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February 10, 2022

Midyear 2022: Rittenhouse trial offers lessons in court bias, say experts

The Kyle Rittenhouse trial, held last November, in addition to serving as a proxy battle between different political ideologies, was also an example of the implicit bias that plagues much of the criminal justice system, say many legal analysts.

Such experts agree that putting 18-year-old Rittenhouse on the stand and hearing from him how he came to fatally shoot two people and wound a third during unrest in Kenosha, Wisconsin, in 2020 played a key role in swaying the jury’s decision to acquit on all charges.

The defendant broke down in tears which, along with his young age, had the effect of humanizing him, and created sympathy among the jurors. The jury was instructed to look at the case and the situation through the “lens and perspective of Kyle Rittenhouse,” which may have created an empathetic connection.

At the American Bar Association Virtual Midyear Meeting, a panel will take an in-depth look at the role of implicit bias in determining the outcome of the case, as well as how such unconscious prejudices are present in many aspects of routine courtroom process.

“The Rittenhouse Trial: Implicit Bias in Plain View” will be held virtually on Feb. 11 at 1:30 p.m. CST, featuring a discussion by representatives from the King County (Washington) Department of Public Defense, Prosecutor’s Office and Superior Court

Panelist Judge Maureen McKee of the King County Superior Court plans to bring the perspective of “a judge, a past public defender and a bi-racial woman.” Prior to becoming a judge, she worked with people “who were immigrants, who had developmental disabilities, who struggled with mental illness and/or addictions, who struggled with poverty, who were incarcerated, who received inadequate education and/or who had limited English proficiency.” 

That experience showed her that “repeatedly and frequently throughout those years, I was surprised with the incorrect assumptions I made about individuals.” 

McKee says, “My experience has taught me that it is a mistake for judicial officers, who like me disproportionately come from places of privilege, to mistake ‘the norm’ for ‘neutrality.’ In order to be truly neutral, our assessments and rulings must recognize and incorporate the vastly varied experiences of all who enter the courthouse.

The judge works to mitigate implicit bias in her work by exercising “humility and to remind myself that what I know is microscopic. Vast worlds exist in individuals’ experiences which I can only begin to know by listening and by keeping an open mind.” 

Panelist Benjamin Goldsmith of the King County Department of Public Defense also seeks to mitigate implicit bias “by looking inward and interrogating my own biases and working to make sure that any biases are recognized and do not impact my work.”  In addition, he works “to ensure that my colleagues and I clearly call out, and attempt to litigate, implicit bias when police, prosecutors, judges or other system participants evidence it.”

McKee breaks down the steps she takes:

  • Works hard to create a calm, respectful space in which individuals – whatever role they might take in the justice system – feel comfortable expressing themselves and feeling secure that she truly wants to know what they wish her to know.
  • Considers her obligation as a judge to cultivate and to promote curiosity about others’ experiences, always being mindful that she doesn’t know as much as she thinks she knows.
  • Consistently asks herself if she would draw the same opinion, assessment or conclusion if the individual(s) involved were of a different race, ethnicity, sexual orientation, gender identification, class, etc. 

She hopes those watching the program will come away having learned “to embrace the notion ‘don’t believe everything you think.’ ” 

Yessenia Manzo of the King County Prosecutor’s Office will also be on the panel, which will be moderated by retiring Judge Bernice Donald of the U.S. Court of Appeals for the Sixth Circuit in Memphis, Tennessee.  The program is sponsored by the ABA Criminal Justice Section.