SACRAMENTO — Family and friends of former Davis resident Ajay Dev filled a Third District Court of Appeal courtroom Wednesday as a three-justice panel conducted a rare hearing on the controversial Yolo County rape case.
Dev, 49, is serving a 378-year state prison sentence at Mule Creek State Prison in Ione, the result of a 2009 conviction on 76 felony charges that he repeatedly sexually assaulted over five years his niece he adopted from her native Nepal in 1999.
Attorneys for Dev say he was denied his right to a fair trial and the conviction should be reversed. They allege that the girl accused Dev of rape after he interfered with her dating relationships and caused a breakup with her boyfriend. The California Attorney General’s Office, representing the state, stands by the conviction.
While numerous issues have been raised in the appeal documents, Wednesday’s half-hour hearing focused on allegations of trial error, and whether that led to a wrongful conviction in the case.
Lauren Eskenazi, a Burbank lawyer representing Dev at the appellate hearing, contends two such errors occurred in Yolo Superior Court Judge Timothy Fall’s courtroom.
She said the court improperly withheld documents detailing the accuser’s conviction for passport fraud in Nepal after she made her allegations against Dev — proof of her willingness to lie for personal gain.
Eskenazi also cited a so-called “Griffin violation,” in which the case’s prosecutor allegedly commented in his closing argument about Dev’s decision not to testify at trial, and implied Dev had conceded the rapes to his attorney, which he denied.
“You can’t make up facts in the middle of a closing argument,” she said.
Presiding Justice Vance Raye, who heard Wednesday’s arguments alongside Associate Justices Harry Hull Jr. and Louis Mauro, noted that Yolo County prosecutors didn’t contest the Nepal passport conviction at trial.
The issue, he said, is whether the court acted properly in excluding the documents.
Deputy Attorney General Michael Dolida, representing the state in the appeal, says it did, as the defense sought to use certain “hearsay assertions” contained in those records to attack the accuser’s credibility in the rape case.
Dolida also highlighted the content of a phone call between Dev and his accuser that was recorded by police, in which prosecutors alleged Dev admitted having sex with the girl after she turned 18 and that she had given consent.
“It’s still incredibly significant because his defense was, ‘I never touched her, I didn’t do it,’ ” Dolida said. In light of the call, “his whole defense falls apart.”
Dev’s attorneys also have cited the recorded call in their appeal, saying that the alleged admission — spoken in Nepalese — was partially inaudible and difficult for an interpreter to translate.
Rather than appoint a certified interpreter to go over the recording, the court erroneously allowed the accuser to translate Dev’s comments and make corrections to the transcript, his attorneys say.
Dolida said the court acted properly, as the defense was permitted to introduce its own version of Dev’s comments and call witnesses to challenge the accuser’s translation.
The appellate court now has 90 days to issue a ruling on the matter.
Patty Pursell, Dev’s sister-in-law who traveled from Connecticut to attend the hearing, said she expected more back-and-forth between the justices and attorneys. But she took heart in the fact that oral arguments were even requested in the case, and with the number of people who came to listen.
“It’s nice that people took time off to be here, to show support,” Pursell said as she and other Dev backers filed out of the ornate courthouse on Capitol Mall. They later held a march and rally outside the building.
Yolo County Assistant Chief Deputy District Attorney Steve Mount, who originally prosecuted Dev, attended Wednesday’s hearing but declined to comment.
— Reach Lauren Keene at lkeene@davisenterprise.net or 530-747-8048. Follow her on Twitter at @laurenkeene