May 19, 2017
Today, plaintiffs filed a brief with the Court of Appeals outlining alleged errors committed by Trial Court Judge, the Honorable Suzanne Parisien, which justify a new trial. Jack said, “In this appeal, we are hoping to change the way trials are conducted in Washington, because Washington trial courts currently ignore the impacts of implicit bias (the tendency to automatically favor one race over another), even though many federal and state courts have addressed the issue in jury selection and in the conduct of the litigation. We need to catch up. We also need to ensure that juries are diverse. This appeal, if successful, with go a long way to obtaining those goals and to ensuring equal justice in Washington.”
Black Civil Rights Matter—Washington Courts Need To Instruct Juries That Implicit Bias Is Real And Has To Be Considered In Jury Deliberations And That Management’s Lies At Trial May Be Evidence Of Discrimination
Implicit Bias Jury Instruction
As a general rule, in whistleblower and discrimination cases involving white plaintiffs brought by the Sheridan Law Firm, Jack has observed that the plaintiff’s credibility has been on an equal footing with white managers who testify at trial, but in cases involving black plaintiffs, Jack has seen mostly white Washington juries ignore and explain away the lies told by white managers in open court, and magnify minor inconsistencies in the testimonies of the black plaintiffs—concluding that the black plaintiffs are not credible or are at least less credible than their white managers—regardless of the level of contradictory testimony by the white managers. This is implicit bias, and Washington attorneys need to address it with jury instructions that link management’s lies to discrimination and admonish juries to reflect on their automatic tendencies to believe or disbelieve a witness owing to race. Washington courts need to address it by instructing juries on the dangers of implicit bias in deliberations, and by finding ways to make juries more diverse.
In a criminal case, the Washington State Supreme Court recognized the need for diverse juries:
- From a practical standpoint, studies suggest that compared to diverse juries, all-white juries tend to spend less time deliberating, make more errors, and consider fewer perspectives. Equal Justice Initiative Report. In contrast, diverse juries were significantly more able to assess reliability and credibility, avoid presumptions of guilt, and fairly judge a criminally accused. “By every deliberation measure, … heterogeneous groups outperformed homogeneous groups.” These studies confirm what seems obvious from reflection: more diverse juries result in fairer trials.
State v. Saintcalle, 178 Wn.2d 34, 50, 309 P.3d 326 (2013).
On the issue of implicit bias in the workplace, renowned University of Washington Psychologist Anthony G. Greenwald, Ph.D. has opined that, “There is now little doubt that implicit bias, in the form of unconscious attitudes and stereotypes, is a cause of discrimination.” He has found:
- Implicit biases are pervasive and are often observed in more than 70% of Americans, most of whom genuinely and sincerely regard themselves as lacking in biases. Research using IAT measures finds that persons are often unaware of discrepancies between (on the one hand) their explicitly expressed—and often genuinely endorsed—egalitarian beliefs and attitudes and (on the other hand) the implicit stereotypes and attitudes that are revealed by their IAT measures. Research studies consistently find that a majority of persons who display implicitly biased associations on Implicit Association Test (IAT) measures are unaware of possessing those biases.
Click here to see example of federal case supporting Dr. Greenwald’s expert testimony under tougher federal standard for admitting such testimony (Samaha v. Washington State Dept. of Transportation (West))
Implicit bias also exists on jury panels, so in 2016, the American Bar Association adopted “Principles for Juries and Jury Trials,” which recognizes the implications of implicit bias in the deliberations of juries and recommended the following remedial practices:
The court should:
- Instruct the jury on implicit bias and how such bias may impact the decision-making process without the juror being aware of it; and
- Encourage the jurors to resist making decisions based on personal likes or dislikes or gut feelings that may be based on attitudes toward race, national origin, gender, age, religious belief, income, occupation, disability, marital status, sexual orientation, gender identity, or gender expression.
ABA Principle Six. “The American Bar Association recognizes the legal community’s ongoing need to refine and improve jury practice so that the right to jury trial is preserved and juror participation enhanced.”
Washington judges are ignoring the ABA’s recommendations—Washington judges do not presently require or give implicit bias jury instructions. Jurors need such instructions to check themselves and other jurors to ensure that they are not making credibility and trustworthiness decisions based on automatic views of parties and witnesses.
In post-verdict interviews of jurors by Jack, some non-black jurors explained away the lies told by white managers with phrases like, “we thought they just didn’t remember.” In one case, a juror said that, had the plaintiffs had other witnesses to support their position, the seven plaintiffs would have seemed more believable (six African Americans and one Asian American). Had the plaintiffs all been white, would this view have been articulated? Jack suggests that implicit bias instructions should be given in every case, because the court cannot know when a juror is using automatic responses to evaluate persons who are different.
Pretext Jury Instruction
The Sheridan Law Firm recently brought three discrimination cases to trial in King County (Seattle) representing black employees as plaintiffs. In each case, there was solid testimony showing that managers lied about key facts and failed to follow procedures. In each case, Jack asked the court for a jury instruction, which is given in other jurisdictions, to instruct the jury on pretext:
- You may find that the plaintiff’s [race or other protected status] was a substantial factor in the defendant’s decision to terminate the plaintiff if it has been proved that the defendant’s stated reasons for the decision are not the real reasons, but a pretext to hide discrimination.
This is a critical instruction to show the jury that lying matters, and that proving that the defendant lied about the reason for doing what it did (termination, suspension, demotion) is evidence of discrimination. Jack stated, “without a pretext jury instruction to connect the dots, the long list of lies proves nothing more than the managers are liars. The pretext instruction would have connected the dots in each case.” This jury instruction would also benefit white plaintiffs who bring gender, age, sexual preference, military service, and disability discrimination cases, because they also have to prove that discrimination was a substantial factor in an adverse employment action (like termination), and in most cases must rely on evidence of pretext as circumstantial evidence of discrimination.
Monroe v. City of Seattle
This case involves an African American plaintiff claiming disability discrimination. The mostly white and Asian American jury deliberated only 2 hours, and according to the sworn statement of the one black juror, did not review trial exhibits before reaching a decision against the plaintiff. The trial judge refused to give either an implicit bias or pretext jury instruction. Oral argument on Ms. Monroe’s motion for a new trial will be heard on January 27, 2017, at 9:00 a.m. in the Honorable John Erlick’s courtroom (10th floor, room W-1060). The courthouse address is:
King County Superior Court
Third and James
516 Third Avenue
Seattle, WA 98104
Click here to read Jensen’s contradictory sworn statement (compare par. 15 to pages 107-110 of Jensen trial transcript; then look at pages 111-112 in which Seattle City Attorney offers to take blame for contradictory testimony by Jensen)
Farah v. Hertz Transporting, Inc
This is a religious discrimination case involving twenty-six Muslim African Americans, who are Somali refugees. They were fired for praying at work without clocking out—after being permitted to do so for a decade before a new white manager took over—while smokers and others did not have to clock out for breaks. The trial judge refused to give a pretext instruction. The Court of Appeals explored the pretext jury instruction, and although the court recognized that it is an accurate statement of the law, the Court ruled that it need not be given. The Court held, “While the instruction might be appropriate, the arguments in its favor are not compelling enough to hold that it is an abuse of discretion to refuse to give the instruction.” Farah v. Hertz Transporting, Inc., 196 Wn. App. 171, 383 P.3d 552, 558 (2016).
The Sheridan Law Firm has petitioned the Washington State Supreme Court in Farah, asking those nine justices to weigh in and make this instruction mandatory, as it is in a number of federal courts.
Johnson v. City of Seattle
This is a race discrimination case involving seven plaintiffs: six are African American and one is Asian American. The trial judge refused to give the implicit bias instructions proposed by plaintiffs, refused to allow Dr. Anthony Greenwald to testify about implicit bias in the workplace, and refused to give the pretext instruction. The case is currently on appeal.
Jack noted, “Our jury had no African Americans on the panel (although three jurors were not Caucasian), which meant that the jury lacked the possibility (not guarantee) of having a perspective of the African American experience. I asked the court to strike the jury pool and bring in a pool that had African Americans, but the Court denied my request.”
Jack notes there are experiences unique to African Americans, which Caucasians do not experience. For example, there is a phrase called driving while black, which was explained in the Supreme Court case of State v. Valentine in a dissent by former Justice Sanders:
- Young African American males frequently report being stopped and detained for reasons that are superficially pretextual. Even affluent people of color, who drive expensive or late-model cars, often report being stopped by law enforcement officers because of their race. This practice has become so prevalent that the actual justification for such detentions has become widely known as “Driving While black (D.W.B.).”
State v. Valentine, 132 Wn.2d 1, 28 n.1, 935 P.2d 1294, 1308 (1997) (Sanders dissent) (majority held that in Washington, a person cannot resist an illegal arrest). Jack noted that “a Caucasian cannot have experienced the driving while black phenomenon, which is one of those life experiences that affects how one connects the dots when given certain facts, and in evaluating this case, the jury lacked the life experiences needed to give this case fair consideration—they could not connect the dots as to why the plaintiffs’ mistreatment related to race.”
WHAT CAN YOU DO TO ENSURE THAT BLACK CIVIL RIGHTS MATTER IN WASHINGTON?
State Court judges are elected by the people at every level. They campaign for election and reelection. Attend forums where the candidates speak and ask:
- What will you do to ensure that juries are diverse, since our Supreme Court recognizes that diverse juries do a better job?
- Will you adopt the American Bar Association’s recommendation on instructing juries about implicit bias and if not, why not?
That’s a good start. Dialogue is the first step toward change. The Sheridan Law Firm and other law firms throughout the State that focus on civil rights will continue to bring these issues to the attention of trial judges and judges at the appellate level until our judiciary recognizes that black civil rights matter, and until they do something about it.