Justice Misplaced

How an ugly racial incident at Foley's got lost in the system.

Last Christmas wasn't merry for Arlee Martin and her daughter Rose Warren. A teenage employee of Foley's Cherry Creek department store not only refused to wait on the pair but allegedly spewed racial slurs at them and attacked Warren. The two black women were so shaken by the encounter that they declined to complete their purchase of $700 of merchandise.

The incident, which made headlines and resulted in the dismissal of the employee, haunted the women throughout the holidays. "It certainly spoiled the Christmas we could have had," Warren says.

But the aftermath of the women's shopping trip has been even more dismal. Last week Martin and Warren learned that, because of a paperwork snafu, the Denver City Attorney's office has dismissed all charges against the seventeen-year-old employee, who happens to be the son of a Foley's executive. The entire affair has rankled the women's attorney, David Miller, who questions whether the department store, police and prosecutors handled the case with the seriousness he thinks it deserved.

"It would simply be outrageous if this matter disappeared," says Miller, who plans to seek an official review and possible refiling of the case. "It wouldn't be right, not only for my clients, but for the public."

Martin and Warren's legal odyssey began on December 22, when they went to the Cherry Creek Foley's to buy holiday gifts, including several for members of their church. The clerk who rang up their purchases insisted on calling for an assistant to help carry the packages to their car. According to Warren's statement to police, the valet who showed up--a tall, stocky youth dressed in baggy clothes, with a shaven head and a pierced tongue--took one look at the women, then began to assist a white customer.

When Warren pointed out that she and her mother had arrived first, she says, the valet unleashed a torrent of abuse, telling her that no "fucking nigger" was going to tell him what to do.

"I pointed at him," Warren told the police, "while asking the sales associates to call security, and I promised [the valet] I would have his job for disrespecting my mother and I in such a way. He then proceeded to attack me, pushing me as my mother tried to pull me away."

Martin, who is in her sixties, stepped between her daughter and the juvenile--who, she says, had clenched his fists. "I was in total shock and tears," she wrote in her statement to police.

News reports at the time stated that the youth, whose name was not released, was issued a summons for suspicion of ethnic intimidation, a serious charge that would have landed the case in the Denver District Attorney's office. But the case was actually filed in Denver County Court on charges of assault and disturbing the peace--municipal-ordinance violations that don't even amount to misdemeanors under state law.

Even the lesser charges soon evaporated. When Miller contacted the city attorney's office to learn the status of the case, he was told it was set for "disposition"--presumably a plea bargain--earlier this month. That surprised him, since no one had contacted him or his clients. "That's a violation of what their rights should be," he says. "Victims should have an opportunity to address the court."

Upon further inquiry, Miller discovered that the citation was going to be dismissed because no one could find the court file. "Somewhere in the City and County Building, with all the thousands of files that get handled, this one got lost in the works someplace," says Assistant City Attorney Jim Thomas, supervisor of that office's prosecution and code-enforcement division. "It's unfortunate, but we're all human, and with that kind of volume, mistakes get made."

Thomas says his office usually doesn't see any paperwork on a municipal case until shortly before the arraignment. When it came time to review the Foley's case, the court file, which contains the witness statements and other pertinent material, couldn't be located. An electronic record of the citation remains in the court's computer system, but Thomas says his office had no choice but to dismiss the citation.

"The [electronic] record doesn't give us anything to review to know what the allegations were, who the witnesses were," he explains. "There just wasn't any file to proceed with."

Although Thomas says the matter "will be pursued," he also notes that the city attorney's office has no authority to file cases on its own. That means it's up to Martin and Warren to go back to the police if they want to refile charges in county or district court.

"They're saying the responsibility is now back on the victims," Miller says. "Now they have to go make another statement and go through it all again."

A former legal director of the Colorado chapter of the ACLU, Miller believes that what happened in the Foley's case demonstrates that, despite public outcry over high-profile "hate crimes," local law enforcement and prosecutors still aren't vigilant enough in pursuing racially charged offenses. "This thing should have been charged as ethnic intimidation in the first place," he says. "The police have a lot of discretion about how they write up the information, and they're rarely marking incidents that involve race issues properly. They're just writing them up as disturbances.

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