"In a special-intent crime like murder, I think cultural defense could go all the way to acquittal, but as a practical matter I don't think that will happen," said Fresno Superior Court Judge Gene M. Gomes, who handled Kong Moua's case.
"Even without intent (to commit a certain crime), if an act is harmful to society, we are not going to condone it," Gomes said. "We can't have Robin Hoods breaking the peace no matter how pure their motivations are."
In Miami, Dade County Public Defender Bennett H. Brummer, agreeing that complete acquittal is extremely rare, said his office once did win a "not guilty" jury verdict, however, for a Greek immigrant charged with murder.
"He murdered a fellow who had raped his daughter," Brummer said. "The cultural aspect of our defense was that this was a question of honor to him and he had to avenge his daughter. The jury acquitted him."
An unusual witchcraft case in Oakland illustrates how cultural defense can be used to win reduction of both the charge and the sentence.
Although prosecutors twitted him about his "voodoo" case, Alameda County Assistant Public Defender Michael Ogul took it seriously when his client, an Ethiopian national, explained that he shot a woman to defend himself against her witchcraft.
The defendant, a revolutionary from the Eritrea region of Ethiopia, claimed that he suffered headaches and stomachaches because an Ethiopian woman he had dated was a bouda controlled by the Evil Spirit and inflicting pain on him. After begging her several times to stop, he said, he went to her apartment with a gun, intending only to frighten her, but shot her twice.
Problems for the attorney raising a cultural defense, Ogul said, include proving that the defendant's explanation is a valid belief or custom in the culture where he grew up and proving that the defendant did believe or practice the custom.
Ogul presented testimony from UC Berkeley anthropology professor William Shack, who said Ethiopians from the Eritrea area do indeed believe that the Evil Spirit inflicts pain through a woman selected as a bouda.
A psychologist also testified that because of the defendant's war-torn background he was unusually likely to interpret physical pain according to the culture of his upbringing.
Apparently swayed by the testimony, jurors decided that the man had no intent to kill his victim, acquitting him of attempted murder. They found him guilty of the lesser charge of assault with a deadly weapon.
Alameda County Superior Court Judge Richard A. Hodge sentenced the man to seven years in prison--five less than he would have received for attempted murder.
Hodge, unlike many judges, said he had no hesitation about permitting the anthropologist's testimony.
The evidence "was important to show two things--to show whether his mental state was diminished by his belief and to show that he was not making this up," Hodge said. "I thought it was similar to having a psychiatrist testify if a guy has a mental disease manifested by believing he's Jesus Christ."
Fresno's Judge Gomes, who has dealt with several cultural defenses in plea bargains for Hmong defendants but tried none before a jury, said he would have difficulty excluding any cultural testimony or information that could help him understand the person's behavior.
"I don't think a judge can ever get enough information when he is sentencing someone," Gomes said. "I am surprised there are judges around who won't allow cultural defenses at least at the time of sentencing. It appears to me to be extremely relevant."
Gomes said he permitted a Guatemalan to plead guilty to manslaughter rather than murder for slitting the throat of a friend who had been savagely beaten by five men.
"It was a heinous crime but not a heinous motive," Gomes said. "As a guerrilla fighter, he thought the guy was dying and that he was giving him a painless death.
"If I had not heard that," Gomes said, "I might very well have sentenced this man for an act motivated by our very different set of values."
He gave the man 11 years instead of a possible life sentence for murder.
In another Hmong "marriage by capture" case, this one in St. Paul, Minn., Ramsey County Assistant Attorney Daniel Hollihan, decided not to take the case to trial.
With the help of St. Paul's Southeast Asian Refugee Study Project, Hollihan learned that in the Hmong "marriage by capture," the woman or girl, often under 15 years of age, must protest her capture by insisting "No, no, I am not ready" to be considered virtuous and desirable. If the man does not take her by the hand and lead her off to his own home, he is considered too weak to be a husband.
The prosecutor decided that it would be almost impossible to convince a jury that the girl really meant "no" and had been taken away against her will and raped. So he opted for a plea bargain.
"I went to the victim's family and said, 'How would you resolve this in the old country?' " Hollihan said.