Trial By Color

Ernest A Bryant

April 17 must have been a bittersweet day for Dameion Robinson, who is serving a life sentence in prison for a murder he has always maintained he didn't commit. That day, two of his fellow inmates won new trials, and for Robinson the fact that their appeals had been persuasive held multiple ironies.

In one of the cases, the judge agreed that the state's star witness--the same jailhouse informant who had fingered Robinson--might well have lied. But the latter decision had to be especially frustrating. Attorneys aren't supposed to make race-based arguments in court, but at Robinson's trial, the prosecutor several times told the all-white jury that Robinson, who is black, and the African-American witnesses in his case didn't come from the same world as "Pope John Paul and Mother Theresa," and weren't "businessmen from Edina arguing over stock options."

Robinson had appealed on the grounds that the prosecutor had committed misconduct when he made those statements, and the Minnesota Supreme Court had rejected his argument. But in the three years that elapsed between his appeal and the current one, the composition of the state Supreme Court changed. More specifically, the justice who wrote the opinion rejecting Robinson's argument stepped down last year. And in April, his replacement handed down an opinion that chastised the same prosecutor for making similar arguments in another Minneapolis murder case.

In practical terms, neither decision is likely to mean much to Robinson; in the five years he's been in prison, his appeals have run their course.


In August 1997, three north Minneapolis men tried to buy a gun from a man named Johnny Edwards. Edwards and an accomplice decided to rob the men instead, and the accomplice shot and wounded two of them. When officers collared Edwards later that night, he claimed that both the robbery and a seemingly unrelated murder the night before had been committed by his accomplice, whom he identified as Dameion Robinson. The same gun had been used in both crimes, Edwards insisted, and ballistics would prove it.

The gun did indeed link the two cases, and Robinson was convicted of the murder--but only after a judge took the controversial step of allowing the prosecutor to present testimony about the robbery, even though Robinson was not on trial for that crime. However, a few weeks later when Robinson faced a jury in the robbery case, he was acquitted.

Edwards didn't take the stand in either case, presumably because he would be easy to discredit. In an attempt to get out from under another armed robbery charge several years earlier, he'd fingered half a dozen reputed gang members in some high-profile cases. He'd been wrong about some of the cases, however, and several times prosecutors had been forced to admit they had charged the wrong man. Eventually, Edwards pleaded guilty to shooting two men during the robbery and to an unrelated narcotics charge.

For Robinson, having been convicted by one jury and acquitted by another was of no legal significance ("S is for Spriegl," February 2, 2000). Instead, he argued that during his trial, the prosecutor had made racially charged statements to the jury. "The prosecutor stirred the jury's passions against appellant by saying that appellant was not of the same world as the jurors (or the prosecutor), but from a world of decadence, thievery, and violence," his appeal argued. "In addition to dehumanizing appellant, separating him from the jurors and the prosecutor as people--he's not like you and I--appealing to their passions and prejudices, the prosecutor was also attacking appellant's character and making a subtle appeal based on race, comparing appellant, a black man, with 'Edina businessmen' and the all-white jury."

In a January 2000 decision, the justices disagreed: "In the context of the circumstances surrounding the crime, it seems clear that these comments did little more than prepare the jury for evidence of an unfamiliar world involving drugs."

Three years later, the Minnesota Supreme Court did a seeming about-face. On April 17, the court overturned the murder conviction of a man named Secundus Arie Ray. The biggest problem with Ray's prosecution was the fact that police kept questioning him after he'd asked for an attorney, a clear error. But in the process of deciding the case, the justices also concluded that the Hennepin County prosecutor involved, Mike Furnstahl, had invited "the jury to apply racial and socioeconomic considerations that would deny the defendant a fair trial." The case, Furnstahl had told jurors, would be a "challenge... because it's not in an environment that most, if not all you people, are familiar with.

"This is not a dispute between a businessman or a businesswoman from Edina and another businessman or businesswoman from Minnetonka," Furnstahl went on. "This is a dispute... involving three young black males in the 'hood in north Minneapolis. This is not your environment, this is the defendant's environment. So it's a challenge to you to remove yourself from your environment and look at this case and these witnesses in the context of the environment that they come from."  

The justices didn't buy the state's explanation that Furnstahl's remarks were an attempt to forestall defense attempts to discredit the witnesses. "The state's position would be stronger if the same prosecutor had not previously faced similar challenges, both before this court and the court of appeals," they declared, noting that similar arguments had formed the basis both for Robinson's appeal and for that of a man convicted of assault in 2000.

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."

The ultimate irony, of course, is that whether the court in fact changed its viewpoint and if so, why, the answer probably doesn't matter much to Dameion Robinson. "His case is closed as far as this issue and the Minnesota courts," laments Cromett. "It's been raised and decided."

¬ Alonzo Ferguson is the other man who won a new trial that day. He was convicted of the 1994 killing of a young man visiting from Chicago, Allen Wheatley, Jr. The south Minneapolis shooting went unsolved for more than a year until what one of Ferguson's attorneys describes as "the fortuitous appearance of Johnny Edwards." Edwards, then unknown to police except as a gangbanger who had lost a leg in a 1993 drive-by shooting, was in jail on charges of armed robbery when he dropped his first dime. Edwards called Minneapolis police and offered to testify in a series of high-profile gang cases.

Eventually, Edwards's statements resulted in the filing of charges in eight cases. But his testimony secured just four convictions, two of which have now been overturned by the Minnesota Supreme Court. One of the remaining cases is the attempted murder conviction of Alonzo Ferguson's older brother, Reggie Ferguson, who completed his sentence several years ago. The other conviction that has stood is Dameion Robinson's.

Last November, Edwards's father told a Hennepin County District Court judge that his son had confessed to him that he lied at Ferguson's trial ("He's Sorry," December 4, 2002). And last month, Judge Phillip Bush ruled that the informant had quite possibly made up his testimony against Ferguson. The Hennepin County Attorney's Office plans to retry the case as soon as possible.

Whether Edwards regretted his stories in any of the other cases remains a mystery, though, possibly because his father hired him an attorney. "He was scared of what the police and prosecutors would say," his father explained to Bush. "What he's worried about is, there's a felony charge that goes with recanting."

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