In 2002, I was representing a woman born in Ethiopia in a state criminal action. In my opinion, the criminal case should never have been brought. I would come to learn a lot about such cases. But this blog really features my experience with Judge Wexler.
At the time the Honorable Thomas W. Wexler was an elected judge, serving on the Hennepin County bench in Minnesota. (He is no longer an elected judge.)
I believe it was the first time I had encountered Judge Wexler in a case. Upon arriving at court that day (having subpoena’d witnesses, and with an expert witness waiting in the lobby to testify), we have been told our client’s motion would not get heard. This was a problem for my client. My client had a constitutional right to bring motions, so that she could effectuate her other constitutional rights.
There were 4 of us sitting in chambers at the Southdale Courthouse, where Judge Wexler was assigned that day. Judge Wexler, me (acting as defense attorney), a second defense attorneys, and a municipal prosecutor. Judge Wexler was reading another judge’s written order on a motion my client had brought prior. Pointing to the order, Judge Wexler said,
“This is not the first black person to appear in my courtroom. If we allow these people to bring these motions, they will clog the system.”
Judge Wexler’s statement caused me a lot of concern. In a system that had acknowledged the statistical reality of the over-charging, over-conviction of people of color, this showed an unwillingness to deal with the issue in the case. I was concerned about Judge Wexler’s bias (and the effect it could have on my client), but also about systemic bias.
But my focus for this blog is the aftermath of that statement.
There were four people in that room when the statement was made on January 8, 2002. I immediately reacted to the statement, expressing my concerns about the statement – directly to Judge Wexler. This was appropriate, both in representing my client, and to give Judge Wexler a chance to explain himself. I raised the findings of the 1993 Task Report of the Supreme Court Committee. (See article about that report here and another article about the statistics here). I said perhaps things had to start to be done differently.
We discussed it. Eventually, Judge Wexler backed down a bit, stating that perhaps my client’s case was an “exception.” (Although her motion scheduled for that day never got heard.) In other words, this was not an isolated statement that I might have misheard, or taken out of context. Judge Wexler’s views were clearly stated. I, in representation of my client, clearly opposed those views.
At no time did Judge Wexler withdraw the statement quoted above.
The Prosecutor left the room.
I made note of the statement quoted above, and committed it to an affidavit signed under oath. (Both defense attorneys signed affidavits memorializing Judge Wexler’s statement under oath.)
Even after those two affidavits were filed in the district court file, and the issue was discussed in a court hearing, neither Judge Wexler nor the Prosecutor denied that the statement had been made by Judge Wexler in January 2002.
In fact, a lot of time went by before anybody denied it.
Quite some time later, the Prosecutor wrote a letter to the Court of Appeals (not an affidavit submitted under oath), denying in some form that the statement had been made. I am in a unique position in writing this post. I had been in the room. I had heard the statement with my own ears. I knew that the Prosecutor was not telling the truth to the Court of Appeals.
I am not saying this Prosecutor is a bad person. I rather like him. But clearly, once it became an issue in the case, he was not willing to admit that Judge Wexler had made that statement.
It seems the statement would not have to be denied, unless is showed Judge Wexler in a bad light. I don’t think this is the only case in which a lawyer “forgot” hearing a statement made by a judge, or lied to protect a judge. Why does this occur? Is it because lawyers fear that they will be harmed (perhaps lose the case, or just be ‘disliked’ by the bench) if they do not? Or, do they think the judge or the judge’s friends will favor them if they do?
We just need to talk more about this vital issue: lying by those within the justice system, a system that tells the public it is about seeking the truth. I mean, call me simplistic, but I think that a system that says it is about seeking the truth should be about seeking the truth.
By this point in the case, now months after that discussion in chambers in January 2002, Judge Wexler had never denied making the statement. Do you know when he finally denied making it?
Watch for 2002: Judge Wexler: Part 2.