Supporters of Nan-Hui Jo sent out a press release on Thursday announcing that an immigration judge had released Ms. Jo on bond last Friday, July 17. Immigration issues and the case remains pending with the U.S. Customs and Immigration Services (USCIS), as well as the Immigration Court.
She will be having a family court appearance that may help determine the custody of her daughter, whom she still has not seen since her arrest nearly a year ago. Nan-Hui was arrested, jailed and separated from her daughter immediately upon entering the U.S. on July 29, 2014.
A Yolo County court in the second trial convicted Ms. Jo of a single count of parental abduction. On April 28, Judge David Rosenberg denied a defense motion for a new trial, but reduced the charge to a misdemeanor, over the objections of the Yolo County District Attorney’s office.
This allowed for her release, however, immediately following that release, Nan-Hui Jo was taken into Immigration and Customs Enforcement (ICE) custody and jailed at an immigration detention center in Yuba County, CA, where she has spent the last three months.
Organizers celebrated her release in a press release, expressing “gratitude for all her supporters nationwide, and vow[ing] continued support for Nan-Hui in her fight to be reunited with her daughter.”
“We are thrilled that Nan-Hui has finally been released from immigration detention, and thank everyone who made this victory possible. While we celebrate this critical moment, we also know that this is not the end of the struggle for Nan-Hui’s freedom and reunification with her daughter,” says Hyejin Shim, a Stand With Nan-Hui organizer.
Domestic violence organizations, Asian-American community groups, immigrant rights organizations, and supporters across the country have rallied for Nan-Hui by attending her criminal trials, holding demonstrations, organizing educational events, fundraising for legal fees, and bringing widespread attention to the case.
“We are incredibly relieved that Nan-Hui has finally been released and is one step closer to resolving this year-long nightmare. It is unthinkable that ICE was days away from permanently separating a mother from her child because of a system that prioritizes deportation quotas over the well-being of a family,” said Saira Hussain, Staff Attorney at Asian Law Caucus. “We must recognize this case within the context of the growing criminalization of survivors of domestic violence and the undocumented community.”
Nan-Hui’s family court proceedings continued earlier this week. She also is currently appealing the child abduction conviction. Her attorneys filed a writ of habeas corpus to the California Supreme Court in May, citing serious legal errors in jury instruction.
In March, a Yolo County jury convicted Nan-Hui Jo of a single count of parental abduction. Following a change of counsel and a delay, Defense Attorney Dennis Riordan filed a motion for a new trial, asserting serious error in Judge David Rosenberg’s jury instructions.
Judge Rosenberg concluded the sentencing hearing, stating that he had done something to make both the defense and prosecution unhappy. He declined the defense’s motion for a new trial, ruling that the court is comfortable with its jury instructions and he found they were not prejudicial to the defense.
Judge Rosenberg then used his discretion to reduce the charge to a misdemeanor with time served.
Dennis Riordan argues that the prosecution here raised extremely complex issues of both state and federal law and, “The Court received little advice on the relevant law from counsel for the parties in framing and resolving those issues.”
Most importantly, he argues, “The controlling legal framework for virtually every aspect of this case was provided by the California Supreme Court in 2006, yet defense counsel never cited People v. Neidinger (2006) 40 Cal.4th 67 to the Court, and the prosecution’s one-line throw away description of the Neidinger holding was entirely specious.”
As a result, he argues, “Ms. Jo’s second trial was marred by multiple, serious legal errors.”
The Vanguard would learn that the controlling case, Neidinger, was a Yolo County case itself, prosecuted by the same prosecutor as in the Nan-Hui Jo case.
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 a 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.”
Judge Rosenberg disagreed with this. He ruled that the definition of malice was a specific intent crime until the prosecution deleted key elements that made it as such – therefore it became a general intent crime. Judge Rosenberg defended the use of California Criminal Jury Instructions No. 1252, stating that he gave the entire instruction because it applied to some of the evidence that was presented.
In sentencing Ms. Jo, Judge Rosenberg laid out the known facts of the case. He stated it was a crime to take a child away from a parent who has a lawful right to have contact with the child. The law does allow exemptions – five components that she must follow which, according to him, for the most part she did not do.
The jury considered this evidence and found her guilty. She took the law into her own hands.
However, he said there are unique qualities in this case and, in the interest of good judgment, he would be using his discretion to reduce the charges to a misdemeanor. He sentenced her to three years of summary probation with 175 days of in-jail time, which is time served.
He urged them to allow the Sacramento Family Court system to work with them and come up with a solution for the best interests of the child and all involved.
—David M. Greenwald reporting