Metropolitan News-Enterprise

Friday, July 8, 2005

Page 1

Court Revives Convictions in Murder of Killing Fields Survivor

Ninth Circuit Panel Rejects Finding of Prosecutorial Misconduct in Trial for Shooting of Dr. Haing S. Ngor

By KENNETH OFGANG, Staff Writer/Appellate Courts

Prosecutors did not commit misconduct at the trial of three gang members convicted of the 1996 murder of Dr. Haing Ngor, who survived the horrors of the Pol Pot regime in Cambodia to win an Academy Award before being shot dead in the carport of his Los Angeles residence, the Ninth U.S. Circuit Court of Appeals ruled yesterday.

The three-judge panel reversed the contrary ruling of U.S. District Judge Margaret M. Morrow of the Central District of California and reinstated the convictions of Tak Sun Tan, Jason Chan and Indra Lim. Chan is serving life without parole, Tan 56 years to life, and Lim 26 years to life for the murder.

The threewho were found guilty by three separate juries in the courtroom of since-retired Los Angeles Superior Court Judge J.D. Smithwere identified as members of the Oriental Lazy Boyz gang, or O.L.B. Prosecutors theorized that Ngor was robbed for drug money, and that he was shot twice after he resisted the robbers rather than give up a gold locket containing a photo of his late wife.

Wifes Death

Houy Ngor died in childbirth in 1975 while she and her husband were in forced labor in the rice fields. Their niece, who testified at the trial, explained that while Ngor was a gynecologist, he did not attempt to deliver the child himself for fear that the entire family would be massacred if the ruling Khmer Rougea peasant-based Communist movement that was responsible for perhaps 2 million deaths and despised city-dwellers, educated people, and western influencesm, including western medicine--realized that he was a doctor.

Ngor later escaped to Thailand , came to the United States as a refugee in 1981, and secured a role in the 1984 movie The Killing Fields, in which he portrayed another survivor, Dith Pran, a translator for journalist Sydney Schanberg.

Ngor was honored for the role, his first, as the years Best Supporting Actor and went on to appear in 16 more films. He also wrote an autobiography, continued to work in the medical field, and started a foundation to help the poor in Cambodia .

Defense attorneys argued that their clients were uninvolved and that the killing was political, but presented no evidence to support the theory.

In ordering the three retried, Morrow adopted a magistrate judges findings that Deputy District Attorney Craig Hum was guilty of improper argument. Hum, the court found, played on jurors sympathies by emphasizing Ngors life story, argued contrary to the facts when he claimed that the picture in the locket was the only one Ngor had of his wife, and fictionalized an account of the struggle over the locket.

But Senior Judge Stephen S. Trott, writing for the Ninth Circuit, said the lower court should have deferred to the ruling of this districts Court of Appeal that there was no prosecutorial misconduct.

Trott agreed with the Court of Appeal that while Hums rhetoric may have been a little overblown, his explanation of Ngors life story went to the heart of the prosecution casethat while Ngor willingly gave up his gold Rolex to the robbers, his intense emotional attachment to his locket and unwillingness to give it up explained why he was killed.

That, Trott said, tended to debunk the defense theory and explain why the defendants, who had regularly snatched purses and jewelry from previous victims but had not shot them, acted as they did on this occasion.

The judge also rejected the argument that the prosecutor misstated evidence when he referred to the image in the locket as Ngors only picture of his wife, when in fact he still possessed the negative.

The argument, Trott said, was a failed attempt...to make something out of nothing. It was, the judge said, clear that Dr. Ngor had only one image of his wife.

Jury Instructed

Besides, the judge went on to say, the trial judge took great pains to properly instruct the jury, admonishing multiple times that argument is not evidence and that the verdict was to be based on the evidence and the law rather than on passion or prejudice. The district courts ruling, Trott said, ignored the basic principle that jurors are presumed to follow the trial judges instructions.

The trial record as a whole, Trott added, shows that the defendants were treated fairly. In addition to repeatedly admonishing the jury, Trott said, Smith obtained assurances from the jurors that the victims fame and the fact he received an Oscar would not be factored into the verdict.

To sum up, we are convinced that even if the prosecutors statements were improper in the first place  which they were not  the trial courts numerous and thorough instructions eliminated any risk that the petitioners were denied due process, the appellate jurist wrote.

Chief Judge Mary M. Schroeder and Judge Harry Pregerson concurred in the opinion.

Attorneys on appeal were Deputy Attorney General Victoria B. Wilson for the prosecution and Janyce K.I. Blair of El Segundo and David H. Goodwin of Los Angeles for the defendants.

The case is Tan v. Runnels, 04-55775.