| In 2003, 34-year-old Justin Yang was charged with two counts of repeated first-degree sexual assault of his two daughters, ages 11 and 12, in Milwaukee County, Wisconsin.
Yang and the girls’ mother had emigrated from Laos to Wisconsin in 1990. They separated and in 2001, four of their seven children lived with Yang and three lived with his wife. In 2002, they divorced. That same year, Yang became a U.S. citizen. Late in the year, he flew to Laos and returned with a second wife in early 2003.
About six weeks later, Yang’s ex-wife said that two of the girls that had been living with Yang reported he had sexually assaulted them. She contacted a Hmong child-protection agency the same day. Three days later, police were notified. Eight days after the initial outcry, a sexual-assault nurse practitioner examined the girls and reported that she found no evidence of sexual assault.
On February 23, 2003, Yang was charged with two counts of repeated sexual assault of the two girls.
In May 2004, Yang went to trial in Milwaukee County Circuit Court. The defense contended that the girls had been coerced to falsely accuse Yang by their mother, who was angry that he had remarried, or that they falsely accused Yang so they could live with their mother.
In his opening statement to the jury, Yang’s attorney, Rodney Cubbie, said, “He [Yang] comes back to the United States and in January of 2003, there's a confrontation with the ex-wife, the mother of his children. During this conversation she questions why did you go and get another wife. And he explains, I needed someone to help me, and she says to him, she says these words to him, she says: ‘Now maybe you're going to have trouble.’ That's what she says to him. Six weeks later she calls the police, the ex-wife, and she tells the police that…Justin Yang has sexually assaulted his two young daughters.”
Both girls testified that he had sexually assaulted them when they were living with him. The girls’ mother testified in English, but was assisted by an interpreter. When Cubbie tried to ask her during cross-examination about her threatening Yang, Circuit Court Judge Mary M. Kuhnmuench stopped him.
Cubbie asked, “Now, do you-do you remember speaking with Justin Yang in January of 2003?”
“No, I don't talk to him at all,” she replied.
“You never talked to him at all?” Cubbie asked.
“No,” she said.
“You wouldn't call him on the phone?” Cubbie asked.
“I, sometime, I call him, because the children go to visit him and what time they get the children to come back, that's all,” she said.
“Were you aware that Justin Yang went to-to Laos in December of 2002?” Cubbie asked.
“Yes, I know that,” she said.
“Did you ever talk to him about that?” Cubbie asked.
“No. No,” she said.
“So do you recall in January of 2003 ever having a conversation with Justin Yang, and in that conversation you asked him, ‘Why did he go and get another wife?’ Do you recall that?” Cubbie asked.
“No,” she said.
“Are you saying that you don't remember it or it didn't happen?” Cubbie asked.
“I-no, I don't-I don't call him like that,” she said.
“Okay,” Cubbie said. “Let me ask you a better question because I'm not necessarily suggesting that you called him. Okay. Let me ask you a better question. Whether it was on the telephone, or in person, did you ever question Justin Yang about him going to Laos in December of 2002 to get another wife?”
“I don't remember about-I remember right, I don't ask him like that,” she replied.
“Did you ever talk to him about it at all?” Cubbie asked. “Just any kind of conversation at all?
“No,” she said.
At that point, Judge Kuhnmuench interrupted and asked to speak to Cubbie and the prosecutor outside the presence of the jury. After a discussion, the judge ruled that Cubbie could not continue questioning Yang’s ex-wife further about the threat.
Cubbie moved for a mistrial and the motion was denied. The judge said that allowing him to continue to question her further “would be tantamount to allowing the defense to get in something…through a question that they haven't been able to elicit through testimony.”
Yang testified and denied sexually assaulting the girls. He was not asked about the threat.
On May 14, 2004, the jury acquitted Yang of sexually assaulting his 12-year-old daughter. He was convicted of repeatedly sexually assaulting his 11-year-old daughter. Judge Kuhnmuench sentenced Yang to seven years in prison.
In February 2006, the Wisconsin Court of Appeals vacated Yang’s conviction and ordered a new trial. The appeals court ruled that Cubbie should have been allowed to continue to cross-examine Yang’s ex-wife about the threat.
At the outset, the appeals court noted the “fluctuating difficulty” that the ex-wife had in understanding and answering questions. “Thirteen times during her thirty-one page testimony, she asked the translator for clarification or help, and, of course, we have no way of knowing what the translator said to Yang’s former wife in Hmong, or whether Yang’s former wife understood either the full import of the lawyers’ questions or nuanced inference inherent in any language that often filter total comprehension for non-native speakers,” the appeals court said.
The appeals court said that Judge Kuhnmuench had “derailed” the defense from asking relevant questions. The appeals court noted that Cubbie had raised the issue of the threat during his opening statement and the prosecution had not objected or suggested that there was no factual basis for that argument.
“Yang was entitled to have the jury decide from his lawyer's questions and the nature of his former wife's responses whether she was telling the truth when she denied ever having discussed with Yang his trip to Laos or his remarriage,” the appeals court said. “Thus, he was also entitled to ask about the alleged threat.”
The appeals court noted that Yang had not testified about the threat. “The Record does not reveal why, but it may very well be that Yang’s trial lawyer believed that the [trial] court’s earlier ruling foreclosed further exploration of that area.”
On June 5, 2006, Yang was released on bond pending a retrial. On July 31, 2006, the Milwaukee County District Attorney’s Office dismissed the charge, saying that the ex-wife and daughters did not want to pursue the case any further.
– Maurice Possley and Aileen Sdenka Montano
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