Commentaries in court cases often boil down to whether one agrees or disagrees with the jury. The jury system, which we appropriated from the British system, is an artifact of our foundation. The idea is that we wanted a group of citizens, rather than the government, to sit in judgment of the facts to make the determination as to whether the state can deprive a citizen of his or her liberty.
While this is a noble concept, it often means that we are asking laymen with no real legal training to apply the facts of the case to the law, to make the determination as to whether the defendant is guilty or not guilty.
For me, the case of Nan-Hui Jo, where the jury on Tuesday returned a guilty verdict for parent abduction, comes down to far more than just the jury’s role. But I will start there.
We got rare insight into the jury’s thinking because Denise Hoffner got herself removed from the jury, and then explained her thinking.
As she explained it, it came down to the definition of malice. As she explained, “one of the jurors on my panel, who thought that she was guilty, said look at the way the law is written, and I think we’re only supposed to look about not whether she had this big macro, wrongful intent, but whether she actually had the intent to just do the act.”
“In other words, that the intent would only go to the (act), it’s not like she was psychotic or unconscious,” Ms. Hoffner explained. “She didn’t accidentally take the child out of the country.”
“There was no way around the fact that she had acted and taken the child out of the country,” she said. “Plus she had withheld the child.”
Part of the problem here is that Ms. Hoffner, herself a lawyer, probably over-thought the law. In the jury instructions on malice it reads: “Someone acts maliciously when he or she intentionally does a wrongful act.”
The jury appears to have interpreted this to mean that they simply have to intentionally commit the act, but the term “wrongful” acts as a modifier here, and it means you have to intentionally commit a “wrongful act” ‒ which requires knowledge that the act is wrongful.
That is a big difference. We can parse whether Ms. Jo acted maliciously, but Ms. Hoffner made it clear that she thought she did not. “I just felt like this woman was not trying to maliciously deprive anybody in the way that we all agree in society the word malicious means,” she told the Vanguard.
But aside from whether the jury made the right call, this case boils down to a broader sense of justice. Ask yourself, will justice be served if Ms. Jo ends up being deported from this country, her daughter is placed in the custody of the father, Ms. Jo is denied the opportunity to re-enter the US due to this criminal status and, therefore, she is unable to raise her daughter?
Everyone involved in the case, including the prosecutor, acknowledged that the mother was the more responsible party and the better parent.
There is no doubt that Ms. Jo made some mistakes here. But, as Ms. Hoffner put it, her immigration status and the threat of deportation underscore her conduct in this case. She said, “It was like the elephant in the room.”
In her view, “This was just a woman who was frightened and desperate like she had no options. She probably got bad legal advice and I just don’t see how justice was going to be served. Now she’s going to have a felony. She’s at risk of being deported. And this child is in the United States.”
Without the immigration issue, this is an easy case. Judge Rosenberg offered to take a plea and reduce it to a misdemeanor. However, based on advice from immigration attorneys, fearful that a misdemeanor conviction could lead to deportation, they took the matter to trial.
It seems likely that, based on the judge’s comments, he will again reduce the case to a misdemeanor, but the immigration status is a huge problem that complicates how this case resolves.
The immigration issue makes the chain of events leading to Ms. Jo leaving the country much more understandable. Ms. Jo is getting ready to go back to Korea. Mr. Charlton realizes that, if she does, he may never see his daughter again.
He files a court action to gain partial custody of the child. Now Ms. Jo is in a bind. She gets legal advice that the only way she can mess this up is to not show up in court, but she’s afraid that she’ll be asked to leave the country and not be able to take her daughter with her.
Compounding this is the issue of Mr. Charlton’s violent temper.
Ms. Hoffner said, here was no question that there was a domestic violence incident. However, she said, “I don’t necessarily feel that it was a pattern and practice of domestic violence in this case. But she thought there was. And that’s what mattered to me. She was really trying to protect her baby and I think all of us would have done the same thing.”
With everything bearing down on her, she makes the fateful decision.
To me, the decision to return to Hawaii illustrates, if nothing else, the naiveté that Ms. Jo has with regard to the law and a fundamental unawareness that she has broken the law. The heavy-handed treatment she receives upon arrest in Hawaii and transport back to California is troubling.
The child is forcibly removed from the only parent she knew. Once back in the US, the matter enters the criminal system, bent on punishment and retribution rather than justice.
“It shows how our legal system is about retribution and not restorative justice and not forward looking,” Ms. Hoffner told the Vanguard, and she’s right. The district attorney in this case attempted, once the case came to trial, to win at all costs, including bringing in witnesses at the last hour for purposes of embarrassing the defendant rather than adding weight to the prosecution.
A plausible outcome here is that Ms. Jo will receive a misdemeanor conviction which would grant her basically time served, but she would then be deported. The child would most likely stay in this country and Ms. Jo may well not get to see her daughter again.
To me, that is not justice. It is not justice we seek in our criminal system, but vengeance. We have to make her pay for what she did. And it doesn’t matter if her daughter gets caught in the crossfire.
—David M. Greenwald reporting