Introduction:
State and federal courts have become deciders in cases that can alter laws and carry their influence for generations. Prominent cases have included segregation, women's rights, or more recently firearms and immigration. These court decisions are often met with debate, individuals on both sides may disagree with a judge or jury’s ruling. More and more individuals are losing faith in the American judicial system, one of those aspects being the growing disbelief in the jury system, and rightfully so.
The Tales of a Biased Jury: Mr. White is not so white:
The morning of August 11, 1979, an intruder broke into a Manchester, Georgia home then beat and raped the resident, a 74-year-old woman. After the violence, he took her cash and left. At the crime scene, investigators found a pubic hair that was thought to be the intruders. Fast forward six weeks after the incident and Mr. John Jerome White (a 25-year-old African-American) was arrested on drug charges (unrelated to the previously mentioned incident). It was decided last minute to include him in a police line-up
 |
| Police line-up where White was identified as intruder/attacker, when all along the guilty man was standing right next to him. |
Layers of the Jury Onion: it makes me cry:
Blame or finger pointing is not necessary when it comes to a case like this. The identification from a line-up was one of the best options at the time. However this could raise some potential biases regarding jurors. Research suggests that the race of both the victim and the defendant will influence sentencing, one study found that defendants with more stereotypical “black features” were more likely to be sentenced to death [2]. The sentencing could have resulted with harsher results due to the bias in regards to the victim. The jury members’ sympathetic tendencies (the natural tendency to feel sympathy for any rape victim, but especially one that is 74 years old!) led them to look beyond the “guilt beyond a reasonable doubt” standard and ignoring key points such as, an “almost positive” identification, little light in the victim’s apartment, and obscured vision.
Racial bias, although significant, is not the only bias found in juries. There are also some theories that state juries could be harsher on heavier and “less attractive” witnesses. This discrimination could be happening either consciously or subconsciously [3]. A study performed indicated the attractiveness of the victim (and even the defendant) both influence decisions made by jurors [4].
A jury has also been accused in a case for providing the death sentence instead of life in prison after learning the defendant was a homosexual, on their "unofficial speculation" that he would "enjoy" being locked up with men and it would not be a sufficient punishment [5].
The (Im)possibilities of De-biasing:
With these biases (both conscious and subconscious) are juries able to decide cases based on the facts and the law? There are de-biasing techniques being studied to disrupt these stereotypes, such as:
· Exposure to counter-stereotypes (positive images of African-Americans, like Martin Luther King and negative images of white Americans, like Jeffrey Dahmer).
Whatever the solution may be, it is evident that these jury biases are not in alignment with the objectives that the American judicial system wants to accomplish.
Discussion:
Do you disagree with my claims that John Jermone White had a biased jury? Or do you believe there was enough evidence, based on what was available in the late 1970’s, to convict him?
Do you think these jury (and I’ll expand this to judicial benches as well) biases create an “unfair” treatment of parties within a trial?
Do you think it is getting into the gray area to apply this type of cognitive psychology (counter-stereotyping) to law?
What would be the best way to diversify a jury?
There is something called “virtual trials” that is a proposed solution where jury members would not be able to see any skin colors, or “attractiveness” levels to eliminate bias. What do you think of that?
What are some other options to improve the bias situation within a jury, or in general, the courtroom?
[1]
[2]
[3]
[4]
[5]
[6]
I believe this type of bias exists. I was involved in a workshop on implicit bias. The workshop was Harvard’s “Project Implicit.” It’s an international collaboration between researchers who are interested in implicit social cognition – thoughts, and feelings outside of conscious awareness and control. The goal of the organization is to educate the public about hidden biases and to provide a “virtual laboratory” for collecting data on the Internet. They had us take a test to educate us about what biases we might have. The point is that the only way you can deal with an implicit basis is to recognize it. You can take the test yourself here: https://implicit.harvard.edu/implicit/takeatest.html It’s revealing.
ReplyDeleteI believe the research that finds implicit stereotypes are influenced by experience, and are based on learned associations between various qualities and social categories, including race or gender. I don’t see how implicit bias couldn’t affect the exact situations you point out in your post.
Absolutely, implicit bias is woven into our thought-processes which leads to our decisions.
DeleteI took one of those tests on the link you provided, it was very intriguing, taking more of these tests could bring more awareness, which may result in less of a bias, maybe?
We can only hope!
DeleteTodd, Tyrone, and Tao. Think of those three names, close your eyes, and picture what each person looks like in real life. It is okay if you picture each person as a caricature of what you believe each name would look like, it is human to categorize. We all hold some sort of bias whether we are conscious of it or if it resides in our subconscious. The difficulty is when we began to assign traits to Todd, Tyrone, and Tao. Who is most likely to have a criminal record, most likely to go to higher education, or most likely to be a college professor?
ReplyDeleteJohn Jerome White never had a shot at a fair trial and that is an all too familiar spot many people of color find themselves. These cases are all too familiar that reverse engineering is used to state that the defendant is guilty, now how to show it. Who has not heard, or said, “That person looks so guilty!” We possess no more ability to judge innocence with a glance than we possess the ability to pick the winning lotto numbers, someone would have won the $1.6 billion many drawings ago. Yet, juries look at witnesses and defendants while quickly determining they, “look guilty.” In this case, he looked similar so it must be the correct identification. I looked up this case further and found he was identified beyond a reasonable doubt in a space with a small closet light in the adjacent room by a victim who not wearing her prescription glasses. I feel terrible for the victim, but I also feel terrible for Mr. White.
Jordan raises great questions about how to avoid someone else serving 22 years of their lives. I am not exactly sure of the answer although I believe conducting a case with facts and not emotions is a great start.
I absolutely think that Mr. White had a biased jury, especially in the 70s. Here is a link to an article that discusses the statistics from just a few years ago on a white person vs. a black person being admitted as a juror: https://psmag.com/news/the-data-that-shows-american-juries-are-racially-biased. Can you imagine how much more extreme this would have been in the 1970’s (only 10-20 years after the Civil Rights Movement).
ReplyDeleteIn regards to a biased jury, I also struggle with any kind of case regarding abortion, women’s rights, LGBTQ rights, etc. How can any person have a say in what a woman does with her body besides that woman herself? How can any person have a say in what gender someone identifies without understanding their deep thoughts and feelings? It is not possible. These types of cases will automatically produce bias from jurors that can not understand what the other person is going through.
I think the idea of a “virtual trial” is an interesting one. Unfortunately, I think jurors can bring a bias in from much more than just appearance. Any kind of language barrier, dialect difference, accent, how a person strings their words together, etc. would automatically cause a bias opinion of the defendant. If a “virtual trial” could be successful, there would need to be a lot of pieces studied and changed in order to create a truly “virtual” experience - which I am not sure is possible.
That is a point I did not mention, but definitely regarding gender when it comes to a jury bias is extremely important! It is safe to say that understanding a womans deep thoughts and feelings is not my expertise (or will it ever be) so having 100% empathy or the ability to put yourself in their place is not possible.
DeleteThe virtual trial is a lot more complex and harder to achieve than simply removing appearance. You would definitely need to consider accents, dialects, and even sentence structure.
I thought i would tackle the question of the best way to diversify a jury. Thurgood Marshall once argued that "when any large and identifiable segment of the community is excluded from jury service, the effect is to remove from the jury room qualities of human nature and varieties of human experience, the range of which is unknown and perhaps unknowable." I think jury diversification likely begins with diversifying the sources of where the jury is selected. In Utah state courts, juries are selected from driver's license and voter registration lists. However, there are states that are calling on their legislatures to pass laws that would require counties to use other sources that may include in the jury pool a more diverse demographic, including income tax filings, unemployment/public assistance benefits and utility records. Perhaps paying individuals more to serve on juries would help, particularly with respect to those in younger age groups, say, 18-24, or individuals of all races who work in lower-paying jobs and that may experience a greater hardship from missing work in order to serve on a jury.
ReplyDeleteJaclyn~You make a great point regarding diversifying the selection at the very beginning of the selection process. This should be brought up when we meet with the legislators coming to Prof. Marshall's next class.
DeleteJordan, great post! In the case of Mr. White, am not sure the jury was biased as much as the jury relied too heavily on (weak!) eyewitness testimony. Professor Dryer told us that eyewitness testimony is unreliable and I know it for a fact! Recently, I conducted a work investigation where staff member A saw staff member B engage in an impermissible activity. These two staff members see each other almost daily and have known each other for more than a year. After a week-long investigation, staff member B strongly asserted his innocence and insisted he was not even at the facility where the activity was alleged to have occurred. Staff member A is required to monitor these activities and report them, so his story was far more plausible than B's. I finally discovered that the facility staff member B asserted he was in (not the one where he was witnessed to have been) had security footage. After reviewing the security tape, what do you think I discovered? Staff member A did NOT see B. B had not even visited the facility where A saw him that entire day. Even after watching the security footage. A could not reconcile what or who he had actually seen. The date and time was not in question as it was contemporaneously documented. It was terrifying that someone could have been so mistaken and it could have resulted in a serious matter. Staff member A committed to getting his eyes check but we all felt it was matter of psychology over bad vision. I think when people are very confident in identifying an individual, for some reason we trust that. While I believe there may have been some bias involved (maybe they really wanted to believe her eyewitness testimony because it was part of the jury's bias), I think people generally rely too heavily on what people confidently say they have seen.
ReplyDeleteThis speaks to the importance (and danger) of big data and the Internet of things. Having security footage or other evidence goes a long way to corroborate or disprove and alibi. I think one of the problems with police investigations is that those departments handle their own video and audio records and have a strong incentive to splice and redact materials prior to production to protect their departments.
DeleteThe new season of Serial and the Criminal podcast are replete with such examples. The unfortunate part is that it seems like the punishment for doctoring records and/or testimony does not seem to prevent the behavior in the first place (when punishment is given, that is).
In related news, Washington State's Supreme Court recently struck down capital punishment in an opinion that pointed out obvious racial bias in its application. If the justice system cannot perform the appropriate level of neutrality, the least it can do is narrow the spectrum of punitive tools at its own disposal.
ReplyDeleteAnd there are essential limits to how well bias can be controlled. I'm old enough to remember the media circus that was the OJ Simpson trial -- the original murder trial, that is. One aspect of the surrounding debate would probably fall under what we call "intersectionality" today -- two white victims admittedly had a kind of social privilege that a black defendant did not, but said victims (one female, one Jewish, and neither an international celebrity) had structural disadvantages of their own (on top of being...y'know, dead). Systematic biases against blacks and victims of domestic abuse were all too clearly in play.
It felt at the time as though a fair trial wasn't even remotely possible along any axis; impaneling and sequestering a jury was like wrestling an octopus. Controlling for one bias inevitably seemed to enhance another. And fame is a bell you can't really un-ring: as with other high-profile cases, you could arguably be "unbiased" only if you'd been living under a rock for a few decades.
And recruiting from underneath rocks brings about its own self-awareness pitfalls. As one juror, in retrospect, so eloquently puts it: "I'm probably pretty sure that he probably is the person that went over there and killed Nicole Brown Simpson and Ron Goldberg."
This comment has been removed by the author.
ReplyDeleteA speaker was invited last Friday October 19 to our class to Conflict and Legal Crisis Management, she mentioned a story about settling in a court where the majority of people were black on the plaintiff side and also the jurors if I remember correctly. During the trial when they had a break, the judge advised the defendant attorney to settle the case before continuing with the litigation, and one of the reasons was because of the jurors and plaintiffs bias position. So she called her boss to get the authorization to settle the case, so she did. And she ended offering less than the amount that will probably be sentenced for if the litigation was decided by the jury. In the moonlight in California case we see power bias against a party. If the government is after you and you were sued for 1 billion, wouldn’t you settle for $55M? My point is that bias is everywhere, the powerful, race, religion, color, culture and others, it is Nearly 135 years after
ReplyDeleteCongress passed the Civil Rights Act of 1875 (https://www.senate.gov/artandhistory/history/common/generic/CivilRightsAct1875.htm) to eliminate racial discrimination in jury selection but to this day we still see discrimination depending on majority race in a certain area.
Bias opinions in a jury will always be present. Bias opinions are formed from birth and continued based on how a person is raised. If a person is raised in the same city around the same people, they might have specific biases that can create a difficult situation when it comes to serving on a jury. For example, in Utah Valley it is a predominantly white community. If there were to be this same situation with a black defendant, wouldn't the people serving on the jury have a hard time not having a bias based on their upbringing? They aren't around very many people of color and therefore could have a bias or opinion that all people of color are similar to the stories or news reports they have heard. On the other hand, if you were to be raised in the South, were a majority of the people are of color, couldn't they possibly have a bias opinion against Caucasians?
Bias is human nature. In order to get rid of bias opinions stereotypes and labels would have to be eliminated from all media, documents, and so on. For example, if children were raised and not asked on every form that they fill out what their "race" is they wouldn't be identifying that there is a difference or that there is perhaps a stereotype that is being filled.
Bias is in all things. I don't believe there is a way to rid the world of this unless we were all perfect. Human nature is to identify similarities and differences between us. A woman in a room full of other women will seek out women who she fills is closest to her in appearance and intelligence while distancing herself from women she believes are below her, too different from her, or are superior to her. Men do the same. Men identify, subconsciously who is the Alpha in situations. If they are an alpha they will seek out other alphas.
I do not believe there is a way to eliminate bias in Jurys. Names, accents, race, looks, beliefs etc. will always cause distancing and bias. In conclusion I think that maybe as a people we need to start raising our children to not identify the differences and start enjoying people for people. I think that in the case of jury duty and law there will always be imperfection and bias. Unfortunately, this is human nature and we can pass all the laws we want but it will not change bias opinions that people are raised with. We can only hope that we can raise the future generations with less biases.
Bias is definitely in all things and instilled in individuals, but I do believe there are ways to screen for those type of biases to hopefully result a "fairer" outcome, maybe it is my wishful thinking!
DeleteJordan that will be a great bill project. I wish the system could screen for those types of biases for greater outcomes.
DeleteUnfortunately, we all have biases, whether good or bad. The courtroom is complicated because there is the bias of the judge, the bias of the attorneys, and the bias of the jury. How do we put these sometimes subconscious biases aside and provide a defendant full, pure justice? That's hard because we often form an opinion of someone before we really know them. A jury member is never afforded the opportunity of getting to know the plaintiff and defendant on a personal level. A juror does not get to visit one on one with the two parties, she has to form an opinion based on facts. She gets to see and observe the parties in the courtroom, but really, who is their true self in the courtroom? That is a stressful place to be, especially when you're trying to defend yourself. So we, imperfect people, have to play judge without really knowing the heart and intentions of the individual, and as we take on the role of judge, we bring our past experiences and biases with us because that's who we are. We have the facts presented before us, but are they all true and cause us no doubt? I feel it is important for the members of the jury to see, hear, and observe the defendant and the plaintiff. They are "real" people, not "virtual" people. In an ideal world, we would see everyone as equals and only judge them on their actions and not their race or lifestyle. But, I guess for here and now we have to do the best with what we have, and that is ourselves. Each day may we try to recognize our biases and overcome them so that we do not judge someone the wrong way and picture them behind bars when they should be free.
ReplyDeleteI'm not sure how many people felt this way, but I had trouble during our mock trial separating the substance from the presentation during witness testimony. It is very easy to get wrapped up in the personality and presentation of the witness rather than the actual substance and meaning of the testimony they provide.
DeleteRaelene, I think you make a good point about situation and time involved with the parties and witnesses at trial as well. The attorneys spend years working on a case and with their clients and get to know the personalities and facts inside and out. The jury, on the other hand, only gets to see what is presented to them, and that presentation is not going to be complete and may not necessarily be favorable. As such, the jurors will tend to use their backgrounds and biases to fill in the gaps of the information not provided and more likely than not, that information will not be reflective of the party at the trial.
The problem with juries is they’re made up of people. The structure of the jury; which vary between Federal and State, and the voting thresholds; dictated by the severity of the case at hand, are supposed to keep it fair by design. Cleary there are failings. The jury that convicted White had to have something that allowed them all to agree and convict an innocent man, despite White’s attorney pointing out the evidence available should not have withstood ‘beyond a shadow of a doubt.’ Statistically, racism could have played a role. Getting past the biases that any jury member could bring, however, and the influence they can cast on other members is a challenge. Too your suggestions, diversifying the jury should be on the minds of the prosecutor and defense as they go through the jury selection process. At least the US Supreme Court has enabled evaluation of jury bias as it relates to racism in deliberation. In March 2017 it overturned a Colorado Supreme Court ruling, which upheld a rule about questioning juror on what happened during deliberation, even in the case of possible racially driven outcomes. SCOTUS declared that, “"the central purpose" of the Fourteenth Amendment guarantee to equal protection of the law was to eliminate racial discrimination emanating from official sources in the states.” Link: https://www.npr.org/2017/03/06/518877248/supreme-court-allows-prying-into-jury-deliberations-if-racism-is-perceived (This is a great article. Please take the time to read it.)
ReplyDeleteI think the courts and other jurors have the responsibility to assure deliberation is fair and based on the facts and evidence presented. I think tampering, as I see it, with cognitive psychological tools such as exposing jurors to positive models within various races could have the opposite and equally as damaging effect.
As far as a virtual trial, that too could backfire. Without access to all forms of communication during testimony I feel the individuals would be shortchanged on the overall trial experience and advantage. I understand the risks, however. I think about the blind job application study, that showed the exact same qualities and skills in two separate applicants can find favoritism once gender or race are disclosed. I still think it is up to the courts to assure diverse and fair jury selection and keep the criteria of establishing guilt, innocence, accountability or culpability in the forefront of direction to the jury throughout the proceedings.
Or reasonable doubt, whichever it takes. 220, 221...
ReplyDeleteSadly, this occurs all the time. I just listened to a podcast about trial of a black man named Curtis Flowers. He has had been tried six times for the same crime (he has always had his conviction overturned), and the prosecutor actively tries to get black jurors removed from the jury (one of the reasons the convictions are overturned). There is also a bias when one race (in Flowers' case, white) sees another race (black in the case) speaking out against their same race.
ReplyDeleteAs much as we would like to think we are not biased, we are. When I watch Making a Murderer, for example, I hate the prosector Ken Kratz (with his high voice and stupid tiny glasses). If I were serving on that jury, it would be hard for me to see beyond my bias of him and listen to presentation of the facts.
I absolutely believe that John Jerome White had a biased jury, especially in the 60s and especially in rural Georgia. It would have been difficult for him to get a decent trial jury in this area. Unfortunately I don't have any great solutions for removing the biases. Sometimes it's race, sometimes it's tiny glasses, sometimes it's because the defense attorney looks like your weird meth-head cousin. If the case has the facts, then the case should be able to stand on its own despite the personal factors. I think reminding and hammering home to juries of the standards: beyond reasonable doubt, clear and convincing evidence and preponderance of evidence and their percentages should be effective. Clearly they are not. I wish I had a better solution, but people are people and they have had experiences that will color their thinking.