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[ Thursday, March 18, 2004 (6:19 PM) ] ( link ) Asian look-alikes in the courtroom: Do Asians all look the same? Some people think they're at least more homogeneous than white people are, though others blame people's perceptive abilities rather than physical features as such. At any rate it's a fairly common experience among Asian people to have others--even well-intentioned, friendly others--confuse them for similar Asians. (At YLS, for instance I have oftentimes been mistaken for Jeff Wu or, by the professor in my 1L Con Law class, Peter Lee.) Other minorities no doubt have similar experiences. By Dudley Clendinen New York Times, Nov. 3, 1985, at 26 Here in Hall County [,Georgia] last June one man was arrested as a thief and another as a murderer. And last week, when the murder defendant was summoned to stand trial, the other man was produced, and nearly convicted. The fact that everyone assumed the wrong man was the right one, simply because the system had placed him in the defendant's chair, has raised questions about the ability of witnesses and officers of the court to make distinctions for themselves. And in this case at least, that ability to distinguish was clouded by racial difference. Both men are Vietnamese of about the same height and weight, and none of the white participants in the judicial process--not the prosecutor, the sheriff's officers, the defense lawyer, or the witnesses--noticed the difference. For that day and a half, Justice turned literally blind. While Hen Van Nguyen, 21 years old, smiled and quaked and told the court interpreter, "Not me, not me," the witnesses identified him as Nguyen Ngoc Tieu, 27, the man accused of stabbing Debra Lynn Rollins to death. Mr. Tieu, meanwhile, remained three blocks away in the county jail. A mistrial was declared. It is still unclear whether the errant system corrected itself or was stopped, as it began, by coincidence, when a woman who knew both men happened into the courtroom and realized the wrong man was on trial. The defense attorney, sure of a conviction, had already offered to plead his uncooperative client guilty to a lesser charge. . . . To a degree, the miscarriage recalls the racial perspective that ruled an earlier time in the South. "It's like the colored race - most of them look exactly alike," said Jeff C. Wayne, who was District Attorney for 33 years. "I've seen this happen one time before." "The wrong colored boy had come up and sat down," Mr. Wayne said. Fortunately, he added, "the judge recognized him." . . . In Gainesville, considered the legal capital of north Georgia . . . lawyers looking for work show up on arraignment days in hopes of being appointed to defend a case. There is no public defender system in Hall County. At Mr. Tieu's August arraignment on charges of felony murder, Eddie Benton, a lawyer in Commerce 28 miles away who is trying to start a practice here, was appointed to the case. . . . With Mrs. Lam interpreting, Mr. Benton interviewed Mr. Tieu for an hour on Sept. 12. That was the last time he saw his client - "there wasn't a whole lot to talk about," he said - and when the sheriff's office brought Mr. Nguyen to court last Wednesday morning, he assumed it was Mr. Tieu. Sheriff Mecum said that the jail staff had been told to add Mr. Tieu to the list of defendants to be sent to the courthouse but that someone had forgotten to pass along the message. Mr. Nguyen was already in the courthouse for his theft trial. When the murder trial began first, "the court officer went in there, and there was a Vietnamese, and he assumed that was the defendant," the Sheriff said. As the trial proceeded, Mr. Nguyen was identified as Mr. Tieu by several witnesses, including the officer who had overseen Mr. Tieu's statement to investigators and the victim's roommate. "Think about it as the witness might," said [District Attorney] Mr. Udolf. "She sees an Oriental man over there. She assumes nobody is going to be tricking her or playing games. So she says that's the right person." Both Mr. Udolf and Mr. Benton say that it was only when Cathy Pemberton, a witness in the theft case, happened into the courtroom, saw Mr. Nguyen in the wrong trial and sent a message to the prosecution table, that the mistake was noticed. . . . But Sheriff Mecum contends his jail staff caught the error when asked to bring Mr. Nguyen for his theft trial and the jailers discovered he was not there. However the error was caught, the mistrial is the talk of Hall County. The Vietnamese community, Mrs. Lam said, is not disturbed that they might all look alike to white people here because it is the same in reverse. "When I see Americans, one and another, they look alike to me," she explained, smiling. "They understand that. They not angry. But they think there is danger." Mr. Tieu's lawyer, Mr. Benton, however, sees an advantage, at least for his client. At the next trial, sometime in November, Mr. Benton will be able to confront a parade of prosecution witnesses with the fact that they all identified someone else as the murderer. "Nothing that has happened thus far has injured my client," he said. UPDATE: Crimlaw notes a real-life experience of this sort: see the "Tuesday" entry from this post (one of his always interesting diaries of life as a criminal defense lawyer). He doesn't mention that the client is Vietnamese in that post, but he provides more details here.
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