Court of Appeals Cites Implicit Bias in Removing Judge

By: Katryna L. Kristoferson and David Paul Horowitz | November 20, 2023

Introduction

We like definitions, so here are two to start:

Bias (n): “inclination or prejudice for or against one person or group, especially in a way considered to be unfair.”[i]

Implicit Bias (n): “a bias or prejudice that is present but not consciously held or recognized.”[ii]

Does anyone doubt the existence of bias? Likely not, but recognizing bias is not always easy. When overt, it is hard to miss. When covert, it can be difficult, if not impossible, to discern. Yet there are many cleverly designed, scientifically sound studies that can reveal the existence of bias, even when the subject consciously or unconsciously attempts to prevent its revelation.

Let’s be honest: Many doubt, first, the existence of implicit or unconscious bias, second, that if it exists it can influence decision-making and behavior and, third and most importantly, many who acknowledge its existence are adamant that it does not impact their own decision-making and behavior. And, at the same time, some who acknowledge the existence of implicit bias believe that it does not have an impact beyond the individual, and that implicit bias cannot impact group thinking and beliefs so as to impact behavior and decision-making across a given community. We believe there is sound proof to establish that implicit bias can and does have an aggregate impact across communities ranging in size from local neighborhoods to cities to states to the country as a whole. Consider, a research study[iii] which “found that Americans demonstrated a systematic bias in their perceptions of the physical formidability imposed by Black men,” a subject we will return to shortly.

This is not a topic that can be adequately addressed in the limited word count of a single column, but we hope it will encourage readers to continue thinking about the existence and impact of bias, and engaging with others on the subject.

Justice Exhibiting Bias, Or Implicit Bias, Removed From Bench By Court Of Appeals

By now, lawyers across the state as well as those outside the legal community have at least read news reports[iv] of the Court of Appeals’ decision in Matter of Putorti,[v] where the Court reviewed the determination by the State Commission in Judicial Conduct which had determined that a Justice of the Whitehall Town Court and Whitehall Village Court, Washington County[vi] should be removed from office for, drawing his personal handgun on a black litigant appearing before him in open court.[vii] In lieu of a hearing the Petitioner (the Justice) entered into an agreed statement of facts.[viii]

The Court recited the facts:

The litigant, a six-foot, 165-pound Black man, had been in Whitehall Village Court earlier in the year on a felony charge based on allegations that he brandished a knife at his wife and another man while they sat in a parked car. The felony charge was dismissed on consent of the prosecution, and the litigant pleaded guilty to a misdemeanor charge in exchange for a one-year conditional discharge and fines and surcharges totaling $555. The litigant was later jailed for failing to pay the fine; however, his wife told petitioner that the litigant could not afford to pay the fine. In response, petitioner went to the courthouse on his lunch hour from his other employment, reduced the fine to community service, and released the litigant. It was at a later appearance that petitioner brandished the firearm. Although petitioner claims that he “subjectively feared for his safety,” he admits that he had “no reasonable basis” to believe that the litigant “was about to use imminent deadly force,” and that he was “not justified” in brandishing the firearm.[ix]

When questioned about the incident by his supervising judge, the Petitioner stated:

Petitioner explained to his supervising judge that the incident occurred when he called the litigant’s case, and the litigant “ran quickly to the bench, past a line where defendants are supposed to stand.” Petitioner added that the officer, who was serving as “‘security,’” allowed the litigant to approach “within two feet” of the bench. Petitioner described the litigant to his supervising judge as “a ‘large [B]lack man,’ about 6’9″ tall and ‘built like a football player,’” saying nothing about the litigant’s criminal charges. Petitioner told his supervising judge that he drew his firearm and “‘pointed it at’” the litigant. He explained that, although a bullet was not in the chamber, it takes “‘a split second’” to load. Petitioner further told his supervising judge that the litigant said he “‘just wanted to talk’” to petitioner, who said that he would talk once the litigant moved back behind the line, at which point the litigant stepped back behind the line, and petitioner put his gun away.[x]

Having the distinction of being only one of ten judges removed from office statewide in the last decade, this judge’s behavior on and off the bench was reported to be the only “situation” of its kind to spur his removal.[xi] Well, that’s a relief, maybe?

And it is worth noting that the Petitioner related the incident numerous times with an unfiltered combination of brio and bravado in both professional and personal settings.[xii]

On the issue of bias motivating the Petitioner’s actions the Court noted:

Petitioner challenges the Commission’s finding of racial bias. While we have the authority to review findings of fact as well as the determined sanction (citations omitted), we note that the Commission was bound to make its determination upon the agreed statement of facts (citation omitted). The agreed-upon facts included an admission by petitioner that he failed to perform his judicial duties “without manifesting in words or conduct bias or prejudice based upon race, in violation of [s]ection 100.3 (B) (4) of the Rules.” Moreover, judges have a “continuing obligation to avoid even the appearance of impropriety” (citation omitted) and, here, petitioner acknowledged that his conduct “may have created the appearance of racial bias.” We stress that the “appearance of such impropriety is no less to be condemned than is the impropriety itself” (citations omitted).

Despite these conclusive admissions, petitioner now argues that he was not acting with racial bias and that his repeated reference to the litigant as a “‘big Black man’” was meant merely to describe him. But this is not a mere physical description of the litigant. By repeatedly referring to the litigant in the manner that he did, petitioner exploited a classic and common racist trope that Black men are inherently threatening or dangerous, exhibiting bias or, at least, implicit bias (citation omitted). For these reasons, we see no basis to set aside the finding of racial bias.

To be clear, this column is not intended as an attack on the New York State Judiciary, but rather as an examination of bias that exists in all walks of life and professions, including all categories of stakeholders in our criminal justice and legal system.

Most New Yorkers today have an understanding of what can and cannot be said out loud, so reading that a New York State Justice repeatedly said these things out loud is somewhat shocking,[xiii] but also begs the question of how common these attitudes are among those members of the legal profession attuned enough not to say out loud what they are thinking.

One determination of the Court that we question is the finding that the judge’s conduct may have been the result of implicit bias rather than bias. Perhaps this was to soften the holding, but it seems like overt bias to us, applying Justice Potter Stewart’s rubric in Jacobellis v. Ohio, 378 U.S. 184 (1984).[xiv]

Research Shows…

Back to that research study:

Across a range of different stimuli and dependent variables, perceivers showed a consistent and strong bias to perceive young Black men as larger and more capable of harm than young White men (at least among non-Black participants). Such perceptions may have disturbing consequences for how both civilians and law enforcement personnel perceive and behave toward Black individuals. The studies reported here serve as a clear demonstration of this important phenomenon and provide theoretically meaningful knowledge about both feature-based and category-based influences on the bias to misperceive Black men as larger and more threatening.[xv]

The “different stimuli and dependent variables” cited in the report? In one study “participants [were asked] to estimate the height and weight of a series of young Black and White men from photos of their faces.” In another, participants were presented with color photographs of male faces downloaded from a college football recruiting website and asked to assess perceived body size. Using those same photographs, in another study participants were asked to imagine being in a physical altercation with the individual pictured, and determine “if you were to be in a fight with this person, how capable would he be of physically harming you?”

The report covers seven different studies that were performed (albeit, on small sample sizes relative to the overall population), which reflect the overall conclusion stated above. While the researchers did caution against general application of the conclusion of their report, (“biased formidability perceptions manifested in hypothetical force justification. Much more research is necessary to determine whether a similar process would play out in actual force decisions. To the extent that police officers are subject to the same biased perceptions that the current participants exhibited (see Eberhardt et al., 2004), it is easy to see how they might be more likely to decide to shoot dangerous-looking yet unarmed Black men compared with similarly threatening White men, but the present data cannot speak directly to this possibility,”), the general implications of the report speaks volumes.

The danger is clear, and the opportunity for glaring injustices to occur and recur in our legal system is manifest. So what can be done?

When it comes to instructing jurors about the potential for bias and implicit bias to sway their verdicts, the PJI Civil provides:[xvi]

As a fair and impartial juror you must guard against the application of any stereotypes or attitudes about people or groups that might lead you to render a decision based on those stereotypes or attitudes. Keep in mind that bias is not always obvious or conscious. In assessing the testimony and other evidence in the case, you must not be swayed by those stereotypes or attitudes.

PJI 1:7B2

And, as a result of a 2017 Court of Appeals decision, Boone,[i] the defendant in a criminal trial is automatically entitled to a charge on the inherent vulnerabilities in cross-racial identification where eyewitness testimony is proffered by a witness who is a different race from the defendant:

in a case in which a witness’s identification of the defendant is at issue, and the identifying witness and defendant appear to be of different races, a trial court is required to give, upon request, during final instructions, a jury charge on the cross-race effect, instructing (1) that the jury should consider whether there is a difference in race between the defendant and the witness who identified the defendant, and (2) that, if so, the jury should consider (a) that some people have greater difficulty in accurately identifying members of a different race than in accurately identifying members of their own race and (b) whether the difference in race affected the accuracy of the witness’s identification.

Okay, So?

We subscribe to C.J. Jung’s observation that if you don’t “make the unconscious conscious, it will direct your life and you will call it fate.”[xviii] If you’ve gotten this far, bear with us.

While what we are touch on here is not a new concept, see Guidance Relating to the New Diversity, Inclusion and Elimination of Bias Category of CLE Credit, enacted in NY in 2018, we do push back against the concept of “elimination” of bias. The suggestion there, is it is possible to eliminate an inherent part of your mind, that is “not consciously held or recognized.” Instead, we invite you to consider, or perhaps, re-consider without judgment your interactions with or descriptions of others. Have they been informed by preconceptions you hold? Or maybe, effected by something you cannot quite put your finger on?

While the conduct displayed by a single justice in New York maybe easy to dismiss as an exceedingly rare aberration or as a “one-off” type of event, we are not so sure. But it is patent that less outrageous outward behavior and concealed bias has pernicious negative effects on our legal system.

Consider, “Manhattan courts convicted Black people of felonies and misdemeanors at a rate 21 times greater than that of white people,” “in Brooklyn, the largest county in the state, Black people were convicted of felonies and misdemeanors at a rate of about seven times that of white people,” and “Schenectady County has a population of about 120,000 people, 97,000 of whom are white and about 9,000 of which are Black. In the past two decades, the county has convicted 3,000 Black people of felonies and 2,500 white people, despite the ten-fold difference in population.^[xix]

Americans, due to implicit bias or other reasons, inherently believe Black Americans are more dangerous.[xx] Statistically speaking, Black Americans are far more likely to be convicted of felonies and misdemeanors.

Conclusion

There are numerous other studies demonstrating similar results, and all of us who appear and/or work in the criminal justice and court systems must do everything in our power to first recognize, and then work to reduce (with the ultimate goal, yes, to eliminate) bias.

Instead, we hope you will give this topic the credit and thought it deserves, and work individually and collectively to call out and address bias wherever it appears and to identify and try to curb the impact our implicit biases have on those around us.

[i] Oxford Dictionary.

[ii] Mirriam Webster.

[iii] “Racial Bias in Judgments of Physical Size and Formidability: From Size to Threat” Wilson, Hugenberg, and Rule, Journal of Personality and Social Psychology, 2017, Vol. 113, No. 1, 59 – 80 (2017), p. 74.

[iv]https://apnews.com/article/new-york-judge-pointed-gun-black-man-acb11b7f8891970b367f2d8495dd54dc; https://www.reuters.com/legal/government/gun-wielding-judge-loses-bid-keep-seat-new-york-court-2023-10-19/; https://www.law.com/newyorklawjournal/2023/09/01/ny-top-court-to-hear-arguments-from-unseated-judge-who-pulled-gun-on-black-defendant/

[v] Matter of Putorti (New York State Commn. on Jud. Conduct, 2023 NY Slip Op 05304 (2023).

[vi] The justice is not an attorney.

[vii] A second charge relating to improper fundraising was subsequently added.

[viii] Matter of Putorti, supra.

[ix] Id.

[x] Id.

[xi] https://www.nytimes.com/2023/10/19/nyregion/judge-removed-loaded-gun.html

[xii] Matter of Putorti, supra.

[xiii] Less so to Katryna than to David.

[xiv] “In 1964, Justice Potter Stewart tried to explain ‘hard-core’ pornography, or what is obscene, by saying, ‘I shall not today attempt further to define the kinds of material I understand to be embraced… [b]ut I know it when I see it …’” https://corporate.findlaw.com/litigation-disputes/movie-day-at-the-supreme-court-or-i-know-it-when-i-see-it-a.html.

[xv] “Racial Bias in Judgments of Physical Size and Formidability: From Size to Threat” Wilson, Hugenberg, and Rule, Journal of Personality and Social Psychology, 2017, Vol. 113, No. 1, 59 – 80 (2017), p. 77.

[xvi] The CJI contains related charges as well.

[xvii] 30 N.Y.3d 521 (2017).

[xviii] C.G. Jung

[xxi] https://www.nyclu.org/en/news/racial-disparity-across-new-york-truly-jarring

[xx] Racial Bias in Judgments of Physical Size and Formidability: From Size to Threat” Wilson, Hugenberg, and Rule, Journal of Personality and Social Psychology, 2017, Vol. 113, No. 1, 59 – 80 (2017).

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