OPINION | Nine bullets to kill boy: “Not excessive”?

Played out like a real-life episode of CSI or Law & Order, the Jason Andersen Wrongful Death Trial (aka “The Fong Lee Trial”) involved everything from planted gun allegations to forensic video evidence to courtroom dramatics suitable for any television crime show.

Despite a multitude of complex issues involved in the week-long trial, including more than 40-plus witnesses and a mountain of scientific and forensic evidence to sort through, the jury deliberated for one short morning before arriving at their verdict.

Of the many possible questions laid out before them, the jury answered just one question listed on the verdict form: Did police officer Jason Andersen use excessive force in the 2006 killing of 19-year-old Minneapolis resident Fong Lee?

In returning the answer to that question to be “NO”, the jury was instructed to bypass all other questions raised throughout the case, most importantly: Where did the gun that police claim was in Fong Lee’s hands come from?

The jury never explained how they processed testimony from three forensic scientists verifying that the gun found at Fong Lee’s side had no finger prints, blood stains, or even a smudge—despite police testimony that the gun had been held in Fong Lee’s hands throughout a foot chase and a bloody shooting.

The jury did not have to say if they did or didn’t see a gun in Fong Lee’s hands in the video images submitted as evidence in the trial, in particular the seven still shots showing Fong Lee’s hands in a number of different positions while he was being chased, all with no gun apparent in any of the frames.

And they did not have to explain how they saw beyond the many inconsistencies found throughout police reports and testimonies, especially the admitted mistake the police made when they first claimed, and then later recanted, to have possessed the aforementioned gun in police custody for two years up until the day it was found by Fong Lee’s side.

Hmong Today, like others that we interviewed for this article, was at the same trial, yet came to a completely different conclusion than the one handed down by the jury. The logic-defying verdict in this case compels us to break from traditional journalism to attempt something different in this report. Through analyzing personal observations, interviews and trial transcripts, Hmong Today will retrace critical elements in the trial, highlighting a list of possible reasons as to how the jury came to their hasty conclusion.

A Judge should avoid impropriety and the appearance of impropriety in all activities –
(From “Code of Conduct for U.S. Judges”)

The time was approximately 12:30PM on Thursday, May 28. Senior Federal Judge Paul A. Magnuson steps out of the elevator and into the 7th floor lobby of the Warren E. Burger Federal Courthouse in St. Paul where he meets the Fong Lee Family.

It was Judge Magnuson who had presided over the grueling, week-long trial involving the family’s wrongful death lawsuit that was brought against Minneapolis police officer Jason Andersen in the death of their son, Fong Lee. The verdict was now in the jury’s hand.

According to family accounts, members of the family said “Hi” to the judge as they passed each other in the lobby.

In turn, Judge Magnuson suggested to the family that they ought to take their lunch break, as the jury was also at lunch.

Taking every precaution to be at the courthouse when the verdict is read, the family had insisted upon waiting in the lobby until the jury finished deliberating. However, with the judge’s assurance, the family felt safe to escape for a quick lunch.

Little did they know that just 30-minutes later, at roughly 1:00PM, the jury foreman, James Lannon, a Lakeville retiree as the Pioneer-Press reported, would read the verdict to an empty courtroom.

The judge had allowed the verdict to be read, despite having sent the family to lunch just minutes before.

When the family returned back from their break, they found that the doors to the courtroom had been locked. A guard curtly told them that their court hearing was over.

Crushed to have been left out from attending the most important part of their own court hearing, the family asked the guard what the verdict had been.

Like a cold slap to the face, as one family member described it at the time, the guard told them to “go on-line to find the verdict.”

For three heart-wrenching years, the Fong Lee Family continues to struggle with the tragic loss of their son. In addition, they have had to navigate through the continued maelstrom of unsought media attention. And recently, they all sat through one of the most bizarre trials this state has ever seen—and in conclusion, the only answer they got was to “go on-line”?

With tears streaming down her face, one of the Fong Lee family members repeated out-loud, “Why didn’t the judge wait for us? Why couldn’t he wait just 30 more minutes? Why did he tell us to go to lunch?”

This alleged slight on the judge’s part, one family member utters, is just one example of the many injustices that have been perpetrated upon the family by the police, press and justice system.

Even before the trial began, Judge Magnuson made a number of questionable decisions that heavily ruled in favor of the police.

In his “Memorandum and Order” filed on May 14, Judge Magnuson denied all but one of the ten motions requested by the Lee Family attorneys. Conversely, the Judge ruled in favor of all five of the city’s motions and partially on two other of their motions. If there was a scoring system in play, the tally would be 16.5 points for Andersen and 1.5 points for Lee–before the trial even began.

The most damaging of these controversial rulings, as most observers agree, was when Judge Magnuson allowed jurors to hear of Fong Lee’s alleged gang membership, yet disallowed attorneys to bring into court the fact that Jason Andersen made blatantly racist statements in the company of other police officers.

According to reports, officer Andersen made racist remarks against Asians, Muslims and Blacks at an off-duty gathering of Minneapolis police officers. He would be reported and written up, but his job was saved by higher-ups. His only punishment was to write an essay on “language jujitsu”.

The main question being asked in this lawsuit was whether Andersen violated Fong Lee’s civil rights when Andersen decided to follow Lee and his bicyclist friends, which quickly escalated into the deadly actions taken by Andersen.

All agree that Lee and his group were acting lawfully at the time when officers Andersen and Benz met with them. If so, what provoked Andersen to chase down Lee then?

As attorney Dan O’leary points out after independently observing parts of the trial, at the very heart of this question concerning the violation of Lee’s civil rights is whether racial profiling was involved when they all met on that fateful July evening.

Could Andersen’s racist past come into play here? Had the jury been allowed to hear the facts of Andersen’s racist past, would they have a different feeling about officer Andersen’s motive and intent?

As it applies to Fong Lee’s civil rights, therefore, it would have made sense to have included Andersen’s racist past, given that Fong Lee was not on trial but rather Jason Andersen.

Moreover, there seems to be elements of partiality in Judge Magnuson’s ruling to allow one’s past and not the other, especially considering that Lee’s gang activities didn’t even apply in this matter.

What started as unfavorable for Lee family attorneys in pre-trial decisions escalated itself into a slaughtering on the first day of the trial when attorney Mike Padden inadvertently showed a photo of Fong Lee’s dead body on the big screen in court.

After family members began sobbing, disturbed by the image, Judge Magnuson told the jury to ignore what they had seen and sent them home for the day.

He then went into a tirade, telling Padden that showing the photo was “one of the most offensive acts” that he had seen in a courtroom.

Judge Magnuson said Padden “lost my trust” and told him if he tried “stunts” like that again, he would declare a mistrial, and Padden would be taken off case and would have to pay all the costs of attorneys.

Although that level of admonishment was not shown again throughout the trial, a tone had been set.

Ron Edwards, a community activist and independent journalist, observed that the “judge broke Padden down so badly” that by the end of the trial “Padden didn’t have the will to fight anymore.”

Pointing to the number of times police attorneys received sustained objections from the judge opposed to over-rulings for Padden’s objections, Edwards declared he had never seen in his many years of courtroom reporting such an imbalanced favoring for one side over the other.

At one point in the trial, when Padden had asked the judge if he could take his suit-jacket off in order to demonstrate a body position on the floor, the judge denied him, saying he didn’t need to take his jacket off.

“He so used to saying ‘no’ to Padden, he wouldn’t even let the man take his jacket off,” Edwards commented after the bizarre incident took place in the courtroom.
In fact, as a matter they bring up in their motion for a new trial (appeals), Lee’s attorneys confirm that, “The court’s loud and severe tone, with threats of removing counsel definitely had a psychological impact upon Plaintiff’s counsel. The courtroom became one of fear and intimidation, making it difficult for Plaintiff’s counsel to operate.”

To summarize Judge Magnuson’s attitude and partiality in this case, we bring you back to the brief exchange between the judge and the Lee family after they met in the courtroom lobby.

For some reason or another, the judge did not want the family to be in court when the verdict was going to be read. In our minds and out of propriety, when he told the family to go to lunch as the family contends that he did, the judge at this point had an obligation to wait for them to return from lunch before continuing with court.

Coincidentally at the exact time when the judge told the family to go to lunch the jury returned with their verdict. The judge at this point should have had the conscience in mind to oblige the family’s wish to be in court, especially when it was his fault they were not on the premise. He could have simply had the jury wait another 30 minutes in the interest of propriety and courtesy for a family who had attended each and every minute of the trial thus far.

It was the family’s right to be in court for the most important part of the trial, but once again, the judge chose to deliberately ignore their rights.