Ajay Dev Team Seeks to Correct Errors in Appellate Court Record

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Earlier this month the 3rd District Appellate Court denied the appeal by Ajay Dev and his attorney for a new trial.  However, as we noted, in the oral hearing the ruling itself and Attorney General’s Brief misstated a number of facts that the defense is attempting to address through a Petition for Rehearing.

As we have noted a number of times, almost the entire case hinges on the translation of a recorded pretext call.  The jurors have told the defense, and even written on social media, that they found the testimony of the alleged victim (“AV”) in this case unconvincing, however the pretext call purports to show that Mr. Dev admitted to having sex with the alleged victim and that became the sole basis for conviction.

However, the key phrase in question, the defense believes, was misinterpreted.  The statement in question is translated from Nepalese to “because you have f–ed me after 18 years of your age.”  The prosecution has taken that to literally mean to have sex rather than the more generic version which would be “to screw over.”

This came out during the oral hearing when Michael Dolida, a Deputy Attorney General, argued, “When you have him saying ‘I f–ed her after she was 18’ … his whole defense falls apart.”

“Our interpretation is [he said] ‘you screwed me over,’” said Patty Pursell, Dev’s sister-in-law, to the Sacramento News and Review. “Their interpretation is that it’s sex.”

The defense points as evidence to this misinterpretation that the alleged victim’s response was, “ok so?”  By omitting the “ok so” and instead adjoining “that means you have given me consent” creates a complete misrepresentation of the entire conversation, as though to suggest that Mr. Dev made one uninterrupted comment.

Indeed, later in the conversation, the alleged victim clearly did not seem to believe this was an admission.  She later asked him, “Because I want you to talk to me.  I want you to say it.”

The appellate court would write: “In addition to the victim’s testimony regarding the sexual offenses, there is evidence of a recorded phone conversation between the victim and defendant in which 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.”

But much of this represents a misstatement of the facts, or taking the facts out of context.

For instance, the court writes, “Defendant did not deny (AV’s) accusations that he fathered the babies she aborted.”

This is inaccurate.  Mr. Dev expressly denied these allegations on repeated occasions.

The alleged victim starts with the allegation that she went to her school counselor and admitted to having three abortions, but refused to tell the counselor who the father was.  She said, “I did not really tell her anything about us….  Should I tell her, about you and me daddy?”

But, in contrast to the opinion, he stated, “it’s wrongly accused.”

She responds, “How is that wrongly accused?  Didn’t you do that to me, when.”

He says, “I did not.”

She responds, “when I was 15?”

He responds, “No, I did not.”

AV:         Are you lying?

AD:         No, I am telling the truth.

AV:         How are you telling the truth?

AD:         You are lying. This is the worst possible accusation I could possibly have.

The opinion states that defense expert Shakti Aryal translated a portion of the pretext call as Ajay stating:  “But you kissed me when you were 18.”  While accurate, this is not what the defense expert testified to at trial.  Here he not only ruled out the possibility that the AV’s translation was correct, but testified that the start of the word in dispute starts with a “K” or a hard “Ca” sound.

Given that, he suggested that the word may have been the English word “kissed” rather than Nepali.  However, he did not hear the word “kissed” and, given that the rest of the sentence was in Nepali, not English, this translation is questionable.

The court writes, “Defendant does not specify another portion of the People’s translation with which he disagrees.”  This is inaccurate, however.  The defendant disagrees with the interpretation of the pretext call alleging that defendant said, “But you kissed me when you were 18.”  Instead, the defendant’s position is that no nefarious admission was made during this portion of the pretext call.

The court states, “(AV) testified that defendant raped her again after she moved out of the Dev home.  According to (AV), defendant asked (AV) to meet him so they could talk, but he took her to a Motel 6 and raped her.  Motel 6 records showed defendant checked into the motel on December 10, 2003, and on January 2004.  (AV) said the Motel 6 incident was the last time defendant had sex with her.”

However, the jury did not convict on the Motel 6 rape allegation.  Instead, what happened is that Mr. Dev and his adopted daughter negotiated concrete terms to continue their familial ties.  This fact is corroborated by the contract signed by Mr. Dev and his wife with the alleged victim to ensure her success as a respectful member of the family who would continue her studies and live independently with continued, but renegotiated, financial assistance from the Devs.

The court also repeats the allegation that Mr. Dev showed the girl pornography, stating that he “also showed her pornography from the time she was 15 until she was 18 or 19.  Defendant showed (AV)  five to six pornographic movies on his Dell laptop and on a Dell desktop computer.  All of the movies featured extremely young looking girls.”

However, as we have noted before, the jury acquitted Ajay of these very specific charges in Counts 64 and 65.

These are just a few points that are raised.  Ultimately, this case will go the habeas route to consider the fairness of the trial.  As we saw in a previous analysis, the court ultimately punted on a number of issues that they argued had not been raised in trial court and therefore were forfeited in the appellate court.

—David M. Greenwald reporting

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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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8 thoughts on “Ajay Dev Team Seeks to Correct Errors in Appellate Court Record”

  1. Jaroslaw Waszczuk

    David

    Who is this photo guy ?  I like it? 378 years .

    By reading the documents I have from this my opinion is that  the trial lawyer screwed up the case . Even , believing that Mr. Dev is not completely clean , he should get not more than 10 years and he would would be free within 3 years or paroled. The appeal lawyer took the wrong direction as well in the briefs . Not all was bad because look like the appeal  attorney dedicated lot of time but rubbed the Court of Appeal justices in wrong way from the beginning in Appellant Opening Brief  but trial is to blame for damaging the case and Mr. Dev life .  How the background of the case was presented to the trial court and jury took toll on Mr. Dev and on the whole case .

      1. Jaroslaw Waszczuk

        This what  should be . What is your expectation with the new Dev’s legal team court action ? What I understood from the whole  case the worse for the defense was the fact that she stuck in Nepal and everything from this point went viral. She got mad and I  think that defense lawyer and appellate lawyer did not expose good enough  her angry reaction for being held in Nepal until the Davis Police detective got her out .  In her anger she  dumped everything  what possible against him  true or false . Does not matter .  For the Davis Police  detective it was a quite prestigious  case  and he achieved his goal.

  2. Jaroslaw Waszczuk

    David

    The today’s anger about   about not letting people  enter the United States with valid visas and in some case even with  Green Cards is no different than the Dev’s adopted daughter anger and viciousness and revenge .  For folks from these poor countries  it is like life and death to get here . The defense and appeal did  not expose it good enough.  If I would the appellate briefs I would keep everything to the according court record but I would write in different way and I believe it would work better that what I read  in the briefs .  The Court of Appeal completely  and entirely ignored the Appellate lawyer arguments and her briefs . In further appeals the mistakes should not be repeated.

    1. David Greenwald

      I think you have this wrong.  As I understand it her feud with her parents led to the initial allegations, but the immigration situation forced her hand as becoming a witness enabled her to obtain a green card.  The defense team made some errors but the biggest problem was the judge not getting a clean translation of the phone conversation for the jury to evaluate.

  3. Jaroslaw Waszczuk

    The defense team made some errors but the biggest problem was the judge not getting a clean translation of the phone conversation for the jury to evaluate.

    David

    Translation issue was basically washed out by 3DCA.  I believe  that the appeal  attorney in the further appeals should be more flexible and more careful and focus on other things as well. I dealt with quite  few  lawyers in my life and one was so bright and educated  trusted him  and he lost by his ignorance for me and for himself 25 millions dollars and his law firm went down. ( He would get 40% of this 25 millions) The millions were served to him on the silver plate and threw it to the garbage can.  I sued him and I got 150k of him . That it .  The attorney in Dev case should not  get blind. This is even a bigger stake than $25 mills . This is  whole his  life and beyond .

    The 3DCA concluded the case with words : 

    We conclude (1) 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;
    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;
    we disagree 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; (4) 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; (5) 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;
    (6) defendant failed to preserve his prosecutorial misconduct claim for review becausehe 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; (7) the trial court did not err in excluding the
    proffered e-mail because defendant failed to establish the foundational requirements forits admissibility; (8) 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; (9) no
    prejudicial error is demonstrated in the settled statement proceedings; and (10) reversal is
    not required because defendant’s appellate claims are forfeited or lack merit.
     
    We will affirm the judgment. (Page 3 & 4) 
     

     

    The 3DCA addressed  the translation issues from in the pages 19-30  with  the following conclusions.  

    The authorities defendant cites do not support a conclusion that a trial court is obligated to appoint a certified foreign language interpreter to resolve differences between offered translations. And we have found no authority compelling such a conclusion.(Page 20) 
    Defendant also claims the trial court abused its discretion in permitting S. to act as an “uncertified interpreter.” The claim is forfeited because defendant did not object in the trial court on that ground. (People v. Romero (2008) 44 Ca1.4th 386, 411; People v. Aranda (1986) 186 Cal.App.3d 230, 237 [“When no objection is raised to the competence of the interpreter during trial, the issue cannot be raised on appeal.”].)(Page 20)
    But the jury was not required to accept defendant’s interpretation of the evidence. Defendant does not specify another portion of the People’s translation with which he disagrees.In view of these circumstances, there is no showing of prejudice.(Page 22)
    The trial court denied the motions, finding the documents defendant proffered did not contain the attestation required under Evidence Code section 1530. We find no error. (Page 24) 

    Accordingly, defendant fails to demonstrate error.(Page 30)

  4. David Greenwald

    You’re proving my point here.  The defendant didn’t fail to demonstrate error, the court ruled that the trial defense screwed up by failing to object to the use of the complaining witness as a de facto interpreter.  It’s kind of a specious argument by the appellate court, because if you read the court transcript, actually did object but Fall, the judge, basically said this is what we’re doing over the objections of the court.

    The court also writes, “defendant does not specify another portion…” – we covered that today, they actually did specify multiple portions.

    The translation issue wasn’t washed out by the appellate court, instead they largely punted on it.

    Bottom line: if the complaining witness misrepresented the key portion of the text – that is a fundamental error that would not be caught at the appellate level.  The defense presents substantial evidence both in her reaction to the key portion of the conversation and in the totality of the conversation to suggest that there was fundamental error and the court did not weigh in on this.

    1. Jaroslaw Waszczuk

      David

      I think you we are both right on the issue . The point is that appeal must presented in way to convince the Justices that error exist. This the whole point . I  just have different view of the same stuff should be presented differently  in more convincing way who is defendants . I am talking about the solid foundations on the appeal and how the  defendant should be presented as human , father , professional etc .

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