/17/2012) 237) There is no jury note in the record concerning the testimony of one of the victim’s friends. Juror No. 1 reviewed the jury notes in the record (12 CT 3258-3259, 3264, 3270, 3372; ACT (5/14/2010) 13) and stated, in a DECLARATION SIGNED UNDER PENALTY OF PERJURY, that he did not see that note among that group of jury notes submitted during deliberations.65 (ACT (2/17/2012) 257)

  7. Jaroslaw Waszczuk

    Yes that’s why Habeas is the more likely route of success, but it doesn’t make it any less frustrating because years keep ticking away.

    David
    Judicial Philosophy of  the State of California  Chief Justice  Hon. Tani Cantil -Sakauye
     In an interview with The Sacramento Bee in 2005, Hon. Cantil-Sakauye said:

    “My philosophy is to really listen closely to what people have to say and try to balance it with everything they’ve told me and give them a fair shot to tell me what they’re thinking. … If I let them ramble a bit, point them in a direction, I learn why that person is there much better than in a question-and-answer format.”

     

  8. Jaroslaw Waszczuk

    At the next stage, the habeas corpus level, issues of ineffective defense counsel can be raised, but it is troubling at this stage that the appellate court can simply reject three or four critical potential errors on the basis that they are forfeited because they are raised for the first time on appeal.

    David

    Do you know which direction Ayaj Dev’s  attorney will go with Habeas Corpus.  The appeal in 3DCA took almost 7 years.   To  fully brief the case took almost five years . Way too long . I am reading 3DCA  briefs and unpublished decision  over and over and this case needs  a really good legal expert in criminal law to determine which direction further appeals should go.  Davis Police Detective Hermann was is  smart guy . Ayaj Dev fell into the   Detective Hermann’s trap he set by using S.D.  .  He basically made Ayaj Dev defenseless with  the defense’s  direction the Dev ‘s attorney took . The AOB Introduction should portrait Ayaj Dev’s professional background , what kind person he was in his private  life and  in  his professional carrier  to show for the Court of Appeal from the very beginning that he is not the person which could commit such crime .  The second part should be detailed profile of  his adopted daughter he was taking care of. Thereafter the  other brief  chapters should follow .

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