Implicit bias raises its ugly head in the Scarsella case

On Tuesday, a nearly all-white jury was seated in the case of Allen Scarsella, who shot five unarmed black protesters near the Fourth Precinct station last year. One prospective juror called Black Lives Matter a "hate group" and another said blacks should "get off welfare." Judge Hilary Caligiuri denied prosecutor Judith Hawley's motions to strike both men for cause. Two black prospective jurors were stricken for cause. The result, in a case of a man Hennepin County Attorney Mike Freeman called a "white supremacist," was a jury containing no black jurors in a county with a 13 percent black population.

Will an overwhelmingly white jury give credence to Scarsella's claims that he shot unarmed black protesters in self-defense?

In 1962, Nelson Mandela, defending himself in a South African court, questioned how a racist system could provide true justice: "Why is it that in this courtroom I face a white magistrate, am confronted by a white prosecutor, and escorted into the dock by a white orderly? Can anyone honestly and seriously suggest that in this type of atmosphere the scales of justice are evenly balanced?"

Today in the United States, we comfortably regard the former apartheid regime of South Africa that Mandela was imprisoned by but ultimately defeated as indisputably racist, uninterested in providing justice for its black citizens. But overwhelming statistical evidence reveals racial disparities in our own law enforcement and judicial systems.

The Star Tribune determined that over the last 15 years, people of color in Minnesota "comprised an average of 16 percent of the population and 30 percent of arrests, but 45 percent of police-involved deaths." The American Civil Liberties Union found that in Minneapolis black and Native American citizens are eight to nine times more likely to be arrested for low-level offenses than whites.

High-profile incidents such as the fatal shootings by police of Jamar Clark in 2015 and Philando Castile in 2016 have sparked protests and calls for reform. Even as this important work is ongoing, we must also tackle bias in the courtroom.

White juries are more likely to convict black defendants, sometimes disturbingly based primarily on a "feeling" that the defendant must be guilty. Attorneys are not permitted, per the 1986 Batson U.S. Supreme Court decision, to use race as a basis for pre-emptively striking potential jurors, but many studies have found black potential jurors continue to be disproportionately struck even as "race-neutral" justifications are put forward.

Last month, lawyers representing Jeronimo Yanez, the police officer facing manslaughter charges for killing Philando Castile at a Falcon Heights traffic stop in July, exercised their right to strike Judge Edward Wilson off the case. Wilson is the second-most senior judge in the district. He is also, like Castile, black. Yanez's attorney Earl Gray said, "We felt that we had to remove him," but did not elaborate, and declined to say whether race was a factor. The new judge assigned, William Leary III, is white. Lacking other information, we are left to wonder whether Judge Wilson's removal was due to race.

Yanez is the first officer since reliable records exist to even face charges in Minnesota after killing a civilian. For 150 years, the system has protected officers who kill civilians, disproportionately black, and it is progress that both Hennepin and Ramsey County attorneys are now avoiding the use of grand juries in these cases. But this removal of an eminently qualified black judge for no stated reason conforms to a pattern of stacking the judicial deck. Can we truly expect Yanez to be held accountable considering the way things have started?

In our ostensibly fair judicial system, black defendants receive harsher sentences than whites for the same crimes. Black and native Minnesotans are badly overrepresented in prison. Part of the problem may be white prosecutors (95 percent of elected prosecutors are white) providing more lenient plea offers to defendants with whom they more easily empathize. This type of bias can be unconscious and requires demographic tracking to detect and active training to counter. Greater diversity among prosecutors would certainly help.

A truly fair system must account for the implicit bias pervasive in our society, and prevent unscrupulous prosecutors or defense attorneys from using race to advance their cases. We should widen the participation of people of color at all levels: more prosecutors, more defense attorneys, more jurors and more judges. Implicit bias training is necessary, and we must track demographics of discretionary decisions and act on the statistical findings. For example, we would like to see the data on which judges are removed, from what cases, by which attorneys.

Mandela said that he felt like "a black man in a white man's court." Here and now we are still too close to the open racism of apartheid South Africa, and too far from true justice and equality before the law.