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Ajay Dev's Reply Brief Filed in the Appellate Court

Ajay DevAjay Dev's Reply Brief was filed with the California Third District Appellate Court on March 19, 2014. After almost five years, the appeal is finally fully briefed. The next step is for three judges to be assigned his case. After reading all the briefs there will be oral arguments and then a decision. 

The three briefs filed with the court are listed as follows.

  1. Appellant's Reply Brief filed March 19, 2014: To read click here.
  2. Respondent's Brief filed April 30, 2013: We do not have a public copy of the Attorney General's Respondent's Brief. To obtain a public copy go to the Third Appellate District Court in Sacramento (914 Capitol Mall, Sacramento, CA 95814).
  3. Appellant's Opening Brief filed August 3, 2012: To read click here or to view Ajay Dev's Case and Facts Submitted to the Court of Appeal click here.

Below is an excerpt from the Cumulative Error argument in Ajay Dev's Appellant's Reply Brief which summarizes the major errors in Ajay's trial and the harm the cumulative errors caused him. To read Ajay Dev's Appellant's Reply Brief in full click here

The face of Appellant’s trial would have been immeasurably different absent the cumulative effect of the numerous and significant errors infecting the trial. There can be no doubt these multitude of errors worked together to systematically deny Appellant [Ajay Dev] a fundamentally fair trial.

To start, the jury would have had a firm understanding as to why Sapna would falsely accuse Ajay of rape as she legitimately feared Ajay and Peggy were going to reverse the adoption, based on her false date of birth, and send her back to Nepal due to a very serious break down in the family relationship commencing when Sapna turned 18 and started having sexual relations with her peers without consent from Ajay, Peggy, or Birendra (Sapna’s biological father in Nepal) and against the values of the Nepali culture. That is, having sexually emancipated herself in America, Sapna could never return to Nepal. Therefore, when it appeared Ajay and Peggy were going to reverse the adoption, resulting in Sapna’s deportation to Nepal, Sapna made a choice. She falsely accused Ajay of rape. This allegation preserved her reputation by making her a victim rather than a tainted woman and ultimately prevented her deportation.

Ajay, however, was prevented from explaining this to the jury because the Nepali record of conviction was excluded, thus, preventing the defense from proving Sapna lied about her date of birth in order to be adopted (thus allowing for reversal of the adoption and deportation); because the defense was prevented from relying on the Nepali record of conviction for impeachment; because the trial court invited prosecution witnesses Luz Dunn and Detective Hermann to openly vouch that Sapna’s birthday was January 5, 1984 and the Nepali conviction was a sham; and because the trial court further instructed the jury it could not rely on testimony referring to and/or INS documents containing Sapna’s April 28, 1983 birthday for the truth of the matter asserted essentially directing the jury to find Sapna’s birthday was January 5, 1984. As a result, Ajay was denied the opportunity to expose the fact that Sapna had a very real motive for falsely accusing him of rape.

Had Ajay been able to present this defense and highlight the fact that Sapna only got pregnant during a very small window of time perfectly corresponding with the time period she was surreptitiously having sex with her peers in grave contravention of Nepali cultural values and, strikingly, never got pregnant any other times despite allegations of rape almost every other day for five years straight, the jury likely would have acquitted Ajay of all the charges.

Instead, however, the jury was permitted to stigmatize Ajay as a lecherous pervert based on the erroneous admission of both adult and purported child pornography that had no relevance to the case and, in large part, could not be attributed to Ajay. With respect to the only arguably admissible child pornography in the case, Ajay was further denied a fair trial as the trial court prevented the defense from introducing an e-mail Ajay sent to Peggy from work establishing that he was not at home when the two child pornography videos were, according to the prosecution, being viewed at the Dev home. This error was then exacerbated by the fact that the prosecution, then, relied on the excluded e-mail during closing argument and misstated the relevant time stamp convincing the jury Ajay had plenty of time to both view the child pornography at home and return to work in time to send the email at issue. The cumulative effect of these errors is undeniable as they accomplished exactly what the prosecution hoped – that the jury would stigmatize Ajay as a sick pervert and, thus resolve any ambiguities in the case against him.

As if this was not enough, the prosecution then found a way, on two separate occasions, to fabricate admissions of rape against Ajay. First, Sapna was permitted to translate an inaudible portion of the pretext call and attribute an admission of rape to Ajay. Thankfully, Sapna’s own words spoken during the pretext call belie this detrimental translation as, during the pretext call, Sapna excoriated Ajay for failing to admit it after this alleged admission was made. Nevertheless, the prosecution then fabricated a second admission of rape during closing argument wherein he told the jury Ajay wrote his lawyer a note during the preliminary hearing admitting he raped Sapna at a hotel in Bangkok on a layover to Nepal. Alone this error justifies reversal. However, cumulatively, there can be no doubt that the fabrication of two admissions fundamentally denied Ajay a fair trial – especially in light of the inflammatory pornography errors and the fact the defense was prohibited from explaining why Sapna would falsely accuse Ajay of rape.

Finally, these egregious errors also seeped into the jury deliberations as it appears the jury was never properly instructed on how to weigh testimony from one of Sapna’s friends and never given Exhibit 36B along with approximately 50 other exhibits admitted after the case had been re-opened. The failure to give the jury Exhibit 36B was particularly damaging because the defense relied on the video-taped interview to expose the systematic inconsistencies in Sapna’s testimony and, during closing argument, repeatedly implored the jury to view it during their deliberations.

In sum, Ajay’s trial was wrought with grievous errors at every stage of the trial – during the presentation of evidence, during closing argument, and during deliberations. That is, at every turn Ajay’s trial was severly compromised. Respondent argues that the pretext call should render any cumulative error claim harmless. However, this ignores both the exculpatory aspects of the pretext call and the exculpatory nature of the defense.

With respect to the pretext call, Ajay plainly denied the allegations of rape a total of 24 times and, where the prosecution attempted to attribute admissions of rape to Ajay made during the pretext call, the record unequivocally shows Sapna thereafter criticized Ajay for failing to admit it. Therefore, these statements could not be admissions.

With respect to the remaining nature of the defense, the timing of the pregnancies were glaringly exculpatory. As undisputed by Respondent, it is inordinately dubious that, despite allegations of rape almost every other day for five straight years, Sapna only got pregnant during a small window of time perfectly corresponding with the time period she was having sex with her peers and deliberately hiding her sexual activity from Ajay, Peggy, and Birendra (her biological father in Nepal) for fear that her conduct would bring shame to her family and result in socially and economically devastating consequences for herself and her Nepali family. Therefore, contrary to Respondent’s argument, the overwhelming amount of exculpatory evidence in the case justifies reversal based on the cumulative impact of the collective errors. In this regard, the cumulative errors denied Ajay his Fifth and Fourteenth Amendment rights to a fundamentally fair trial. For this reason, the convictions must be reversed and Ajay must be granted a new trial.