| 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, 248-259 (Winter, 2002)(230
Footnotes Omitted)
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.
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