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The seemingly contradictory opinions upset Robinson's appeals attorney, Michael Cromett. "I disagree with the conclusion that in Robinson it was directed not at race but at the drug culture," he says. Cromett notes that in the other cases where the justices faulted Furnstahl's conduct, they chastised him for slandering an entire neighborhood and introducing racial and socioeconomic considerations. "Tell me that's not what happened in Robinson," he complains. "The brief in Robinson raised the issue of race in the context of [these comments]. They should have done this back in Robinson."
"Making an argument that deliberately tries to provoke a racial stereotype is against the rules of professional responsibility," explains Hamline University Law School Professor Peter N. Thompson, who posits that the arguments often are advanced precisely because they so effectively appeal to jurors on a base level. "And of course in Minnesota we have a hard time talking about [race], and that's one of the problems the courts have. They don't know how to talk about it.
"The Court of Appeals from time to time has tried to stop it, but the Supreme Court has always let it go by," he adds.
"Equal justice is a basic principle underlying our criminal justice system," he continues. "All persons are entitled to a fair trial and a judgment by jurors based on the evidence produced in the case. Racially charged arguments appeal to jurors' conscious or unconscious feelings of racial animus. They encourage jurors to marginalize the defendant to find guilt based on an emotional reaction to perceived racial stereotypes, rather than based on the evidence in the case. Appealing to racial animus to convict a defendant undermines public confidence in the notion that there can be equal justice in our court system and of course can lead to erroneous convictions. Allowing the state's attorney to make arguments perpetuating adverse racial stereotypes or creating new ones encourages continued racial hatred in society. Minnesota citizens expect more from their public officials. We expect prosecutors to convict defendants based on the evidence in the case."
The problem isn't unique to prosecutors, according to an article Thompson and another Hamline Law professor, Bill Martin, published in the Hamline Law Review last year. The two assert that Minnesota courts have tended to tolerate appeals to race made in the course of trials. "We found that despite the task force findings of bias in the courts, which have been corroborated by other studies, not once in the past decade had the Supreme Court found that racial bias had affected the fairness of a trial," says Thompson. "The court has heard numerous challenges about discrimination in jury selection, access to qualified interpreters, racial profiling, and outright racially based arguments by prosecutors like the arguments in Ray, but in each case has found there was no racial unfairness, or if there was bias, it was tolerable. The decisions of the Supreme Court could not be reconciled with the Task Force report or even with the justices' public pronouncements that there was a problem of racial bias in the court system."
Although local defense attorneys are loath to criticize Supreme Court justices on the record, several say the biggest difference between the Ray case and Robinson's is the composition of the court that decided it. In mid-2002, Joan Lancaster, a former federal prosecutor, stepped down. A few weeks later, the author of the decision in Robinson, Edward Stringer, former Gov. Arne Carlson's chief of staff, left the bench. Lancaster was replaced by a partner in a law firm that represents civil plaintiffs, Helen Meyer. Stringer's replacement, Sam Hanson, also is said to be more liberal than his predecessor. Among other qualifications, he is a member of the board of directors of the Minnesota Advocates for Human Rights.
Thompson recently read the Secundus Ray decision along with a stack of other Supreme Court cases as part of an effort to update his research from last year, and he says he's noticed a shift. "Perhaps the facts in Ray somehow called out for corrective action where the alleged bias in the hundreds of other cases did not," he says. "Perhaps there is new leadership on the Court that is lending a new perspective. The author of the Ray opinion, Justice [Sam] Hanson, is new to the court, and certainly brought to the bench a deserved reputation of being a lawyer of great substance and principle."
Indeed, he continues, the court seems to have taken a greater interest in issues of fairness at trial in general. "Looking at other recent cases, there are several cases where the Supreme Court has issued decisive rulings reversing criminal convictions in order to uphold the fairness of the trial process. These decisions will go a long way to encourage trial lawyers and judges to insure that all participants in the Minnesota court system receive fair treatment."
Chief Deputy Hennepin County Attorney Pete Cahill says parts of the Ray decision were unfair. "In his arguments what [Mike Furnstahl] was trying to do was to put the jurors in the shoes of the witnesses," he argues, adding that it's unfair to paint Furnstahl's behavior the way the court did. "He's been fighting for years for victims of color.... He tries many of our tough cases. It's his daily fare. But the Supreme Court has made its point clear, and clearly we will abide by it."
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