JUROR BIAS—WHAT CAN BE DONE ABOUT IT?

Paul Luvera

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Faced with juror bias during deliberations, the foreman took matters into his  own hands. At the conclusion of deliberations, the foreman told the media, “The jury was biased.” Politically biased. He said that a few of the jurors were aligned with the political views of the defendants in a first-degree assault case, and this led to seven days of jury deliberations, ending with a hung jury with nine of the twelve jurors in favor of convicting the defendants.

In an effort to dislodge the three jurors from what he perceived as their bias, the foreman took an unusual step in order educate the recalcitrant jurors about implicit bias. He asked the judge to allow the deliberating jury to re-watch an anti-bias video that the prospective jurors are required to watch during their orientation. A video on unconscious bias is also show in the  U.S. District Court of Western Washington and it can be viewed here.  Judge Kristin Richardson granted the request and it was shown. But, the jury foreman said that it “didn’t do any good.”[1]

The circumstances that resulted in criminal assault in the first degree charges were political in nature. On the night of Trump’s inauguration on January 20, 2017, defendants Marc and Elizabeth Hokoana, who were Trump supporters, went to the University of Washington campus where right-winger Milo Yiannopoulos was schedule to speak. The evidence showed that Marc Hokoana fired a pepper spray at anti-fascist protesters and Elizabeth Hokoana shot Joshua Dukes in the abdomen. Elizabeth Hokoana claimed self defense, saying that she shot Dukes because he had a knife and was going to cut her husband.

Can anything be done to eliminate juror bias from juror decision-making?

A recent article by Thomas M. O’Toole, Ph.D. entitled, “New Survey Data on Whether Jurors Follow the Law”[2] paints a grim picture in regards to whether jurors are able to follow the law that runs contrary to their biases. O’Toole’s company Sound Jury Consulting conducted a national online survey of 400 jury-eligible respondents on the issue. The survey concluded that “a shocking 75 percent of all respondents agreed that, ‘If the judge’s instructions about the law that applies to the case went against my beliefs about right and wrong, I would tend to decide the case based on my beliefs about what is right or wrong.”

Research has established that people have difficulty identifying their own biases. Further, research has shown that people are mistaken if they think that they can set aside their prejudices of which they are aware. Consequently, the premise that a jurors are qualified to serve if they assure the court that they can set aside their biases is faulty.[3]

Considering the research, one could conclude that given the current law regarding how challenges for cause are ruled on—if the prospective juror can set aside an actual bias, then the challenge should be denied—nothing can be done to eradicate juror bias. In Jury Selection Handbook: The Nuts and Bolts of Effective Jury Selection we discuss challenges for cause at length.

Paul Luvera, retired founder of Luvera Law Firm, the only Washington lawyer who has been inducted into the National Trial Lawyers Hall of Fame and referred to as the best trial lawyer west of the Mississippi, has proposed solutions in his article “Washington Law on Jury Challenges for Bias Undermines Litigants’ Constitutional Right to an Impartial Jury.” Lavera states, “The simplest solution would be for the law to provide that  once a trial judge has found that a prospective juror has actual bias, granting a challenge to that person serving on the jury should be mandatory despite assurances that the juror could disregard the bias.”[4]

Another solution that Luvera offered is as follows: “Another reasonable solution would be for the judge to apply the same standard in evaluating a prospective juror’s bias as applied under the Judicial Conduct Code . . . Applying this test, the court could appropriately exercise its discretion by disqualifying a prospective juror from serving if his or her impartiality could reasonably be questioned irrespective of any assurances about ‘following the law’ or ‘disregarding’ such bias in deliberations.”[5]

Yet another of Luvera’s solutions is for the judge to apply an “appearance of fairness standard.[6]

Luvera’s proposed solutions deserve serious consideration. Challenges for cause are intended to keep people with actual bias out of the jury room, and adoption of the solutions could ensure that challenges for cause do what they are designed to do. A jury foreman should not have to try to deal with a biased seated juror.

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[1] Greg Gilbert, Seattle Times (August 13, 2019).

[2] Thomas M. O’Toole, Ph.D., “New Survey Data on Whether Jurors Follow the Law,” King County Bar Bulletin, 9 (May 2019)

[3] Paul Luvera, “Washington Law on Jury Challenges for Bias Undermines Litigants’ Constitutional Right to an Impartial Jury”, 33, NW Lawyer (May 2019)

[4] Id. at 35.

[5] Ibid.

[6] Ibid.