Immigrants' lawyers using culture as crime defense

NEWARK, N.J. – The lawyer for an African woman charged with smuggling young girls from Togo to New Jersey said her trial was about cultural norms that failed to translate in America. Twelve American jurors saw it as a clear-cut example of human trafficking, and she was sentenced to 27 years in prison.

Both sides focused on the cultural nuances of the case; the defense arguing the woman was a benevolent mother figure who helped young girls escape a life of poverty; the prosecution accusing her of using the threat of African voodoo curses to keep the girls subjugated.

The case highlighted a legal strategy that experts say immigrants' defense lawyers are using increasingly in the U.S.: the argument that a defendant's actions reflect his cultural upbringing, rather than criminal intent.

"We derive meaning from action, and that meaning is very culturally laden," said Susan Bryant, a law professor at the City University of New York who provides cross-cultural training to lawyers and judges. "If you look out the window and you see someone with an umbrella, you may assume it's raining. In China, it could just as easily mean the sun is out."

Bryant said demand for cross-cultural training among legal professionals has steadily increased over the past decade.

Bukie Adetula represented the Togolese immigrant, Akouavi Kpade Afolabi, who was convicted of human trafficking and visa fraud charges at her 2009 federal trial in Newark. Prosecutors alleged Afolabi brought at least 20 girls between the ages of 10 and 19 from West African nations on fraudulent visas to New Jersey, effectively enslaving them and forcing them to work in African hair braiding salons for no pay.

Adetula argued that what prosecutors called clear-cut signs of modern slavery were considered protective measures in African culture: restricting telephone access, holding the girls' passports, and forbidding them from going out of the house unaccompanied.

"America is supposed to be a country made up of so many different cultures, so, yes, make the laws, and enforce the laws," Adetula said. "Do not make different sets of laws for different people, but look to the interpretations of acts, before you say: 'Oh, it's an offensive act, it's against the law, it amounts to human slavery."

Adetula, a Nigerian native who has been practicing law in New Jersey for more than two decades, is one of many lawyers — often immigrants themselves — who bridge the divide between their clients' cultural or religious backgrounds and the American legal system.

Raymond Wong, a lawyer in New York City's Chinatown neighborhood who has a large Asian immigrant client base, said his challenge is often twofold: explaining a client's cultural customs to Americans, while persuading foreign-born clients who prefer resolving disputes through negotiation to use the U.S. court system.

"There's a serious a lack of legal professionals in China, so all the problems are resolved by friends, relatives, people that you know," Wong said. "To them, going to court is a scary thing, getting arrested by cops is a scary thing, confrontation with authorities is a scary thing."

Defense attorney Tony Serra gained national prominence for his use of cultural defenses in two separate California cases in the 1990s where American Indians were accused of fatally shooting law enforcement officers. Serra's cultural defense tactics included using expert witnesses on American Indian culture to argue the alleged perpetrators were victims of longstanding anti-Indian racial prejudice, historical tragedies, and a deeply rooted fear of authorities. Serra's defense in the 1990 retrial of Patrick "Hooty" Croy, a Siskiyou County Indian accused of killing a Yreka, Calif., policeman, proved persuasive enough for a San Francisco jury to free Croy after 11 years on San Quentin's death row.

Prosecutors at the time derided the strategy — as critics of "culture defenses" do today — arguing that historical accounts are irrelevant to modern-day criminal cases, and a person's cultural background is no excuse for lawbreaking.

"We don't want to water down our rule of law," said Kent Scheidegger, the legal director of the Criminal Justice Legal Foundation, who argues that cultural defenses, in most cases, shouldn't be considered mitigating factors.

"There are some cultures where fathers kill their daughters because they get involved with a man," Scheidegger said. "That would not be exonerating at all in my view — that's a crime and it should be punished as a crime — and punished the same as anyone else who commits that crime."

Lawyers like Adetula emphasize that factoring in someone's cultural upbringing can help juries and judges determine the degree of an offense or the severity of punishment; they say it is not meant to excuse criminal acts.

"There are aspects of American culture that may not be acceptable in other parts of the world also, and we hear stories of Americans hiking in other countries and they get arrested, or taking pictures at places where it's offensive in other countries, and getting arrested," Adetula said. "It's not a one-sided thing."