Justice Misplaced

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.

"My concern is that if you don't tag these kind of cases, then they fall through the cracks. It makes it look like this isn't an issue in Colorado."

Warren says the police officer who took her statement led her to believe that the case would be dealt with swiftly and severely, but subsequent developments have shaken her faith in the system. "I'm appalled that legal files can be lost and no one has to explain why," she says. "Someone needs to be accountable for what happened here."

Miller had difficulty even obtaining the identity of the defendant in his case because of his juvenile status; he has since learned that the ex-valet is the son of a local Foley's executive. (Contacted by a reporter at his home, the executive declined to comment on his son's case.) Miller's also had discussions with corporate representatives of Foley's parent, the multi-billion-dollar May Company, about the chain's hiring and training policies.

Foley's fired the juvenile immediately after the incident and announced in a press release that it would hold meetings at all of its stores nationwide the following day to remind employees that no discourtesy to customers would be tolerated. The valet was hired through the company's usual channels, says Foley's spokeswoman Elise de Compiegne. "All of our associates are issued a handbook which clearly spells out that Foley's expects all employees to treat all customers with respect and courtesy," she adds. "Grounds for immediate dismissal include racial and ethnic slurs."

But Miller says Foley's hasn't provided him with the information he's sought concerning the company's training programs, its networking with minority communities or its screening process for job applicants. In addition to a "fair settlement" with his clients, he would like to see Foley's get involved in sponsoring a local conference on race issues, but so far his discussions with the company have yielded few results.

"Their position is that they've done everything a reasonable company can do, and our position is, that's not true," he says. "We want to make sure this doesn't happen to anybody else."

Warren is still trying to figure out how it could have happened in the first place.

Last December was her first Christmas without her father, Roland B. Martin, a prominent local minister; Mayor Webb and other local officials spoke at his funeral services last summer. Warren had taken her mother to Foley's, she says, in order to take her mind off her grief.

"My mother was having a very tough, emotional day, and I was trying to bring her some relief," she says. "This was our only time to shop for the holidays, and we ended up leaving the store without the numerous gifts we'd gotten. After that experience, neither of us wanted to go to another mall."

Arlee Martin had been a regular customer at Foley's and its predecessor, May D&F, for forty years. Warren had worked at one of their stores briefly a couple of years ago. Neither woman has entered a Foley's since the December incident.

Warren wonders why Foley's would urge her and her mother to take advantage of their valet service--and then present them with someone who, in her view, wasn't "appropriately dressed for dealing with the public," someone with an attitude problem, someone who wouldn't hesitate to raise his fist to an elderly woman while insulting her race.

"Foley's has got to state to the public that they feel responsible to some extent, because there is more they could have done by way of diversity training and supervising their employees," she says. "Something has failed in their system when they offer a service and this is the result of it."

A representative from the company's St. Louis office flew to Denver to meet with the women and Miller a few weeks ago. But the man--mindful, perhaps, of possible future litigation--did not offer an apology. Warren says the company's reluctance to admit any responsibility is even more discouraging than the legal system's inattention to the case.

"What are they thinking?" she asks. "Minorities spend millions annually there. What are they thinking?


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