Removing Bias from the Minnesota Justice System
by William E. Martin and Peter N. Thompson

Nothing marginalizes groups in American society more than unfair treatment in the justice system. Justice is not a privilege for the special few but a right of all. Unfortunately, the racial, ethnic and cultural biases1 that continue to fester in American society find their way too often into the American legal system.

Bias in the Minnesota justice system was recognized officially in 1993 by the Minnesota Supreme Court Task Force on Racial Bias in the Judicial System.2 The task force found that all aspects of the justice system from first contact with the police, through charging, trial, and sentencing were infected by racial bias. According to the task force chair, Justice Rosalie E. Wahl, “The bottom line is that bias exists. It is our obligation to look at and, as necessary, to reshape our own approaches as well as the frame work and environment of the courts as an institution.”

The judiciary, and in particular the Supreme Court, must take responsibility for insuring equal justice in the courtroom. In their attempts to change the environment of the courts through training and education, the justices of the Minnesota Supreme Court have been outspoken. Racial bias is now the subject of mandatory continuing legal education throughout the state and racial bias in the trial process has been the subject of numerous interviews and speeches by Supreme Court justices. Also, to promote fairness to ethnic groups, regulations for training and certifying qualified interpreters have been implemented.

While the Court has worked to change the environment through education, the disparate impact of the justice system on people of color seems not to have improved.3 Perhaps it is now time for the Supreme Court to heed all of Justice Wahl’s admonition and examine and change the Court’s own rulings, which all too often tolerate and thus perpetuate bias in the justice system.

The Minnesota Supreme Court has been in the forefront of the battle against bias in its public pronouncements and in its administrative capacity. In its judicial capacity, however, the Court has not always adopted strong measures to uphold its equal justice principles. In many of its legal opinions, the Minnesota Supreme Court has expressed “concern” about racial unfairness in a trial,4 but rarely has the Court found racial bias a ground to reverse for a new trial free of bias. Notwithstanding task force reports and repeated pronouncements by justices in the press and elsewhere about the pernicious effects of race in the justice system, in only a few cases in the past decade has the Supreme Court found racial, ethnic or cultural bias sufficiently important to change the result of a trial or repeat it.5 The Court does not cause racial bias, but its willingness to affirm cases involving biased practices encourages zealous participants in the adversary process to use questionable practices to win.

Some argue that the dearth of cases in Minnesota finding racial bias is evidence that the justice system in Minnesota is not infected by racial unfairness. Indeed, the findings of the task force have been attacked as empirically unsound.6 These challenges are unconvincing for at least three reasons. First, looking for proof of injustice to a scientific certainty is unrealistic. Social action must often be based on the best evidence available including statistics and the collected stories of the Americans affected. There is now a broad consensus that arrest percentages, police stops based on racial profiling, and other statistical indications of racially biased practices, including jury selection practices, do in fact show disparate treatment in the system as a whole.7 The conclusions in Minnesota are replicated throughout the country.

Secondly, it does not require proof to a scientific certainty to recognize unfair bias in individual cases, as in some of the cases discussed below dealing with peremptory challenges of jurors, racial profiling in police stops, shoddy practices in translation for non-English-speaking defendants, and the admission of blatantly stereotyping “cultural testimony” at trial. Finally, the insistence upon statistical certainty in proof of bias is based upon an assumption, ingrained in much of our equal protection jurisprudence, that only intentional bias reflecting racial animus should be made the basis of judicial action. We believe, however, that the concern here should not alone be whether the state is violating the 14th Amendment by intentional discrimination established by proof of animus, but whether we as lawyers, judges, and citizens should adopt inclusive practices and rules to assure equal justice in Minnesota courtrooms.

Scores of cases raising issues of racial bias have been taken up to the Minnesota appellate courts.8 In some of these cases, flaws in the record may have clouded the bias issues raised on appeal. The Court, however, has had numerous opportunities to set a clear policy of intolerance for racial, ethnic and cultural bias, but has not done so.

The Supreme Court’s approach to issues involving access to qualified interpreters provides an example. The Court, in its decisions in interpreter cases, simply has not been diligent in assuring fairness in the trial process. Although errors in interpreter procedures, limited access to qualified interpreters, and inaccuracy of interpretations have been raised in dozens of cases, not once has the Supreme Court reversed a judgment in the cases.9 In State v. New Chue Her, the Supreme Court did remand a case to address a pro se brief alleging numerous errors in interpretation. Although evidence was presented of over 400 errors in translation and there was nothing in the record to indicate that the interpreters were qualified and sworn, the Court of Appeals affirmed the conviction and the Supreme Court denied review.10  The system of interpretation in Minnesota has improved considerably since the task force concluded that the courts had made the system the “stepchild of the justice system,” but there remain major problems with access to and use of qualified interpreters. Yet the courts continue to tolerate practices that jeopardize the fairness of the trial process. The Court has affirmed or refused to review cases where there was no inquiry into the qualifications of the interpreter, where the interpreter was not sworn in,11 or where the judge instructed the nonlawyer interpreter not to bother with a word-for-word interpretation but to just interpret what the interpreter thought the defendant needed to know.12

Although the Legislature has long understood the need to provide qualified neutral interpreters, both in the court room and when police interview suspects with language difficulties,13 the Court refuses to put teeth into the legislation and affirms cases regardless of statutory violations. For example in State v. Mitjans,14 the leading Minnesota case, the Court allowed admission into evidence of a confession taken by an unsworn police officer and not a sworn, neutral interpreter, as required by the statute. Although the Court’s holding virtually ignored the statute, the Court seemed to realize the importance of qualified, neutral interpreters. In dictum the Court instructed the police how to do it right and suggested they should follow the statute next time. Of course, in subsequent cases, the police have followed the holding and not the dictum and the Court of Appeals again has permitted in evidence statements taken in violation of the statute15.

Mitjans also set a standard for review of inaccurate translations that makes it all but impossible for a defendant to obtain appellate relief based upon a faulty translation. The Supreme Court was reluctant to carefully scrutinize the accuracy of the translation in Mitjans on the theory that even qualified translators can differ on the same translation. After examining the specific claims of erroneous translation in Mitjans, the Supreme Court adopted a permissive standard of review, accepting translations with significant errors if the translation is “on the whole adequate and accurate.”16 Although in a self-defense case, like Mitjans, differences in meaning between the translator’s “caution” rather than the correct “coerce,” or the translator’s “to tackle” rather than the correct “came at him like a charging bull” might suggest different lines of defense, the Supreme Court found these differences to be insignificant.

The Court has sanctioned translations that get the gist of testimony, though they may be inaccurate on details about the critical events of the case. Perhaps given the nature of translation there is an argument to avoid an overly exacting standard. However, given the fundamental nature of a right to a fair trial, and the arguments supporting the need for fairness to persons from minority communities who do not speak or understand English well, there are strong reasons to require a standard of accuracy more exacting than the translator got it right “on the whole.” To focus away from the accuracy of the details is to undercut the ability of defendants to establish reasonable doubt through cross-examination, a critical fair trial protection.

The unfairness of translation practices can be understood in human terms from anecdotal evidence. Judge Salvador Rosas of Ramsey County District Court, a member of the Racial Bias Task Force, testified to the Legislature that when he was a defense attorney he knew of many Southeast Asians and Latinos who had gone through proceedings “without understanding one word of what was happening to them.”17 Indeed, the same newspaper edition that quoted Chief Justice Blatz as recognizing a constitutional dimension to the need to improve the interpreter system reported the story of a Hmong man who had pleaded guilty to violating a protective order in a proceeding without an interpreter. When asked later if he had been aware of his guilty plea, he said: “No, I want to see my wife.”18 Bending rules designed to insure neutral, qualified interpreters is expedient and will continue if the courts allow it. New procedures, standards, and enforcement mechanisms will not amount to much if the Court is unwilling to vigorously enforce the existing rules to assure equal justice.

The Supreme Court also has had several opportunities to address the use of cultural stereotyping and prosecutorial appeals to ethnic bias in the trial process. The Supreme Court has affirmed or refused to review cases in which the state had advanced the theory at trial that the testimony of the alleged rape victims must be true because it was consistent with Hmong culture where the men, like the defendant, are violent predators and the women, like the victims, are passive recipients of male violence.19 In the King Buachee Lee case, a prosecutor testified as an expert witness that the Hmong defendant on trial for rape was similar to the convicted Hmong rapist she had prosecuted in a previous case. In these cases the courts allowed the prosecution to marginalize the Hmong defendants by making a “we/they” argument, that “we Americans” are different from the Hmong defendants. Similarly, in a gang-related case involving an African-American defendant, African-American defense witnesses, and an all white jury, the court affirmed although the prosecution had accentuated its gang theory by arguing to the all white jury “[T]he people that are involved in this [defendant’s] world are not people from your world ... these are the defendant’s people.”20 In State v. Vue, 606 N.W.2d 719 (Minn. App. 2000), the Court of Appeals did reverse a convicion based on cultural stereotyping, but the Supreme Court refused to hear the case on appeal.

Appeals to racial or cultural bias, or attempts to invoke “white guilt” by playing the “race card” can be powerful tools at trial. Aggressive prosecutors will use these tools because they work, if the courts permit it.

Full participation in the justice system remains a problem for non-white citizens who are routinely excluded from juries. As early as 1879 the United States Supreme Court in Strauder v. West Virginia21 denounced the systematic exclusion of black Americans from jury pools, finding that the practice violated equal protection of the laws. But state officials and prosecutors resisted equal minority access to juries for over a century through the use of peremptory challenges. Finally, in Batson v. Kentucky22 the United States Supreme Court held that purposeful exclusion of minorities by peremptory challenges violates the equal protection clause. The Court, however, adopted an elaborate intentional discrimination legal standard to prove a Batson violation. The difficult burden of proof for defendants has permitted pretextual reasons asserted by prosecutors to perpetuate the practice of excluding persons of color from juries. In dozens of appellate cases in Minnesota, the prosecutor’s exclusion of the only possible nonwhite jurors has been challenged. Yet, only once has an appellate court reversed.23 The Minnesota experience is remarkable since according to one study, 20 percent of Batson challenges in other states’ courts have resulted in reversals.24

The reasons given for excluding minority persons from Minnesota juries often seem contrived or insignificant, and sometimes are developed through adversarial questioning not directed at white jurors. The Minnesota courts are certainly lenient in accepting justifications for excluding minority jurors.  Minority persons have been excluded for living in the same neighborhood (North Minneapolis) as defendant,25 experience living in a big city,26 being new to the neighborhood,27 working with kids, family members or acquaintances,28 being involved in the criminal or juvenile justice system,29 being too quick to answer questions,30 youth and inexperience,31 being a foster care worker,32 knowing a state witness 12 years ago,33 being too forgiving,34 lifestyle,35 or having rapport with adverse counsel.36 In State v. Bowers,37 the prosecutor developed an African-American juror’s bad experiences with police through adversarial, leading questions, but did not question white jurors about similar experiences. Several persons of color have been struck from juries in Minnesota appellate cases because they expressed concern about the police or the justice system.38

In State v. Buggs,39 a white woman was excluded from a jury because she expressed a concern about the absence of minorities on the jury and about how persons of color are treated by the system. This case may reveal why prosecutors use peremptory challenges to systematically remove African Americans from juries in criminal cases. Prosecutors are not motivated by racial animus, but a belief that minorities are more likely than other jurors to mistrust the police. Obviously, a prosecutor desiring to “win” a jury trial in a case reliant on police testimony would be leery of having African Americans empaneled. If this concern is regarded as a legitimate, nondiscriminatory basis for exclusion under Batson, it produces a Catch-22 for the justice system. One of the reasons we want full minority participation in the justice system is to build trust. Continued exclusion of African Americans from juries by the state is not the optimal way to attain full participation and trust. Certainly the stories taken back to local communities by the numerous persons of color excluded as the only non-white jurors on the panel, are told as stories of unequal treatment by the courts. Ironically, the conclusions fairly reached by members of this community may then later be used to exclude others of the same community.

Part of the problem in convincing minority communities that the courts no longer tolerate discrimination in jury selection is the legal test set by the United States Supreme Court in Batson. To rebut a prima facie case of discrimination, all the prosecutor must do is state a nondiscriminatory reason for the strike. The reasons offered may be insignificant or implausible. The Minnesota Supreme Court has embraced this approach in concluding that to rebut a prima facie case the prosecutor’s reason need not even make sense.40 Allowing nonsense to satisfy a requirement under the law will invariably render the law meaningless.

In other contexts, where federal interpretations of the U.S. Constitution are deemed inadequate to protect Minnesota values, the Minnesota Supreme Court has chosen to extend protection to Minnesota citizens on state constitutional grounds.41 If the Court is serious about restoring confidence that the state justice system provides equal justice, free of racial bias, it must end the exclusion of persons of color from juries. It will only do this if it recognizes that the impact of exclusion upon minority communities, not racial animus alone, is the critical issue. The Court must end the practice of accepting pretextual reasons for exclusion of African Americans from juries if it hopes to serve its announced goals of inclusion and a bias-free system.

While some continue to argue about the statistical validity of evidence supporting claims of racial profiling by the police, no one disputes that persons of color are stopped by police at much higher rates than are white citizens.42 As with exclusion of African Americans from juries, the devastating impact of racial profiling upon minority communities and upon their trust of the police and the courts is uncontestable. But the police will continue this practice as long as the courts allow it, not always because of animus, but because the police believe it to be an effective tool.

The Minnesota Supreme Court missed an opportunity to denounce racial profiling in State by Beaulieu v. City of Mounds View.43 In Beaulieu, the police, with guns drawn, stopped a car driven by an African-American mother and her 13-year-old son. The police were responding to a report of an armed robbery in another area of Mounds View by a black male wearing black clothing, who had fled on foot. The 13-year-old was wearing blue. Although the Court suggested a possible action under the Minnesota Human Rights Act, it expressly stated that the stop was reasonable under the Constitution.

The obvious implications of the Beaulieu holding were emphasized in Justice Alan Page’s dissent:

Justice Rosalie Wahl also dissented, 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 is effectively sheltered by the ruling in this case. By permitting an obvious pretext to justify the stop under the 4th Amendment, the Court facilitated racial profiling even as it purported to allow an exception to the official immunity defense for the purpose of combating official racism.

To its credit, the Minnesota Supreme Court has expressed “concern” about this version of the pretext problem in State v. George.44 George was stopped because the police officer mistakenly believed that the headlight configuration of his 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.”45 The “concern” in George was expressed in the context of the consent to search issue, not in the context of the stop issue. The concern should apply equally to all stop cases. As a matter of state constitutional law, the Supreme Court should not permit pretextual stops of persons of color.

The judiciary in Minnesota is comprised of well-meaning jurists who do not want to perpetuate racial, ethnic or cultural bias. Yet, if racial bias continues in the Minnesota justice system, as was found by the task force and has been publicly acknowledged by Supreme Court justices, why do the Minnesota courts permit it to continue? One reason may be that in each of the individual cases coming before the courts, other legitimate policies or considerations seem to be more important than a strict judicial approach to equal justice. Many of the cases discussed above are appeals from criminal convictions, often involving violent crimes. The interests in finality, judicial economy, and crime prevention are important policy considerations, and the courts seem consistently to view these policies as being more important than racial fairness. Indeed, the courts’ tendency to undervalue specific claims of racial injustice as being less important than other considerations in the mix of issues, case by case, may, as suggested by Justice Wahl in regard to profiling, be entrenched as unconscious behavior. Indeed, the judicial tendency can be traced back as far as 1898 when Justice William Mitchell ruled that it was legal for a saloon to refuse to serve a “colored man” because the statute precluded discrimination in taverns, inns, restaurants, and other places of public refreshment, but did not literally apply to saloons.46 It is time to elevate the concern for racial fairness.

This first major theme of the cases discussed above, explaining the Court’s tolerance for bias, is that the Court’s concern with judicial efficiency has led it to adopt a harmless error approach to translator error cases and cultural evidence cases. Perhaps the Court saw no advantage in requiring new trials or applying strict exclusionary rules in those cases. This approach may be short-sighted. Police and prosecutors use police officers instead of neutral translators to obtain confessions or rely on racial stereotypes to appeal to bias because they regard these as effective ways to obtain convictions. Law enforcement officials, however, will respond to court rules in these areas. A strict approach would, over time, prevent shoddy translations and remove “cultural evidence” from the system. Then the courts would no longer be forced to speculate under a harmless error approach whether the bias present in a case affected the outcome. Racism is not easily contained. Once injected into a trial, its impact on the pursuit of justice is rarely harmless. According to A. Leon Higgonbotham:

 If the Minnesota Supreme Court is serious about combating race bias in the legal system, it must stop tolerating or trivializing appeals to bias in the interest of protecting the finality of criminal convictions. Adversaries will continue to appeal to racial and cultural prejudice as long as the courts continue to tolerate it.

The Court’s insistence in bias cases upon proof of intentional discrimination, or animus, illustrates the second major dimension of the Court’s compromising approach to these issues. Ironically, the fact that we now regard “playing the race card” very seriously indicates that we have come far in terms of attitudes on civil rights. However, it may be that alleging racism carries such serious implications that we have become reluctant to find racial bias in the actions of judges, prosecutors and police. Thus, we have created legal tests of intentional discrimination with difficult burdens of proof to avoid finding racial bias “too easily.” As our discussion of racial profiling and exclusion of minorities from juries shows, the time has come to shift the focus from intent and animus, and develop rules of equal justice for Minnesota based on the impact of the practices discussed upon the minority communities that have been so long subjected to pretextual stops by police and pretextual exclusions from juries. At the very least, the courts should be more skeptical of the pretexts offered than they have been.

Racial bias also may be difficult to eliminate, in part because the sensitivity it engenders makes it difficult to talk about with candor. Discussions about racial bias can rapidly degenerate into polarizing name-calling or labeling. To even raise the issue for discussion puts one at risk. After Tom Johnson and Cheryl Widder Heilman48 published their thoughtful article in Bench & Bar in June of 2001, the July Bench & Bar edition included a letter to the editor claiming that the authors were disingenuous and should be embarrassed.49 In the case, In re Charges of Unprofessional Conduct contained in Panel File 98-26, a newly hired prosecutor was sanctioned for bringing a motion to prohibit defense counsel from retaining a person of color as cocounsel for the “sole purpose of playing upon the emotions of the jury.”50 The motion was immediately withdrawn, but the attorney was sanctioned. While the motion was not well-grounded, should an attorney be sanctioned for raising the issue of race for discussion in an orderly motion outside the hearing of the jury? We believe it is time to discuss the issues of race bias in the legal system with candor and without rancor. The issues are complex. Persons of good faith may harbor misunderstandings, or “incorrect” views, but should be encouraged to express them. Polarizing tendencies of the current debate emphasize animus and blame, setting up excessively defensive reactions to claims of racial bias, in opposition to excessively accusatory approaches, often mandated by present legal doctrine. The discussion can be elevated if the focus is shifted to inclusion and the impact of bias on minority communities and away from animus and accusation.

Notes
1 While there may be cause and effect differences between race bias, ethnic bias, and cultural bias, where the differences are insignificant, for the sake of simplified expression, these forms of bias are treated herein as synonymous.

2 Symposium, Minnesota Supreme Court Task Force on Racial Bias in the Judicial System, 16 Hamline L. Rev. 477 (1993) [hereafter “Taskforce Report”].

3 See Thomas L. Johnson & Cheryl Widder Heilman, “Racial Disparity in the Criminal Justice System,” 58 Bench & Bar of Minnesota 5 (May/June 2001), 29-35; James Walsh, “Justice’s Disparities in Race Draw Scrutiny,” Star Tribune (Minneapolis) 4/09/00 at A1.

4 See e.g. Alanis v. State, 583 N.W.2d 573 (Minn. 1998); State v. Williams, 525 N.W.2d 538, 549 (Minn. 1995); State v. Mitjans, 408 N.W.2d 824 (Minn. 1987).

5 See State v. McCrae, 494 N.W.2d 252, 257 (Minn. 1992); State v. Russell, 477 N.W.2d 886 (Minn. 1991).

6 See e.g. John H. Hinderaker and Scott W. Johnson, “Is Minnesota’s Judicial System Really Guilty of Racism?” American Experiment Quarterly 26 (Fall 2001).

7 See William E. Martin and Peter N. Thompson, “Judicial Toleration of Racial Bias in the Minnesota Justice System,” 25 Hamline L. Rev. 236 (2002). [hereafter Martin and Thompson].

8 Martin and Thompson, Id.

9 The Court of Appeals did reverse a conviction in one case, State v. Marin, 541 N.W.2d 370, 373-75 (Minn. App. 1996) where the trial judge found that the accused waived Miranda rights without the benefit of an interpreter.

10 New Chue Her, 510 N.W.2d 218 (Minn. App. 1994).

11 See Alanis v. State, 583 N.W.2d 573, 577 (Minn. 1998); State v. New Chue Her, 510 N.W.2d 218, 223 (Minn. App. 1994).

12 State v. Montalvo, 324 N.W.2d 650, 651-52 (Minn. 1982).

13 Minn. Stat. ¤ 611.32 (2000).

14 State v. Mitjans, 408 N.W.2d 824, 829-31 (Minn. 1987).

15 State v. Dominguez-Ramirez, 563 N.W.2d 245, 253-54 (Minn. App. 1997); State v. Bareiro, 1994 WL 542868 (Minn. App. 9/30/94).

16 Mitjans, 408 N.W.2d at 831-32.

17 Patricia Lopez Baden, “Ramsey County Judge Wants State to Fund Training, Certifying and Testing of Interpreters,” Star Tribune (Minneapolis), 2/26/94, at B2.

18 Bill Salisbury, “Assembly Line Justice is Trying Many Justices,” St. Paul Pioneer Press, 3/05/01, at 1A.

19 State v. King Buachee Lee, 494 N.W.2d 475 (Minn. 1992); State v. New Chue Her, 510 N.W.2d 218 (Minn. App. 1994) (review denied).

20 State v. Henderson, 620 N.W.2d 688, 700 (Minn. 2001).

21 Strauder v. West Virginia, 100 U.S. 303 (1879).

22 Batson v. Kentucky, 476 U.S. 79 (1986).

23 State v. McCrae, 494 N.W.2d 252 (Minn. 1992).

24 See David A. Sutphen, “True Lies: the Role of Pretext Evidence Under Batson v. Kentucky in Wake of St. Mary’s Honor Center v. Hicks,” 94 Michigan L. Rev. 488, 502 (1995).

25 See State v. James, 520 N.W.2d 399, 402-03 (Minn. 1994).

26 See State v. Henry,1999 WL 319066, at *1 (Minn. App. 5/18/99).

27 See State v. Weatherspoon, 514 N.W.2d 266, 269 (Minn. 1994).

28 See State v. Johnson, 616 N.W.2d 720 (Minn. 1994).

29 See State v. Scott, 493 N.W.2d 546, 549 (Minn. 1992); State v. Hager, 1998 WL 846578, at *2 (Minn. App. 6/12/98).

30 See State v. Stewart, 514 N.W.2d 559, 563 (Minn. 1994).

31 See State v. Everett, 472 N.W.2d 864, 868-69 (Minn. 1991); State v. Williams, 1999 WL 10256, at *1 (Minn. App. 6/12/99).

32 See State v. Vang, 1997 WL 207597, at *1 (Minn. App. 4/29/97).

33 See State v. Gonzalez, 1997 WL 729232, at *1 (Minn. App. 11/25/97).

34 See State v. Carpenter, 1991 WL 21622, at *2 (Minn. App. 2/26/91).

35 See State v. Lynch, 443 N.W.2d 848, 851-52 (Minn. App. 1989).

36 See State v. Weatherspoon, 514 N.W.2d 266, 269 (Minn. App. 1994).

37 State v. Bowers, 482 N.W.2d 774 (Minn. 1992).

38 See e.g. State v. Johnson, 616 N.W.2d 720, 725 (Minn. 2000); State v. DeVerney, 592 N.W.2d 837, 843 (Minn. 1999); State v. Henry, 1999 WL 319066, at *2 (Minn. App. 5/18/99).

39 State v. Buggs, 581 N.W.2d 329 (Minn. 1998).

40 See State v. Gaiton, 536 N.W.2d 11, 15, n 2 (Minn. 1995).

41 See e.g. State v. Russell, 477 N.W.2d 886 (Minn. 1991).

42 See Martin and Thompson, at Notes 83 to 85.

43 State by Beaulieu v. City of Moundsview, 518 N.W.2d 567 (Minn. 1994).

44 State v. George, 557 N.W.2d 575 (Minn. 1997).

45 Id. at 579-80.

46 Rhone v. Loomis, 77 N.W. (Minn. 1898).

47 A. Leon Higgonbotham, Shades of Freedom, Racial Politics and Presumptions of the American Legal Process 130-31 (1996).

48 Johnson and Heilman, supra n. 4.

49 Gregory Pulles and Scott Johnson, “Racial Disparity,” 58 Bench & Bar of Minnesota 6 (July 2001), p. 8.

50 597 N.W.2d 563, 566 (Minn. 1999).

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William E. Martin is an associate professor of law at Hamline University School of Law and has served as associate dean for the past three terms. 

Peter N. Thompson is a professor of law at Hamline University School of Law where he was acting dean from 1987 to 1989.

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This article is based upon an article previously published by the authors in the Hamline Law Review: See William E. Martin and Peter N. Thompson, “Judicial Toleration of Racial Bias in the Minnesota Justice System,” 25 Hamline L. Rev. 236 (2002). Peter N. Thompson was appellate counsel in two of the cases discussed, State v. King Buachee Lee, 494 N.W.2d 475 (Minn. 1992) and State v. New Chue Her, 510 N.W.2d 218 (Minn. App. 1994).