Judicial Toleration of Racial Bias

 

excerpted from: William E. Martin and Peter N. Thompson, Judicial Toleration of Racial Bias in the Minnesota Justice System, 25 Hamline Law Review 235-270, 236-240 (Winter, 2002)(230 Footnotes Omitted)


"I think in part, this state has a false image of itself ... that we [are] different from the rest of the U.S., and we're not. We're as racist as the red hills of Alabama." Chief Judge Kevin Burke, Hennepin County District Court.

Racial bias exists in American society and in Minnesota. Racial bias necessarily exists in the Minnesota justice system to the extent that the justice system implements norms based on societal values. Racial bias persists in the Minnesota justice system because the judiciary is willing to tolerate racial bias to advance other goals. A review of Minnesota Supreme Court decisions could lead to the conclusion that racial or cultural bias is not a problem in the Minnesota justice system. It came as a surprise to some in 1993 when the Minnesota Supreme Court Task Force on Racial Bias in the Judicial System published findings that racial bias was rampant in the Minnesota judicial system. This conclusion seemed inconsistent with the hundreds of pages of appellate opinions that reveal no racial bias or only insignificant incidents of racial bias in Minnesota courts. The Task Force, however, found extensive racial bias at all stages of the criminal process where public officials, including police officers, prosecutors and judges, make discretionary decisions. From the decision of the police officer to make a stop on the street, through the decisions to arrest, charge, plea bargain, set bail and sentence, persons of color receive disproportionately harsh treatment.

More surprising than their conclusion that racial bias permeates Minnesota's justice system was the fact that the authors of the report included many of the judges who had been presiding over this unfair system for so long. According to Rosalie E. Wahl, Associate Justice of the Minnesota Supreme Court and Chair of the Racial Bias Task Force: "The bottom line is that bias exists. It is our obligation to look at and, as necessary, reshape our own approaches as well as the framework and environment of the courts as an institution." The damning conclusions of the Task Force stand in stark contrast to the thousands of pages of appellate opinions in which the courts rarely, if ever, identify serious racial unfairness in the criminal justice system.

Looking in judicial opinions for evidence of racial bias is often like searching for sin at church. Certainly sin is common among the parishioners, but it is difficult to detect on Sunday morning. Prior to 1954, a review of federal appellate opinions also might have led one to believe that state- supported apartheid in the American public school system was benign, providing equal opportunity to African American school children in the United States. In that year the United States Supreme Court had the courage to admit that the Court and the nation had been blind to fundamental inequalities in educational opportunities. In Brown v. Board of Education, the United States Supreme Court reached the remarkable conclusion, known for years by every fifth grader in the South, that "separate educational facilities are inherently unequal" and do not provide equal protection of the laws.

Brown was subject, at first, to the criticism that the Supreme Court had engaged in judicial activism and social engineering, rather than in the application of the law. Certainly Brown and succeeding federal decisions desegregating schools were in the vanguard of the civil rights movement in the United States. In Brown, the United States Supreme Court took a bold step the political arm of the government was unwilling to take.

The Minnesota courts today, like the courts before 1954, often appear oblivious to, or tolerant of, substantial racial bias in the judicial process. Where the United States Supreme Court in Brown was ahead of the mainstream of societal opinion and legislative direction, the Minnesota Supreme Court may be behind. Today, few would argue with the notion that trials in Minnesota should be free of ethnic and racial bias. Nonetheless, the Minnesota Supreme Court, unlike the United States Supreme Court in Brown, often ignores or excuses racial bias in Minnesota trial courts. The Minnesota appellate courts have been unwilling to take a stand against racial bias and unequal treatment in the trial process. Rather, the court has attempted to deal with bias issues through extra-judicial comments in the press or bar journal articles, by mandating education for participants in the justice system or through the work of various task forces.

The Minnesota Supreme Court's most significant response to the grim conclusions of the Task Force on Racial Bias was to appoint another task force to implement the recommendations of the first task force. The legal opinions of the court, however, reflect business as usual. Incidents of racial bias in trials continue to be ignored or are treated as insignificant by the court.

Despite the fact that most of the recommendations in the 1993 Task Force have been implemented, racial bias in the Minnesota justice system appears to be getting worse and not better. Recent studies show that African Americans in Minnesota are arrested for violent crimes at a rate twenty-five times higher than the arrest rate for Whites, a disparity higher than any other state in the nation. Further, although Minnesota was ninety-one percent White as of 1998, forty-eight percent of state prisoners are persons of color. In Minneapolis, persons of color represent thirty-five percent of the population, but over fifty percent of the drivers stopped by the police. In St. Paul, nineteen percent of black motorists were frisked during a traffic stop, compared to eight percent of white motorists stopped.

The problem of racial bias in the Minnesota courts is perplexing because the Minnesota bench has not been occupied by evil jurists bent on perpetuating racism. In fact, Minnesota has been blessed with individual jurists of the highest integrity and competence. Further, there are cases in which the court has addressed difficult issues involving racial bias in uncompromising fashion, clearly and effectively denouncing invidious practices. For example, State v. Russell represents a bold decision attacking laws that have the effect of unfairly discriminating on the basis of race. The Court in Russell held that the statutes punishing possession of crack cocaine--a product used predominantly by Blacks--with sentences substantially greater than those for possession of cocaine powder-- predominantly used by Whites--violated the Equal Protection Clause of the Minnesota Constitution. The decision was controversial and creative, showing that the Minnesota Supreme Court is able to assume a leadership role in combating racial bias in the criminal justice system. Far too often since Russell, the appellate courts have ignored or permitted racially biased practices in the trial process and in the justice system as a whole. Tolerance for biased practices permits, even emboldens, zealous advocates to exploit these practices, believing that in doing so they will maximize their chances of winning.

Given the court's occasional bold decisions and its public, extra- judicial war on racism, the cases that accommodate racial bias in the courtroom are difficult to understand. Frequently, the court tolerates racial bias because it places a higher value on other principles, not because of indifference to bias issues. Oftentimes, persons of color charged with serious crimes, in attempts to have their convictions vacated, make claims of bias. In the name of law enforcement or victim protection, the appellate courts tolerate racial profiling and cultural stereotyping by police and prosecutors. Appellate courts affirm convictions obtained by testimony translated by unqualified interpreters in violation of numerous rules and statutes, because the Minnesota Supreme Court places a high value on judicial economy and law enforcement. The courts look the other way when persons of color are denied their rights to participate in the justice system as jurors, accommodating concerns about crime prevention, judicial economy and the adversary system.

Unless and until the justices of the Minnesota Supreme Court elevate their concern for racial equality in the courtroom above concerns for finality, judicial economy, and crime prevention, Minnesotans will continue to read in the papers about racial injustices in our court system, and persons of color in Minnesota will continue to feel the imposition of racism in the legal system. Judicial economy, crime prevention, and protection of the adversary system are important values. In the context of the history of racial injustice in the court system, however, they operate to perpetuate and encourage unequal treatment of persons of color. The baseline for our justice system must be that all people, including persons of color, resident aliens, new citizens, and those with difficulty speaking English, receive equal justice under the law.

As suggested above, this Article examines four specific areas where the Minnesota Supreme Court has chosen to elevate other values above the deterrence of racial or cultural bias in the justice system:

1) cases involving claims of inadequate translation by non-English speaking defendants;

2) cases of racial and cultural stereotyping in the justice system, including

a) racial profiling in police stops, and

b) the use of cultural evidence in criminal trials;

3) cases in which the court uses the harmless error doctrine to avoid overturning convictions tainted by racial bias; and

4) cases in which obvious pretexts are used to permit the exclusion of African American jurors.

In each of these areas, the court should take the simple step taken in Brown fifty years ago: The Minnesota Supreme Court should stop tolerating racial bias for any reason.


 

William E. Martin and Peter N. Thompson

excerpted from: William E. Martin and Peter N. Thompson, Judicial Toleration of Racial Bias in the Minnesota Justice System, 25 Hamline Law Review 235-270, 240-248 (Winter, 2002)(230 Footnotes Omitted)

 

The Racial Bias Task force concluded that, notwithstanding federal and state statutes requiring competent interpretation, this "extremely important and fundamental issue has been allowed to become a 'stepchild' of the justice system ...." According to the Task Force:

Minnesota has sizable and growing Hispanic and Southeast Asian populations whose primary language is not English. The significant increase in the size of Minnesota's non-English speaking populations has resulted in an increased demand upon the court system to meet the needs and protect the rights of people handicapped by language. The existence of racial bias impedes the administration of justice. The problems inherent with such bias are exacerbated by an inability to communicate directly with people who cannot read, speak or understand English, a difficulty that affects every phase of the judicial process.

Ramsey County District Court Judge Salvador Rosas, a member of the Task Force, explained to a legislative committee:

From one end of the state to another, members of the Southeast Asian and Latino communities told of how they were deprived of their rights .... There are people who have been victimized. As a defense attorney, I represented hundreds of them. I know that many of them went through the proceedings without understanding one word of what was happening to them.

The legislature has funded programs to implement Task Force recommendations for training and certification of court interpreters. This funding augmented an aggressive legislative scheme already requiring the courts to protect the rights of non-English speaking litigants. The legislature has been far ahead of the courts on this issue. As early as 1969, the Minnesota Legislature had recognized the need for interpreters who would protect the constitutional rights of deaf persons and others who had difficulty speaking and understanding English. The current version of this statute establishes that it is "the policy of this state that the constitutional rights of persons handicapped in communication cannot be fully protected unless qualified interpreters are available to assist them in legal proceedings." Interpreters are to be appointed in "any proceeding in which a person handicapped in communication may be subjected to confinement, criminal sanction, or forfeiture of the person's property," including preliminary proceedings. According to the statute, interpreters must be qualified as "able to communicate with the handicapped person ... and accurately repeat and translate the statements of the handicapped person."

Statutes also provide for the appointment of an interpreter for a witness or litigant who is handicapped in communication in a civil action or in any proceeding before a board, commission, agency or licensing authority. The interpreter must be qualified as, "readily able to communicate with the handicapped person, translate the proceedings for the handicapped person, and accurately repeat and translate the statements of the handicapped person to the officials before whom the proceeding is taking place." Interpreter legislation for civil trials also requires that the interpreter take an oath requiring a "true interpretation to the handicapped person being examined of all the proceedings, in a language which the person understands, and that the interpreter will repeat in the English language the statements of the handicapped person to the court ...." The Racial Bias Task Force made numerous specific recommendations for additional procedural reforms, almost all of which have been implemented.

While most would agree that the access to quality interpreters has improved substantially in recent years, the present system remains inadequate. In a newspaper article Chief Justice Blatz recognized the continuing need for improvement in access to competent interpreters, stating:

With a dramatic increase in non-English speaking immigrants throughout Minnesota the courts desperately need more interpreters .... It would be a gross miscarriage of justice if people couldn't understand court proceedings because we didn't provide interpreters. Besides the U.S. constitution requires courts to provide interpreters for those who don't speak English.

In an accompanying article, the newspaper reported a story about a non-English speaking Hmong man who pleaded guilty to violating a protective order in court proceedings without an interpreter. When later asked if he knew he had pleaded guilty the man responded, "No, I wanted to see my wife."

Anecdotal reports, public statements of judges, and official Task Force findings agree that, despite extensive legal protections, there remains a shortage of qualified interpreters in the Minnesota court system that impairs the fundamental fairness of the trial process for non-English speaking litigants. Given this shortage and the widespread claims of unfair treatment, appellate courts should be protecting the trial rights of non-English speaking participants. But appellate judges facing challenges to the adequacy of, or access to, interpreters consistently have held that the specific judgment being questioned should not be reversed. While the Minnesota appellate courts have addressed dozens of appeals raising a variety of issues challenging access to adequate interpretation, the courts have consistently concluded that there was no significant unfairness at trial. Appellate court opinions suggest there is no problem with access to or quality of interpreters in Minnesota. Only once has a criminal trial been reversed because of a trial error involving an interpreter. Either the Task Force findings, the judges' public statements and newspaper reports are unfounded, or the Minnesota appellate courts have too much tolerance for unfairness in the trial process.

The Racial Bias Task Force findings imply that the courts have been too lax in enforcing existing rights, stating, "notwithstanding the existence of a strong state statute ... there is much to be done and a long way to go before full compliance with existing law can be achieved." The Task Force also reported that, "the Public Hearing testimony clearly indicates that despite these guidelines there are substantial problems with the quality of interpreters used in Minnesota courts." Further, the Task Force urged the Minnesota Supreme Court to uphold "a standard of excellence in this area by condemning prejudice in any form and by insisting upon proper procedure and competent interpreters in our courts." The Task Force concluded that "the stakes are too high to settle for mediocrity or for less than what is provided in the federal system."

In its public statements and in its administrative capacity, the Minnesota Supreme Court has consistently expressed an intention to uphold the highest standards for proper interpretation as part of the guarantee of a fair trial. In its judicial capacity, however, the court is willing to overlook major flaws in the trial process.

For example, in the newspaper article discussed above, Chief Justice Blatz plainly stated that the accused has a constitutional right to an interpreter. In its decisions, however, the Minnesota Supreme Court strikes a different note. Minnesota appellate courts have repeatedly stated that the issue of whether an accused gets a competent interpreter is a matter of discretion and not a matter of fundamental right. Perhaps the courts do not actually mean that trial judges have the discretion not to appoint an interpreter when a defendant is handicapped in communication, or the discretion to permit inadequate interpretation. Trial judges must make preliminary findings, however, that require an exercise of judgment. A trial judge must assess whether the accused is in fact handicapped in communication. In reviewing this preliminary question, the appellate courts frequently defer to the fact finder. Describing the entitlement to an interpreter of an accused who is handicapped in communication as a matter of discretion, and not as a matter of fundamental fairness, however, denigrates the importance of the constitutional right. This regular portrayal of the "right" as discretionary is consistent with the appellate courts' substantial tolerance for trial court decisions resulting from flawed interpretation or from violation of the rules designed to insure the fairness of the trial process.

Minnesota appellate courts have been satisfied with the fairness of trials even in cases presenting clear violations of applicable statutes or court rules designed to insure adequate interpretation. To "protect the constitutional rights" of persons handicapped in communication, the legislature has required that all confessions by such individuals be obtained only with the aid of qualified, independent interpreters. Yet, the Minnesota Supreme Court has often held that a violation of this statute does not affect the admissibility of the confession involved. This statute and Minnesota Rule of Evidence 604 require that interpreters be qualified experts interpreting under oath. Yet, the Minnesota Supreme Court has treated these requirements as procedural niceties not critical to protect the fairness of the trial process. The courts have affirmed convictions in cases where the record did not reflect any expert qualifications for the interpreter or show that the "expert" interpreter had been sworn to provide a true translation of the testimony. In State v. Montalvo, the Minnesota Supreme Court affirmed a conviction even though the trial judge had instructed the interpreter that a word for word translation for the accused was unnecessary, leaving the non-attorney interpreter to judge what the accused needed to know.

Rather than insisting on the standard of excellence called for by the Task Force, the Minnesota Appellate Courts have tolerated substantial deviation from the statutes and the Minnesota Supreme Court's own rules. Even when faced with clear error, the Minnesota Supreme Court invariably has failed to require a new trial with access to adequate interpretation. The court has not vigorously protected the rights of non-English speaking litigants.

When trial judges disregard procedures designed to assure the competence of interpreters, erroneous interpretations can result. In State v. Mitjans the court addressed challenges to the accuracy of translated testimony. The court of appeals had reversed Mitjans' murder conviction. The Minnesota Supreme Court upheld the conviction, adopting a legal standard that now makes it virtually impossible for a criminal defendant to obtain appellate relief for a conviction based on faulty translation. In adopting this standard, the court said that "[t]ranslation is an art more than a science, and there is no such thing as a perfect translation of defendant's testimony. Indeed in every case there will be room for disagreement, among expert translators over some aspects of the translation." Without focusing on the specific errors in translation, the court concluded that there should be no reversal because it found the translation "on the whole" to be adequate and accurate.

According to the court, fairness of the trial process is not fatally impaired by an unqualified interpreter, or an interpreter who does not swear to provide an accurate translation, as long as the translator gets "the gist of it." The standard adopted in Mitjans is problematic in criminal cases, where reasonable doubt is the issue. In these cases defense efforts focus on the details, not just the prosecutor's general theme. Cross-examination, as a tool for ascertaining truth, is substantially blunted if the interpreter, while getting the gist of the testimony, mistranslates both the questions and the answers, depriving the jury of the details.

In fairness to the appellate courts, many of the issues involving interpreters arrive on appeal with flawed records. Often, defense counsel has failed to make a proper objection or a proper offer of proof. Thus, the right to an interpreter frequently is trumped by judicial efficiency and concerns about preserving the adversary system. In Mitjans, however, the court had a full trial record and every opportunity to address the issue of fairness to non-English speaking participants, but the court adopted a standard that tolerates inaccuracy.

A second case in which the appellate courts had a full record presenting significant issues of flawed interpretation was the New Chue Her case. On appeal the defendant filed a pro se supplemental brief alleging errors in the translation of testimony at trial. The court of appeals initially had affirmed the conviction, but had not addressed the issues raised in the pro se supplemental brief. The supreme court therefore remanded the case.

On remand, expert interpreters were retained to review the trial audio tapes and compare them with the transcripts. Daniel Mou, a fully qualified expert interpreter presented an extensive report detailing more than 466 errors in translation. His report concluded:

Discrepancies consisted of omissions of crucial segments of testimony and examination questions, outright misinterpretation, use of euphemisms for vulgar and obscene terms, and extensive paraphrasing. The underlying problem seems to be the interpreter's lack of English proficiency. Both interpreters had a tendency to add non-volunteered detail to actual testimony and misinterpret examination questions resulting in non-responsive testimony and examination. Short questions and answers were properly interpreted to an extent, however, lengthy and more sophisticated questions and answers were often misinterpreted and/or interpreted out of context.

Further, the record did not reflect that the trial interpreters had been qualified as experts or sworn as witnesses. All four expert witnesses who testified at the remand hearing agreed that there were errors in interpretation of trial testimony, although there was disagreement about some of the alleged errors and their likely effect on the case.

The court of appeals recognized that some of the translation errors strengthened the state's theory of the case that the victim was "an uneducated, woman, taken advantage of by an experienced and well-educated Her." The court agreed, however, that a proper interpretation would have exposed inconsistencies in the victim's testimony that could have been explored further during her cross-examination. In spite of these potentially prejudicial errors, the court of appeals applied the Mitjans standard and found the interpretation on the whole was "adequate and accurate." The court also decided that appellant had waived the claim that the interpreters were not qualified, and that the trial judge reasonably inferred that one of the interpreters was sworn in.

The court of appeals likely is correct that the flawed interpretation at trial did in factconvey the gist of the victim's testimony. Of course, in this rape case the gist of the victim's testimony, communicated by the interpreter, was that she was raped. The details of a rape claim, developed through cross-examination, provide the opportunity for the defense to prove innocence or establish reasonable doubt. The court of appeals did not explain how an attorney can effectively cross-examine and follow up on answers when both the questions and the answers have been erroneously interpreted.

The New Chue Her case gave the Minnesota Supreme Court an opportunity to put teeth into statutes regulating the use of qualified interpreters in Minnesota. New Chue Her presented an opportunity for the court to address the problems identified by the Racial Bias Task Force. The supreme court chose not to address the problem of inaccurate translations and denied the petition for review.

Within one week after the decision denying review in New Chue Her, Supreme Court Justice Page publicly addressed the need for accurate translations. Speaking in the context of implementing the proposals of the Racial Bias Task Force, Justice Page forcefully advocated reforms in the interpreter process. In the press, justices speak in the strongest terms about protecting against racial bias and the related need for accurate interpretation. When asked to address these issues in its judicial capacity, however, the court has resisted providing guidance and leadership.

The court's reluctance to address this issue cannot be explained as a concern about overstepping its judicial role. Traditionally, decisions and opinions, in contested cases fully briefed and argued, provide the proper venue for the exercise of the judicial function. Justices usually do not attempt to deal with fair trial issues through committees or in newspaper articles. Protecting the constitutional and statutory rights of persons handicapped in communication skills does not call for inappropriate judicial activism; it calls for judges to strictly apply existing statutes and court rules. Even without such statutes, insuring fundamental fairness to all participants in trials in Minnesota through access to qualified interpreters is an inherent part of the court's constitutional responsibility.

Why then is the court reluctant to implement in its decisions the views that the justices advocate publicly and in committees? The court correctly observes that different interpreters might disagree on the proper interpretation of the same testimony. Proper interpretation requires that interpreters exercise judgment and understand context. This fact should encourage the courts to insist that only interpreters who are fully trained and qualified are allowed to provide testimony at trials, rather than justify the appellate courts' "anything goes" approach to reviewing issues involving interpreter errors. Interpreters are expert witnesses just as medical witnesses are experts. Expert interpreters, like medical experts, may disagree. Courts, however, carefully police the qualifications of medical experts and the foundation of medical experts' opinions. The same scrutiny should be applied to the qualifications of interpreters and the foundation of the interpreter's expert translation.

The court's tolerance for shoddy interpreter practices could perhaps be justified by an interest in crime prevention or victim protection. Many of the issues arise in the context of prosecutions for violent crimes. Appellate courts may be reluctant to reverse these convictions obtained through imperfect procedures. Furthermore, as a practical matter, qualified interpreters are scarce. To require the presence of qualified interpreters at trials and plea hearings throughout the state might delay the trial process until a qualified interpreter can be located. Moreover, training and compensating qualified interpreters is expensive.

Similar arguments were made when addressing issues involving other basic trial rights like the right to counsel, the right to cross-examine witnesses, and the right to appeal. Judicial economy and crime prevention do not justify basic unfairness in trial process. A conviction based on a trial where the jury hears inaccurate testimony on key points because of errors in translating the questions and answers is not a fair trial. At present, the appellate courts are willing to accept substantial unfairness in access to competent interpretation in trial procedures.


 

A. Pretext Stops - Racial Profiling

The current political debate on racism has centered on racial profiling by the police. The issue has been the extent to which police officers use their discretionary power to stop, detain, search or arrest in ways that disadvantage persons of color. It is well established that persons of color are stopped by police at much higher rates than white citizens. The debate has focused on the motives of the police, whether racial bias causes the disproportionate effect or whether the effect can be explained otherwise. Most of the recent argument on profiling has focused on the narrow issue of whether the police should be required to keep statistics to assist in understanding the scope of the problem. Lost in this debate about whether to study the problem further is the reality that racial profiling has a devastating impact on persons of color. Also lost in the current debate is the extent to which judicial decisions may have contributed to the problem.

While racial profiling in police stops has been the hot button issue, a link exists between police behavior and judicial acceptance of that behavior. Police engage in racial profiling because the courts allow it. A fair question then is why the courts have not vigorously protected rights to equal treatment in police stops. In public pronouncements, the justices express great concern that persons of color be assured of equal treatment in the justice system. When asked to address the issue in cases before the court, the justices exhibit more tolerance for racially biased practices.

The Minnesota Supreme Court missed an opportunity to denounce racial profiling by the police years before it became a hot political issue in State by Beaulieu v. City of Mounds View. In Beaulieu, the Mounds View police, with guns drawn, had stopped the car of the Agunbiades, an African American female law student and her thirteen-year-old son. The stop was based on a reported armed robbery in another area of Mounds View by a black male wearing black clothing and a shiny, black shirt. The suspect had fled the crime scene on foot. The thirteen-year-old boy in the Agunbiades' car was wearing a navy blue sweater. To justify the stop, the police testified that the mother and son had engaged in suspicious driving and furtive behavior. The disputed police testimony appeared to be contrived to justify the stop. After identifying the driver and her son and searching for weapons, the police released the two.

Beaulieu came to the court on appeal from an administrative law judge's ruling that the defense of official immunity should not bar the mother's claims under the Minnesota Human Rights Act. The Minnesota Supreme Court reversed and held that the doctrine of official immunity applied to the police stop in the case. The court also remanded for a determination whether plaintiffs could establish, as an exception to the official immunity defense, that defendants' treatment of claimants after the stop was based upon intentional racial motivation.

The court ruled, however, that the stop was reasonable under Terry v. Ohio. The court agreed that some of the police officers' explanations for stopping this African American mother and her child were controverted, had been developed "later," and were inconsistent with and unsupported by the police department files. Nonetheless, the court concluded that the stop was reasonable because the vehicle was moving away from the crime scene, the thirteen-year-old was wearing dark clothing and the Agunbiades were African Americans. Since one-half of the cars driving in Mounds View at that time could have been characterized as driving away from the crime scene, the court's primary justification for concluding that this stop was reasonable was that the plaintiffs are African American and the son was wearing dark clothes.

Justice Page emphasized the obvious implications of the Beaulieu holding in dissent:

The court's opinion does not list the most important factor leading to this investigative stop--the fact that most people in Mounds View are white. The Agunbiades were stopped because their race differed from the race which predominates in Mounds View. That most people in Mounds View are white certainly did not give the police a basis for an individualized, articulable suspicion that the Agunbiades were involved in the robbery. This case raises the specter of the police being permitted to stop innocent individuals solely because they happen to be someplace they do not "belong." The court's opinion suggests such stops are simply one of the hazards people who belong to an identifiable minority must be willing to accept. It is unimaginable that a white mother driving her thirteen-year-old son to school would have been stopped had the suspect been a white male.

Justice Page's dissent reveals that the court's analysis would justify the police in stopping any and all African Americans in the community.

In a footnote, the court says that it will not condone police harassment of minorities, but that the Human Rights Act, not the Fourth Amendment, must be the source of protection. The court's bifurcation of the Fourth Amendment stop issue from the discrimination issues side steps the essence of the problem created by racial profiling. When racism is a factor in police stops, it infects all dealings between the police and persons of color. Further, the Human Rights Act claim provides inadequate protection to aggrieved minorities. The requirement that the claimant establish intentional discrimination or malice is extremely difficult, particularly when courts are willing to credit police officers' pretextual testimony about "furtive behavior."

Finally, the official immunity doctrine precludes any Human Rights remedy for unconscious racism, a societal problem no less harmful to minorities than intentional discrimination. In dissent, Justice Wahl addresses the problem, noting that racial discrimination occurs in many forms, some less obvious than others. According to Justice Wahl, unconscious discrimination can be devastating to a minority community, but would effectively be protected under the official immunity doctrine. This type of racism is easily masked when the stop itself is treated purely, or even primarily, as a Fourth Amendment problem. By permitting easy pretext for stops, the courts facilitate racial profiling even as they purport to make inroads into the official immunity defense for the purpose of combating official racism.

The Minnesota Supreme Court is not alone in failing to reject racial profiling. In Whren v. United States the United States Supreme Court not only declined to attack profiling, but rather opened the door even wider for police to use the practice. The Court held in Whren that in Fourth Amendment cases, judges may not consider the actual motives of police officers in evaluating the reasonableness of stops. The holding permits stock testimony, such as that used in Beaulieu, which provided a pretext for blatant racial profiling by alleging suspicious and furtive driving.

Commentators have criticized United States Supreme Court decisions prior to Whren for requiring proof of discriminatory intention in Fourteenth Amendment cases and rejecting cases built solely on statistical proof of disparate impact. At least in these cases, the Court has recognized that intentional discrimination cannot survive an invented or pretextual, non-racial explanation of a challenged government action. Whren expressly permits such pretexts, by completely avoiding the pretext issue in Fourth Amendment cases. Given the pernicious effects of racial profiling on society, when used en masse, the dangers of these Fourth Amendment holdings become clear.

To its credit, the Minnesota Supreme Court has expressed "concern" about this problem in State v. George. A police officer stopped George because the officer mistakenly believed that the headlight configuration of George's motorcycle was illegal. The court held in George that the stop had no objective legal basis, and also found that the defendant had not consented to be searched. Discussing the consent to search issue, the court stated its "concern that police who have enormous discretion in enforcing traffic laws, may take advantage of their right to stop motorists for routine traffic violations in order to target members of groups 'identified by factors that are totally impermissible as a basis for law enforcement activity."' In George, the court expressed "concern" in the context of the consent to a search issue, not in the context of the stop issue. The concern should apply equally to stop cases.

To date, the Minnesota Supreme Court has not directly expressed the same concern about improper motives and pretexts for racial profiling in stop cases. While Whren binds the Minnesota Supreme Court in its interpretation of the Fourth Amendment, the court has the authority, if not the responsibility under the Minnesota State Constitution, to prevent the police from targeting persons of color in traffic stops. If the court is serious about providing equal justice to persons of color in Minnesota, it must clearly and plainly denounce and refuse to tolerate racial profiling evident in the cases that come before it.

B. Stereotyping in the Courtroom

A basic proposition of equal protection and due process of law is that persons of color and persons from different cultures are entitled to equal treatment at trial. Juries should not be encouraged to convict because of an individual's race, skin color, national origin, or supposed cultural characteristics. According to the United States Court of Appeals for the Second Circuit, the use of racial stereotyping can:

violently affect a juror's impartiality and must be removed from the courtroom proceeding to the fullest extent possible. It negates the defendant's right to be tried on the evidence in the case and not on extraneous issues .... [I]t helps further embed the already too deep impressions in public consciousness that there are two standards of justice in the United States. One for Whites and the other for Blacks.

Discrimination based on "ancestry [is] as 'odious' and 'suspect' as that predicated on race."

Racial and cultural stereotypes can infect a trial when introduced as substitutes for specific facts in the individual case. This harm was present in several recent Minnesota sexual assault cases involving defendants and victims of Hmong descent. In these cases, prosecutors were allowed to present a theory that the defendants' consent defenses were false, in part based on "cultural evidence" demonstrating that Hmong men have "cultural" power to coerce sex from "submissive" Hmong women. Also, this cultural testimony purported to establish that Hmong women cannot as a cultural matter voluntarily consent to having sex with a person other than her spouse.

At the trial in State v. New Chue Her the prosecutor argued:

And I would ask you to consider as Mr. Vang [the state's cultural expert] said this morning, it is not proper in Hmong culture for a woman to initiate sex, even with her husband. It is not proper for a woman to touch a man. It is not proper for a woman to kiss a man, and especially in public. There are cultural taboos you heard, even about being alone with a man not of your own class (T2-27). Ask yourself if the woman you saw here is the kind of vixen that this defendant describes. The kind of vixen she would have to be so outside her own culture in behavior (T2-28). Ask yourself whether in the light of all that you have heard about this culture this woman would persuade a leader of the Hmong community to go against his principles to go against his culture.

On appeal, defendant maintained that the cultural evidence and argument offered at trial were improper. Defendant compared the argument that a Hmong woman would not initiate sex to the discredited argument that a white woman would not consent to sex with a black man because it would be against cultural norms. The court of appeals said, however, that the defendant's contentions of cultural stereotyping were "overstated." According to the court, the "prosecutor tried to differentiate [the defendant and the victim] by their social status and educational level not by social or cultural factors."

The court's conclusion that the prosecutor was focusing on education and social status outside the context of Hmong culture is dramatically inconsistent with the trial transcript. The prosecutor summed up its case by stating, "[t]he essential circumstantial fact in understanding this case is the abusive power that was inherent in position, education, the culture between L.Y. and New Chue Her." In other portions of its opinion, the court of appeals acknowledged that "the apparent differences between Hmong and American cultures[,] in their treatment of rape, adultery and female sexuality [,] were a major element of the trial." Finally, the court of appeals agreed that the "we/they argument" and the prosecutor's use of the statement that "this is not [Her's] country, this is our country" was "potentially inflammatory." However, the court held these inflammatory arguments to be harmless error.

In a later rape trial of a different American citizen of Hmong descent, King Buachee Lee, the prosecutor from the New Chue Her case was called as an "expert witness." She testified that she was familiar with the facts in King Buachee Lee because she had worked on the case. She compared the defendant King Buachee Lee to the convicted felon New Chue Her. The "prosecutor/expert witness" testified that there were "strong similarities" between the two cases. The primary similarity she identified was that both King Buachee Lee and the convicted felon, New Chue Her, were Hmong men.

The court of appeals held that this testimony was "unusually prejudicial" and that any probative value was "necessarily based on improper racial and cultural stereotyping." Presumably, in a rape case involving an African American or Italian American defendant, judges would not allow prosecutors to compare the defendant to other African Americans or Italian Americans that the prosecutor had tried and convicted. The Minnesota Supreme Court, nonetheless, reversed the court of appeals judgment, concluding that defendant had "opened the door" to the prosecutor's testimony by introducing an "expert witness" who testified about practices and customs in Hmong communities in Laos in an attempt to impeach the truth of the victims' claims.

In dissent, Justice Tomljanovich addressed this conclusion stating:

The majority says the admission of the testimony is acceptable because the defendant "opened the door" by claiming that the complainants were lying. Although part of the defense was that the women were not telling the truth, I do not believe this should open the door to highly prejudicial expert testimony regarding other rapes in the Hmong community, especially when this testimony was made by an Assistant Ramsey County Attorney who worked on the charging phase of this case. A defendant does not consent to the admission of prejudicial testimony by mounting a defense.

In King Buachee Lee, the prosecutor again argued in closing that the jury should infer guilt from cultural stereotypes. The prosecutor argued that the victim did not report the rapes because Hmong society is "a relatively repressive society for a woman," and urged the jury to believe the alleged victim, not the defendant, because a Hmong woman lacks power, is treated as "the property of her husband" and would fear reprisals if she reported a rape. The prosecutor further argued:

In Laos perhaps that worked, perhaps that format was necessary there in order for things to happen the way that they did, and that should be respected. But it should not, ladies and gentleman, become a shield, excuse, a sword by which a person who is Americanized, more acculturated, can commit acts in violation of our law and then try to use it as a shield to protect himself from the consequences of those acts. It's not been done for any other immigrant group and it should not be done for the Hmong Immigrant group. But, I wanted you to realize when I made comments about the distinctions, I am not disparaging Hmong culture and Hmong tradition. I am merely trying to establish for you how the artful and conniving use of knowledge of Hmong culture and Hmong tradition brought about this horrible result that you are called upon to judge.

As in the New Chue Her case, the prosecutor in King Buachee Lee made the "we/they" argument that marginalizes minorities, asserting:

There are many things that we [presumably, those Americans who are not Hmong] all take for granted because we have been brought up in our environment and that we were exposed to because we are much more cosmopolitan in our scope because we are Native Americans that you cannot presume when you're talking about a first generation immigrant group that has as its basis a social structure that [differs], for the most part, from that which we are familiar with.

Neither the court of appeals, nor the supreme court, addressed this use of cultural stereotyping and improper argument, although the issue was raised by respondent. The supreme court affirmed King Buachee Lee's conviction, reversing the court of appeals.

In both King Buachee Lee and New Chue Her, the state was allowed to advance its case through "cultural" testimony by so-called "expert witnesses." In addition to the use of the "prosecutor/ expert witness" in King Buachee Lee, the state called an anthropologist as an expert witness. Although the "expert" was the Assistant Director of the Southeast Asian Studies program at the University of Washington, she did not speak Hmong, had no experience in rape cases, and had spent only two weeks in Thailand. Based on her review of police reports, trial testimony and one hour interviews with the victims, she testified about the victims' character traits and her observations about their sophistication and degree of Americanization. She was also permitted to answer a hypothetical question about how a Hmong married woman would react in circumstances similar to the prosecution's theory of the case. Although the supreme court noted that the expert opinion was helpful to the state's case, it chose not to address defendant's contention that the expert testimony was improper. In New Chue Her, an American social worker of Hmong descent was treated as an "expert" on social relations in Hmong society. He testified that Hmong women do not initiate sex and that "mostly men force them before they have sex."

The use of "cultural evidence" and argument in the two Minnesota cases cannot be justified by mysterious or exotic concepts unique to Hmong culture. Issues such as whether it is proper for married women to initiate sex with married men, blaming the victim, delay in reporting rape, and rapes resulting from an abuse of power are not unique to the Hmong community. Neither defendant was claiming cultural misunderstanding or cultural justification for rape. In both cases, the issue simply stated, was whether the defendants beat and raped the women. In cases such as these, an individualized trial on particular facts, according to the normal process of the American justice system, is especially appropriate. What hypothetical or real Hmong men or women might do or actually did in other circumstances in Laos or in the United States is patently irrelevant and highly inflammatory. Surely in the trial of an African American, the court would not allow "expert" testimony that other African Americans had committed similar crimes in the past.

In King Buachee Lee, some of the responsibility for the focus on culture may have rested with the defendant, who provided expert testimony about cultural practices in Laos. In New Chue Her, however, as noted by the court of appeals, the cultural stereotyping was initiated by the state. However, regardless of who is responsible, cultural and racial stereotyping are pernicious, harmful tactics, and the effects of such practices are felt well beyond the immediate trial setting. The courts should police such stereotyping, independent of whether it directly determines the outcome of a particular case or was initiated by a defendant. Rather than limiting the use of cultural stereotyping in New Chue Her and King Buachee Lee, the Minnesota appellate courts encouraged racial stereotyping as a feature of our adversary system, at least in cases involving recent immigrant communities.

In State v. Vue, a third case involving a Hmong defendant and Hmong victim, the state again was allowed at trial to encourage the jury to rely on a cultural stereotype of violent, abusive males dominating Hmong women. In this case, a police officer with little or no academic training was allowed to provide testimony as an "expert witness" about Hmong culture. The police officer stated his "expert opinion" that Hmong culture is "male dominated ... women were to be obedient, to be silent, to suffer rather than tell." He also testified about male abuse and how "that pattern is disturbing in the Hmong culture." The court of appeals found this testimony and use of cultural stereotyping to be prejudicial error stating:

While some of these statements could conceivably be relevant to a complainant's reluctance to come forward, their probative value, if any, is based on generalizations that appellant is part of a "guilty class" of spouse-abusers, and the victim is part of a "victim class" of abused women. By asserting that Hmong men tend to abuse their wives, the expert testimony directly implied to the jury that because defendant was Hmong, he was more likely to have assaulted his wife. It is self-evident that this is highly prejudicial. It is impermissible to link a defendant's ethnicity to the likelihood of his guilt.

The testimony in Vue was quite similar to the cultural stereotyping permitted in King Buachee Lee and New Chue Her. The Vue case thus provided an opportunity for the Supreme Court to reassess the use of cultural stereotyping, which it had encouraged by its previous decisions. Unfortunately, the Court denied review, missing the opportunity to address this key issue relating to cultural and racial bias in the courtrooms. As a result, the opinion in King Buachee Lee, endorsing stereotyping when a defendant attempts to cast doubt on the truthfulness of a victim's testimony, remains the Minnesota Supreme Court's latest word on this issue. This is unfortunate, particularly because the fundamental values of our trial system require that persons be tried for the acts they commit, not for the supposed cultural characteristics that determine who they are.


 Part of the difficulty in eliminating racial bias in the courtroom has been the Minnesota Supreme Court's refusal to accept cases raising questions of fair trials for persons of color. When the supreme court has accepted such cases, it often has refused to address the racial issues raised. Further, when the court has chosen to address these issues, it usually has elevated concerns for judicial economy or the protection of criminal convictions above its announced concerns for equal justice and fair trials.

The court's tolerance for trial errors in the use of unqualified interpreters is discussed above. Perhaps the court's application of the harmless error doctrine to affirm convictions obtained through tactics infected with racial or cultural bias is the best indicator of the low priority the Minnesota Supreme Court has placed on eliminating racial bias in the courtroom. In addressing error in criminal trials, the Minnesota Supreme Court uses a different standard of review depending on its view of the seriousness of the error. If the error involves a federal constitutional right, the state courts must follow the standard of review set forth in Chapman v. California. The court must reverse the conviction unless the state can prove that the error was harmless beyond a reasonable doubt. If an error involves the admissibility of evidence or trial procedure not implicating a constitutional concern, the Minnesota appellate courts have used a standard similar to that used in civil cases. For non-constitutional errors, the courts usually require that the accused establish that the evidentiary error affected the verdict. If, however, the non-constitutional error represents "unusually serious" prosecutorial misconduct, the Minnesota Supreme Court has applied the Chapman standard, requiring reversal unless the error is harmless beyond a reasonable doubt.

The Minnesota Supreme Court has found prosecutorial misconduct to be serious when the prosecutor exposed the jury to inadmissible hearsay or made an improper "law and order" argument. Directly appealing to the jurors' racial or cultural biases in order to obtain a conviction, however, has not been regarded as serious.

In King Buachee Lee, the Minnesota Supreme Court agreed with the court of appeals' conclusion that admission of the prosecutor's expert cultural testimony was error. It found, however, that this error was harmless, using the civil harmless error standard rather than the standard for serious prosecutorial misconduct or misconduct of constitutional dimension. According to the supreme court, even if intentionally comparing one Hmong defendant to a convicted Hmong rapist and the use of cultural stereotypes was improper, it was "run of the mill stuff" and not serious misconduct. In the appeal of the New Chue Her case, the court of appeals concluded that the racial stereotyping and appeals to racial prejudice were harmless errors. Following the lead of the supreme court, the appeals court apparently did not regard the error as "serious" prosecutorial misconduct, so it did not use the reasonable doubt standard.

Racism is not an easily contained evil. Once injected into the trial, its impact on the pursuit of justice is rarely harmless. According to A. Leon Higgonbotham:

A racist remark or insinuation by a judge or prosecutor acts as a signal, triggering and mobilizing a host of attitudes and assumptions that may be consciously held or unconsciously harbored by the judge, jury and lawyers in the courtroom. The effect of the racist act or statement can be felt beyond its immediate context: it acts to trip additional racist assumptions at other junctures in the proceeding ....

When a judge or prosecutor makes a racially disparaging remark during the course of a trial, the comment may affect the judgment and actions of the judge, jury, and attorneys for the duration of the case. Consequently, instances of racism in the courtroom cannot be viewed as isolated incidents, limited in effect to the immediate context in which they occurred, or as "harmless error.

If the courts are serious about combating racial bias at trial, they must stop tolerating or trivializing appeals to racial bias. The interest of protecting the finality of criminal convictions should not outweigh the interests of eliminating racial bias and providing fair trials for persons of color. Prosecutors rely on racial stereotyping and appeals to bias because these tactics are effective in obtaining convictions. Attorneys will continue to appeal aggressively to racial and cultural prejudice as long as the courts continue to tolerate such practices. In the context of civil cases, when counsel makes an improper reference to insurance coverage, courts frequently find that this error is prejudicial to the fair trial interests of insurance companies. When courts are willing to protect the fair trial rights of persons of color as vigorously as the economic interests of insurance companies, racist practices in the courtroom will be minimized. Cultural and racial stereotyping is serious. It should not easily be dismissed as harmless error under the civil law standard.

Outside of its judicial role in criminal cases, the supreme court has recognized the seriousness of racial bias in the justice system. In its supervisory role in an attorney discipline case, the supreme court took an approach that differed substantially from the harmless error rule it uses in criminal cases. In the case In Re Charges of Unprofessional Conduct Contained in Panel File 98-26, respondent was a newly hired prosecutor who had taken over a robbery case involving an African American defendant and White victims. A different prosecutor, who had started the case, had prepared a file memo stating that defense counsel was going to interject racial issues into the case improperly, in part by bringing in an African American public defender. Respondent then filed a motion addressing several issues and seeking, inter alia, an order prohibiting defense counsel from "hav[ing] a person of color as co-counsel for the sole purpose of playing upon the emotions of the jury."

After discussing the motion with a supervisor, respondent immediately withdrew the motion and apologized to both defense attorneys. Disciplinary charges were filed nonetheless. The charges resulted in a panel finding that respondent had violated Rule 8.4(d) of the Minnesota Rules of Professional Conduct, which precludes engaging in conduct prejudicial to the administration of justice. Because the panel believed that the misconduct was "isolated and of a non-serious" nature, it recommended a private admonition. On appeal, the Minnesota Supreme Court reversed, finding that the "race based conduct" was serious. The court stated, "[r]acism, whether it takes the form of an individual's overt bigotry or an institution's subtle apathy, is by its very nature serious."

The court's general view that racism is a serious matter certainly should be applauded. In the context of this attorney discipline case, however, juxtaposing the conclusion that respondent engaged in "race-based conduct" with the conclusion that the actions were evidence of unprofessional racism is troubling. Certainly, as a general rule, an attempt to preclude a criminal defendant's choice of counsel is not well advised. But here, respondent was asking the court to preclude the use of a racial strategy at trial. The court explained, "Respondent's motion could reasonably be interpreted as implying that an attorney of color would have no legitimate use on the case other than to arouse the passions of the jury." However, if lawyers are disciplined for good faith attempts to keep race out of trials, it certainly could have a chilling effect on the analysis of tough racial questions. Respondent, not making an argument or advancing any implications, was asking the trial judge to simply rule on whether defense counsel had chosen an improper trial strategy, i.e., whether defense counsel was bringing in an African American lawyer to sit at counsel table for the "sole purpose of playing on the emotions of the jury." Viewed in this way, the motion was based not on racist assumptions by the respondent that African American lawyers lack skill, but on a concern, albeit misguided, that defense counsel was engaging in a trial strategy that improperly injected racism into the trial.

The motion was not well grounded in fact and clearly should have been denied. The lesson from the case may be that attorneys need to be particularly careful when formally raising issues concerning race, and that concerned attorneys should raise these issues only if they will be successful. While prosecutors are permitted to argue that a jury should convict a person of color based on cultural stereotypes, and to provide nonsensical justifications for excluding persons of color from a jury, an attorney who formally raises a motion with the belief that adverse counsel is improperly interjecting race into the trial could be subject to formal disciplinary proceedings.

Juxtaposing the court's strong ruling in the disciplinary action case with its treatment of racial and cultural stereotyping in criminal trials as non-serious, harmless error reveals one of the great difficulties in dealing with race issues. On the one hand, these problems cannot be solved without frank and open discussion, yet people are often challenged for even raising such questions. On the other hand, less obvious forms of racism are often overlooked or minimized when evaluated in the context of other serious problems. Thus, attorney misconduct is "serious" when examined as the main subject of a disciplinary inquiry, but when viewed as an issue complicated by the normal goals of the criminal justice system, the court regards it as non- serious error subject to the harmless error rule. Ironically, the reverse positions in both cases would be most effective in combating racism in the judicial system.

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Prosecutors and state officials have denied persons of color full participation in the American justice system for decades. As early as 1879, the United States Supreme Court, in Strauder v. West Virginia, loudly denounced the systematic exclusion of Black Americans from jury pools, finding that the practice violated equal protection of the laws. But state officials did not readily embrace this holding. Over the past century, the United States Supreme Court has had to reapply this basic principle to numerous and varied state schemes designed to preclude Blacks from participating on grand juries, petit juries or both. In Rose v. Mitchell, the Court noted that "one hundred and fourteen years after the close of the War Between the States and nearly one hundred years after Strauder, racial and other forms of discrimination remain a fact of life in the administration of justice as in our society as a whole."

The United States Supreme Court has been persistent and consistent in denouncing state discrimination in grand juries and in petit jury pools. When the issue focuses on individualized discrimination against minorities by prosecutors exercising peremptory challenges, however, the Court has been more tolerant of racial discrimination.

In Swain v. Alabama, the Court addressed the discriminatory use of peremptory challenges against African American venirepersons. The Court reiterated the general principle that purposeful discrimination excluding Blacks from the jury was unconstitutional. The Court held, however, that as long as the prosecutor did not systematically remove Blacks from jury service over an extended period of time, no violation occurred. Although there was evidence that, based on the memories of county residents, no African American juror had served in a criminal case in that jurisdiction, the Court found no equal protection violation in Swain. The decision effectively renewed prosecutorial license to use peremptory challenges to keep persons of color off of juries.

In Batson v. Kentucky, the Court modified its holding in Swain and concluded that purposeful discrimination in excluding minorities by peremptory challenges in an individual case could be a violation of equal protection. The Court adopted the elaborate doctrine used for addressing discrimination in civil rights cases to resolve this pre- trial issue. First, counsel must object and establish a prima facie claim of intentional discrimination. The prima facie case can be established by proof that peremptory challenges were used to exclude one or more members of a racial group and that circumstances of the case raise an inference that the exclusion was based on race. The trial judge is required to consider "all relevant circumstances."

If a prima facie case is established, the burden shifts to the prosecutor to state a racially neutral reason for the strikes. If a racially neutral explanation is advanced, the challenger must then prove that the stated reason was pretextual and that striking the minority jurors was necessarily the result of purposeful discrimination. The issue of purposeful discrimination is a factual determination for the trial court that will not be reversed on appeal unless clearly erroneous. Batson, however, has not ended the long-standing practice of excluding persons of color from juries.

In dozens of cases in Minnesota, persons of color have maintained that the prosecutor has used peremptory challenges to intentionally exclude non-white venirepersons. Minnesotans might be pleased to learn that despite these numerous appellate challenges, no appellate decision has yet reversed a trial judge's finding that there was no intentional discrimination in the exercise of peremptory challenges. Based on the decisions of the Minnesota appellate courts there would seem not to be a problem in Minnesota. Apparently, attorneys here never use peremptory challenges impermissibly, or trial judges never make mistakes when ruling on Batson challenges. The Minnesota experience is remarkable considering a report that twenty percent of all state court Batson challenges throughout the country have resulted in reversals.

Other evidence calls the holdings of the Minnesota appellate courts into question. Surveys conducted by the Racial Bias Task Force revealed that nearly one-half of the public defenders, and fifty-three percent of the metropolitan judges believe that prosecutors in the state are more likely to use peremptory challenges against jurors who are people of color. Although it is difficult to discern what is occurring at the trial level by reading appellate opinions, the context and sheer number of appeals claiming discrimination raises the question whether discrimination is present, but tolerated by the courts.

In numerous cases, prosecutors have used peremptory challenges to exclude the only minority juror or jurors on the panel, leaving an all white jury to hear the case. Perhaps it is coincidence that prosecutors choose, for reasons unrelated to race, to exclude the only persons of color on these panels. Perhaps racial bias was not implicated in any of the cases. Perhaps Minnesota trial judges, unlike state trial judges throughout the country, are doing a near perfect job of avoiding racial discrimination. But in light of the long history of state attempts to keep persons of color off of juries, and the justice system's poor track record in policing racial bias in other contexts, a different conclusion cannot be rejected out of hand. Perhaps, the Minnesota courts are overly tolerant of racially biased conduct.

The reasons given in cases for excusing prospective jurors, who just happen to be the only persons of color on the panel, often seem contrived or insignificant. Also, these reasons are sometimes developed through intensive adversarial questioning directed exclusively to minority jurors. The Minnesota courts have accepted far-ranging justifications for excluding minority jurors, including the following examples: living in the same neighborhood (North Minneapolis) as the defendant; having experience living in a big city; being new to the neighborhood; working with kids, family members or acquaintances; being involved in the criminal or juvenile justice system; being too quick to answer questions; being youthful and inexperienced; being a foster care worker; knowing a state witness twelve years prior to trial; being too forgiving; participating in a certain life style; or developing a "certain rapport" with adverse counsel.

Several persons of color were struck from juries because they expressed concern about the police or the justice system. Frequently, the concern developed through intensive adversarial questioning, filled with leading questions relating to whether the system was fair to minorities. White venirepersons were not questioned with the same intensity, even though anyone who had read the newspaper reports of the Racial Bias Task Force conclusions would likely have concerns about the fairness of the justice system. Of course, persons of color do not need to read a task force report to know how that justice system treats them.

In State v. Bowers, the Minnesota Supreme Court analyzed a challenge for cause, removing the only Black venireperson after extensive adversarial leading questions about attitudes toward the police and alcohol. The majority found no purposeful discrimination. Justice Wahl, in dissent, however, concluded that the prosecutor's reasons for striking the juror were pretextual. She believed that the prosecutor questioned this African American juror in a manner designed "to invoke a response likely to disqualify her," while the prosecutor had not pursued a similar line of questioning with a white juror who had "a background of personal experiences [that were] virtually indistinguishable." Justice Wahl stated, "racial bias [within the courtroom] mars the integrity of the judicial system and prevents the idea of democratic government from becoming a reality." Ultimately, the harm caused by such "discriminatory jury selection extends beyond that inflicted on the defendant and the excluded juror to touch the entire community." Certainly, the stories taken back to local communities by the numerous persons of color excluded as the only non-white juror on the panel are stories of unequal treatment by the courts. Ironically, the conclusions fairly reached by members of this community are then used to further exclude them from participation as jurors.

Part of the problem in convincing society that the courts will no longer tolerate discrimination in jury selection is the legal standard set by the United States Supreme Court. To rebut the accused's prima facie case of discrimination, all the prosecutor must do is state a non-discriminatory reason for the strike. The reasons can be insignificant or even implausible. The Minnesota Supreme Court has embraced this approach in concluding that to rebut the prima facie case the prosecutor's reason need not even make sense. It would seem to be a fairly obvious point that citizens might lack confidence in the fairness of a justice system in which the prosecutor is permitted to exclude minority members from the jury to preserve an all white jury, justifying the action with nonsensical reasons. Racism is serious and should not be explained away by nonsense.

Theoretically, if the prosecutor's explanation for the strike is not reasonable, the court could infer that the prosecutor has engaged in purposeful discrimination. But the Minnesota courts put a heavy burden on the defendant to prove purposeful discrimination. In many of the reported appeals, the trial judges have deferred to the good faith of the prosecutor, and have not carefully scrutinized the prosecutor's explanation. The trial judge's task is complicated by the reality that any finding of intentional discrimination may have serious ethical implications for the prosecutor. It might be appropriate for judges to give prosecutors the benefit of the doubt before making any finding that a prosecutor's stated reason is a pretext and the prosecutor has in fact engaged in impermissible racial discrimination. Giving broad deference to prosecutors to protect their professional reputations, however, will lead to the untoward exclusion of minorities from juries.

Not yet having reversed any trial judge's finding on this issue, the appellate courts give great deference to trial judges. Even where trial judges make no findings on the issue of purposeful discrimination, or provide no justification for their decision other than a conclusion that the prosecutor stated a non-discriminatory reason, the appellate courts treat this as an "implicit determination" that there was no purposeful discrimination. Certainly the Minnesota Supreme Court's approach cannot be described as a vigilant protection against racial bias in Minnesota jury selection.

A prime example of the nonsense that passes as equal justice in the Minnesota court system is found in State v. Gaitan. In Gaitan, the prosecutor excused the only person of color in the jury venire. When challenged, the prosecutor stated that the juror was excused because of lack of education and difficulty understanding some terms. The trial judge who presided over the voir dire disagreed and sustained the Batson objection reinstating the juror.

The trial judge, however, allowed the prosecutor to research the issue overnight. The next morning, the prosecutor returned with two additional "race- neutral" explanations and additional elaboration for its previously rejected argument. The trial judge then changed its ruling and denied the Batson objection. The supreme court affirmed the ruling.

If the stated reasons for excluding a person of color do not work, the prosecutor now can spend the night researching the laundry list of acceptable reasons until coming up with one that does work. Certainly, most venirepersons of color would fit some acceptable category. In his dissent in Gaitan, Justice Page stated the obvious:

The Court's decision will encourage and permit prosecutors to offer contrived explanations for challenged peremptory strikes of prospective jurors. As a result, the prohibition that prosecutors not base peremptory strikes in jury selection on race or gender, as required by the Equal Protection Clause of the Fourteenth Amendment, ..., may well be rendered meaningless.

One might say that allowing this sort of nonsense to satisfy a requirement under the law will invariably render the law meaningless. In other contexts, the Minnesota Supreme Court has chosen to extend protection to Minnesota citizens under state constitutional grounds. If the Court is serious about restoring confidence that the state justice system provides equal justice and that racism will not be tolerated, it must put an end to the accepted practices resulting in the exclusion of persons of color from juries.


 

The reasons that racism and cultural bias survive in our justice system are complex and to some extent beyond the court's control. In our adversary system, however, zealous advocates will use methods of persuasion that are effective if permitted by the courts. Racism and cultural stereotyping are extremely powerful forces in society and in the courtroom. Whether in the name of crime prevention, judicial economy or another seemingly benign justification, judicial toleration of racism and cultural stereotyping encourages more of the same. Real progress in combating racism and related cultural biases will only be achieved if the courts are willing to elevate the values espoused by the Racial Bias Task Force above competing values. The courthouse should be a place above other places, a setting where minority citizens can expect strict opposition to racism and cultural bias. Sadly, the effects of racism in the courts go beyond the individual cases where racism is encountered. The court should uncompromisingly fight racism and cultural prejudice, employing strict deterrent rules in every area of law where these evils arise.

The failure of the court to enforce laws requiring competent translators in cases involving Asians and Hispanics continues to work an extreme unfairness against those persons. The court's unwillingness to grapple with the problem of racial profiling and police stops has serious repercussions beyond the courtroom. By tolerating expert testimony about cultural stereotypes in cases involving Hmong defendants, the court is allowing evidence of supposed group characteristics to prejudice jurors. Specifically, the court's unwillingness eradicate this problem is apparent in cases involving individuals charged with specific criminal acts. Persons of color are still systematically excluded from juries, perpetuating the distrust that minorities feel towards the justice system.

Brown v. Board of Education provides a model for analyzing judicial approaches to racial and cultural bias; including the actions of the Minnesota Supreme Court with regard to racism in the Minnesota justice system. In Brown I the United States Supreme Court took its essential, principled stand against segregated schools. The Minnesota Supreme Court has essentially taken this step by denouncing racism in the justice system in its public statements, through the Racial Bias Task Force and in its administrative role. In Brown II, however, with its "all deliberate speed" holding, the United States Supreme Court showed what can happen when compromises are permitted to water down remedies designed to fight racial discrimination. For over twenty years after Brown I, little progress was made in desegregating schools. Real progress was made only when uncompromising, deterrent remedies were adopted. Contrary to the public message expressed by the Minnesota Supreme Court and the Racial Bias Task Force, racism and cultural bias continue to exist as the Minnesota justice system settles into the new millennium. We believe they will continue to exist until uncompromising, deterrent remedies are adopted by the court.

Strict judicial approaches to racial and cultural bias are needed, especially now, when the forms of official discrimination and bias may be less obvious than in years past. The Fourteenth Amendment's legal tests have been formulated in terms of intentional racial bias and exclude or minimize evidence of impact as acceptable proofs of official bias. Hence, unconscious racism may create problems of judicial analysis more difficult than those presented by more blatant forms of discrimination. When every pretextual police stop is regarded as nondiscriminatory, or when invented reasons for peremptory challenges of black jurors are accepted, these practices become effectively insulated from corrective action. In essence, the law refuses to see bias where those in the community, and the minorities within that community, see it quite clearly. Unless the Minnesota Supreme Court acts boldly, within its judicial authority, the practices we have discussed here will remain a cancer in the justice system.

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Vernellia R. Randall
Professor of Law
The University of Dayton
School of Law
Dayton, OH 45469-2772
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