9th Circuit to Hold En Banc Hearing in Case Related to Implicit Bias and Black Jurors


The United States Court of Appeals for the Ninth Circuit en banc will hear oral arguments on June 16, 2015, in a case related to implicit bias and the exclusion of Black jurors.

On September 22, 2014, the Equal Justice Society and Wilson Sonsini Goodrich and Rosati submitted an amicus brief to the 9th Circuit in support of a rehearing en banc in Robert McDaniels v. Richard Kirkland (Case No. 09-17339).  Two defendants were convicted for first-degree murder in a case alleging the prosecutor discriminatorily struck Black jurors from the juror pool in violation of the 14th Amendment.

We filed an amicus brief because the prosecutor’s preemptory challenges against seven out of ten Black jurors appear to have been improperly based upon implicit bias.  The trial court accepted the challenges as facially “race-neutral.” However, the prosecutor based many of his challenges on jurors’ demeanor, or mannerisms, or their response to the race question on the jury questionnaire.  No potential white jurors were struck for the same reasons.

In our brief, we discussed social science research revealing that even individuals who harbor no overt racism may be subject to “implicit bias” that results in discrimination.  In addition, implicit bias can lead prosecutors to make discriminatory challenges to jurors based upon racial stereotypes, and may also lead a court to accept the validity of purportedly “race-neutral” justifications.

Our brief not only provided further explanation of implicit bias and the leading social research analyzing it, but also offered statistics demonstrating the harm caused by implicit biases on people of color, in particular, African Americans. For example, research has indicated that many Americans associate African Americans with criminality and aggression. By highlighting this data for the court, we hoped to underscore the importance of selecting a diverse jury, and not a jury in which African American jurors have been stricken in a discriminatory manner.

Furthermore, as appellants properly raised in their petition for rehearing, Batson v. Kentucky prohibits the use of peremptory challenges to discriminate against prospective jurors on the basis of race.  We argued that the Ninth Circuit has sufficient latitude to consider the impact of implicit bias when reviewing peremptory challenges in an effort to ensure no such discrimination occurs.  We concluded with a request that the Court grant the appellant’s petition for rehearing en banc in order to consider the role of implicit bias that resulted in unlawful racial discrimination against minority members of the jury pool.

Signing on as amici with us were: the Asian American Legal Defense and Education Fund; Lawyers’ Committee for Civil Rights of the San Francisco Bay Area; National Center for Lesbian Rights; National Center for Youth Law; American Civil Liberties Union; Chinese for Affirmative Action; Disability Rights Education and Defense Fund, Inc.; California Attorneys For Criminal Justice; and the California State Chapter of the NAACP.

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