Commission to Study Racial and Ethnic Bias in the Courts
Radisson Inn, Bismarck
November 12, 2010
10:00 a.m. Call to Order.
Hon Donovan Foughty, co-chair Justice Carol Ronning Kapsner, co-chair Hon. Sonna Anderson Griselt Coral Andrade Leann Bertsch El Marie Conklin Hon. Wickham Corwin Tom Disselhorst Meredith Vukelic for Jim Fitzsimmons Lisa Jahner Ulysses Jones Dr. Erich Longie Hon. William McLees Sinisa Milovanovic Mike Nason William A. Neumann Rod Olson Keith Richotte Tom Trenbeath
Scott Davis Robin Huseby Justice Mary M. Maring Troy Morley Hon. Michael T. Swallow Sandi Tabor
Co-chair Foughty called the meeting to order at 10:00 a.m..
The Commission welcomed Meredith Vukelic, sitting in for Jim Fitzsimmons
September 17 Minutes Judge Foughty asked whether members had additions or revisions to the September 17
Minutes draft sent to members via email. No comments or revisions were presented. Judge
Anderson moved to approve the 17 September minutes as submitted. Justice
Kapsner seconded and the motion was carried.
Meetings Committee Commission members discussed the first series of public meetings. Judge Foughty noted
a perception that less time is served for a conviction in the State system rather than the
Federal system. Judge McLees added that tribal or federal court frustrations were often
discussed rather than state court issues. Members said that the surveys were useful since
they tended to better concentrate on state courts and since relatively few individuals
chose to speak publicly.
Judge Corwin said that at the Fort Yates meeting had good attendance and discussion and
the content was as expected. General themes included the perception that Tribal
members should not be dragged in front of State court and a hope that the Commission is
a serious effort. There was a widespread perception that a bias exists in state courts from
start to finish. Dr. Longie suggested that many who appeared before panels were
probably, in fact, guilty, but still felt there was a bias and they were not fairly heard.
Panel members found some perceptions surprising, especially when those testifying
referenced non-existent laws, specifically one that allowed Native Americans to be shot
on sight. Members discussed this ‘law’ as representing the general feeling of Native
Americans handed down from the past. Ulysses Jones said that there is a great degree of
similarity between Native Americans and Blacks in that what people perceive now may
not be disparate treatment, but present effects of past discrimination. He said the system
requires a representative degree of minorities working inside for real change to occur.
This does not necessarily mean that those currently within the courts are practicing
discrimination, but the perception will exist as long as minorities feel excluded.
Judge Anderson described the Unite Tribes meeting as maintaining the general consensus
from other meetings, but highlighting comparisons with Canadian system, in which the
government maintains employees specifically to provide explanations of legal processes
and terminology. Members of the public also suggested that individuals often do not
wish to speak and reveal that they do not understand the process because they do not
want to look uneducated. Many speakers said they thought courts assigned a particular
counsel who was known to do a poor job or be a poor communicator specifically to
minority defendants. This perception appeared fairly consistent.
Justice Kapsner voiced frustration with the attendance level in Turtle Mountain,
questioning whether holding meetings at the colleges rather than other locations on the
reservations was the best decision. She asked whether the Commission should plan
additional meetings on the Reservations to be held at different locations.
Staff said he took testimony on a one-on-one basis with several people who emphasized
that cultures have different methods of storytelling that place strong emphasis on context.
Attorneys or judges look for specific fact patterns rather than stories and this may lead to
the development of negative perceptions. El Marie Conklin added that speaking about
certain personal subjects in front of everyone would be considered rude by certain groups
and probably had an effect on public meeting attendance.
The Commission next discussed planning for future meetings. Justice Kapsner asked
about trying to reach minority groups in Fargo a second time in a more private setting.
Sinisa Milovanovic related the experiences of the NDSU Financial Literacy Training for
New Americans, which advertised extensively but had no attendees. Rod Olson
suggested Lutheran Social Services as a possible location, but Mr. Milovanovic said that
such a plan would not alleviate the problem of transportation to the office. Mike Nason
suggested using snowball sampling techniques and an interview approach to increase the
level of personal testimony might be more effective than meetings.
Bill Neumann noted that roughly three out of four indicate little to no trust in the court system. Judge Corwin asked whether gathering additional testimony would provide any useful information beyond themes of general mistrust already heard at the meetings. Staff said that new themes may not emerge, but there may be other reasons for continuing the meetings, including showing the extent of perceived bias by minority groups and adding weight to the Commission's study. Staff said that gathering as much information as possible would help demonstrate that racial bias does not 'go away if it is ignored,' as has been implied by some criticism directed to the Commission. Judge Corwin agreed, adding that at Fort Yates, despite the negative perceptions voiced, all speakers noted their appreciation for the Commission's efforts.
Staff asked how the Commission should continue gathering public information. Judge
McLees said that the Commission should plan continued listening sessions. Justice
Kapsner asked whether there was more participation in later meetings, once momentum
built. Staff answered that figuring out momentum is problematic since there did not
seem to be a correlation between notice or advertising and attendance. Feedback
generally indicated wide notice through various means for almost all meetings. Dr.
Longie and Mike Nason suggested that these initial meetings might be part of a courtship
process, and attendance might improve as the Commission is recognized as a serious
effort. Judge Corwin and Mike Nason acknowledged that snowballing techniques would
be unmanageable in a hearing setting, but better applied with a specific set of research
questions and answers taken with digital recorders. But, Judge Corwin pointed out that
the meetings are conducive to easy assimilation of results.
The Commission discussed linking future meetings with Pow wows or similar events.
Judge Foughty mentioned his experience with ‘Ladotes’ at Turtle Mountain, where there
was a well-attended fair with booths. He suggested procuring a booth for the
Commission and using handheld recorders to gather testimony in this context. The
Commission agreed to concentrate on the remaining universities this spring and to have
the research committee establish an alternate method to visit the reservations and develop
protocol for targeted interviews.
Ulysses Jones asked about the status of a call-in radio show discussed by members
present at one of the previous public hearing sessions. He said that going on a call-in
show to hear testimony or other shared experiences would also provide a degree of
anonymity on the air. El Marie Conklin said that there are some call-in shows, at
Standing Rock, for instance, but not at other reservations, such as Spirit Lake. Dr.
Longie and Judge Foughty discussed organizing a Spirit Lake call-in show.
Staff reminded Members that the Commission previously discussed meetings at UND,
NDSU, Minot State, and the Williston area and asked for direction on the time period for
these meetings. Justice Kapsner asked whether regular college meetings should be done
in February and the Commission consensus supported this suggestion. Staff was directed
to plan for a meeting at UND in April, to coincide with events held in conjunction with
‘Time Out,’ a week long celebration with events, such as speakers and movies,
culminating in the Pow wow. Judge Foughty said that future meetings must involve
more individual input or even members going out to institutions to sit down and talk with
people with digital tape recorders. He also said that the Commission needs some canned
discussion to present before it receives general comments. Justice Kapsner stated that
such matters could be developed after the first of the year.
Staff asked about scheduling future Commission meetings and referred to an email
handout giving other committee meeting dates and proposed Commission meeting dates. The Commission scheduled meetings, following a suggestion to move meeting days to
Thursdays unless members not present contacted Staff with objections.
Research Committee The Research Committee updated the Commission on the user survey. Katherine Korum,
with the Bureau of Government Affairs, reviewed the instrument and gave feedback.
The Research Committee also reviewed and edited the instrument. Ms. Korum will do a
test run of this instrument in the spring and implementation will be with BGA help, with
samples and actual implementation taking place through Department of Corrections.
Staff asked if any data areas were missing from the instrument and none were offered.
Staff presented the public meeting survey results, referencing charts distributed with the
meeting materials with survey responses in raw numbers. Data indicated that the level of
education was higher than average, predictably, since the surveys were distributed on
tribal college campuses. The average age was slightly skewed, though not as
substantially as it might have appeared at first, considering that Native American
populations tend to be somewhat younger than the majority white population, on average.
The Commission discussed open-ended comments from the second half of the survey,
noting that these were generally substantial. Staff clarified that information from these
surveys would be used to support other data indicating that members of minority groups
might have a different level of trust than consensus of previous N.D. State Surveys that
did not end up with representative samples.
Criminal Justice Committee The Commission discussed Department of Corrections data after a lunch break,
acknowledging that work has already been accomplished, including policy group
discussion regarding alternatives to incarceration. Leann Bertsch said that detailed
questions provided by Justice Kapsner and Staff will help DOCR looking at areas and
consider questions they had not considered before and should provide some useful
analysis. She said DOCR has recently included diversity training with 1 to 2 days worth
of training focusing on bringing cultural sensitivity to staff. Scott Davis has been helping
to bring mentors in to talk to Native American inmates to provide positive role models.
Staff added that the statistic experts from DOCR indicated that though they could not
answer all questions, they could answer some in every category asked. Data has not been
produced from these inquires so far, and collection is in process.
The Commission discussed juvenile data. Staff explained that the juvenile data tracking
system provides a large amount of useful information. He indicated a need for updated
Relative Rate Index information, measuring rates at many levels of the system and
distributed a risk assessment and statewide data.
Lisa Jahner talked about the Burleigh County Native American study (Martin Study)
looking at youth, describing it as a case-based or a case disposition study looking at
corrections data and processing dispositions. A future Cass County study will be based
on arrests, looking specifically at the arrest end of the process since the rates are so high,
and this focus will make it quite different than the Burleigh study, which covered only
case processing factors driving decisions while in the court system. The Cass study will
instead rely on arrest data. Spring 2011 is the current deadline for completion of the Cass
study. Lisa Jahner said that certain minority groups in Cass County are six times more
likely to be arrested than whites. Bill Neumann asked whether the Police Youth Bureau
affects arrest rates, but Ms. Jahner replied that minority rates are five times higher in
Burleigh County as well.
The Commission discussed the COMPASS risk assessment tool used to develop
treatment and rehabilitation plan. Factors are based on a screening instrument
administered by case managers and used throughout the state. The tool places youth into
group typology and provides a recidivism score. The tool is also used when youth are
sent to the Youth Correctional Center for assessment. Members noted that a considerable
number of kids do not get to this point in the process, and Leann Bertsch said that those
committed to custody are going to have this assessment done even if they don’t have a
stay out in the correctional center. Lisa Jahner added that the percentage of kids referred
to juvenile court around the state end up in Corrections’ custody is around 200,
annually, with 42 referrals, statewide.
Lisa Jahner emphasized relative rates analysis looks at racial disproportion happening in
the handling of decisions. The most disparate minority rates in this analysis are in arrests
and detention, where minorities are disproportionately high, and diversion, where
minorities are disproportionately low. The Martin study for Burleigh County, focusing
on needs of minority youth rather than disproportionate treatment, suggested creating and
implementing a screening tool to take some of the subjectivity out of the decision making
process and establishing a liaison. Courts do little to address needs, but are more
accountability-based. Certain factors such as academic difficulties, criminality in family,
a concentration on needs-based data help account for the difference between groups
given the risk assessment and influence the type of help that will be provided.
Leann Bertsch said that about 60 individuals are at YCC at any given time, with people
coming in on a regular basis. The population over represents Native American youth,
40% of the total while about 9% of population in the State, but the actual rate, 1.32, does
not indicate disproportionate handling. While Native American youth are 9% of the
juvenile population, they account for 17% of arrests, 25% of detentions, 18% of formal
adjudications to court, 30% of DJC commitment, and 42% of kids at Y.C.C.. Mike
Nason noted the cumulative nature of the numbers, occurring through out the process as
disproportion building upon itself in a trickling effect. He suggested that it was
especially important to examine this kind of effect in the juvenile system, since offending
at that level likely contributes to offending later in life.
Sinisa Milovanovic asked where the ethnicity of New Americans falls in these numbers
and Leann Bertsch answered that many would likely be categorized as white. Mr.
Milovanovic identified this as a potential blind spot for the Commission’s study, and Lisa
Jahner noted that there are no interpreters available in diversion programs to help New
Americans and that establishing an interpreter program for diversion contacts could
constitute a potential Commission recommendation. She suggested that the Commission
should consider recommending a detention screening tool for state-wide implementation
to make detention decisions more objective.
Staff inquired about CJIS system, indicating that Sally Holewa suggested using the CJIS
data for Arrests since the Uniform Crime Reports display of pre-processed data and does
not contain basic data for an original analysis. The Commission stated that Member Tom
Trenbeath or Chuck Placek with DOCR would have CJIS access. Mike Nason noted that
CJIS tracks arrests in a particular method relying on certain types of cards and could
present cumulative data based on this method, but if the cards were not properly
completed, then arrest is like one that did not occur. Staff said Unified Crime Reports
data captures useful information and that most states used this data in reports, but looking
at the similar data from another angle may provide additional insight.
Indigent Defense Judge Foughty asked whether the Commission should look at indigent defense. The Commission discussed Spangenberg study, undertaken previously to examine issues
surrounding indigent defense. Bill Neumann said the situation is quite different from the
time of the study and that a myth exists about the ineffectiveness of appointed counsel,
who are actually the most experienced attorneys in criminal defense in the state. BR> Judge Anderson asked how the Commission could address the perception of indigent
defense ineffectiveness, even if it doesn't’t exist. Dr. Longie asked whether the factor
driving such a perception was not expertise but willingness to perform the work in
certain cases. Bill Neumann said that the only possible way to measure this would be to
ask judges to give opinions on those who come before them. Judge Anderson said that
the source for such perceptions could be indigent defense attorneys having heavy
caseloads compared to national recommendations. Those who spoke at the public
meetings said that attorney unavailability was an issue. The Commission acknowledged
that race may complicate these perceptions. Mr. Neumann suggested asking Robin
Huseby about metrics for measuring contact between attorneys and clients.
Judge Foughty said that criminal indigent defense attorneys use police reports, talk to
officers, and then may have a short conversation with the defendant. The criminal
attorney usually needs to talk to relevant individuals once to decide whether make a deal
or pursue another course of action. A private attorney will be able to spend more time
with a client. Ulysses Jones agreed, saying that, in doing private criminal defense work,
his typical calls are from people who say that public defenders do not fight for them. Mr.
Jones said he goes through the case and the process step by step with the client. Not
seeing this kind of effort may create the impression that public defenders do nothing.
Judge Foughty said that probabilities are another factor that may allow private attorneys
to push cases to trial more often than public defenders, who would probably make a deal
in the same case. Bill Neumann said there is an option of asking for more money for
more public defenders, which would allow more time per client, but there is no good way
to make a comparison. Measured by outcome, there is probably no difference.
Tom Disselhorst said minority use of indigent defense and disparity on the juries selected
in these cases would be an issue. Half of state criminal jury trials are in Burleigh County,
with many cases from other counties. Judge Anderson added that there is a particularly
active Defense Bar in Burleigh. Commission focus in the area of indigent defense would
therefore likely concentrate specifically on Burleigh County. The Commission agreed
the report could include an inquiry of Indigent Defense Council, concentrating on
Burleigh and asking if complaints come disproportionately by race from the area of
Staff said he received on-on-one testimony describing cultural aspects of storytelling
could exacerbate communication between indigent defense attorneys and clients. El
Marie Conklin agreed that cultural barriers are a factor, relating that she once had to approach
a client and direct him to talk to his attorney since he wanted to admit everything, whether or
not he actually did it, and just work from there. Members discussed the unwieldy number of
character witnesses some minority clients assume should testify. Sinisa Milovanovic
asked about communication and indigent defense, saying he was aware of at least one case
where public defender did not use an interpreter and could not communicate effectively.
Staff asked whether there was a Commission consensus is worthwhile for establishing an
analysis of indigent defense. The Commission consensus was for inclusion. Tom
Disselhorst said, if nothing else, the Commission could examine disproportionate use.
Civil Committee and Other Matters Staff reported that the SBAND survey did not work exactly as the Commission had
hoped. There were not enough respondents in each minority group to reliably correlate
race with other survey results. Tom Disselhorst said that low numbers would seem to
indicate a need for more outreach and minority recruitment throughout the system. Members discussed how the Commission could get more information from minority
attorneys, suggesting using focus group with a small number of attorneys or inviting
specific attorneys to speak at the spring meetings. The Commission suggested that focus
groups would probably be an appropriate option.
Judge Foughty moved the discussion to the Interim Report draft, asking for review and
general comments from the Commission. He said that the report should include an
outline with bullet points and short narratives and look at surveys as well as forthcoming
Commission activities. Staff said he would make an outline or some kind of outline to be
included with the report and will send updated versions to the Commission.
Staff indicated that he had met with members of the North Dakota Council on Abused
Women’s’ Services, which ran court watch program that ended in 2006, to ask
permission to examine records from this period of observation, something the
Commission would not be able to pay for or execute alone. The group indicated that data
related to this project should be available in November or December.
The Commission moved on to discussion of a selecting a new member after Professor
The Commission moved on to discussion of selecting a new member after Professor Keith Rochotte moves out of state to take a new job. Judge Foughty and Justice Kapsner proposed two individuals from the law school. Judge Foughty asked the Commission's position on the matter or whether the decision could be left to the Co-Chairs. Judge Anderson voiced the Commission concensus, stating that the chairs should make the recommendations.
The Commission wished Professor Richotte well in his new work and new home.
Having no further business, the meeting adjourned at 1:42 p.m..