Juror #5 in Jo Trial Removes Self Due to Unjust Law Paving Way For Guilty Verdict

photo by Lauren King, Vanguard Court Watch Intern
photo by Lauren King, Vanguard Court Watch Intern

After Dismissal, Jury Quickly Finds Jo Guilty

By Jackie Snyder

On the afternoon of March 3, 2015, the verdict for the Nan-Hui Jo trial was returned. Guilty of parental abduction.

The jury deliberated for a short time, approximately 2.5 hours. On the morning of March 3, 2015, Judge Rosenberg asked that the jury return to the courtroom because an alternate juror was to be sworn in to the existing jury.

Juror number five had been dismissed from the jury because she felt she would not be able to follow the jury instructions. She did not agree with the law pertaining to the case, and felt as though she would not morally be able to come to a decision regarding the verdict.

Once an alternate was sworn in, Judge Rosenberg asked that the jury return to their headquarters to deliberate.

He stated the jurors must start deliberations from the beginning because a new juror essentially means a whole new jury. The jurors were excused to deliberate and had reached a verdict before noon.

A few of Ms. Jo’s supporters, having been camped out at the courthouse for the last few days, were in the courtroom, heads bowed and hands clasped together. Once the verdict was read, tears filled their eyes.

Sentencing was set for April 1, 2015, at 1:30 p.m. in Department 4.

Korean Supporters Outraged by Verdict

By Antoinnette Borbon

The guilty verdict in the state’s case against a Korean woman, who had fled to protect her child, came as a shock to family, friends and members of a solidarity coalition.

The Korean American Women Against Domestic Violence’s solidarity club is an organization that helps support women of Korea against domestic violence and/or abuse of any type.

A spokeswoman for the organization told the Vanguard that she was, “very, very, disappointed in the system and how the district attorney minimized the domestic violence issue, downplaying it. He made the father out to be the victim and he was wrong. We are saddened after hearing this verdict. Mr. Charlton was NOT the victim, Ms. Jo was and it disappointing to hear this,” she stated.

“The domestic violence incidents were rarely mentioned in trial, downplayed, minimized, by the district attorney,” stated another member.

Wearing purple bands around their arms, many members showed up to support Ms. Jo.

Some of the members felt this verdict would send the wrong message to women. They stated, ” We feel let down and worried about women of domestic abuse and what kind of message this sends to victims of domestic violence.”

Another friend said, “It is difficult for Korean women to trust the government here and she felt she was in danger. She felt the only way to protect her child was to leave this country.”

Currently, the little girl is in the custody of her father. It is undetermined if Ms. Jo will get a reduction in charge and/or be deported back to her country once sentenced.

But the Korean coalition said, “We remain hopeful.”


Juror Number Five Explains Why She Removed Herself in Protest of Unjust Law

by David M. Greenwald

Shortly after noon on Tuesday, following the guilty verdict in the case of Nan-Hui Jo for the parental abduction of her daughter, the Vanguard received a call from Denise Hoffner, who was Juror Number Five.

“I was Juror Number Five until yesterday when I told the judge I was not morally able to make a decision in this case because it just went against my moral code,” Ms. Hoffner explained.

When she spoke to Judge Rosenberg he asked why this issue wasn’t brought up in voir dire (jury selection) and whether she was simply someone who could not judge other people, and she told him, “No, [it was] the particulars of this case.”

“There was no testimony put on about anything to do with her immigration status,” she said. “It was like the elephant in the room.”

“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, but we were given a jury instruction saying that to find malice, all we had to find was that she intentionally did the act,” Ms. Hoffner stated. “I just felt like it was wrong.”

“The fact is, [it was] like this was a criminal case and they were not even wanting us to formulate whether she had a criminal intent,” she explained. “We really were not looking at criminal intent in any meaningful way – we were instructed not to do it.”

Denise Hoffner said that, when they were deliberating, it was about her perceptions, “that’s what mattered.”

She said that there 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.”

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.”

“It shows how our legal system is about retribution and not restorative justice and not forward looking,” she said.

When Denise Hoffner was dismissed on Monday, the jury was instructed this morning to start deliberations with the alternate jury from scratch, meaning that they arrived at the guilty verdict after less than three hours’ deliberations with the alternate.

“I wish I didn’t feel like I would have been out of integrity to stay on that jury, because I wanted to find her not guilty,” she said. But she felt her job was to “look at the facts as they were presented in that courtroom and apply the law, no matter if I think it was unjust and bankrupt.” She decided, “I’m not going to do it.”

For her it came down to “based on the way that law is written. Based on the jury instructions that are attached to the law around malice.” She explained that when she first heard that the case would be determined based on malicious deprivation, she believed it would be a quick acquittal.

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.”

Denise Hoffner was not aware as a juror that there was a previous jury trial, however, she has a fairly good idea of what changed from December’s trial to this one.

She said there were 9 or 10 who thought during deliberations that Ms. Jo was guilty. Two women, however, did not agree. The two of them were of the mind that Ms. Jo did not have the intent to do a wrongful act.

They saw her as desperate about being deported and having her child taken away. “I suspect, in the hung jury, half the people thought that,” she explained. “But 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.”

“I think what happened is that this jury came to the conclusion that even though was this tragic, hard, difficult thing, that the way the statute was written that if we thought that if she intentionally did the act – booked the flight, got on the plane, went to Korea, and then did not contact the family, that she was going to be guilty of abduction,” she said.

She added, “It made me wish I hadn’t gone to law school and that the juror who was parsing the language, wasn’t doing so in such a sophisticated way.”

She said, “I thought, (f-) he is right, I don’t want him to be right, but I believe he’s right.” She said, “I’m suspecting the other jury… they maybe didn’t get into that level of linguistic dissection.”

“Jesse Charlton didn’t bring this case, the prosecution brought this case,” she said, noting that Mr. Charlton’s only interest was having a relationship with his daughter rather than wanting Ms. Jo charged criminally.

—David M. Greenwald reporting

About The Author

David Greenwald is the founder, editor, and executive director of the Davis Vanguard. He founded the Vanguard in 2006. David Greenwald moved to Davis in 1996 to attend Graduate School at UC Davis in Political Science. He lives in South Davis with his wife Cecilia Escamilla Greenwald and three children.

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20 thoughts on “Juror #5 in Jo Trial Removes Self Due to Unjust Law Paving Way For Guilty Verdict”

  1. Biddlin

    “The guilty verdict in the state’s case against a Korean woman who had fled to protect her child,”

    All evidence and the jury verdict to the contrary.

    ” Mr. Charlton was NOT the victim, Ms. Jo was and it disappointing to hear this.” she states.”

    No, my dears, the child was the victim.

    ” “it is difficult for Korean women to trust the government here and she felt she was in danger. She felt the only way to protect her child was to leave this country.””

    Yes, the S. Korean government being so pro-feminist and the culture so embracing of mixed race children and their mothers, NOT.

    ““Jesse Charlton didn’t bring this case, the prosecution brought this case,””

    Yes, because it is a felony to kidnap a child and in the public interest to prosecute those who do so.

    ;>)/

      1. Biddlin

        A travesty, if it occurs, imo. This disingenuous woman has shown nothing but contempt for the law, marriage and motherhood, using her child as an international bargaining chip.

        ;>)/

  2. Anon

    This was not a custody issue.  The father was not on trial.  The mother was on trial for the crime of “kidnapping” – in this case for removing the child from the court’s rightful and legal jurisdiction over custody of that child.  There was no way the jury could bring in any other verdict than guilty.  Had the mother chosen to use the court system to explain why the allegedly abusive father should not have had custody or unsupervised visitation, she very well may have been granted sole custody and the father may have only been granted supervised visitation or no visitation, whatever was in the best interests of the child.  Instead, the mother has acted in such a way that has possibly deeply harmed her child is the ultimate irony.

    1. Davis Progressive

      it is disappointing that a lawyer would come to the conclusion that she did. here is the jury instructions on malicious: “Someone acts maliciously when he or she intentionally does a wrongful act”

      the jury interpreted that very literally to mean that they intentional did the act, however, i believe the correct reading is intentional did the “wrongful act” meaning that they knew it was wrongful to act at the time.

      in essence, the juror bowed out rather than hung the jury.  that is unfortunate.  the result of this legal issue is harm to the child.  i completely agree that the mother made mistakes, but i agree with the juror most of those mistakes were made out of fear and poor understanding rather than malice.

      1. Anon

        You just shot yourself in the foot when you stated “the mother made mistakes“.  Yes, this mother made the mistake – of intentionally taking the child out of the country, away from the court’s jurisdiction, which is patently against the law (see Uniform Child-Custody Jurisdiction Enforcement Act (UCCJA)) .  And by the way, ignorance of the law is no excuse, altho in this case where a summons to court was in play, she could not even plead ignorance. She knew she had options to use the court system to address her alleged grievances. And look at what the excused juror said: “I don’t necessarily feel that it was a pattern and practice of domestic violence in this case…” It is even questionable this woman had decent motivations for taking the child out of the country – which makes me wonder whether she wanted to avoid court because she knew she would have credibility problems.

        1. Ann Block

          Anon, in closing arguments, the DA conceded that Ms. Jo was the “better, more fit” parent.  The DA also said that if she had stayed in the U.S., she would have been awarded custody and could have then taken the child to Korea.  So… bottom line, when all the facts came out, and the D.A. KNEW the story from both sides, this case was NOT about justice for dad anymore, it was about the DA winning the case.  No justice for mom or for daughter, just another “win” for D.A. to add to his stats — 2nd highest conviction rate in California.   And there WAS a pattern of DV — Mr. Charlton broke his hand twice punching the steering wheel while Ms. Jo sat beside him in her car — that would make anyone afraid –two separate occasions.  He was an admitted drunk.  He watched pornography while he was supposed to be watching the daughter.  He threw her up against the wall by her throat, for goodness sake — almost strangling her — what “pattern” is enough DV for you — that he actually kill her?   And, as already noted, no evidence was apparently allowed in that she was ALREADY a DV victim…

        2. hpierce

          David, re: your 1:04 post… I tend to agree that this should have been outside the criminal system… the troubling thing is the pattern of “mistakes”.  Am thinking the only ‘clean hands’ belong to the child.

    2. Tia Will

      Anon

      Had the mother chosen to use the court system to explain why the allegedly abusive father should not have had custody or unsupervised visitation, she very well may have been granted sole custody and the father may have only been granted supervised visitation or no visitation, whatever was in the best interests of the child. “


      I think that this is an extremely optimistic view of the role of how our current judicial system deals with the issues of domestic violence and the welfare of children. Sometimes it takes the victim of domestic violence being killed before the system belatedly decides that an episode of choking or threats to murder should have been taken seriously. Hard to dispute violence when there is a corpse. Sorry about being so blunt, but I had a colleague killed because she could not establish that her husband was demonstrating “a pattern of violence”. 

      I also had the experience of serving in Southern California on a team whose duty it was to advise on whether or not to attempt reunification of children with their physically or sexually abusive parents. I had to quit the team after two years because I could not stand the emotional strain of watching my recommendations ignored again and again as parents who physically and sexually abused or neglected their children were given “another chance” because of “parental rights”. Clearly we all see this on the basis of what we ourselves have seen in our careers or volunteer activities.

      I happen to believe that there is a moral obligation higher than the law. I can tell you that if I had the opportunity to remove my child from this emotionally labile and violent individual, I would have done so in a heart beat. You can call that kidnapping if you will. I call it the moral obligation of a parent to protect a child and believe it is above our flawed laws. Yes, it is best if the laws can be changed. So I would have challenged from afar once I had secured the physical safety of my child.

       

       

       

      1. hpierce

        Or, perhaps, what would be best for the child would be to have “the law” find new ‘parents’ for the child.

        Ones that would love, provide for, and teach the child responsible behavior.

    1. Ann Block

      Well, did any of you consider that she actually was ORDERED to leave the U.S. by our federal government?  So would you have had her violate federal law by staying?  That was a clear, written order she had — and in fact, before the federal gov’t realized she had complied and left already, they started removal (deportation) proceedings against her.  She knew she was supposed to leave and she did.  She had NO written order from the state court — to appear or anything else.

      Plus the judge’s instruction was not complete nor helpful enough to the jury for them to clearly understand the law.  Malice is not just simple intent — she had to KNOW what she was doing was actually “wrong” — there are numerous levels of intent in the criminal law, and the judge did not assist the jury to understand that.  Nor did the judge apparently allow in evidence of the immigration situation for her nor the prior DV she had suffered from her ex-husband — all very relevant to her state of mind.  I can imagine an appeal has a lot of good bases here.

      And I hope the judge does the right thing and reduces it to a misdemeanor, plus ICE and CBP do the right thing and allow her to remain while she attempts to regularize her immigration status.  Plus the family court judge does the right thing and allows mom to have custody again — at least shared custody.

       

       

       

  3. ebpcanimal

    Thank you for providing details of each day’s proceedings for those of us who could not attend in person.

    Do you or your interns have any information about what happened last Wednesday right before the lunch break?

    standwithnanhui.tumblr.com: “DA tried to get THREE of the defense’s witnesses kicked off. one was a man who corresponding with Charlton and sent an email to the public defender (PD) saying that he talked with him and said ‘he is not interested in a resolution that doesn’t involve deportation. he is very afraid of losing his daughter again and though he is nice enough to talk to he is not coming off that point.’….this witness is now not allowed in because he can’t testify about ‘resolution’ because part of the testimony is that a potential settlement offer was that she accept the guilty if she’s not deported.”

    Of course it is the DA’s discretion whether to prosecute the case, and if there is a trial then it is a sad reality that in our adversarial legal system the attorneys on each side seem duty-bound to malign the other side as much as they can, so that to neutral observers it feels like everyone is distorting the facts and failing to paint an honest picture, while the hapless jury is somehow supposed to sort out the “truth” from the two biased portrayals. But I did not know the DA had any jurisdiction over deportation decisions, which theoretically should be a separate matter? I have seen some of the methods used to gain plea agreements (e.g. requiring defendants to give up any civil actions against law enforcement, even when they have a legitimate complaint; forcing an entire group of defendants to agree to an all-in-or-nothing deal, even when the DA knows or ought to know some of the group are not responsible for the crime but dare not snitch against their friends) and I am disturbed by such attempts to leverage power from beyond the scope of the case to coerce defendants to give up their rights, all supposedly in the name of streamlining the legal process. In a way it is similar to the Secret Police telling a detainee, “If you cooperate then we will not hunt down and hurt your family.”

    I agree with Juror Number Five that, especially in a case like this, the goal should be restorative justice and a forward-looking solution. So Jesse laid a hand on Nan-Hui during an argument. Police were called but seeing no marks on either party did not arrest anyone. I think my #StandWithNanHui friends are right to point out that domestic violence is woefully underaddressed by our system, and also that it is not limited to physical violence. But even if we assume they are correct and that Jesse was abusive, does that mean he is forever that way and therefore gives up any claim to continue to be a father to their daughter? So Nan-Hui did not cooperate with our family court and kept their daughter away Jesse for five years—perhaps out of fear, perhaps out of misunderstanding, perhaps even out of “malice.” Does that mean we need to keep her out of the country so Jesse can have his five years too, to make things fair?

    If the disallowed witness is correct that Jesse only wants a resolution that involves deportation, then we have a very sad situation. In the best case he is scared Nan-Hui will win a custody decision and once again take their daughter away, and in the worst case he is being vindictive. Whatever his motivation, either way leaves no room for coparenting and no opportunity for rehabilitation or efforts at rapprochement, which in my mind would ultimately be in the best interests of the child. Meanwhile, voices on all sides are in such a rush to judge either Nan-Hui or Jesse in the worst light possible, convincing themselves that she “is” a manipulative, contemptuous child abductor or that he “is” a good-for-nothing, mentally unstable woman beater. Everyone is eager to identify the bad guy and see him (or her) get what he (or she) deserves, but there are really no winners when we play that game. The information presented to and being retweeted by our college students to rally support for Nan-Hui seems to contain increasingly more misstatements and exaggerations (e.g. that she is an undocumented immigrant, that she has been in jail for more than 300 days, that she will automatically be deported, that he threatened to kill their daughter, etc.) to attract everyone’s sympathy. And my fellow congregation members who packed the courtroom have become so infuriated that they appear to be forgetting our mandate is not only to seek justice (Isaiah 1:17) but to be peacemakers (Matthew 5:9) and to pursue a ministry of reconciliation (2 Corinthians 5:18). Jesse has testified that neither he nor Nan-Hui are religious. Perhaps it would be more biblical, in this particular case, for us to reach out to him rather than protesting to the DA and ICE?

    “The anger of man does not produce the righteousness of God”—James 1:20

    “Jesus Christ is…a message not only for the oppressed, but also for the oppressors; not only to the victim, but to the perpetrators….Our gut response would be, ‘Free the slaves, and to hell with the cruel criminals who are keeping them in bondage.’ But the gospel goes beyond that.”—http://www.desiringgod.org/articles/what-christians-do-about-modern-day-slavery

    1. Davis Progressive

      in terms of excluding the witness,  the jury is required to decide the case based only on the facts not the consequences.  they are not even supposed to consider the consequences.  the judge probably excluded the witness on the basis of the information being more prejudicial than probative.

    2. Ann Block

      I think reaching out to Jesse Charlton and his family is a very good idea.  Hopefully he is not feeling vindictive, and hopefully Nan-Hui and Jesse can come to an agreement regarding custody that is in the best interests of the child — something it has been so easy for so many to lose sight of here.   It sounds like Nan-Hui had always intended to return to the U.S. and eventually allow her daughter contact with Jesse — when she (daughter) was old enough to report any abusive behavior on the part of dad or anyone else.  It is sad that the child had to be so traumatized in the process by the criminal proceedings ripping her away from mom for so long.

      And with regard to the witness — it was highly relevant — abusers often use threats of deportation as a form of domestic violence.  That is the chief reason Congress passed the immigration provisions in the Violence Against Women Act, allowing immigrant DV survivors to self-petition for immigration status, when their abusive USC or LPR spouses refused to do so.  Jesse refused to marry Nan-Hui in order to help her stay in the U.S. so they could both raise their daughter here.  Now, if he truly wants her deported to separate her from their daughter, perhaps forever, that is yet another form of domestic violence — used by many, many abusers to control their victims.  I hope that is not true, and hope he will decide instead to help Nan-Hui remain here.

  4. hpierce

    David…  your headline includes the phrase “paving the way”, which might be interpreted as a deliberate act.  It appears, from your writing, that the juror, during deliberations, realized they would “hang the jury’.  No verdict.  It could be considered “righteousness” to leave the jury knowing that they could not render a vote, consistent with what they considered a flawed law which they were sworn to follow despite its flaws, and their personal scruples, or considered a “Pilate” for trying to wash their hands realizing that what needed to be done would be done, but their hands were ‘clean’.  I’ll go with the former.

    But to say the decision “paved the way” implies the “Pilate” theory.

    Am thinking the juror made a good, moral, choice. That is NOT to say I agree or disagree with the verdict, nor whether this should even have been tried as a criminal (felony) offense. Actually, after a pause, I say that it should NOT have been prosecuted as a felony offense.

    One could argue that the juror should have ‘hung’ the jury, based on their beliefs, but I won’t argue for that theory.

    1. David Greenwald Post author

      Her removal from the jury removed the most vocal juror who was opposed to a guilty verdict and once she left, the verdict happened very quickly.

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