‘Great Provocation and Duress’ : The judge in the Du manslaughter trial explains her reasons for imposing probation rather than prison time.

Statements by the district attorney, (which) suggest that imposing less than the maximum sentence will send a message that a black child’s life is not worthy of protection, (are) dangerous rhetoric, which serves no purpose other than to pour gasoline on a fire.

This is not a time for revenge, and my job is not to exact revenge for those who demand it.

There are those in this community who have publicly demanded in the name of justice that the maximum sentence be imposed in this case.

But it is my opinion that justice is never served when public opinion, prejudice, revenge or unwarranted sympathy are considered by a sentencing court in resolving a case.

In imposing sentence I must first consider the objectives of sentencing a defendant:

1) To protect society.

2) To punish the defendant for committing a crime.

3) To encourage the defendant to lead a law-abiding life.

4) To deter others.

5) To isolate the defendant so she can’t commit other crimes.

6) To secure restitution for the victim.

7) To seek uniformity in sentencing.

The question becomes, are any of these sentencing objectives achieved by Mrs. Du being remanded to state prison?

Let us start with the last objective first: uniformity in sentencing. According to statistics gathered for the Superior Courts of California, sentences imposed on defendants convicted of voluntary manslaughter last year ranged from probation with no jail time to incarceration in state prison for several years.

Because of the unique nature of each crime of voluntary manslaughter, and by that I mean the uniquely different factual situations resulting in that crime, uniformity in sentencing is virtually impossible to achieve.

Which, then, of the other sentencing objectives lead to the conclusion that state prison is warranted?

Does society need Mrs. Du to be incarcerated in order to be protected? I think not.

Is state prison needed in order to encourage the defendant to lead a law-abiding life or isolate her so she cannot commit other crimes? I think not.

Is state prison need to punish Mrs. Du? Perhaps.

There is, in this case, a presumption against probation because a firearm was used.

In order to overcome that presumption, the court must find this to be an unusual case, as that term is defined by law.

There are three reasons that I find this is an unusual case:

First, the basis for the presumption against probation is technically present. But it doesn’t really apply. The statute is aimed at criminals who arm themselves when they go out and commit other crimes. It is not aimed at shopkeepers who lawfully possess firearms for their own protection.

Second, the defendant has no recent record, in fact, no record at any time of committing similar crimes or crimes of violence.

Third, the defendant participated in the crime under circumstances of great provocation, coercion and duress. Therefore, this is, in my opinion, an unusual case that overcomes the statutory presumption against probation.

Should the defendant be placed on probation?

One of the questions a sentencing court is required to ask in answering that question is “whether the crime was committed because of unusual circumstances, such as great provocation.” I find that it was.

I must also determine the vulnerability of the victim in deciding whether probation is appropriate. Although Latasha Harlins was not armed with a weapon at the time of her death, she had used her fists as weapons just seconds before she was shot.

The district attorney argues that Latasha was justified in her assault on Mrs. Du. Our courts are filled with cases which suggest otherwise.

Our courts are filled with defendants who are charged with assault resulting in great bodily injury as a result of attacks on shopkeepers, including shopkeepers who have accused them of shoplifting.

Had Latasha Harlins not been shot and had the incident which preceded the shooting been reported, it is my opinion that the district attorney would have relied on the videotape and Mrs. Du’s testimony to make a determination whether to file charges against Latasha.

Other questions I am required to address in determining whether probation is appropriate are “whether the carrying out of the crime suggested criminal sophistication and whether the defendant will be a danger to others if she is not imprisoned.”

Having observed Mrs. Du on videotape at the time the crime was committed and having observed Mrs. Du during this trial, I cannot conclude that there was any degree of criminal sophistication in her offense. Nor can I conclude that she is a danger to others if she is not incarcerated.

Mrs. Du is a (51)-year-old woman with no criminal history and no history of violence. But for the unusual circumstances in this case, including the Du family’s history of being victimized and terrorized by gang members, Mrs. Du would not be here today. Nor do I believe Mrs. Du would be here today if the gun she grabbed for protection had not been altered. This was a gun that had been stolen from the Du family and returned to them shortly before the shooting.

The court has been presented with no evidence, and I have no reason to believe that Mrs. Du knew that the gun had been altered in such a way as to--in effect--make it an automatic weapon with a hairpin trigger.

Ordinarily a .38 revolver is one of the safest guns in the world. It cannot go off accidentally. And a woman Mrs. Du’s size would have to decide consciously to pull the trigger and to exert considerable strength to do so.

But that was not true of the gun used to shoot Latasha Harlins. I have serious questions in my mind whether this crime would have been committed at all but for a defective gun.

The district attorney would have this court ignore the very real terror experienced by the Du family before the shooting, and the fear Mrs. Du experienced as she worked by herself the day of the shooting. But there are things I cannot ignore. And I cannot ignore the reason Mrs. Du was working at the store that day. She went to work that Saturday to save her son from having to work. Mrs. Du’s son had begged his parents to close the store. He was afraid because he had been the victim of repeated robberies and terrorism in that same store.

On the day of the shooting Mrs. Du volunteered to cover for her son to save him one day of fear.

Did Mrs. Du react inappropriately to Latasha? Absolutely.

Was Mrs. Du’s over-reaction understandable? I think so.

If probation is not appropriate, and state prison time is warranted, then a short prison term would be an injustice. If Mrs. Du should be sent to prison because she is a danger to others or is likely to re-offend, then I could not justify imposing a short prison term.