| William E. Martin and Peter N.
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, 259-263 (Winter, 2002)(230
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.
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
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.