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February 11, 2022

Yes, court bias exists — and judges must attack it

If you ask people to quickly picture a nurse or flight attendant, they likely will conjure an image of a woman, even as men increasingly join those professions.  If you ask them to picture a CEO, it would likely be a white man.

These are examples of implicit bias, said Judge Bernice Bouie Donald of the United States Court of Appeals for the 6th Circuit in Tennessee at the American Bar Association Virtual Midyear Meeting.

Speaking on the Feb. 10 program, “The Impact of Implicit Bias in the Courtroom,” Donald defined implicit bias as “those unconscious associations that we make about groups of people, stereotypes that we assign to groups of people … without intention, without knowledge or control.”

Implicit bias is not always negative; it can both work in favor of a group or against it.

“We assign higher competence values to some groups and lower competence values to others,” Donald said. She used as an example of this form of implicit bias the sentencing disparities among races for the same crime.

Donald recalled a voir dire where the defense attorney asked the jury, “How many of you know what a drug dealer looks like?”

Every hand shot up, but then the potential jurors realized they were indulging a stereotype, she said, because the defendant looked like a drug dealer “out of central casting.”

These people had no intentional bias against the defendant, Donald said, but the attorney chose to probe deeper into implicit bias to help her client get a fair trial.

“Perception becomes important,” because people need to see that their perception and reality are the same, Donald said, referring to cases of judges who had been disciplined for comments made on social media. “Actions outside the courtroom can undermine justice inside the courtroom,” she said.

Donald's first courtroom came with an all-Black staff and security guards. The first defendant to come in was a young white man who “saw no one in the courtroom who looked like him,” and asked for a continuance on his trial. Donald granted it, and he returned 30 days later with a Black defense attorney. She suspects he was concerned that there would be bias against him and wanted to mitigate it. As a result, the judge swapped in white deputies on her staff, “and I think that changed the culture of the courtroom.”

“Every person in every courtroom all across this country ought to feel like they can walk in and in the fullness of themselves present their case and know that their case is going to be judged on the merits and by the law and not by any arbitrary characteristics of birth,” she said.

So how to ensure that a courtroom is free of bias?

“Judges have a really good set of [ethical] rules to follow,” said Marla N. Greenstein, executive director of the Alaska Commission on Judicial Conduct in Anchorage, and they receive special training to set aside all those things that they may bring into their work, including implicit bias.

Judges must “actively disengage from all these human aspects of who they are” when dealing with cases in front of them, she said.

Among other things, Greenstein helps judges to understand that they can’t use generalizations and need to set aside personal impressions. “Generalizations have no role in that courtroom,” she said.

Hardest to set aside are personal morals and religious beliefs, which are “our idea of what’s right and wrong,” Greenstein said. That can be difficult but necessary for judges to do, particularly on an issue like marriage equality.

William E. Dailey Jr., managing attorney at the Dailey Law Firm LLC in St. Louis, Missouri, recalled something from what he called “law school 101,” which is avoiding the appearance of impropriety. Because implicit bias is subconscious, it needs to be proactively addressed from “the lowest level to the highest level,” he said.

In the end, it is up to the judge to make sure “everyone gets a measure of dignity and we’re not putting a thumb on the scale in favor of bias,” Donald said.

C. Elisia Frazier, managing deputy city attorney at the City of Atlanta Department of Law, moderated the program, which was sponsored by the ABA Section of State and Local Government Law.

Implicit bias and the Kyle Rittenhouse trial

Another program at Midyear, “The Rittenhouse Trial: Implicit Bias in Plain View,” held virtually on Feb. 11, used a real-life example to examine implicit bias in the criminal justice system.

The trial of the 18-year-old white youth, Kyle Rittenhouse, who fatally shot two people and wounded a third during unrest in Kenosha, Wisconsin, in 2020, “divided public opinion along a lot of lines,” said moderator Judge Bernice Donald.

It also “teed up … a discussion of implicit bias, which is a much-needed discussion,” she said.

The judge showed a photo from the trial with the defendant close to the judge and his lawyer, appearing to look at evidence. “There’s a level of trust, a level of safety and almost a level of innocence,” Donald said of the scene.

See photo of Rittenhouse in court.

The young man, who was acquitted on all charges, looks not like a defendant,” she said, but looks “trustworthy.”

What the photo conveyed to Benjamin Goldsmith of the King County Department of Public Defense was that “these people are all on the same team, and that is never been the case...when I’ve defended my clients in trial.”

He said he wished that his Black and brown clients had celebrity friends to pay for their bail, had juries that looked like them and had judges that treated them with the humanity that Rittenhouse was treated with by the judge.

In his experience, Goldsmith said, verdicts in criminal cases are not “based on the intricacies of the law” but on emotion, bias, prejudice and “whether or not judges and jurors see my clients as human beings.”

Still, the defense attorney doesn’t believe that Rittenhouse should have been treated any differently than he was. “I just wish my clients were treated the same as him,” he said.

Judge Maureen McKee of the King County Superior Court said judges combat implicit bias at trial by:

  • Showing “authentic” respect, compassion and empathy to everyone in the courtroom.
  • Asking themselves: would I feel the same way if I switched the race or ethnicity of the person before me?
  • Reviewing their understanding of American history.

Yessenia Manzo of the King County Prosecutor’s Office also participated in the program, which was sponsored by the Criminal Justice Section.