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August 11, 2022

Keeping close watch on implicit bias in the courts

What comes to mind when you hear the name “Karen”? How about “drug dealer”? Judges and current and former prosecutors agreed that more needs to be done to improve the process of decision-making in the courtroom, which is often hampered by implicit bias.

“All of us have biases and so not one of us can look down on another and say, ‘Aha, you got it and I don’t,’” said Bernice Donald, retired judge of the U.S. Court of Appeals for the 6th Circuit, during the American Bar Association 2022 Annual Meeting program, “The Sights, Sounds and Statistics of Injustice: Identifying and Mitigating Implicit Bias in Civilian and Military Courts.”

Donald said because implicit bias exists, it doesn’t make someone a racist or sexist, but it is “an awareness of these images that we hold and how they can play out and affect the decisions that we make and actions that we take.”

Judge Tanya Parker of the 6th Civil District Court in Dallas said implicit bias isn’t a “door that swings in one direction.” Parker, who is also chair of the Texas Implicit Bias Taskforce and co-sponsor of the Implicit Bias Jury Instruction Project, said she has seen implicit bias “manifest” in the way that jurors evaluate what the witness says and the way that they decide to award or not award economic damages for intangible things such as pain, suffering, mental anguish and physical impairment.

Parker said she has scores of stories from her 11½ years on the bench and from colleagues where there is extremely compelling testimony and “the jury verdict comes back and zero value is assigned to anguish, pain and suffering.”

It becomes obvious during her post-verdict interviews with juries that implicit bias affects decisions, Parker said. “If the whole world has told you we (African Americans) are tough as nails, there is nothing to assess.” 

She also said that attorneys for middle-age white men must be just as concerned about implicit bias as anyone else because of the negative images currently portrayed in the media about this demographic.

There should be the same concern for white women. “If I say ‘Karen,’ we all know what comes to mind,” Parker said. “So, if you are representing a white woman in a civil court where someone has to believe she doesn’t abuse her power, that she’s treating people fairly and indiscriminately in a discrimination case, you should be concerned with this too.”

Donald said another area where courts are becoming aware is the impact that implicit bias could have in charging decisions. David Biggers, former assistant attorney general in the U.S. Attorney’s Office for the Western District of Tennessee, said he used to have an open forum with prosecutors to discuss and hear the facts of other cases to compare and ask questions. “That was a good way to identify any potential implicit bias that existed,” he said.

Biggers said it’s important to identify and provide instructions to the jury on how to identify implicit bias in deliberation. More civil judges now allow expert testimony on the topic of implicit bias, he added.

Parker said that even as a judge she must listen more acutely to see if counsel is leveraging implicit bias. She said she asks herself, “Is something happening that I need to get involved with if the other counsel is not objecting?”

She said taking that extra step is what she tries to do in jury instruction. “We try to get jurors to take that step, to take that pause and acknowledge what is this based on and then hopefully make a different decision in terms of their process.”

Donald said not all jury instructions are equal. “Many of us judges go through the jury instructions as rote,” she said. She advised judges to be careful of their own self talk and to constantly “check and challenge” themselves when making decisions.

Susan Upward, a lieutenant colonel in the U.S. Marine Corps, said when she taught a basic school Marine officers’ class, she suggested a “detect, reflect and reject” method: Detect if they had an implicit bias at work, reflect on where it was coming from, and reject it if it existed.

In the coming months, Upward plans to officially propose that implicit bias instructions be included in the Military Judge’s Benchbook to get at some of the root causes of biases associated with race, rank and other factors.

“I think that addressing implicit bias in both the military justice system and the military at large allows us to have a steady foundation of that cornerstone of fairness in the military justice system,” Upward said.

The program was sponsored by the ABA Criminal Justice Section.