Under Color of Law
It was already one of the stranger cases Kelly Madden had handled as an Anoka County public defender. Her client, a black man named William Manuel, had been accused of aggravated robbery after a white couple had written him a $15 check. But the document that crossed Madden's desk the morning of April 10 was even stranger than charging an alleged panhandler with a felony that could land him in prison for more than three years.
The assistant county attorney prosecuting Madden's client had filed a motion asking that Madden not be allowed to suggest at trial that the case was tainted with racial bias. Worse, the motion also asked the court to bar Madden from having an African-American lawyer help her defend Manuel, a move the prosecutor feared would manipulate the jury. The first request irritated Madden, who believed racial issues permeated the case. The second she interpreted as an attempt to bar Manuel from his constitutionally guaranteed right to be defended by the attorney of his choice.
Several days later Madden got an apology from the attorney who had filed the motion. She accepted it; still, she figured, something more had to be done to underscore her concern that racism permeates the judicial system. So she filed an ethics complaint with the state agency that oversees attorney conduct.
That petition sparked one of the more unusual and controversial ethics debates to play out in Minnesota in years. The case that made it all the way to the Minnesota Supreme Court and recently resulted in an unprecedented decision to publicly chastise an Anoka County prosecutor--without publicly mentioning her name.
"We've dealt with these situations in the past. It might not happen every year, but if it happens every other year it's still too often. And if it happens more than twice a decade, it needs to be addressed," says state representative Andy Dawkins (DFL-St. Paul), a member of the state supreme court's Task Force on Racial Bias in the Judicial System. "I don't know whether individuals' names necessarily need to be a part of it, but people need to know that this still goes on in 1999."
According to court documents, the case began on the evening of October 21, 1997, when William Manuel approached Markyda Hall and Shawn Venrooy in the parking lot of the Timber Lodge Steakhouse in Spring Lake Park. He needed money, he explained, or at least a ride. When Venrooy said something about calling the police, Manuel became angry and, according to the complaint, reached "behind his back...as though he was reaching for a weapon." Frightened, Hall wrote Manuel a check for $15.
At that, all three went inside the restaurant. Hall headed for the restroom while Manuel attempted to cash the check. By the time Hall came out, Manuel was gone. She and Venrooy told restaurant workers they had been robbed, then sat down and ordered dinner. Afterward, they went home, called Hall's parents in Texas, then phoned the police and said they weren't sure but they thought they had been robbed.
The police, however, seemed less uncertain about the matter: The next day they got a tip that their suspect was at a local sports bar. According to Manuel's attorneys four Spring Lake Park officers, including the chief, showed up along with backup from four neighboring municipalities. They took the African American man--whose name didn't match the one on Hall's check--into custody, and checked his alibi. After viewing a lineup, Hall and Venrooy told police that they had the wrong man; he was released without being charged. Manuel was arrested two months later, on December 23, and charged with aggravated robbery. He spent Christmas in jail before being released on $1,000 bail. His case was then assigned to Madden.
Madden says the apparently arbitrary questioning of another black "suspect," the number of police officers who showed up to help detain him, and the unusually harsh charges filed against her client, all led to her conclusion that the accusations against Manuel were rife with racial overtones. She shared her conclusions with Karen Walden, the assistant Anoka County attorney who had charged Manuel, and told her that she had asked Mike Holland, a Hennepin County public defender who was African-American, to help her with Manuel's case.
Walden, who was due to go on maternity leave, placed a memo about the exchange in her file on the case. According to Madden's supervisor, who later saw the note, Walden wrote that Madden "claims some racial issues in the case and I don't see any....Kelly plans on having a 'token' African-American attorney sit with her during the trial. I am appalled. I think something should be done about this, like filing a motion." The case was scheduled to go to trial on April 27, 1998.
On April 8 Nancy Jones Norman, the attorney filling in for Walden, filed a motion asking that Madden be barred by the court from making "any inquiry into or comments to the jury regarding any contention that the victim's identification of the defendant or law enforcement's apprehension of the defendant was motivated by a racial bias without an offer of proof in that regard." She also asked that Madden be prohibited from having "a person of color as co-counsel for the sole purpose of playing upon the emotions of the jury."
The first request was puzzling to Madden: How could anyone not see the race issues writ large throughout the file? The motion's second point, however, raised a serious legal problem: If granted, Madden believed, it would violate Manuel's constitutional right to be represented by any attorney he chose. She complained to her boss, who called Norman's boss, the supervisor of the criminal division of the county attorney's office. Norman was quick to apologize. She also withdrew the motion asking that Manuel be denied a minority attorney. When Holland telephoned her the following week, she apologized to him as well.
Several months later, in a hearing on the matter, Norman testified that on the day she called Madden she went home "crying all the way because I had really, really messed up. I found myself wondering, Do I have a racial bias that I don't know about?"
Holland and Madden say they accepted Norman's apology, which they considered sincere. And things might have ended there--except that Norman's supervisor, Jim Weber, also got on the phone, to Madden's supervisor, Luke Stellpflug. According to the ethics complaint later filed by Madden and Holland, Weber told Stellpflug that the motion was "probably" ill-advised, but that no apology would be forthcoming from his office.
Disgusted, Madden wrote a letter to the state supreme court's Racial Bias Task Force, which was created in 1990 to address discrimination in the courts. She told its members that she considered the case against Manuel to be contaminated by racial bias from the beginning, and that she felt the matter suggested a systemic problem in the court system. Next, she and Holland contacted the Office of Lawyers Professional Responsibility, the state agency that oversees attorneys, and subsequently filed complaints against four people at the Anoka County Attorney's Office: Walden, Norman, Weber, and Anoka County Attorney Robert Johnson.
Holland's boss, Hennepin County Public Defender Bill McGee, also filed a complaint about the matter, as did another attorney in his office, Dave Knutson. "I'm not after this woman's head, per se," explains McGee, referring to Norman. "I'm offended that a prosecutor could put in a motion and in a file this kind of thing. I would have found it offensive as a prosecutor. On a number of levels it was serious and offensive." (Anoka County Attorney Robert Johnson declines to discuss the complaints, saying that they are "a private matter between the [office] and an attorney." He does defend his office's track record with regard to diversity, noting that in a county that is predominantly white, two of his 80-plus staffers are minorities. Criminal division chief Weber did not return calls from City Pages.)
After looking into Holland's and Madden's concerns, the office dismissed the complaints against everyone but Norman. In a letter explaining why the complaint against Walden was not upheld, board member Steven Olson said discipline was unwarranted because she didn't write or file the motion, but had simply placed the controversial note in the file she passed on to Norman. "The reference to a '"token" African American public defender,' while offensive out of context, was clearly not made with reference to a specific individual," Olson wrote.
"The memorandum appears intended to simply record Ms. Walden's immediate reaction to a conversation with opposing counsel--it expresses her surprise and concern that defense counsel had decided to focus on race issues as central to Mr. Manuel's defense. The 'bias'--if indeed it can be so characterized--was directed at [Madden's] strategy, not at any person or race."
In Norman's case, however, the office concluded that her actions had been "serious," which under the board's rules meant that any punishment meted out would have to be public--rather than remaining confidential like most cases handled by the board. But first the case would have to be reviewed by the office's appointed oversight body, the Lawyers Professional Responsibility Board.
After conducting a closed-door hearing on the matter, a panel composed of three board members reversed the office's decision, deeming Norman's transgression "unprofessional," but also "isolated and nonserious." They admonished Norman privately, the least serious form of attorney discipline available in Minnesota.
Norman says she realized her motion was inappropriate the moment it was pointed out to her. "I fully acknowledge that I made a mistake, and I've said that all along," she concedes. But, beyond that, Norman says the admonition she received is private and she requested that City Pages not disclose her name. Like most news organizations, City Pages generally names parties involved in judicial proceedings.
Holland believes that keeping the case private missed the point of his complaint. "I would say our main goal was to expose racism and to have something done about it," he told the panel during its hearing. An official, public recognition that mistakes had been made, he argued, would serve as a benchmark for further discussion.
On a personal level, he added, he was offended by the suggestion that his presence on Manuel's defense team was viewed as "token." "I shouldn't have to reach in my wallet and show that I'm a member of the bar," he said. "I'm a lawyer. My involvement is [that] I'm going to try a case, and to presume that my purpose is something other than that is outrageous. It's unintentional, but I think it's racism."
Holland and Madden appealed the panel's decision to the Minnesota Supreme Court, which in July issued an opinion that struck an unusual compromise. Unlike the board, the justices concluded that the incident was an ethical infraction: Her motion "came precariously close to infringing on [Manuel's] right to be represented by counsel of his choice," the unsigned opinion read. "Such conduct, even if grounded in ignorance and poor judgment rather than malice, is unacceptable."
The justices also said the panel had been wrong to characterize the episode as isolated: "Racism," they added, "whether it takes the form of an individual's overt bigotry or an institution's subtle apathy, is, by its very nature, serious."
Nonetheless, the justices concluded, there was no need to punish Norman by exposing her to scrutiny; the court's opinion would be released to the public, but the individuals involved would be identified only by their initials.
"I'm disappointed that the supreme court didn't come out stronger," Holland says. "It's not that I wanted them to step on this woman, but I felt this would have been an excellent opportunity to follow through with everything they've said and done with the Racial Bias Task Force study"--a 1993 survey of discrimination in Minnesota courts. "What they've effectively done is say, 'Yes, this is wrong, but we can't talk about it.' It's typical Minnesota," he adds. "Joe Average Lawyer isn't going to read that opinion--and that's too bad, because that attitude is prevalent through the state."
Ed Cleary, director of the Office of Lawyers Professional Responsibility, disagrees. "I think the reason the court did what it did was to educate," he says. "Frankly, the names aren't all that important. What's important is the message. If you're going to use [the case] for educational purposes, you need an opinion. And that's what the court did."
As for William Manuel--the man whose $15 check set off the whole imbroglio--it appears that the ethics complaint, in a roundabout way, saved him from going to trial on the robbery charge. Because the ethics investigation presented Anoka prosecutors with a conflict of interest, they eventually sent the case to Hennepin County, which declined to charge him with anything. Holland says Manuel learned of the decision only when he showed up for a court appearance. Neither Holland nor Madden knows where to find him, so, they say, it's safe to assume Manuel has no idea of the legal tempest set off by the incident in the Timber Lodge Steakhouse parking lot.
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