Tag Archives: February Series

Diversity in the Courtroom Part 3 – An Interview with Judge Alfred Harrell Part 1

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For February’s interview portion of our series on Diversity in the Courtroom, we had the privileged of welcoming Honorable Judge Alfred Harrell into studio71. Judge Harrell has been a cornerstone of the legal community in the Denver metropolitan area for the last 40 years. He is a sitting judge for the Denver County Court, and has held this appointment since 1985. Judge Harrell also comes from a family rich in Colorado legal history. We hope that you enjoy Part 1 of this interview, and will check back next week for the Part 2 and conclusion of the interview with Judge Harrell.

 


To read more of the posts on the Diversity in the Courtroom series see:

 

We invite you to comment below with any thoughts or experiences you have regarding Diversity in the Courtroom.

Diversity in the Courtroom Part 2 – The Advocate’s Approach to Juror Biases

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feb_cover For Part Two of our series on Diversity in the Courtroom we aimed to address the question: As a trial lawyer, how do you approach the issue of potential juror biases – explicit and implicit – based on race, in situations that may arise in the courtroom? To accomplish this we reached out to Craig Thompson. Craig is a practicing trial lawyer at both the state and federal court levels and is a Partner at Venable LLP and has been a NITA faculty for NITA at the Building Trial Skills DC Program.

Juror bias is real, and must be acknowledged in order to achieve the goal of winning your case. Jurors are human beings, and we each carry biases with us wherever we go.  In an age of technology-driven imagery and bullet point information gathering, it is even more likely that human biases will be nurtured, as many of us become less likely to take the time to study and appreciate what makes us different.  Recent reports have determined that the average American over the age of two spends more than thirty-four hours a week watching live television — plus another three to six hours watching taped programs.  Our thoughts about humankind – including ideas about race – are driven into our psyche in millions of bits per second that we may or may not seek to counter with additional facts.

As a trial lawyer, I approach the issue of potential juror bias in a pragmatic manner. Noted psychologist Julian Jaynes likened awareness to “asking a flashlight in a dark room to look around for something that does not have any light shining upon it.” As far as that flashlight is concerned, the room is completely bright. I approach potential juror bias in a similar manner, and make sure that I am consciously aware of the fact that each juror with whom I come into contact may hold some form of implicit or explicit racial bias.

I tried a case a few years ago in a southern jurisdiction, and felt unsure about how a jury from the south might view an African American defense attorney.  At one point, I even considered allowing my partner to handle a majority of the witnesses and engage in more juror face time. Eventually, I came to the conclusion that the best way to approach potential juror bias is to confront it directly. Facts are facts. The law is the law. Trial lawyers are, in essence, storytellers, and we have to develop the ability to tell our clients’ stories in a way that all can relate. I prepared for my trial like I had for the prior fifteen years, and told my client’s story. And won. Whether the jurors felt any bias for or against me did  not matter – I was able to focus on the facts and the law, and tell my client’s story.

Conscious of the “flashlight effect” described above, I worked extra hard (as I seek to do in every case) to dismiss any notions of intellectual inferiority or under-preparedness, assuming one or more jurors may have implicitly or explicitly held those beliefs. As the saying goes, hard work beats talent when talent does not work hard.  When provided with an opportunity to play against type, it is critical that attorneys of color step up and demonstrate mastery of the facts and law.

Assume bias exists. Acknowledge it, accept it and act on it.


To read more of the posts on the Diversity in the Courtroom series:

  • Part 1 – The Jury Pool Biases
  • Part 3 – Diversity in studio71: An Interview with Judge Alfred Harrell Part 1
  • Part 4 – Diversity in studio71: An Interview with Judge Alfred Harrell Part 2

 

We invite you to comment below with any thoughts or experiences you have regarding Diversity in the Courtroom.

Diversity in the Courtroom Part 1 – Jury Pool Biases

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Guest blogger Ahmed Davis, who is launching February’s series on diversity in the courtroom, deems himself a scientist with a law degree.  A chemistry major, he won the Ronald E. McNair NASA Scholarship which is designed to increase the number of minorities with PhDs in the fields of science, math, and engineering. With the “right stuff” to enter a PhD program, he turned instead to combine science and law for justice, and has bagged numerous awards for stars “under 40.”  Now Partner and National Diversity Chair of the IP trial firm Fish & Richardson PC, Ahmed shares some thoughts about counsel, clients, jurors, and jurists around the theme of diversity in the courtroom.

The first day of my federal district court clerkship was the final day of a multi-defendant bank robbery trial.  Barely introduced to chambers, I suddenly found myself ushered into the courtroom to cry “oyez”—the jury was ready to return a verdict.  Three defendants, each African-American and each represented by African-Americans, rose to hear their fate.  Afterwards, my judge thanked the jurors for their service and sent them on their way.  And that is when Juror No. 12—a young, Caucasian woman and the last of the jurors to exit the box—slipped past the two Caucasian prosecutors, flashed a thumbs-up, and said, “Good job.  We made up for O.J.”

Thus began my legal career, with a lesson that we all can heed as much today as I did thirteen years ago.  Despite our best efforts and the great strides we have made in this country, implicit race-related biases remain and can be brought into the courtroom by anyone.  We are, after all, products of our environment, and that sometimes engenders in us feelings antithetical to the higher moral ground to which we rightly aspire.  An astute counsel—regardless of ethnicity and independent of practice area—best serves the interests of her client and the larger legal profession when she prepares her case with the very real biases we each carry with us into the courtroom in mind.  If handled poorly, this can affect the outcome of your client’s case and irretrievably disconnect you from the jury.

When my trial witness, a diminutive Caucasian woman in her 50s, cried during my cross-examination I was unmoved—until I peeked at the jury and realized that a tall, goateed black man with a deep voice bearing down on her presented bad optics.  Never mind that I was in a suit and we were in a courtroom; had I continued, I would have lost the jury.  In another case, I understood completely why my Chinese-American opposing counsel explained his heritage and American upbringing during counsel introductions.  Representing a Japanese defendant in Texas on Pearl Harbor Day, he appreciated the moment and the unspoken bias the jurors might have.  Rather than ignore it, he addressed it as best he could.  His candor was refreshing.

Which brings us back to the Virginia bank robbers.  Defense counsel, unsurprisingly, demanded a mistrial.  Upon hearing what had been said, the judge rounded up the jurors before they could leave the courthouse and brought them back upstairs.  Sitting in the same seat where 15 minutes earlier she had rendered judgment against three others, Juror No. 12 now wept softly while explaining to the Court what she had meant by her words and actions, and the inherent conflict they presented with her pre-trial representations.  It was a sad exchange to be sure, the explanations entirely unsatisfying.  But the raw, exposed nerve taught me that even at our best, many of us struggle to leave the personal lens through which we view the world at the courthouse door.  And I do not think we want anyone to.  But we must always be mindful that these biases that lurk just below the surface, and we must deal with them frankly and honestly where we can.


Upcoming Posts in the Diversity in the Courtroom Series:

  • Part 2 – The Advocate’s Approach to Juror Biases
  • Part 3 – Diversity in studio71: An Interview with Judge Alfred Harrell Part 1
  • Part 4 – Diversity in studio71: An Interview with Judge Alfred Harrell Part 2