(reprinted with permission from http://reappropriate.co/2015/04/breaking-domestic-violence-survivor-sentenced-transferred-to-ice-custody-pending-deportation-standwithnanhui/)
April 28, 2015
Nan-Hui Jo reacts to the guilty verdict in her trial last month. (Photo credit: Randy Pench / Sacramento Bee)
An hour ago, the judge in Nan-Hui Jo’s child abduction case rejected the motion to dismiss the guilty verdict against her, and sentenced Jo to 175 days of jail (counted as time served) and three years probation. A jury found Jo guilty of child abduction last month — despite errors in jury instructions highlighted by Jo’s defense in their motion — after Jo fled
an abusive relationship she believed endangered both herself and her
child and (because she lacked documentation to remain in the United
States) returned to Korea.
Jo’s conviction on the child abduction charges now stand (and likely
await an appeal) which significantly complicates her fight to regain
custody of her six-year-old daughter, who is currently being cared for
by Jo’s abuser, the child’s father. Meanwhile, because Jo is not a U.S.
citizen, ICE placed a deportation hold on her. After her sentencing
today, Jo was transferred to ICE custody and is being detained in an ICE
facility pending a decision on deportation.
With this move, Nan-Hui Jo is likely to become one of the thousands
of immigrant parents separated from their families by ICE deportation.
This is a devastating setback for Nan-Hui Jo and her supporters. The community is urged to contact ICE Sacramento, and to tweet @icegov and @customsborder and urge them to drop the deportation proceedings.
Supporters are currently awaiting Jo as she as processed out of county jail and released to ICE.
This post will be updated with details as they emerge.
(reprinted with permission from http://reappropriate.co/2015/04/breaking-domestic-violence-survivor-sentenced-transferred-to-ice-custody-pending-deportation-standwithnanhui/)
April 24, 2015
Nan-Hui Jo reacts to the guilty verdict in her trial last month. (Photo credit: Randy Pench / Sacramento Bee)
There have been major developments in the case of Nan-Hui Jo, the
Korean American survivor of domestic violence who fled with her young
child to Korea to escape a dangerous and abusive relationship, only to face kidnapping charges when she returned to the United States for a visit.
Earlier this year, Jo was retried
on charges that she kidnapped her daughter — her first trial ended in a
hung jury. Jo’s abuser, who is her daughter’s father, claims that Jo’s
escape to Korea violated his parental access. Yet, at the time of Jo’s
departure, she was facing loss of legal immigration status and was
facing deportation. Jo’s abuser, Jesse Charlton — an Iraq war veteran —
confessed that at the time he was unemployed, emotionally unstable due
to largely untreated PTSD and substance abuse, and was not prepared to
assume full-time custody of their daughter. Facing the possibility that
she would become an undocumented immigrant (and therefore unable to
obtain work) and fearing for her and her daughter’s safety if they
remained within Charlton’s influence, Nan-Hui Jo did what conservatives
dream of: she “self-deported” with her child.
A protester holds a sign in support of Nan-Hui Jo. Photo credit: Down Like JTown
While in Korea, Jo received several emails from Charlton demanding
that she return their daughter to the United States. While most emails
were pleading in tone, in one email, Charlton threatened to send a
mutual friend — a “scary” bounty hunter who had taken lives in the Iraq
War and whom both were aware had allegedly raped his wife
— to find her. Frightened by these emails, Jo further distanced herself
from Charlton and refused to respond to him. Last year, when Jo applied
for a travel visa to visit the United States to tour schools for her
daughter, who is an American citizen, was Jo arrested and charged with
kidnapping.
Jo’s retrial galvanized the Korean American community and domestic
violence advocates. Jo’s supporters argue that the charges against Jo —
whose abuser confessed on the witness stand to grabbing Jo by the throat
and throwing her against a wall — are punitive retribution for steps Jo
felt were necessary to protect the physical safety of herself and her
child.
Confoundingly, Jo was found guilty last month on the kidnapping charges, even after one juror was permitted to recuse herself
on the grounds that returning a guilty verdict in the case would be
immoral and unjust. Next Tuesday, Jo faces sentencing and possible
deportation, which would likely prevent Nan-Hui Jo from having further
contact with her daughter for (at the very least) the rest of the
child’s upbringing.
That verdict may be an interpretation of what the law expects, but it is not what justice looks like.
An Instagram user posts her support for #StandWithNanHui.
However, there is new hope in this case.
Late last month, Nan-Hui Jo’s defense was taken up by high-powered lawyer Dennis Riordan, whom the Davis Vanguard characterizes
as “among the best known defense attorneys in the state, having
represented, among others, Barry Bonds, O.J. Simpson and Lodi terrorism
suspect Hamid Hayat.”
Defense attorney, Dennis Riordan.
Riordan has hit the ground running. After filing a 4-week continuance
on the sentencing so that he could familiarize himself with the case,
Riordan has now filed a motion to set aside Nan-Hui Jo’s guilty verdict,
citing “multiple, serious legal errors” in Jo’s second trial.
Riordan’s motion charges that the judge in Jo’s case — Judge David
Rosenberg — made a fatal error in jury instructions that led to Jo’s
wrongful guilty verdict. The kidnapping charge that Jo was found guilty
of requires that the kidnapper exhibit “malice” in committing the act.
There are legal precedents that guide the determination of “malice”.
Riordan contends that the judge erroneously instructed the jury to
define the term “malice” by a broader meaning; one that did not require
that Jo be aware that she might be deliberately breaking a law when she
removed her daughter from the country. Yet, Riordan says that this
broader definition of “malice” was misapplied with regard to the
particular charges in the Jo case leading jurors to the wrong
interpretation of the law. Reports the Davis Vanguard:
[Riordan] argues that “[t]he Court altered the definition
of malice provided by Neidinger in order to instruct the jury pursuant
to CALCRIM 250… rather than CALCRIM 251…” However, the Bench Note to
CALCRIM 250 states that “this instruction must not be used if the crime
requires a specific mental state, such as knowledge or malice, even if
the crime is classified as a general intent crime.”
Mr. Riordan argues, “Plainly, the Court erred in reducing the
definition of malice to the terms of CALCRIM 250. In so doing, the Court
effectively eliminated malice as an element of the offense that had to
be proven above and beyond the general intent required of every criminal
violation in California.”
This is not a small error, because it was the definition of malice
that caused the juror to question the legal definition of malice, which
resulted in the judge dismissing her.
Mr. Riordan continues, “The Court compounded that error by
instructing the jury that a defendant’s belief in the legality of her
actions could not constitute a defense. When properly defined, the
element of malice is inconsistent with an honestly held belief in the
legality of ones action’s.”
In commenting on this motion, blogger David Greenwald who runs the Davis Vanguard said:
From our perspective, there are two key points that Mr.
Riordan raises. First, that the judge erred on his instruction on
malice. And second, as a result, there was no malicious or unlawful
taking of the child by Ms. Jo.
Toward the issue of jury instructions, this case is unusual in that
there is no way to deny that, if the judge misinformed the jury on the
legal definition of malice, it was a harmful error. Judge Rosenberg
dismissed Juror #5, Denise Hoffner, from the jury over the objections of
the defense – after she brought it to the judge’s attention that, while
she did not believe Ms. Jo acted with malice, the way the law was
written, she would have no choice but to convict.
She said, “Look at this woman, she couldn’t have done this
maliciously.” But then, “we get this definition that we’re supposed to
use malice like it’s not used anywhere, why do they even have the word
in the statute? Because it wasn’t about malice when we were instructed
to decide the case.”
However, it seems that Ms. Hoffner was right. The court never looked at a key case, the 2006 People v. Neidingercase. Mr. Riordan argued that “the court altered the definition of malice provided by Neidinger” and instructed the jury to consider “malice” under “general intent” rather than “specific intent.”
Judge Rosenberg in fact did this, despite the explicit warning in the
jury instructions to the bench that “this instruction must not be used
if the crime requires a specific mental state, such as knowledge or
malice, even if the crime is classified as a general intent crime.”
In other words, Ms. Jo had to be aware at the time that she was
breaking the law to have illegally abducted her daughter, rather than
simply being aware of her actions and performing them intentionally, as
the jury interpreted them.
If Mr. Riordan is right, this is not only a serious legal error by
Judge Rosenberg, but is the issue at the heart of the jury verdict. As
Mr. Riordan points out, “The errors also deprived Ms. Jo of her state
and federal constitutional right to be convicted only upon the unanimous
decision of the twelve jurors selected to decide her case.”
It remains to be seen whether or not Riordan’s motion will result in an overturning of Jo’s guilty verdict.
However, what is clear from Greenwald’s editorial on the Davis Vanguard that
justice has not yet been found in this case. Greenwald, whose website
has been maintaining a courtwatch of the trial proceedings, lays out the legal and moral Catch-22 that Nan-Hui Jo faced
when she made the impossible decision to escape her relationship; her
circumstances defy the notion that she acted recklessly and with malice
intent in removing herself and her daughter from the situation. In fact,
from Jo’s perspective, she was acting in compliance with federal law.
Nan-Hui Jo and Jesse Charlton engaged in a passionate
relationship that resulted in the birth of the child. At the time, Mr.
Charlton was neglectful of his responsibilities and was suffering from
PTSD.
He attempted to convince Ms. Jo to have an abortion, while family
members attempted to convince her to give the baby up for adoption.
Ms. Jo, due to her financial problems, was forced to drop out of
school, which put her student visa in jeopardy. As a means of rectifying
the situation, she attempted to marry Mr. Charlton, but he declined to
do so. Tensions escalated and Mr. Charlton admitted on the stand that he
assaulted her by lifting her by the throat and slamming her into the
wall.
Facing a federal immigration directive to leave the country, Ms. Jo
made plans to leave. It was only then, at the last moment, that Mr.
Charlton attempted to keep his daughter in the country by filing for
custody rights in the family court.
Mr. Riordan rather convincingly argues that Ms. Jo didn’t violate
Penal Code section 278.5 before leaving California on November 8, 2009
with her daughter. Instead, he argued, she was required to leave to
avoid violating federal immigration laws and he argued that “under the
Supremacy Clause [it] trumped any state court order to remain in the
state (even had Ms. Jo been served with that order, which she was not.)”
Mr. Charlton did not have custody or even visitation rights with the
daughter under any form of judicial order before Ms. Jo left the state.
Moreover, “He has testified that he would have been incapable of caring
for (the child) if she had been left with him when Ms. Jo left for
Korea, and he agreed at that time that (the child) should remain with
her mother.”
The prosecution has relied on Ms. Jo’s lack of response to Mr.
Charlton’s emails as proof of malice. However, Mr. Charlton in emails
“threatened to come after Ms. Jo with a ‘scary bounty hunter’ who had
‘rolled up his wife in a mattress and raped her.’”
The immigration pressure, along with Mr. Charlton’s physical abuse
and verbal threats, ought to paint Ms. Jo’s actions in a very different
light.
One can only hope that Riordan’s influence on Nan-Hui Jo’s defense
will finally shine that necessary light on this domestic violence
survivor’s plight. However, given how this case has attracted all matter
of domestic violence apologists who express a breathtaking range of
defenses for domestic abuse, I hope you can forgive my fears. 67 Comments,
it’s easier to find an American male abuser more sympathetic than his
victim, a foreign-born non-English-speaking woman of colour.
Banner for next week’s Pack the Court event.
Campaigns to support Nan-Hui Jo remain active through these latest developments. A letter-writing campaign
is ongoing to provide Nan-Hui Jo with much-needed emotional support and
strength from the community. Meanwhile, organizers are also asking that
supporters in the area pack the courtroom next Tuesday, April 28th, during Nan-Hui Jo’s sentencing. They write in the Pack the Courtroom Facebook event:
Please join us for Nan-Hui’s sentencing next Tuesday, and
help us make calls to ICE and CBP until then. We need your support
ramping up the calls to ICE/CBP again, because we are very concerned
about the likelihood that Nan-Hui will be picked up by ICE *that day* if
she is released—we heard recently of another undocumented person who
was taken by ICE from the lobby/waiting room in Yolo County Jail. Call
ICE and CBP to say DROP the immigration hold and NO deportation
proceedings for Nan-Hui!
Nan-Hui Jo is a proud and devoted
Korean single mother, an avid photographer, and writer of children’s
books. She loves to spend time with her daughter, take photos, and visit
places alongside the ocean. In 2009,
Nan-Hui fled to Korea with her daughter to escape physical and
emotional abuse by the father of the child, a combat veteran of the Iraq
War with PTSD and anger issues. Usinga common manipulation tactic
to control a partner’s attempts to regain independence, her ex-partner
reported Nan-Hui for child abduction. When Nan-Hui landed in Hawai’i
with her daughter in July 2014, she was handcuffed, arrested, and
immediately separated from her daughter in an operation that involved
Yolo County Child Abduction Unit, Honolulu Police Department, Customs
and Border Protection (CBP) and the International Criminal Police
Organization (Interpol). Nan-Hui has not been able to see her daughter
since. She has also been placed under an immigration hold issued by CBP and enforced by ICE.
Nan-Hui’s former partner has publicly
testified about his repeated violence against her, confirming at least
one incident of physical assault. He has also, on two separate
occasions, broken his hand while punching the wall by her head, and
again when punching the car’s steering wheel when she was in the car
with him. When Nan-Hui fled and attempted to rebuild her life, he “sent
emails saying he was ‘considering spending thousands of dollars on a
scary bounty hunter.” It must be noted that domestic violence thrives
behind closed doors, away from the eyes and ears of the public, and
these incidents are simply the ones that have been publicly brought to
light.
Nan-Hui and her daughter have an
incredibly close and caring relationship. She named her daughter Vitz
Da, meaning “all light” in Korean. Like many survivors of domestic
violence, Nan-Hui has also been concerned about violence against her
child. According to a study funded by the U.S. Department of Justice, 30 to 60% of perpetrators of intimate partner violence also abuse children in the household.
Vitz Da, who lived in Korea for most of her life, has been abruptly
disallowed any contact with her mother, and she is now under full
custody of her White American father.
Nan-Hui was tried on December 15, 2014, for “child abduction,” and the trial resulted in a hung jury.
The Yolo County District Attorney Steve Mount, however, pursued a
retrial. He refused to acknowledge the importance of domestic violence
in Nan-Hui’s case and instead, used all resources available to prosecute
her. It is deeply disturbing how aggressively the Yolo County District
Attorney’s Office, Customs & Border Protection (CBP), and
Immigration & Customs Enforcement (ICE) is working to prosecute,
criminalize and deport a single immigrant mother and survivor of
domestic violence. Instead of being granted protection, survivors of domestic violence are often criminalized:the ACLU reports that of all incarcerated women in the United States, 85-90% have a history of domestic and sexual abuse. Survivors
of domestic violence should not be punished for defending themselves,
protecting their children, and rebuilding their lives from the violence
of an abuser.
On March 3rd 2015, Nan-Hui was convicted of “child abduction” in her re-trial. Her
sentencing is set to take place on April 28, 2015. As Nan-Hui is still
under an immigration hold, deportation proceedings could take effect
immediately after her sentencing, which could separate Nan-Hui from her
daughter permanently.
