Cultural Defenses in the Context of Gang Crimes: Us v. Velasquez
Compiled by Sophie Miller, Marya Carter, Luis M. Rico Roman, and Hana Megumi Yampolsky
Factual Background
Danilo Velasquez was a member of the MS-13 gang and one of many defendants in a large conviction for gang conspiracy. Velasquez was specifically charged with directing MS-13 members to “tax” other gangs, drug dealers, and criminals, to attack and kill actual and suspected Norteños, as well as actual and suspected members of other gangs, to distribute narcotics, to acquire, possess, and use firearms in furtherance of MS-23 13's activities, and to identify and retaliate against individuals who were suspected of cooperating with law enforcement. He was also charged with meeting, discussing and conspiring to murder members of a rival gang.
During his trial, Velasquez attempted to introduce testimony as part of his cultural defense. His defense team was arguing that his cultural upbringing resulted in an inability to form the requisite mens rea to commit the charged crimes.
Velasquez was born in a remote village in Guatemala called Trinidad. Trinidad is known as the most culturally conservative and traditional area of Guatemala. During the Guatemalan civil war, this area saw extreme violence and a large genocide of the indigenous Mayan community. There were 88 documented massacres during this time. Velasquez grew up surrounded by this violence, but was too little to grasp the politics behind it.
Velasquez also grew up informed by traditional Mayan values. In Mayan culture, people believe that misfortune and physical ailments are a result of witchcraft. Velasquez was also sexually abused by his brothers. All this means that by the time Velasquez immigrated to the United States, he had witnessed and experienced severe trauma and violence. He learned very specific survival tools.
Velasquez’s story is common of Guatemalan refugees escaping social and political turmoil. To this day, Guatemalan refugees seek to enter the United States escaping conflict and turmoil in their country.
Given Velasquez’s experiences, two experts were brought in to testify on his case: Dr. Allan Burns and Dr. Gretchen White. For the purposes of this web page and project, only Dr. Allan Burns’s career and testimony are discussed.
The Expert: Dr. Allan Burns
Dr Allan Burns is a Professor Emeritus of Anthropology at the University of Florida. He has obtained a Bachelor of Science from Iowa State University and received an M.A and PhD in anthropology from University of Washington.
His areas of specialization are the following: Applied Anthropology, Mexico and Central America, Medical Anthropology, Language and Culture, Immigration. Dr. Burns speaks fluent Mayan, Spanish and has taught in Mexico, El Salvador, and Guatemala. Dr. Burns is also a sworn federal witness for testimony on the social and political conditions in Mexico and Central America.
To determine whether Dr Burns is a valid expert to testify, courts look at Rule 702 which states:
A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:
(a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and methods; and
(d) the expert has reliably applied the principles and methods to the facts of the case
Dr. Burns is qualified under rule 702. He is well educated and well versed in diverse subjects relating to Latin America. However, what makes Dr. Burns a qualified expert is his research. Dr. Allan Burns has published over 90 articles, book chapters and applied anthropology reports. His studies have focused on the Mayan language, culture in the Yucatan of Mexico, Chiapas, Guatemala and the culture among Guatemalan refugees in the United States. His research on Guatemala and Guatemalan refugees is extensive and pertinent to the U.S. vs Velasquez case.
Some examples of Dr. Burn’s research in this area include the following:
- Maya in Exile: Guatemalans in Florida, Temple University Press, Philadelphia Pennsylvania, 214 pp 1993. → This article studies the emergence of the Guatemalan Maya community in the United States. Since the 1980’s small towns in Florida have become migration destinations for Mayan’s escaping the Guatemalan government and military. Mayan refugees first sought asylum in Mexico but the Guatemalan government troops raided refugee camps in Chiapas. As a result, many fled to the United States. Burns’s study focuses on Indiantown, Florida where there are 4 or 5 thousand Mayas to learn how they got to the US and understand their integration into the country
- Salud Entre Dos Culturas “Health between two cultures”:→ A video documentary on Guatemalan immigrant women’s lives and health issues in South Florida.
- The Maya of the Southeastern United States: Waves of Guatemalan Immigrants and their Transnational Lives” → Book studying the larger Maya community in the United States
- The Maya Diaspora and Applied Anthropology in Indiantown, Florida
Other Research and or grants:
Dr. Allan Burns has received multiple grants to conduct research in the United States, Mexico, Guatemala and El Salvador. Some of these studies include:
- 1992-1996. Interethnic Adjustment of Immigrants (Co-Principal Investigator with David Griffith, East Carolina University) A NSF project involving comparison of four sites in Florida, North Carolina, and California in terms of immigrant adjustment to multi ethnic communities of Guatemalans, Haitians, Mexicans, African Americans, and Cubans. ($8,000 per year for Guatemalan ethnography)
- 1990-1991. Prenatal Care in Indiantown, Florida. P.I. on contract with March of Dimes Foundation to develop a local committee on prenatal care among Guatemalan Maya immigrants to Florida and to write and produce an instructional video on the use of clinics and other prenatal resources, $8,400.
Dr. Allan Burns has engaged sufficiently with the Guatemalan refugee community in the United States to speak fluently on their experiences and cultural values. His research presents different case studies while operating under applied anthropological frameworks. His studies on Guatemalan refugees cover diverse topics ranging from health issues to their integration into the United States. Moreover, given how his work has been published across different mediums (documentary videos, scholarly articles, books) he is capable of making the information accessible for a court.
Here is a link to Dr. Burns’s Curriculum Vitae if you want more information: Burns CV January 2013
Challenges to Neutrality
There were no challenges to the neutrality of Dr. Allan Burns in serving as an expert. Whether or not there should have been challenges is hard to determine. On the one hand, Dr. Burns is clearly a well versed authority in the field. However, someone could question his engagements with the Guatemalan community beyond his research. For example, Dr. Burns has served as a member of the Board of Directors for “Corn Maya” an association of Guatemalan Mayan people in the United States. Furthermore, he is a member on the board of the Guatemala Tomorrow Foundation (a non-profit NGO helping indigenous communities in Guatemala). Given these positions, someone could potentially challenge his ability to serve as an impartial expert on the Guatemalan refugee community. On the other hand, one could argue that these positions merely accentuate his ability to accurately speak on the cultural values of Guatemalans.
The Social Science Research
When evaluating the research, the court should look at whether the underlying research is widely accepted by the scientific community, and consider whether the scientific method(s) used are followed by others in similar fields for similar topics and defenses.
In this case, it is tough to know for sure whether or not Dr. Burns’s report is generally accepted because we do not have access to the ways in which he conducted his research, nor do we have the actual research itself. However, Dr. Burns did interview and investigate Velasquez to understand his background. He then used his knowledge of the culture, country, and community to better understand Velasquez and the ways in which his upbringing, home country, and life experiences led to Velasquez being before the court. Dr. Burns believed that Danilo Velasquez’s mental state, choices, knowledge and intent are affected by the context of a weakened psyche due to systematic abuse and mental limitations given his background and experiences.
Dr. Burns’s documents report the social, cultural, and political conditions of the Northwestern Highlands of Guatemala during the 1980s and 1990s. It also contains a description of conditions that children and young adults encountered when they came unaccompanied from Guatemala during this time.
This report is based on Dr. Burns’s research in Guatemala, Southern Mexico, and the United States. The research he conducted for the Velasquez report would be generally accepted and the scientific principles on which the report was built on are generally sound.
Frye or Daubert gatekeeping
Frye: The standard for admission of expert scientific evidence is that the evidence is admissible if the science has gained general acceptance in the relevant scientific community. If the science has not gained such acceptance, then the court may exclude it.
- In our case, this is federal court, so the Frye test wouldn’t be applied.
Daubert: The Daubert test doesn’t examine the materials themselves, but instead questions the methodology used to create the materials. The reasoning behind the testimony must be scientifically valid and must be applied to the facts of the case. Daubert expands the scope of evidence admissible under the Federal Rules of Evidence, ensuring that the trial judge will serve in a “gatekeeper” role in screening the evidence.
- In our case, Defendant Velasquez sought to present “cultural defense” expert testimony through Dr. Burns to support his theory that he did not have the requisite mental state to commit the charged crimes. Dr. Burns was not permitted to testify because his opinions were based on cultural stereotypes and generalizations that had no probative value in the case. According to the court, Dr. Burns’s opinions “address the general social, cultural, and political conditions of the Guatemalan region in which defendant Velasquez was allegedly born and raised and the purported practices and beliefs of defendant Velasquez's indigenous Mayan group.” However, there was no indication that the conditions, views, or practices were actually experienced by defendant Velasquez, nor was it relevant to the issue of guilt or any of the crimes that the Defendant was being charged for. As a result, because the court did not believe that Dr. Burns’s testimony applied to the facts of the case and to the issues at hand, we do not believe that the testimony itself would pass Daubert’s gatekeeping.
Relevance to the Legal Issue in the Case
Dr. Allan Burns’s testimony was ultimately excluded by the court. The court believed that Velasquez’s cultural experiences and suffering as a child were not relevant to whether or not he was guilty of the criminal charges. In other words, the court did not believe that Velasquez’s suffering and cultural upbringing had any impact on his requisite mental state at the time the crimes were committed.
The court further stated that “Expert testimony based on cultural stereotyping may be excluded under Rule 403 as irrelevant or unhelpful to resolving an issue of guilt.” The court was concerned that the testimony presented by Dr. Burns would only confuse the jury and run a substantial risk of unfair prejudice against the government. Dr. Burns wanted to testify that indigenous people are often viewed with contempt in Guatemala and abroad, and are subject to persecution. However, the court believed that this also did not impact any issue in the case. Rather, the court felt this testimony would impair the jury’s ability to sift through and fairly evaluate the government’s case.
The importance of the social science evidence to the major claims being adjudicated
We believe that the social science evidence conducted by Dr. Allan Burns is important to the legal issue at hand. The disruptions Velasquez experienced, either from immigrating, being abandoned by his entire family, or the Mayan Genocide, left Velasquez without any social networks. Dr. Burns’s testimony stated, “[Velasquez’s] descriptions are cumulatively worse than many, because the spiral of abandonment and culture shock never allowed him the chance to overcome failures of socialization and any societal referents.”
The testimony was further relevant because it explained how Velasquez’s cultural upbringing informed his decision to join a gang. Specifically, Dr. Burns was going to testify that Velasquez’s ability to understand the parameters of American society and his ability to grasp the roles of police and courts are informed by the violent upbringing he experienced in Guatemala. His weakened psyche is a result of the systemic abuse he experienced as a child. These experiences meant that Velasquez’s violent behavior is learned - it is a survival skill. He witnessed death, murder and harassment, and was taught to respond to interpersonal issues with more violence. This meant he viewed his actions in a completely different cultural context from the jury.
The other witness testifying on behalf of the defense, Dr. Gretchen White, was going to rely on the testimony of Dr. Burns to further her testimony. Dr. White diagnosed Velasquez with “mental retardation, major depression with recurrent psychotic features, delusional disorder, psychotic disorder, and PTSD.” She was also going to show how the cultural factors described by Dr. Burns affect judgment, interpretation, mental state and decision making. Without Dr. Burns’s testimony, Dr. White’s testimony seems incomplete. For example, Dr. Burns was going to testify that mental health is viewed differently in Mayan culture. Witchcraft is highly important in Mayan culture, and is used to explain different mental health disorders. To a Mayan person, voices in one’s head might be seen as normal. These cultural discrepancies clearly demonstrate that Dr. Burns could have provided valuable insights.
The court discredits Dr. Burns’s testimony by saying that it is based on his own personal experiences. However, auto-ethnography is a key methodological tool in anthropological research. Clifford Geertz outlined the concept of Deep Hanging Out to describe the method by which anthropologists immerse themselves in another culture for an extended period of time. The experience is then described based on one’s own perspective through an ethnography. The idea is to recognize one’s own positionality and how it informs our experiences of different situations. Recognizing one’s personal experience is central to modern anthropological research.
The Court’s Treatment of the Expert and Expert Evidence
To reiterate: the court refused to admit Dr. Burns’s “cultural defense” testimony under Rule 403:
“The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.” |
They extended this limitation to Dr. White’s testimony, barring her from incorporating any cultural evidence into her analysis of his mental state. Dr. White was planning to testify that “Mr. Velasquez would be unable to form the intent to join a conspiracy or participate in an enterprise, criminal or not” and “it is extremely unlikely that he would be capable of forming the mental state necessary to knowingly and voluntarily enter into the alleged gang conspiracy” (from the Memorandum Opinion).
In addition, the court limited Dr. White’s evidence on Rule 704(b) grounds:
“No expert witness testifying with respect to the mental state or condition of a defendant in a criminal case may state an opinion or inference as to whether the defendant did or did not have the mental state or condition constituting an element of the crime charged or of a defense thereto. Such ultimate issues are matters for the trier of fact alone.” |
Did the judge get it right?
The memorandum raises a number of reasons for rejecting Dr. Burns’s testimony under rule 703.
First, the memorandum claims that there is “no indication that the conditions, views, or practices were actually experienced by defendant Velasquez.” The court states that Dr. White’s (the mental condition expert) examination actually revealed that Velasquez was culturally isolated and therefore the cultural evidence offered by Dr. Burns was inapplicable -- in other words, the broader social and political context did not apply to him because he was so alone and unaware of the causes of political turmoil.
This is a particularly troubling statement because it suggests that the cultural evidence would only be admissible if the defendant were fully aware of the broader circumstances surrounding his upbringing -- when much of the expert testimony illustrates how youth in Guatemala (and Velasquez specifically) often couldn’t see or understand the broader social and political context.
Next, the court states that even if Dr. Burns’s testimony was reliable, it would still be irrelevant to the legal question because there was no indication that his struggles had any impact on Velasquez's mental condition at any time relevant to the charges.
This too feels like a narrow reading of “relevance”; there have been several cases where defendants have been allowed to introduce cultural evidence to help illustrate an ongoing struggle in order to illuminate the defendants’ mental state during the act. See, for example, People v. Poddar (Tarasoff case, where the judge permitted defendant witnesses to testify to facts of cross-cultural difficulties), or People v. Wu (where the court found that defendant’s Chinese cultural background was relevant to her mental state at the time of the murder of her son).
Finally, the court states that “the opinion that some indigenous people are viewed with contempt abroad and are subject to persecution does not impact any issue in our case. But the description of the plight of persecuted indigenous populations will confuse the issues.”
The court seems to imply that this evidence is being offered to make the defendant a more sympathetic figure in the jury’s eyes. While humanizing Velasquez may have been one goal the defense sought to achieve through Dr. Burns’s testimony, it was clearly not the only one -- as pointed out earlier, Velasquez’s upbringing is essential to understanding where his violent survival skills came from.