Commentary: Trial Judge in Jo Case Made Serious Error on Definition of Malice, Tainting the Jury Trial

Protestors outside of US Immigration Office
Protestors outside of US Immigration Office

A motion for a new trial is generally a pro-forma exercise, in part because you invariably end up with the same defense attorney making an argument to the trial judge, that the trial judge and jury got it wrong. However, things are a bit different in the Nan-Hui Jo trial because of the entrance of a new defense attorney – famed defender Dennis Riordan.

It was of interesting irony yesterday, when we published a story on Mr. Riordan’s motion for a new trial in the Nan-Hui Jo parental abduction case, that Mr. Riordan won a huge victory in a case of national notoriety when his client Barry Bonds had his verdict overturned by the 9th Circuit Court of Appeals.

In the present case, Mr. Riordan puts forth a powerful and compelling argument that Judge David Rosenberg erred in instructing the jury on the legal definition of “malice” and a strong case that Ms. Jo really did not commit a crime.

The problem that Ms. Jo seems to face is that Mr. Riordan has to convince Judge Rosenberg that he erred in his ruling. It seems likely that he can convince an appellate court of that fact, but by that point Ms. Jo may be long deported.  As Mr. Riordan argues, “Were Ms. Jo’s conviction in this matter to be sustained and she deported as a result, (the child) might never see her mother again.”

From the start, we have been worried that this represented a custody battle between the father and the mother, with the father, Mr. Charlton, seeming to use the family court and then the criminal court system for his own selfish interests rather than the best interest of the children. As we know from the discussions of concerns about the family court system, this is one of the great flaws that courts seem to fail to recognize.

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. Neidinger case. 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.”

“During deliberations, the Court dismissed Juror number 5 on the ground that she had failed to assure the Court that she would faithfully apply the Court’s instructions,” he notes. “The reluctance on the part of Juror number 5, an attorney, no doubt rested in part or whole on the Court’s instructions concerning the elements of the crime and the defenses to the child abduction charge.”

“Juror number 5’s discomfort with those instructions was well-taken, because the Court’s instructions were at odds with controlling precedent of the United States and California Supreme Courts. The erroneous dismissal of juror number 5 is yet another reason that the present verdict must be set aside and a new trial ordered,” he argues.

Correctly defining “malice” then situates this case much more clearly. 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.

This matter certainly paints the custody courts, and the criminal justice system that backs those courts, in a very scary light, as it fails to protect the safety of the abused mother or to take the best interests of the child into account.

The question remains whether Judge Rosenberg will overrule himself and acknowledge error next week, or allow this sham to continue to play out in the court system, depriving a young girl of the only parental unit she ever really knew.

—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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  1. Davis Progressive

    the key thing is that at least from the arguments here the jury was misinformed about the definition of malice from general intent (which makes zero sense) to specific intent.  that’s a clear error and if judge rosenberg has any integrity he will overturn the verdict.  then it becomes interesting.

  2. SODA

    If indeed it is overturned because of this, why did it take a ‘high powered’ atty to effect the change? Given that the excused juror initiated the whole malice discussion, why couldn’t the defense counsel get the same result?  What am I missing?

    1. David Greenwald

      It’s possible that the defense attorney could have gotten the same results, but there is a reason why OJ hired Johnny Cochrane and company rather than using a public defender.

      1. Davis Progressive

        be nice to the public defenders, they work really hard.  but seriously, there are times you need a specialist and this is one of those times.  the stakes are unusually high for jo.

        1. Ann Block

          hpierce — when does “the public” ever pay for a private attorney??  You must not know how it works.  If you qualify for a free attorney, you get a public defender.  If you can afford a private attorney, you pay for the private attorney.  The public defender was very competent in this case — HOWEVER, the D.A.’s office’s resources vs. the public defender’s office’s resources are completely unbalanced.  The D.A. even flew in a witness from Korea just to testify that Ms. Jo did “not appear afraid” when she landed in Korea with her baby.  (why would she — she had just escaped her abuser and had gone home).  The PD’s office did not have the resources to search for and fly in witnesses — or they would have likely flown in the baby’s grandma, teachers and others who could attest to Ms. Jo’s state of mind.  The PD in this case was additionally required to continue to represent other clients during the course of this trial — but I bet DDA Mount was allowed to spend all his time on the trial without any other distractions.  The playing field was extremely unbalanced here, which is the usual case as many counties (including ours) afford a much greater budget to the D.A.’s office than to the PD.

          As to your “public funding” of a private attorney question — Nan-Hui Jo’s supporters have done private fundraising on a local and  national level — the Korean Community Church has been steadfast in its support of her, after interviewing and vetting her thoroughly before offering their help.  There is national attention on this case due to the domestic violence issues that have been ignored, downplayed and cruelly turned around on Ms. Jo by the D.A.’s office.  Though Jesse Charlton admitted in court and in his emails his violence against Ms. Jo, his viewing of porn while supposedly watching their child and his threats against Ms. Jo — the D.A. argued that it was Ms. Jo that was the “abuser.”  So much for a D.A. that purportedly cares about domestic violence victims.  Though this is consistent with Mr. Reisig’s refusal for years to assist many immigrant victims of domestic violence and other immigrant crime victims that have cooperated fully with his office in prosecuting their abusers or perpetrators — by signing certifications attesting to their cooperation for their immigration petitions. It is also consistent with his maintaining that deportation consequences should never be considered in negotiating a plea in a criminal case — which flies in the face of the Supreme Court’s decision in Padilla v. Kentucky.


          1. David Greenwald

            There are limited circumstances where public money goes to private attorneys. In Yolo County, there is a “conflict panel” of private attorneys who contract with the county to represent indigent clients in cases where there is a conflict for the public defenders office – most frequently multi-defendant cases. That’s not what happened here, just wanted to clarify.

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