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Dev Appeal Heard, Waiting Game Begins

This article was written by David Greenwald and has been reprinted fromThe Davis VanGuard

It has been seven years since Ajay Dev was sentenced to 378 years for the rape of his adopted daughter, and finally the Third District Appellate Court of California heard oral arguments on Wednesday.  The three-justice panel, comprised of Presiding Justice Vance Raye and Associate Justices Louis Mauro and Harry Hull, is expected to render a decision within 90 days.

Experienced court observers have told the Vanguard that such hearings are far from comprehensive and that justices simply want clarification on certain matters.  TheVanguard also learned that the overturn of convictions occurs only very rarely at this level – perhaps as little as 3 percent of the time.

Ajay Dev’s appellate attorney, Lauren Eskenazi, opened with the question as to why the complaining witness would falsely accuse Mr. Dev of rape.  She was quickly cut off by one of the justices who asked whether these were not facts that had been before the jury.

She countered that this is consequential evidence fundamental to the case that was not allowed in, and that the court erred by failing to allow key facts in about the Nepali proceedings and the complaining witness’s lies about her date of birth – with the threat to reverse her adoption and therefore her right to be in the country.

The evidence got in, but the jury was told they could not weigh the evidence.

Ms. Eskenazi also highlighted the fact that the prosecution fabricated an admission of guilt, which she called a misstatement of facts by Deputy DA Steve Mount during his closing comments, where he argued that he had overheard Mr. Dev admit guilt to his attorney during the preliminary hearing.  She called this speculative at best.

Deputy Attorney General Michael Dolida defended the conviction, with Steve Mount in attendance.  Dolida noted that the jury found Mr. Dev guilty of over 80 crimes, based on his admission (which was disputed) in the pretext phone calls.

He addressed the issue of the failure to admit the Nepali documents as an “authentication issue” that was properly resolved by the judge.  He said that the attorneys for Mr. Dev attempted improper use of judicial notice and that Judge Fall had legitimate questions about the nature of the Nepali proceedings and whether they were civil or criminal.

With respect to the improper closing argument or the Griffin Error (wherein a prosecutor violates a defendant’s Fifth Amendment rights by commenting to the jury on the defendant’s failure to testify), he said that this is not what happened here.  He explained that the defense laid a trap to get the complaining witness to make inconsistent statements, but in so doing they left the door open for the prosecution to question how they would know to ask such a question if the incidents did not occur.

Mr. Dolida laid out the pretext admission as being the fact that Mr. Dev acknowledged (in the disputed portion in the translation of the pretext call) that  he had sex with her when she was an adult, therefore she consented.  Ms. Eskenazi never challenged this  – though she laid it out quite exhaustively in the brief, as one of the justices acknowledged and called it quite thorough and compelling.

Mr. Dolida also raised the issue of why, when the complaining witness had three abortions, she called her father each time rather than her boyfriend.  However, Mr. Dolida misstated the record here (although it was never addressed in court), as she only had one abortion and the family has shown the timeline of the abortion to be at the same time she was sexually active with her boyfriend.

The appellate brief is over 200 pages of argument and, clearly, in the 15 minutes allotted to each side, the justices were not expecting a thorough recounting of the issues.

The Vanguard spoke with Peggy Dev, who told the Vanguard following the hearing that she had never been to oral arguments, so she did not know what to expect.  “My hope is that they deeply look at the case and decide in Ajay’s favor, because he is innocent.”

She told the Vanguard that the last seven years have been very difficult.  “When I think we made it seven years, I’m shocked, it’s been really difficult.  The hardest is to see my children grow up without their dad.  They know him through a phone, they know him through letters behind a glass, but they never get to interact with him.”

She said, “That’s the most difficult part and yet that’s the part that keeps us moving forward at the same time.”

Peggy Dev said that, from her perspective, the fact that the alleged victim accused her of being a witness to a rape in the same bed was the piece of evidence that weighs on her most heavily, and she said, “I know that did not happen.”

From the justices’ perspective, she thinks they will see “that she (the complaining witness) fabricated an admission.”  She added, “I feel all of the ten claims are really strong.”

Ajay’s brother, Sanjay Dev, had to fight back the tears during his interview with theVanguard.  “My stomach was in knots and still is,” he said.  “Right now I feel a little confused as the process goes.”

Mr. Dev said he looked at the judges’ faces to see if he could see reaction, “They were great in holding their stature, not letting anyone know how they were feeling.”  He was not the only one to make that note.  For him, he said, “I was hoping, please God, give me some sign.”

For him, he worried that some issues were missed.  “For instance, the translation issue was a huge issue.”

Sanjay Dev said it was “without a doubt the translation” that convinced him his brother is innocent of these charges.  “The only piece of evidence that they pointed to saying he admitted, and that itself is flawed.”

Patty Pursell, Peggy’s sister, told the Vanguard she believes that the appellate attorney had already focused so heavily on the pretext phone call in her brief, that she was trying to bring in other issues like the Nepali documents “because it talked about motive and motive really didn’t get talked about at the trial.”

She noted that the Deputy AG “had no problem lying to the appellate judge” about the three abortions and Ajay attending them, “because that’s not in the transcripts, that’s not what she testified to.”  She said she hopes the judges pick up on that.

She believes that a strong point that the AG had previously conceded had to do with the lack of authenticated translation from Nepali to English on the admission.

Patty Pursell noted that the percentage of overturning at this level is really low.  “I think we have a really strong case, but it’s probably one to three percent that overturn at this level,” she said.

She said this is a big case, and it’s tough for judges to overturn, “but I hope they do what’s right and they look at the case closely.”

The case, if not overturned, would be sent to the Supreme Court and eventually the Ninth (Federal) District Court of Appeals.  Eventually, they could take it to a habeas corpus hearing to determine whether the prisoner is lawfully incarcerated.  All of this we will find out within 90 days.