Minnesota courts lag federal counterpart in using implicit bias video

An 11-minute video on the impact of implicit bias in everyday decisionmaking is a common part of juror orientation in federal court in Minnesota, but state courts have lagged in adopting the practice as defense attorneys push for its inclusion.

Implicit bias includes attitudes or stereotypes that unconsciously affect decisionmaking. The topic arose earlier this year when attorneys representing former Minneapolis police officer Mohamed Noor, who is Somali-American, unsuccessfully asked a judge to allow it at his trial in the fatal shooting of Justine Ruszczyk Damond.

The issue has resurfaced as Chief Hennepin County Public Defender Mary Moriarty fired back at a new state-produced juror orientation video that she said glosses over the topic. "We know from research that implicit bias does impact jurors' thinking," she said. "The best thing we can do is make them aware of it and check that, and it's just embarrassing that this is the best thing our courts could come up with."

Of the more than 46,000 people who reported for jury duty across Minnesota in fiscal year 2018, whites were overrepresented at 88% of the pool, according to the State Court Administrator's Office. Every other racial group aside from American Indians was underrepresented.

Some metro prosecutors, including Hennepin County Attorney Mike Freeman, expressed caution about adopting the federal video. Hennepin County Chief Judge Ivy Bernhardson declined to be interviewed about implicit bias and her stance on the federal video.

"The new [state] juror orientation video provides an overview of jury service, and it addresses the issue of implicit bias," she said in a written statement.

Judges can also choose to give additional instructions about implicit bias, she said.

The 14-minute state video released in July spends about 34 seconds on the topic, instructing jurors to be "self-aware of your biases to truly ensure a fair trial." Much of the video covers the trial process.

The federal video produced a few years ago out of U.S. District Court in the Western District of Washington state walks viewers through an exercise to show "unconscious bias," cites a study on gender discrimination and provides tips for overcoming bias. It defines unconscious bias as "automatic preferences deep in our brains" that impact "honest, intelligent, very good people."

Moriarty said she approached officials in the Fourth Judicial District in Hennepin County more than a year ago about playing the federal video to potential jurors. She said she was told the Hennepin County bench's Equal Justice Committee was reviewing her proposal, that the committee would produce a video of its own and then that the state was crafting a video.

"We have some of the worst racial disparities in criminal justice, housing, income — just name it," Moriarty said of Minnesota. "How is it that they came up with this video? I'm angry about it."

The Minnesota Department of Corrections reported that as of July 1, whites made up 51% of the state prison population while blacks made up about 37%. Whites make up 80% of the state's population and blacks 6%, according to the U.S. Census.

American Indians made up 9% of the state's prison inmates while they're 1% of the state population. Asians were underrepresented in state prisons and Hispanics were incarcerated at rates that matched their share of the state population.

"Minnesota has been ranked among the worst states for inequality, making bias a significant concern in our justice system," the Minnesota Association of Black Lawyers said. "We are pleased to see the issue of implicit bias highlighted in our statewide jury orientation video."

The association said it supports individual districts providing more information on implicit bias to juries.

Retired Iowa federal judge Mark Bennett, a national leader on the topic, said implicit bias can impact any type of case.

"It's hard for me to imagine a case where there isn't a possibility of implicit bias affecting the judgment of jurors," he said. "So I think [the video] could be useful in every case."

While the state video does a good job of explaining the court process, it falls short of addressing implicit bias, Bennett said.

"It's really just playing lip service to a very important topic," he said. "You're just as likely to have implicit biases as a member of the Ku Klux Klan" is likely to have them.

Minnesota federal Chief Judge John Tunheim plays the federal video in juror orientation before every one of his cases, in addition to reading instructions about the topic at the start and end of every case.

Minnesota federal judges started using the video about two years ago at their discretion. Tunheim said most use the video, and that the state's federal bench is looking into creating its own version.

"It's especially important where you have cases involving communities of color," he said, "but I think it's important to use it throughout because implicit biases can involve a lot of different subjects."

Minnesota Chief Public Defender Bill Ward said it's "pretty rare" for Minnesota state courts to play the federal video.

Anecdotally, in state court defense attorneys shoulder the burden of raising the issue. Many shy away from using phrases like implicit bias, sliding into the conversation instead with questions about the racial makeup of potential jurors' friends and families.

It's unusual to see prosecutors broach the topic.

"This video has not been widely shared with others in the criminal justice system and, as a result, I cannot comment on it," Freeman said in a written statement. He declined to be interviewed.

Dakota County Attorney James Backstrom said the state video sufficed and he does not support showing the federal video. Washington County Attorney Pete Orput was cautious, adding that in the federal video "the issue got so emphasized that it may drive folks to raise the burden of proof beyond the typical instruction."

Ramsey County Attorney John Choi expressed support for Minnesota producing its own version of the federal video and said he hopes judges are open to requests to play the federal video.

When Noor went to trial in April for fatally shooting Damond, a white woman from Australia, his attorneys, Tom Plunkett and Peter Wold, filed a motion asking to play the federal video to the jury pool.

Assistant Hennepin County Attorney Patrick Lofton objected. District Judge Kathryn Quaintance denied it, noting that her peers had no experience with it.

"When we don't take these issues seriously in our courts, the courts — they lose credibility with the people who participate in the judicial process," said Plunkett, adding that he was speaking on the topic and not the Noor case, which is being appealed.

Chao Xiong • 612-270-4708 Twitter: @ChaoStrib