Implicit Bias and Jury Trials A Report on an Experiment in Washington

• Date: 01 October 2023
• Author: Dave McGowan

Implicit Bias and Jury Trials A Report on an Experiment in Washington By Dave McGowan GETTY IMAGES/MINT IMAGES RF/MINT IMAGES 42 THE BRIEF ❭ Fall 2023 PUBLISHED IN THE BRIEF, VOLUME 53, NUMBER 1, FALL 2023. © 2024 BY THE AMERICAN BAR ASSOCIATION. REPRODUCED WITH PERMISSION. ALL RIGHTS RESERVED. THIS INFORMATION OR ANY PORTION THEREOF MAY NOT BE COPIED OR DISSEMINATED IN ANY FORM OR BY ANY MEANS OR STORED IN AN ELECTRONIC DATABASE OR RETRIEVAL SYSTEM WITHOUT THE EXPRESS WRITTEN CONSENT OF THE AMERICAN BAR ASSOCIATION. Implicit bias concepts are advancing in the law. They may be seen in mandatory continuing legal education requirements, 1 jury instructions, 2 rules for selecting jurors, 3 and, in two notable cases from Washington— State v. Berhe 4 and Henderson v. Thompson 5 —in rules governing post-verdict challenges. At the same time, psychologists are tempering claims once made for implicit measures of bias, such as the Implicit Association Test (IAT). They caution against using the test to select jurors, for example, and warn that IAT data should not be interpreted as identifying a person as racist or likely to engage in racist behavior. Current scholarship focuses on implicit bias concepts as educational and research tools that might heighten public awareness, as opposed to diagnostic tools to decide specific cases. Washington’s experiment is to borrow from a jury selection rule a standard for determining whether a verdict is tainted by implicit bias. Under this standard, a prima facie case of taint can be shown if a reasonable person schooled in implicit bias could perceive race as a factor in a verdict, in which case the verdict is vacated unless the prevailing party proves such bias was not a factor. Proving such a negative is not feasible as a practical matter, however, because Washington has declared implicit bias to be pervasive, impervious to introspection, and undetectable by direct inquiry. Relative to prior law, this experiment uses implicit bias rhetoric to make it harder to exclude jurors through peremptory challenges and then uses the same rhetoric to make it easier to disregard verdicts. The motivation for this experiment is laudable. The Washington Supreme Court wants to make jury rooms (in Berhe ) and courtrooms (in Henderson ) less hostile to Black persons. The decisions issued in each case contain useful insights. However, each case also provides a cautionary example of the limits of implicit bias rhetoric in assessing verdicts. Implicit bias concepts do not tell judges how to distinguish tainted verdicts from others. Use of implicit bias rhetoric to justify limits on peremptory challenges is valuable because a permissive rule for seating jurors is desirable. Such a rule strengthens juries as the voice of a community. But this rhetoric should not be used to justify presumptions that discard jurors’ work, both because nothing in IAT data or other implicit bias research justifies such use and because a permissive rule for disregarding verdicts undermines that voice. Washington is grappling with an important question: How should courts deal with jury trials where the record makes witness credibility fair game, stereotypes exist, words may have both literal and nonliteral meanings, and implicit bias premises have been endorsed as a matter of law? This article proposes that evidence of explicitly racist language or conduct should not be a necessary condition for challenging a verdict on the ground of racial taint, nor should a finding of intentional misconduct be required, but a claim of implicit bias should not trigger a presumption of bias and the prevailing party should not be given the impossible task of disproving the effect of a presumptively pervasive force. Instead, deference should be given to trial judges who can and should assess both what is said in court and what it means in the context of a specific case. Because specific facts are more important than abstract concepts, it is best to begin with the stories of Henderson and Berhe . Henderson v. Thompson In June 2014, Alicia Thompson hit Janelle Henderson from behind while driving. Thompson was moving at 40 miles per hour; Henderson’s speed does not appear in the briefing or opinions. Henderson was not pushed into any cars in front of her. Both parties drove away. Henderson sued Thompson, who conceded liability. Thompson is white, as was her (female) counsel. Henderson is Black, as was her (female) counsel. The full racial composition of the jury is not in the record, but no Black person was a juror. Henderson has Tourette’s syndrome. She argued that the accident made it worse. She sought $3.5 million in general damages. Thompson argued that this amount was too high; she denied that the accident worsened Henderson’s condition. Thompson suggested that, if the jury accepted Henderson’s damages estimate ($250 per day), an amount no greater than $60,000 was warranted. During closing argument, Thompson’s counsel argued that Henderson’s demeanor in a pretrial physical examination (played for the jury) and in court showed her to be uncooperative and “combative.” 6 Below are some examples of the argument cited on appeal: Now, you’ll recall that during my cross-examination of Ms. Henderson a couple of days ago, she was confrontational with me, asking to know why I was putting her on trial. Her point was, I was hit; I was rear-ended; I have injuries. And she wants the inquiry to end there. . . . [W]hy are we going through this exercise? And it seems pretty evident that the reason we’re going through this exercise is because the ask is for three and a half million dollars. 7 Henderson presented testimony from some of her friends, three of whom were Black women. Thompson’s counsel argued: I thought it was interesting also that all four of those witnesses used the exact same phrase when describing Ms. Henderson before the accident: life of the party. Almost—almost like someone had told them to say that. It was—it was like a tape on repeat. She was described as a model with a slender body to die for who gained significant weight after the accident. Obviously, Ms. Henderson was interested in fashion. They said she loved to shop and dress in colorful outfits, but could no longer shop for those outfits after the accident. But, again, information that’s directly controverted by even Ms. Henderson’s own medical—medical providers. 8 On appeal, Henderson quoted Thompson’s counsel as suggesting that jurors should “set aside” the “inherently biased testimony of Ms. Henderson’s friends and family.” 9 ambar.org/tips ❬ THE BRIEF 43 PUBLISHED IN THE BRIEF, VOLUME 53, NUMBER 1, FALL 2023. © 2024 BY THE AMERICAN BAR ASSOCIATION. REPRODUCED WITH PERMISSION. ALL RIGHTS RESERVED. THIS INFORMATION OR ANY PORTION THEREOF MAY NOT BE COPIED OR DISSEMINATED IN ANY FORM OR BY ANY MEANS OR STORED IN AN ELECTRONIC DATABASE OR RETRIEVAL SYSTEM WITHOUT THE EXPRESS WRITTEN CONSENT OF THE AMERICAN BAR ASSOCIATION. TIP : Implicit bias teachings alone are not enough to decide specific challenges, and verdicts should not be overturned on possibilities or presumptions. In what became the central issue on appeal, Thompson’s counsel argued that Henderson’s demeanor belied her credibility: But when it’s my turn to cross-examine her, she’s not interested in the search for truth; she’s interested in being combative. Why are you putting me on trial? I don’t know what I told my doctors. I don’t know when I saw my doctors. I don’t know what they have in my reports. I didn’t read the medical records. . . . You know, it was—it was quite combative. There’s—there’s definitely no search for the truth there. 10 The jury was out for less than a day. It awarded Henderson $9,200. Henderson moved for a new trial or for additur. She argued: Defendant’s closing argued that plaintiff was “combative” and that her attorney was “intimidating” which are racially biased code words frequently used to malign African-American women. The jury’s award of $9,300 [sic], 1/5th of the amount defendant acknowledged was fair, can only be the result of racial animus against plaintiff and her attorney, two of the five African American women who testified in the courtroom. 11 The trial judge was the Honorable Melinda J. Young. At the time a relatively new judge, 12 she graduated from the University of Washington Law School and had been a prosecutor for 20 years prior to her appointment. She held a special interest in mental health issues; she helped to create a mental health court to emphasize treatment and housing for criminal defendants with persistent mental illness. At present, her website biography states that she is a member of the King County Bar Association Diversity Committee. Judge Young denied Henderson’s motion. Because her order embeds what are in substance findings of fact, it is worth quoting in some detail. (Emphasis is added to passages material to the subsequent appeal.) The Court recognizes that implicit bias exists. The Court recognizes the specific bias against African American women and the stereotypes of the “angry black woman,” or “welfare queen,” or “Jezebel.” The court further recognizes that using the terms combative in reference to the plaintiff and intimidated in reference to the defendant can raise such bias. What makes implicit bias insidious is the subtle nature of the animus and the difficulty in determining its presence. It can be difficult for a person with implicit bias to recognize it in him or herself, much less recognize when triggered by racial stereotypes. However, there is no case that finds that the possibility of implicit bias is grounds for a new trial or additur . In this case, the use of the terms that the plaintiff now complains of was not objected to when defense counsel made her argument. The terms were tied to the evidence in the case, rather than being raised as a racist dog whistle with no basis in the testimony. Ms. Henderson was very uncomfortable being cross...