Implicit bias is a hot topic right now, for good reason. In certain circumstances, like when we meet a new person for the first time, our brains take shortcuts. Sometimes those shortcuts help, other times, not so much. This week, the Sixth Circuit weighed in on the intersection between unhelpful shortcuts and jury deliberations in United States v. Brooks.
First
the facts. Detroit PD pulls up next to a Jeep. Cops see three men inside.
Cops say the passenger doesn’t have his seatbelt on. DPD curbs the truck,
one officer smells marijuana, another sees the backseat passenger, Demetrius
Brooks, “stuffing” something. You know the drill from here: officers find a gun
in the backseat and charge Mr. Brooks with FIP.
In
time, a jury convicts Mr. Brooks. Not long after, the lone Black juror sends
the district court an email. The email says the juror felt pressured to
convict. She harbored reasonable doubt, but the other jurors believed the
police. Because the police thought Brook's guilty, the other jurors did to. The
other jurors told her to use “common sense.” In the end, she caved to the
pressure.
Mr. Brooks said the juror’s email raised the specter of a Pena-Rodriguez violation. So the district court should have held an evidentiary hearing to determine if the jury was motivated by racial animus. Mr. Brooks argued that the letter indicated an implicit bias that drove the 11 to convict.
The Sixth Circuit saw no reason to remand for an evidentiary hearing. The panel reasoned that Pena-Rodriguez required an “overt” expression of prejudice. So implicit bias does not implicate Pena-Rodriguez.
But the panel offers a problematic read of Pena-Rodriguez. Pena
Rodriguez announces a broad rule: the Sixth Amendment bars a jury from
convicting a defendant based on racial stereotyping or animus. Given the
breadth of the rule, there is no logical reason to carve out a distinction for
implicit bias. Both implicit and explicit biases are forms of
prejudice that skew decisionmaking. Both violate the Sixth Amendment.
To be sure, Pena-Rodriguez involved a pretty shocking example of explicit bias. Recall, in that case, one juror said “I think he did it because he is Mexican and Mexican men take whatever they want.” The Supreme Court reversed Mr. Pena-Rodriguez's conviction and said the Sixth Amendment bars a jury from convicting a defendant based on racial stereotypes or animus.
If Pena-Rodriguez takes aim at racial stereotyping or animus, then implicit bias is just as problematic as explicit bias. An example helps. Imagine two jurors tasked with deciding the guilt of a Black man. One is a KKK member who announces his belief that the defendant’s race merits imprisonment. The other juror has a strong automatic preference for people of European descent and doubts the evidence but votes to convict based on “common sense.” Both jurors let racial bias motivate their vote to convict. Only one did so explicitly. Even so, both jurors violate the defendant's Sixth Amendment rights.
However, there
is a sticky wicket. Explicit bias is not hard to spot, implicit bias is less
apparent. Implicit bias works a bit like a computer’s operating system, always
functioning in the background, but often invisible to or unnoticed by the
operator. If the coding in that operating system looks favorably on one
immutable trait but unfavorably on another, the operator has a prejudice
that shapes their actions. But the operator doesn’t immediately recognize
it. And if the operator doesn’t recognize their own prejudices, how, then, is a
district court to uncover them?
The
difficulty of uncovering implicit bias does not merit a legal distinction. For
one, an implicit bias may be difficult for an operator to spot, but others can
see it. Plus, people can, and do, disrupt their implicit biases. Often it
requires some reflection and probing questions. In other words, a Remmer
hearing might do the trick. Even more, uncovering implicit biases should
come with less shame and social stigma as compared to acknowledging explicit
biases. Implicit bias is not the product of an intentional process. It is
there, it is happening, likely in spite of good intentions.
In sum,
implicit bias and Pena-Rodriguez should go hand in glove. The Sixth
Amendment does not permit jurors to convict based on racial prejudice. It makes
no sense to say only explicit expressions of prejudice violate the
Constitution. So when future cases more squarely present the issue of implicit
bias and jury deliberations, we should be prepared to argue it.
By Matt Monahan, State Appellate Defender Office
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