By MARELLA GAYLA The Marshall Project 06.21.2017
But is a novel video tutorial the best way? The jury is still out.
The video — which cost the court $15,000 to make — complements the customary voir dire process, during which judges and lawyers question potential jurors about conflicts of interest and obvious prejudices that could prevent them from deliberating fairly. It features three speakers: the district’s U.S. Attorney Annette Hayes, Reagan-appointed Judge John Coughenour, and Jeffery Robinson, deputy legal director of the American Civil Liberties Union who started his career as a criminal defense lawyer.
“You might have a deep-seated belief that basketball is a better sport than football, and you may prefer strawberry to raspberry jam,” Robinson says in the video, describing examples of conscious — or explicit — bias. “Today, though,” he says, speaking slowly and looking directly into the camera, “I want to talk to you about unconscious bias: something we all have, simply because we’re human.”
Robinson, who spearheaded the project, said that alerting jurors to their underlying prejudices was a “no-brainer,” citing decades of research on the role of unconscious racial biases in “every aspect of American society,” from hiring practices to policing. “You have two choices: either talk about it or don’t talk about it, and haven’t we seen what happens when we don’t talk about it?” said Robinson. “If it goes unchecked, implicit bias will run rampant.”
Though no particular case in his decades-long career incited his passion for the issue, Robinson said he has seen many jurors who “trust police officers implicitly” and hopes that those who do may reconsider their assumptions.
“If you’re a white person and the only time you see a police officer is when he helps you with a flat tire or responds when someone steals your stereo, you have one view of the police,” Robinson said. Jurors who are distrustful of the police, he said, might be dismissed for being unfair. “Why would trusting the police make you more fair in a criminal case?”
Seattle-area lawyers and judges have generally praised the video tutorial, but its use remains at the discretion of trial judges, according to the court clerk, William McCool. And this week, for what is believed to be the first time since the video became part of the routine, it was barred by a judge in the case of Leonard Thomas, a black man who was shot and killed by a police SWAT team after a standoff at his home four years ago.
The judge, Barbara Rothstein, ruled on Tuesday that the video would be “simply too prejudicial,” especially because the plaintiffs intended to argue that the officers were affected by racial bias when they shot Thomas. Objections to the video had been raised by the officers’ legal team in the wrongful death civil lawsuit.
Brian Augenthaler, a lawyer for the officers, argued that watching the video could lead jurors to believe that his clients shot Thomas because of an unconscious bias against black people. This was especially so, he asserted, because Robinson is a well-known civil rights attorney who had once served on the ACLU’s board of directors with one of the plaintiffs’ lawyers.
Although the video has been well-received, its effectiveness has yet to be evaluated. The body of research on implicit bias has expanded greatly in the last three decades, but there seems to be little consensus about ways to curb discriminatory behavior.
Patricia Devine, a social psychologist at the University of Wisconsin-Madison, is an expert in the study of racial bias and the unconscious effect of stereotypes. She said the court’s method of “tuning jurors into their biases” is a generally sound approach, though it’s hard to predict how well it will work without some experimental testing. “They’re giving them generally good advice,” Devine said. “But they’re not doing research.”
Although few scholars reject the concept of implicit bias, some are less confident about controlling discriminatory behavior. Calvin Lai, a postdoctoral fellow at Harvard’s Project Implicit lab, has studied hundreds of bias-reduction techniques and has found that most of them were unlikely to cause lasting shifts in behavior. Getting people to “self-regulate” their prejudices, he said, is difficult.
“Simply understanding that your biases exist doesn’t necessarily mean you’re going to stop yourself from acting on them in the moment,” Lai said. “I might know in some abstract way that eating cheeseburgers is bad for my health, but in the moment, I’m not thinking about that. I just want to eat my cheeseburger.”
The Washington federal court’s project is part of a broader effort to minimize the expression of unconscious bias in the courtroom. The American Bar Association, for example, posted guidelines for creating an impartial jury on its website, complete with recommended orientation materials and examples of jury instructions that directly address the issue of implicit bias.
In the UCLA Law Review, Jerry Kang, a law professor who is the school’s vice chancellor for equity, diversity and inclusion, and some of his colleagues wrote that implicit bias education was likely to do more good than harm, and that such strategies are worth a try, even if there is little scholarship on their effectiveness in practice.
Robinson, who helped initiate the Washington program, says he’s confident that it’s a step in the right direction. “When people ask if it works, I can say without question that it works better than saying nothing.”