Immigrants’ Lawyers Using Culture As Crime Defense

Samantha Henry, WTOP-FM (Washington, D.C.), December 8, 2010

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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.

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Bryant [Susan Bryant, a law professor at the City University of New York] 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.

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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. {snip}

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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.”

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