Tuesday, October 18, 2016


Every defendant faces the biases that abound within our criminal justice system. Even our best judges have latent biases while many of our worst judges where their biases on the sleeves of their judicial robes. Using their sentencing power to remain in office to perpetuate even further bias. 
Why do these 12 angry men look so similar?

Yet our system does have a safety valve of sorts in that every defendant can demand a jury trial to be judged by his peers. When one takes a sweeping view of our peers it's astonishing that anyone ever goes to trial especially in the Florida federal courts where defendants rightly view the judicial game of jury trials as being rigged in favor of the prosecution. Even our culture is permeated with images of bias. You need go no further than to look at a still from the movie Twelve Angry Men, which purported to show twelve very different Americans yet all the jurors are white, male and of similar ages.

The thoughtless or thoughtful judge will always say the right words for the record. The self-righteous judge will tell the lawyers on the record that they must select fair-minded, unbiased jurors. And the record will reflect the defense lawyer's repeated objections to the prosecutor's strategic use of challenges in creating the biased jurors the prosecutors want. Yet somehow those biased jurors stay on the panel making it more likely that you'll be looking for the best possible federal sentence after the inevitable conviction.

One helpful remedy is persuading the presiding judged to adopt the following proposed jury instructions on Implicit Bias:
 Do not decide the case based on “implicit biases.” Everyone,
including me, has feelings, assumptions, perceptions, fears, and
stereotypes, that is, “implicit biases,” that we may not be aware
of. These hidden thoughts can impact what we see and hear, how we
remember what we see and hear, and how we make important decisions.
Because you are making very important decisions in this case, I
strongly encourage you to evaluate the evidence carefully and to
resist jumping to conclusions based on personal likes or dislikes,
generalizations, gut feelings, prejudices, sympathies, stereotypes,
or biases. The law demands that you return a just verdict, based
solely on the evidence, your individual evaluation of that evidence,
your reason and common sense, and these instructions. Our system of
justice is counting on you to render a fair decision based on the
evidence, not on biases.
Source: U.S. CONST. amend. V; U.S. CONST. amend. VI; United States v. Hendrix, 549 F.2d 1225, 1227, 1229 (9th Cir. 1977); Jerry Kang, the Hon. Mark Bennett, et. al., Implicit Bias in the Courtroom, 59 UCLA L. Rev. 1124, 1182-83 (2012) (providing the above instruction, which is U.S. District Court Judge Mark Bennett’s standard jury instruction on implicit bias);  
This goes well beyond the typical language of using common sense as a federal juror in Florida to find the truth. And it asks each member of the jury to internalize the evidence thru the prism of not only his or her possible bias but other biases that may have leaked into the case and to "resist jumping to conclusions based on personal likes or dislikes, gut feelings, prejudices, sympathies, stereotypes, or biases..."

A federal jury instruction such as this gives additional leverage for the defense lawyer to articulate possible problems arising in the case where there's been known or unknown implicit bias. The lawyer in closing arguments will reference the avoidance of implicit bias as the law that the judge will provide to the jury as something important that is to be part of their deliberations. 

The goal of every trial should be to find the truth in a fair, non-biased way. To have fair trials in Florida federal judges who care about our criminal justice system should give this jury instruction when requested.

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