Cultural defense will play big part in murder trial
By BRUCE McLEAN
Scripps Howard News Service
VENTURA, Calif.: - Culture will play a big role in the defense of
Narinder Virk, who is accused of trying to drown her two children.
The 39-year-old Port Hueneme, Calif., woman is being portrayed by
Deputy Public Defender Christina Briles and other supporters as a victim of
an allegedly abusive husband and of her traditional role as a subservient
Indian wife and mother.
If the case goes to trial, that role could be as crucial as the
evidence that Virk woke her 6- and 9-year-old children on Jan. 12, walked
them to Channel Islands Harbor and unsuccessfully tried to kill them and
herself.
A preliminary hearing is scheduled for Thursday. Virk is charged
with two counts of attempted murder.
Bringing culture into the courtroom is not a new tactic, with cases
dating back to the 1800s. But attorneys have employed the ''cultural
defense'' strategy with greater frequency over the past 15 years.
Its use has raised questions as diverse as the people it has been
used to defend.
''We really seek to deter criminal conduct with our laws,'' said
Norman Garland, a professor of law at the Southwestern University School of
Law in Los Angeles, a former defense attorney and former prosecutor. ''We
want to punish people worthy of punishment. And perhaps in some of these
cases, a person should not be punished as harshly as someone we might
consider a typical criminal.
''But someone may use (culture) as a guise for criminal conduct.
This is a matter of a slippery slope. Where do you draw the line? These
questions are very difficult.''
Doriane Lambelet Coleman, a Duke University law professor who has
studied and written extensively on the issue, agreed. ''Are laws malleable
due to the country you come from?'' Coleman asked.
Experts generally speak of two kinds of cultural defense.
The first involves defendants who carry out customs that are
accepted in their native lands but outlawed in their new countries.
Among the most well-known of these was the 1985 case of Fumiko
Kimura, a Japanese woman who drowned her two children off a Santa Monica,
Calif., beach but was rescued while trying to drown herself.
Kimura was trying to commit ''oyaku-shinju,'' a Japanese custom of
parent-child suicide, after learning her husband was having an affair.
The act, supporters said, would not have been considered murder in
Japan. Charged with first-degree murder, Kimura eventually pleaded guilty
to voluntary manslaughter. She was sentenced to a year in jail, which she
had already served while awaiting trial, and probation.
Experts believe the judge's relatively light sentence was
influenced by Kimura's cultural defense.
''What's being said is, 'I may have committed the crime, but back
home it's allowed or not as serious. I should be judged by the laws of my
country,' '' Coleman said.
Such a ''pure'' cultural defense is rarely accepted, she said. And
there are major differences between Virk's case and Kimura's. For one
thing, parent-child murder-suicide is not accepted in India.
But the similarities - the low status of women in the culture, the
shame heaped on the woman in a failed marriage, the strong belief in an
afterlife, the concept that motherless children should not be left behind
in this world - will likely be used to show Virk's state of mind at the
time of the incident.
This is the second, more accepted type of cultural defense: The
defendant's state of mind was heavily influenced by cultural factors.
Generally, experts said, such a defense is not used to free a
defendant but instead to reduce the charges and sentence. It might be used
to bring a murder charge down to manslaughter.
Virk is undergoing psychological testing, Briles said, to determine
her state of mind at the time.
''Culture is the foundation for the tensions that were created in
this case,'' Briles said.
Illiterate and confined to a prearranged marriage, Virk came to the
U.S. in the early 1990s. She couldn't speak English and was allegedly
abused by her husband. She had no friends and lived an isolated life.
She came from a culture in which the woman's value rests solely on
her domestic abilities. Her marriage and her children were her life.
Briles has said that because of the shame of a failed marriage,
Virk saw no way out when her husband wanted a divorce.
John Caughey, a cultural anthropologist at the University of
Maryland who has testified as an expert in cases involving natives of
India, said there appears to be no way to judge Virk's actions without
understanding her culture.
''Hardly anyone would argue with you if you said that the position
of women in rural India is low,'' Caughey said. ''She doesn't have the
faculties to learn a way out, to protect herself.''
The specter of divorce would have far greater impact on Virk than
on a woman born and raised in the United States.
''She would have felt the total disorientation of being abandoned.
The despair would have been measurably affected by the cultural
situation,'' Caughey said. ''I think it would be unfair in this case to not
look at the cultural dimensions.''
In cases such as Virk's, the goal is to get the jury to see a
situation through the eyes of the defendant.
''Americans tend to think American,'' said Alison Dundes Renteln,
an anthropology professor at USC who specializes in ethnic identity and the
law. ''It's difficult for them to understand a different world view.''
Los Angeles Times February 17, 2000 Metro; Part B; Page 11 Attorneys to Cite Similar Incident in Drowning Case Defense Courts: Saying Cultural Values Caused Woman to Kill Her Children, Lawyers Will Recall 1985 Episode GINA PICCALO, SPECIAL TO THE TIMES A desperate woman shamed by her cheating husband drowns her young daughter and son in the ocean before being rescued by two beach-goers as she attempts to take her own life. She is not Narinder Virk, an Indian immigrant accused of trying to drown her two children last month in Channel Islands Harbor. But as in the first case, Virk's attorneys will argue that their client's culture and traditions influenced her behavior. In January 1985, Japanese immigrant Fumiko Kimura drowned her infant daughter and 4-year-old son in the ocean off Santa Monica after she learned that her husband had a mistress. Ultimately, Kimura's attorney convinced prosecutors and the judge that the 33-year-old Tarzana mother had no malicious intent, but wanted only to save her children the shame their father's infidelity brought on the family. The cultural defense helped win Kimura one year in jail and five years' probation in the Los Angeles County case. Fifteen years later, a similar disgrace apparently drove 39-year-old Virk to the water with her two children, Sonny, 9, and Harpreet, 6, who are expected to take the stand today in Ventura County Superior Court at their mother's preliminary hearing on two counts of attempted murder. But the same type of arguments that worked for Kimura in Los Angeles County will not necessarily work for Virk in Ventura County, one of the law-and-order bastions of the state, legal experts say. A child murdered by his mother is an unjustifiable crime by American standards. In the context of cultural or religious beliefs, however, the definition of justice can become blurred and an accused murderer becomes a totem to human frailty. In Los Angeles County, crowds of supporters filed into the courtroom during Kimura's proceedings, as they have done in Virk's case. They collected thousands of signatures to petition for a lenient sentence and pooled resources to fund her rehabilitation just as Virk's supporters have done. She was charged with two counts of murder but pleaded no contest to voluntary manslaughter. In an usual twist, Kimura and her husband stayed together. Virk's attorney, Christina Briles, argues that like Kimura, Virk was driven to madness by a culture that measured her value by the success of her marriage and threatened to disown her and her children if she failed. "Her life had value only as it related to others that she served," Briles said. "The female has the complete and total responsibility for the success of the marriage." Cultural defense is a centuries-old legal argument that has gained popularity in the last 20 years, said cultural defense expert Alison Dundes Renteln, a University of Southern California political science professor. But the argument is difficult to sell to judges and juries in suburban communities, like Ventura County, with less diverse populations and more conformist lifestyle views than urban communities, said Loyola Law School professor Laurie Levenson. "Ventura juries are notoriously tough juries," she said. "I think it's a real uphill battle, as would be, frankly, in Orange County. They're reluctant to buy a defense like this, because they don't relate to the culture." Like Virk, Kimura lived an isolated life with her two children. She spoke little English and didn't work outside the home. Her next-door neighbor was her only friend. When her husband's mistress showed up at her door one day to confess the affair, Kimura decided to take her own life and kill her children, an act known as oya-ko shinju, a Japanese term for parent-child suicide. "In her own deranged state of mind, what she was doing was an act of love to her children," Gerald Klausner, Kimura's attorney, said. "There is the concept of saving face in the Japanese culture that runs very deep. Suicide is kind of a polite thing to do when you've soiled society somehow." Klausner said he didn't emphasize Kimura's traditions as a defense during the 1986 trial, but argued that she went temporarily insane with grief and shame. "Culture can explain states of mind," he said. "But murder is murder." Virk is from a province in northern India, Punjab, which translated means "Land of the Five Rivers," and her Sikh faith considers water a symbol of purification. But there are no parent-child suicide rituals in Indian culture that explain Virk's predawn trip to the water with her two children Jan. 12, Sikhs say. Her behavior is considered a tragic anomaly within the close-knit Indian community. Virk came from a small farming village called Kalsingha and at age 18 married Sintokh Singh Virk, a man chosen by her great-grandfather, the village elder. She wasn't taught to read or write and spoke no English. The Virks lived together in India from 1978 to 1984 and then Sintokh moved to Northridge to work, while Narinder stayed with relatives. Briles said divorce documents suggest that Sintokh married another woman for citizenship in 1984 and then filed for divorce two years later in Van Nuys Superior Court. Sintokh retrieved Narinder in 1991, and that year the couple conceived a son and settled in the San Fernando Valley. The abuse started soon after, according to Briles. A longtime Sikh leader in Los Angeles, Dr. Amarjit Marwah, who has rallied support for Virk from Indians all over Southern California, called Virk "a country girl" who followed old-fashioned gender roles that have all but disappeared from modern Indian families. Most Indian women, even those from small villages, are liberated from restrictive tradition once they arrive in the United States to help their husbands support the family, he said. In India, however, mothers still test the gender of their fetuses and often abort them if they are female. And "dowry deaths," in which in-laws murder a new bride because the money and property she brings to a marriage are not sufficient, are still relatively common. Last month, Virk learned that her husband was filing for divorce, which meant she would be shunned by her relatives and left with no source of income, Briles said. Virk supporter Surinder Singh, a 59-year-old Panorama City engineer with two grown children, said if faced with a similar situation, he might do the same. "She was under so much pressure," he said. "The steps she took, anyone can be mad in that situation." Another Virk supporter, Ojai homemaker Cyndy Grace, has no cultural connection to Virk's case, but as a 39-year-old mother of two children, age 10 and 5, she identified with her. "I saw it, immediately, not as somebody going out to murder their children," she said. "I saw it as a total act of despair. A suicide of three people."
The Globe and Mail, Monday, February 28, 2000
For the Canadian judicial system, multiculturalism has resulted in a process of change and adjustment. For many defence lawyers, it has meant becoming accustomed to the reality that institutional bias, systemic racism and cultural stereotyping may impede the ability of minority clients to receive a fair trial. But what if, instead of helping society to overcome racial and cultural barriers, multicultural changes have meant that lawyers can exploit prejudices as part of a defence strategy?
The recent trial of Alpna Amin Patel, the Saskatchewan dentist who was charged with killing her husband, shows how cultural traditions can be incorporated into a criminal defence. Dr. Patel married an American doctor, Viresh Patel, whom her parents had found for her.
For many Canadians, the concept of an arranged marriage is simultaneously horrifying but fascinating. I can understand that. Like most East Indians, my parents had an arranged marriage. My mother was 20 and my father 30 and, like most arranged marriages, theirs worked. Familiarity with both the culture and the tradition fails to alter my instinctive reaction of sympathy for a bride in an arranged marriage. I do understand that a young wife in such a situation might react strongly to feelings of constraint.
If those are the feelings of someone accustomed to this practice, imagine the impact that Dr. Patel's lawyers had on a Baltimore jury by strategically emphasizing the arranged marriage, a concept completely foreign to them. Factor in the chauvinism of some North Americans and the misogyny they frequently associate with Indian culture, and Dr. Patel's arranged marriage became a powerful tool for the defence.
Her lawyers depicted the young woman from Saskatchewan as an educated "Westernized" woman who was frustrated by her arranged marriage, her lack of freedom and the subservience expected of her. Supposedly, it was when she went to Baltimore to her husband's parents' apartment and voiced these complaints, along with the threat of leaving, that her husband attacked her. It was allegedly in self-defence that she then grabbed and used the knife.
The relevance of her arranged marriage to the facts of the case is debatable. Most arranged marriages, even those involving "sophisticated" Westernized partners, do not end in murder. Yet it was to this point that the defence continually returned.
While I would never have an arranged marriage, I can appreciate the rationale behind the tradition. Arranged marriages are premised on the idea that shared values and similar family backgrounds are what should form the basis of a marriage. It is a custom that remains extremely common within the Indo-Canadian community. Unlike arranged marriages of the past, however, couples today tend to meet several times before agreeing to wed.
It's unlikely that the jury would have been told any of this. The strategy of emphasizing the claustrophobia of Dr. Patel's arranged marriage apparently succeeded. Despite the defendant's complete lack of bruises or scratches with which to corroborate that she was attacked, a jury composed of 11 women pitied and acquitted her of first-degree murder. The verdict raises the question of whether the jury had been judging the evidence or the cultural traditions surrounding the facts of the case.
Had the trial taken place in Canada, the results would likely have been no different.
In fact, since Oct. 8, 1997, we have institutionalized the use of racial stereotypes in criminal defence. Section 718.2(e) of the Canadian Criminal Code requires that when sentencing an aboriginal offender, a judge must consider the First Nations person's unique experience. The courts have found this to include factors such as low income, high unemployment, a legacy of poor social conditions and dislocation.
The purpose of this section may be commendable but the accompanying inference is not. It represents a legislative attempt to reduce the disproportionate number of aboriginals in Canadian prisons. The section means that an aboriginal offender may receive a sentence that is far less than that of a non-aboriginal convicted of the same crime.
That Canada's native people consistently face both systemic and institutional racism is irrefutable. However, to make being of aboriginal descent a mitigating factor in sentencing is tantamount to giving credence to these negative stereotypes. It suggests we are not all equal before the law.
Reva Seth is a second-year law student at the University of Western Ontario.
Saskatoon dentist not guilty of first-degree murder Faces retrial on second-degree murder after mistrial BY ROBERT RUSSO, Canadian Press BALTIMORE (CP) -- An anguished and exhausted jury blamed sloppy prosecutors after a mistrial was declared Friday in the murder trial of a Saskatoon dentist. The trial of Dr. Alpna Patel ended bizarrely after a juror -- the lone man on the 12-person panel -- decided to change his vote as he was being polled. The judge ordered the jurors to return to their deliberations and shouting could be heard in the nearby courtroom. When they returned, Patel was left in legal limbo. The jury acquitted her of first-degree murder in the stabbing death of her husband, Dr. Viresh Patel. She was also found not guilty of carrying a deadly weapon. But they remained deadlocked on charges of second-degree murder and manslaughter. Patel, 27, sobbed and clutched a photo of a Hindu god as the verdicts were read. She refused to speak to reporters as she left. The decision means she will not be able to return to Saskatoon. The jury's forewoman originally told the judge jurors had acquitted Patel of first- and second-degree murder. But as he was being polled, the lone male on the jury said he might have acted hastily in agreeing to acquit Patel of second-degree murder. "I was not expecting this," he said. "Sir, it's sort of like being pregnant," said Judge John Themelis. "Either you did or you didn't." When the juror asked to speak to Themelis privately, he refused and asked the jury to start their 15th hour of deliberation over three days. They emerged 20 minutes later. Prosecutors will decide Monday if Patel will be charged and retried on second-degree murder or manslaughter charges. They will have to do more to convince another panel, some jurors said. "I think the state could have done a lot more," said one juror who did not want to be identified. "There was just so much we didn't know that we couldn't assume." Sloppy examination of the black-handled steak knife used in the killing was a sore point with another juror, who also did not want to be identified. "We feel that blood and fingerprints should have been taken," she said. Baltimore homicide detectives said blood samples or fingerprints would have shown nothing since both Patels would have had access to the knife on a regular basis. Jurors acted out the homicide several times in the jury room using the knife in their recreations of the killing. The deadlock verdict ended a trial that highlighted a computer-age twist on arranged East Indian marriages. Both the defendant and the victim were highly educated. They met and married after their parents placed an ad on an Internet site listing young East Indians looking for spouses. Patel, 27, was accused of stabbing her husband in the throat as he slept after becoming enraged by his indifferent reaction to her pleas to save their marriage. But she told jurors her husband, Dr. Viresh Patel, 26, died accidentally during a struggle for control of a kitchen knife he was wielding after he ambushed her in bed. Patel alleged the attack occurred after she read him a lengthy list of complaints about the controlling and conservative in-laws she lived with in Buffalo. N.Y., while he studied to become an orthopedic surgeon in Baltimore. But one juror said she was unsympathetic to Patel's claim of being smothered by the controlling in-laws who helped arrange her marriage. Patel was always free to leave, the juror said. Viresh Patel's father, Nandlal Patel, said he was relieved that the second-degree murder charge was still alive. But he said family members were emotionally battered by the two-week trial process. "It was just heartbreaking," he said. He denied that he was the smothering manipulator his daughter-in-law portrayed during the trial. She testified that she would not allow her to go out socially by herself or with other, single women. He also barred her from seeing her husband more often, she said. "I extended my helping hand," Patel said. "It was more help than control." Viresh Patel had his jugular vein and carotid artery laid open during the confrontation last March. He was also cut or stabbed along the forehead, in the chest and along his clavicle. Alpna Patel emerged from the struggle unscathed. The size difference between the two -- Patel is almost a foot shorter than her late husband -- and the absence of any injuries proved she stabbed her husband while he slept, prosecutors said. Patel's lawyer, Edward Smith, Jr., suggested a burst of strength of biblical proportions allowed the diminutive dentist to prevail over her taller, heavier husband. Samson and Delilah, David and Goliath -- both provide ample proof that the weak can prevail over the strong, he said. Patel remains free on bail, but will likely have to continue to wear an electronic ankle bracelet that allows police to monitor her movements. Her Canadian and British passport -- she was born in Wales but came to Canada at the age of six months -- were seized as evidence by state attorneys.
Buffalo dentist charged with stabbing murder of her husband. Authorities have accused 27-year old Dr. Alpna Patel with traveling to Baltimore, MD where she went to the apartment of her husband and repeatedly stabbed him until he was dead. The victim, Dr. Viresh Patel, a 26-year old doing a temporary residency in surgery at the University of Maryland, had been scheduled to come back to the University of Buffalo for a orthopedic surgical residency.