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Implicit Bias in the Justice System and Some Moral Ambiguity

The ABA Annual Meeting in Chicago last week was fantastic. A great chance to connect with friends and colleagues, meet new ones, and learn a thing or two. In addition to the fantastic panel discussion about how to drive DEI efforts in law firms, I attended an equally good discussion of implicit bias in the justice system. It was moderated by none other than Judge Bernice Donald of the 6th Circuit (and if you don't know her, you're missing out...big time). She led a discussion with Judge Tonya Parker, Chief Judge of the 116th Judicial District in Dallas, Texas; David Biggers, former Assistant U.S. Attorney in two different districts and currently an attorney at St. Jude Childrens' Hospital, and Lieutenant Colonel (LtCol) Susan Upward, of the United States Marine Corps.

Judge Donald started things off with an exercise that forced everyone to acknowledge some of their own biases. It was unexpected, but a thoroughly useful and engaging way to get everyone focused on the topic at hand. The panel was thoughtful, well-informed and well-prepared, and had great ideas about how to use jury instructions to start to blunt the effect of bias at trial.

I was really interested in LtCol Upward's proposals for a model panel (jury) instruction for military courts-martial. She will be publishing an article soon on the topic and I'm hopeful it gets some traction in the military justice community. As she noted, incorporating this sort of instruction into military practice is pretty simple and doesn't face the same sorts of hurdles similar instructions might face in civilian practice. The (relatively) simple process of incorporating a model bias instruction into the Military Judges' Benchbook would make such an instruction (more or less) available to litigants across the military services, offering the possibility of mitigating bias broadly and rapidly.

In addition to that instruction, I am also hoping LtCol Upward includes a recommendation that the model military panel (jury) instructions delete references to members relying on their "knowledge of the ways of the world." This is too easily used as code for permission to rely on their biases.

I know, because I have used this sort of argument to win acquittal for a client. It was both a proud and shameful day, but I thought using the panel (jury) members' biases, where they favored my client, was the right thing to do, and required of me as his advocate.

I raised this question during the panel, about the apparent tension between our aspirations as attorneys to make the justice system better, more fair, weighed against the duty of loyalty and zealous representation some attorneys owe to their clients. This may not be the case for prosecutors, whose clients (the states or the United States) have as much an interest in procedural fairness as they do in securing convictions for criminal conduct. But defense attorneys and attorneys in civil practice, with individual clients, may have different obligations.

My view -- that there is a tension that may be hard to resolve -- was not popular with the panel, and there was significant discussion about it. There was a strong view that arguments that tended to lean on or leverage jury member bias were contrary to an attorney's oath and interest in justice. While I agree that we should aspire to a more fair system and should not permit bias to reign in our personal actions, I don't think an attorney's oath precludes those arguments on a client's behalf. (See, for example, the oath of admission for United States Courts: "I [....] do solemnly swear (or affirm) that as an attorney and as a counselor of this court, I will conduct myself uprightly and according to the law, and that I will support the Constitution of the United States.") And ABA Model Rule of Professional Conduct 1.2(b) explicitly acknowledges that attorneys will occasionally take positions on behalf of their clients that may not reflect their own beliefs.

What does this have to do with leadership? Everything, because this question speaks to how we handle ourselves in situations of moral ambiguity. And, for me, it's an example of a choice I have second-guessed since making it. In these situations, we need to know which way our moral compass points and we need to be prepared to live with and learn from the choices we make. We are leaders in progress. What mechanisms do you have in place to help you grow in the right direction? What plan do you have in place to focus on the issues and values that are important to you? If you want a guide and a partner who knows what it's like to make hard decisions -- even to regret some of those decisions -- and learn from them, set up a free call do discuss how BKG Leadership Coaching can help you realize your goals for leadership growth.

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