I’m Trying to Remember How To Screw This Guy Over!

A friend of mine recently complained to me about a bad result in a jury case. The evidence connecting the defendant to the crime was attenuated at best, but it seemed that the jurors had allowed their prejudices to run wild, paying more attention to his neck tattoos than to his entirely-believable alibi, and returning a verdict of guilty.

Perhaps our modern jury system asks too much of the people who serve. Modern legal standards ask the finder of fact to set aside their social prejudices (some would say to set aside their hard-earned social wisdom) and judge the facts of the case without reference to a litigant’s overall conformity to social norms. What a chore! After 35 years on this planet, I know what an honest person looks like.

It wasn’t always thus. Consider this account from an Ancient Roman judge, Aulus Gellius, whose friend Favorinus has an interesting way of encouraging him to ignore the law and just do what he really feels like doing:

A man claimed before me a sum of money, which, he said, had been paid and counted out; but he proved it neither by any bond, or record, or tablet, or witnesses, and relied on very slender argument. But it appeared that he was a man of very good character, of known and tried integrity, and of a most exemplary life. Many strong instances of his probity were produced. [Mean]while, he, upon whom the demand was made, was a man of no substance, of a base and dishonorable life, and proved to be a common liar, notorious for his cheats and frauds.

He, however, insisted, together with a number who sided with him, that the money lent ought to be proved, in the usual manner, by the balance of accounts, the calculation of interest, the signature of the borrower, the sealing of the deed, and the presence of witnesses; and that, if it were proved by none of all these circumstances, then ought the defendant to be dismissed, and the plaintiff condemned for calumny; and whatever was advanced concerning the life and practice of either was of no purpose.

Some friends of mine, whom I had consulted, men practiced in lawsuits and of some note in courts of judicature, though somewhat inclined to haste from the multitude of their law business, said there was no cause for delay or hesitation, but that he must be dismissed against whom it was proved by none of the accustomed forms that he had received the money. But when I recollected the characters of the two men, one distinguished by his integrity, the other by a most dissolute and abandoned life, I could not prevail on myself to dismiss him. I ordered, therefore, the day of decision to be deferred, and went immediately from the bench to the philosopher Favorinus.

I told him the whole story of the two men, as it had been related to me, and I requested that he would give me some instruction on the matter which then perplexed me. Favorinus, having approved of the scrupulousness of my delay and the propriety of my solicitude, said, I advise you to follow the advice of that very wise man, Marcus Cato, who says that custom handed down and observed by our ancestors was this: If there were any subject of dispute between two men, which could not be proved by records or witnesses, it was then inquired by the judge who presided in the case, which was the better man of the two. If they were equally either good or bad, then the matter must be decided according to testimony. But in this case, the plaintiff is a man of the best character, the other of the worse, and the matter is disputed between two persons without witnesses. Give credit, therefore, to the plaintiff, and convict the defendant, since, as you say, their characters are not equal, and that of the plaintiff is the better.

This is actually a common trick for ancient jurists: when you don’t like the legal result of a case, it’s time to find a gray-haired man to “remember” an older, more fundamental rule of law from times long past. This preserves the fiction that laws are unchanging, immutable, eternal, and impartial, while in practice it is ever-malleable social norms which are the dispositive standards.

The Myth: Black Men in Prison vs College

I no longer wonder why myths about there being more black men in prison than in college got so much traction….

commentaryBlack_t580

Despite the statistics and credible studies, people believe it. In fact, they will fight you on the point. In 2003, according to Justice Department figures, 193,000 black college-age men were in prison, while 532,000 black college-age men were attending college. Ivory Toldson disputes the myth and says prior statistics were just wrong.

Yet folks are quick to believe it. Some are quick to believe it (and will fight you on the point) because they are racist and have a need to feel superior. But more often, I think the reason most people believe it is because of unconscious bias. Even some black people have an unconscious bias towards other black people. Consider this quote from Jessie Jackson:

“There is nothing more painful to me at this stage in my life, than to walk down the street and hear footsteps and start thinking about robbery—then look around and see somebody white and feel relieved.”‖ Quoted in Chicago Sun Times, Nov 29, 1993.

I think unconscious bias is even more pronounced when someone does not have interaction with certain people groups or interacts only with a small segment of a group. For example, if a lawyer only interacts with African Americans who have been in trouble with the legal system, then that lawyer might develop some unconscious bias towards African Americans (biases that make the lawyer think African Americans have a propensity towards being involved with the legal system or that they lack intelligence). He (or she) might think that African Americans are throw-away-able (“if he/she doesn’t get popped on this case, he/she will catch some time on the next case”). Such thinking might cause him to pressure someone into entering a plea on a questionable case or might cause him not to work as hard on a case.

The problem with not interacting with a certain people group is that it limits the information we receive about that people group. Based on a lack of information, we make assumptions about that group that are unwarranted because our opinions are ill-informed.

I remember a story during a jury selection where a lawyer wanted to strike an older white woman who lived in Kingwood because he thought she wouldn’t be favorable to his minority client. But the client said, “No, I like her. She’s a house wife and probably sits around all day watching Fox News and distrusting the government.” Yeah, I know, that reasoning doesn’t really make sense, but the lawyer went with his client’s desires and left the woman on the jury. Sure enough after the jury acquitted his client that juror was one of the most vocal in favor of acquittal and told the lawyers about how she listened to hip hop music and did not trust the police. The lawyer’s assumptions about her almost caused them to get rid of a good defense juror.

Likewise, other racially based assumptions we make about people are equally problematic.

It’s time to acknowledge the bias and assumptions and work to breakthrough the misconceptions. Starting with the belief there are more black men in prison than in college.