Nan-Hui Jo, the immigrant convicted of felony child abduction last month for taking her American-born daughter to South Korea, had her conviction reduced to a misdemeanor Tuesday and was ordered to be released to immigration officials.
Jo, whose case made headlines worldwide, was credited with time served – a 175-day jail sentence – and placed on three years’ informal probation, which does not require her to report to a probation officer.
But Yolo Superior Court Judge David Rosenberg denied a motion by Jo’s lawyer, San Francisco attorney Dennis Riordan, requesting an acquittal or a new trial based on a claim that jurors received improper instructions.
Rosenberg ordered the Yolo County Sheriff’s Office to release Jo to U.S. immigration officials “immediately” because they have a hold on her for overstaying her education visa and returning to the United States illegally last fall. At the time, Jo was arrested in Hawaii on child abduction charges for taking her daughter to her native South Korea in October 2009 without obtaining custody rights.
“In the interests of justice, I will use my discretion to reduce this to a misdemeanor,” Rosenberg told a courtroom packed with Jo supporters. But he also ordered Jo not to contact Hwi or Hwi’s father, Iraq War veteran Jesse Charlton, “except through order of the Family Law Court” in Sacramento.
Jo has not seen her now-6-year-old daughter, Hwi, for nine months. She is scheduled to ask the family court on May 11 to grant her visitation rights and has been allowed to correspond with her daughter, said John Myers, a McGeorge School of Law professor on Jo’s legal team.
“She knows her mom’s OK and sent her a picture she’d drawn with ‘I love you’ written on the back,” Myers said.
Jo testified she told Hwi she didn’t have a father, and that she only sent one email to Charlton in five years to ask for money. Charlton, a substitute teacher, testified he was so desperate to reconnect with his daughter that he sent Jo an email saying he was considering “spending thousands of dollars on a scary bounty hunter” if Jo continued to completely cut him off.
Jo claimed she had been a domestic violence victim in an earlier marriage to an American and testified that she took her daughter to South Korea because of Charlton’s unpredictable behavior. She was also afraid of being deported and never seeing her daughter again.
Charlton has never been arrested for domestic violence. But at Jo’s trial, he testified that he once grabbed Jo by the throat and threw her up against the wall after she tossed the baby to him, the back of her head hitting him in the face.
“That’s the only time I ever laid a violent hand on Ms. Jo,” he testified. But he said his behavior was unpredictable and subject to mood swings, and that he twice injured his hand after pounding on a wall and a steering wheel in anger. He also testified that he suffers from post-traumatic stress disorder.
Jo has drawn support from 126 women’s rights and immigrant rights organizations, ranging from My Sister’s House, a Sacramento center for domestic violence victims, to San Francisco’s Asian Women’s Shelter. The “Stand With Nan-Hui” online campaign “supporting her fight for freedom and reunification with her child” had raised more than $5,000 for her legal costs as of Tuesday evening.
An emotional Charlton, who said he had no idea where his daughter was after Jo took her to South Korea, read a statement to the court describing “five years of love lost ... my grades at Sacramento State suffered and I withdrew from society.” He said that his sudden reunification with Hwi after Jo’s arrest “got hectic and painful ... she had an intense desire to reject me – twice my daughter struck me in the face and I had to put her in her room. We both cried alone ... we were put through hell.”
Charlton looked at Jo and said, “I know she doesn’t want to hurt Hwi, but she has by tearing her away from me and then herself.” He ran out of the courtroom in tears.
Riordan argued that Jo’s conviction should be set aside because Judge Rosenberg altered the definition of “malice” in his jury instructions by not telling jurors to consider Jo’s state of mind, including her fear of being deported and belief that her daughter was better off with her.
Steve Mount, the prosecutor who tried Jo a second time this spring after her first trial ended in a hung jury in December, said this was a clear-cut case of child abduction and that Jo knew her decision to take her daughter for five years was wrong. Jo’s good-faith belief that she was a better parent “is not enough to deny the other parent’s rights – all she had to do was pick up the phone and call the Family Law Court and make a telephonic appearance, and none of us would be here today.”
Rosenberg said Jo has 60 days to file a notice of appeal, which Riordan said was forthcoming. Jo has filed a visa application for immigrant victims of crime who cooperate with law enforcement. If granted, the visa could allow her to stay in the United States, get a job and in three years apply for a green card.
Jo might also be allowed to stay as the parent of a U.S.-born minor child if she goes to Sacramento Family Law Court and the judge considers her petition for joint custody or visitation after her criminal case is resolved, according to Jo’s immigration attorney, Juliet Turner-Lloveras.
Even if she’s deported, Mount said, “she will be able to see her child – there are family law courts that work out international custody all the time.”
Call The Bee’s Stephen Magagnini, (916) 321-1072.