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 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, 259-263 (Winter, 2002)(230 Footnotes Omitted)

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.


Judicial Toleration of Racial Bias: Introduction
Tolerating Inadequate Access to Competent Interpreters
Tolerating Racial and Cultural Stereotypes in the Justice System
Tolerating Trial Errors Involving Issues of Race and Culture
Tolerating Racism in the Selection of Jurors
Judicial Tolerance of Racial Bias: Conclusion