Filed
`
`D.C. Superior Court
`12/22/2022 18:02PM
`Clerk of the Court
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`SUPERIOR COURT OF THE DISTRICT OF COLUMBIA
`Criminal Division — Felony Branch
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`UNITED STATES
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`Vv.
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`HARRY TUCKER
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`Case Number 2022 CF2 1977
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`Judge Neal Kravitz
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`MOTION FOR JURY INSTRUCTION TO IDENTIFY AND CORRECT
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`JURORS’ IMPLICIT BIAS
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`Mr. Tucker, through undersigned counsel, pursuantto the Fifth and Sixth Amendments to
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`the United States Constitution, respectfully moves this Honorable Court to provideto the jury the
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`proposed jury instruction (see Exhibit A) to identify and correct jurors’ implicit bias that would
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`otherwise interfere with their ability to decide this case fairly and impartially. The Department
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`of Justice (“DOJ”) itself has recognized the impact of implicit bias on the criminaljustice system,
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`requiring its employees (including Assistant United States Attorneys) to undergo training
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`consistent with the proposal made in this Motion.
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`SUMMARYOF THE ARGUMENT
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`The Departmentof Justice itself has recognized the impact of implicit bias on the criminal
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`justice system and the social science underpinning implicit bias. See Department of Justice,
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`Memorandum for all Department Law Enforcement Agents and Prosecutors (June 27, 2016) (see
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`Exhibit B). The DOJ has observedthat “implicit bias is part of human nature” and “presents unique
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`challenges to effective law enforcement, becauseit can alter where [individuals] look for evidence
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`and how they analyze it without their awareness of ability to compensate.” /d. at 1. As the DOJ
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`has also recognized, “The good newsis that research suggests that vast majority of people can
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`counterthese effects if they are aware of which biases they possess—andare trained to recognize
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`when they creep into their reasoning or situational awareness.” /d. Accordingly, the DOJ has
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`started a “comprehensive effort to train the Department personnel who have the most direct
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`involvement in our criminal justice system,” including AUSAs and federal law enforcement
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`agents. /d. at 2. The purpose ofthese trainings1s to help individuals “understand how unconscious
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`oe
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`and unintentional biases” affect
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`their thinking, reinforce individuals’
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`“ability to look past
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`extraneous information,” and “reaffirm [the DOJ’s] commitmentto a criminal justice system that
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`is fair impartial, and procedurally just.” /d. at 1-2. See also Department of Justice, FAQs on Implicit
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`Bias (attached as Exhibit C) (‘[S]ocial psychologists have found that with information and
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`motivation, people can implement ‘controlled’ (unbiased) behavioral responses that override
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`automatic associations and biases.”).
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`The DOJ’s acknowledgment and roll-out of implicit-bias training is rooted in well-
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`established empirical research. This research showsthe following: (1) implicit racial bias against
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`African Americansis ubiquitous in the United States; (2) implicit racial bias affects decision-
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`making and behavior and substantially increases the likelihood that people will draw adverse
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`inferences against African American defendants; (3) individuals whose perspectives are tainted by
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`implicit racial bias are generally incapable of identifying that bias on their own becauseit is an
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`unconscious form of bias; (4) and implicit racial bias may be identified and corrected through
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`certain mental exercises, such as imagining the defendant as belonging to a different race (e.,
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`through a “race-switching” or “cloaking” exercise).
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`The voir dire process is incapable of screening for individuals harboring implicit racial
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`biases because, as mentioned above, implicit racial bias is unconscious andis unlikely to manifest
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`in response to questions asked through voir dire. Moreover, given the ubiquity of implicit racial
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`bias, it would be logistically impossible to select a jury comprised of individuals without such bias.
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`Thus, it is virtually inevitable that the majority, if not all, of the members of Mr. Tucker’s jury will
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`harbor implicit racial bias against African Americans.
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`Absent any remedial action, the participation ofjurors harboring implicit racial bias against
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`African Americans would prevent Mr. Tucker from receiving a fair trial by an impartial jury in
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`violation of the Fifth and Sixth Amendments to the Constitution of the United States.
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`The proposed instruction (attached as Exhibit A) would help jurors identify and correct
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`their own implicit racial biases without any cost to the Court or prejudice to the government. As
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`such, Mr. Tucker requests that this Court issue the proposed instructionto the jury prior to opening
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`statements and (using a briefer script) prior to the beginningof deliberations.
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`ARGUMENT
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`I.
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`THE FIFTH AND SIXTH AMENDMENTS GUARANTEE MR. TUCKER A
`JURY THAT IS FREE OF ACTUAL AND PERCEIVED RACIAL BIAS
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`The Sixth Amendmentprovides, “In all criminal prosecutions, the accused shall enjoy the
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`right to a speedy and publictrial, by an impartialjury
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`” U.S. CONST. AMEND. VI (emphasis
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`added). Similarly, the Fifth Amendment Due Process Clause, which also reverse-incorporates the
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`Fourteenth Amendment’s Equal Protection Clause, ensures every criminal defendanta fair trial
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`and impartial jury while also prohibiting all forms of state-sanctioned discrimination based on
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`race.! Peters v. Kiff, 407 U.S. 493, 501 (1972) (“[T]he Due Process Clause protects a defendant
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`from jurors whoare actually incapable of rendering an impartial verdict, based on the evidence
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`and the law.”). Indeed, “[t]he right to trial by an impartial judge or jury is fundamental and deeply
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`1<'TThe Constitution and federal and state laws unequivocally establish that state-sanctioned discrimination is
`unlawful and mustbe eradicated.” Kittle v. United States, 65 A.3d 1144, 1153 (D.C. 2013) (citing U.S. Const.
`amend. XIV, § 1 (the Equal Protection Clause); Civil Rights Act of 1964, Pub. L. 88-352, 78 Stat. 241 (prohibiting
`discrimination in application of voter registration requirements, public accommodations and employment, and
`eliminating racial segregation in public schools); and D.C. Human Rights Act, D.C. Code § 2-1402.01 et seq. (2001)
`“Every individual shall have an equal opportunity to participate fully in the economic, cultural and intellectuallife
`of the District and to have an equal opportunity to participate in all aspectsoflife....... »),
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`embedded in American jurisprudence.” Young v. United States, 694 A.2d 891, 894 (D.C. 1997)
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`(citation omitted); see also United States v. Boney, 977 F.2d 624, 633 (D.C. Cir. 1992) (“The
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`Supreme Court has stressed repeatedly that the touchstone of the guarantee of an impartial jury is
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`a protection against juror bias.”); Press-Enterprise Co. v. Superior Court, 464 U.S. 501, 508 (1984)
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`(“No right ranks higher than the right of the accusedtoafairtrial.”); Jrvin v. Dowd, 366 U.S. 717,
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`722 (1961) ("[T]he night to jury trial guarantees to the criminally accuseda fair trial by a panel of
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`impartial, ‘indifferent’ jurors. The failure to accord an accused a fair hearing violates even the
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`minimal standards of due process.”’).
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`The courts have identified racial bias in particular as a uniquely vehement threat to
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`defendants’ Fifth and Sixth Amendment right to an impartial jury. See Kittle v. United States, 65
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`A.3d 1144, 1155 (D.C. 2013)
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`(‘The insidiousness of racial or ethnic bias is therefore
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`distinguishable from other forms of juror misconduct or incompetence,” citing other states,
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`including South Carolina, Connecticut, Delaware, Massachusetts, Montana, and North Dakota,
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`which have recognized the distinction between racial or ethnic bias and other forms of juror
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`misconduct); see also Rose v. Mitchell, 443 U.S. 545, 555 (1979) (“Discrimination on the basis of
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`race, odiousin all aspects, is especially pernicious in the administration of justice.”); Strauder v.
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`West Virginia, 100 U.S. 303, 309 (1880) (recognizing criminal defendant’s fundamental right to
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`“protection of life and liberty against race or color prejudice.”); Ross v. Massachusetts, 414 U.S.
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`1080, 1081 (1973) (‘The importance of the right at issue here—the opportunity to ascertain the
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`racial bias of the veniremen—canhardly be gainsaid. Therightto trial by an ‘impartial jury’ is a
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`comerstone of our system ofjustice.”).
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`Moreover, the proscription of racial bias applies not only to actual bias, but also to the
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`likelihood or appearanceofbias. Peters, 407 U.S. at 502 (‘[T]his Court has held that due process
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`is denied by circumstances that create the likelihood or the appearance ofbias.”); see also In re
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`Murchison, 349 U.S. 133, 136 (1955) (“Fairness of course requires an absence ofactualbias in the
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`trial of cases. But our system of law has always endeavored to prevent even the probability of
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`unfaimess.”); Offutt v. United States, 348 U.S. 11, 14 (1954) ([J]ustice must satisfy the
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`appearance ofjustice.”). As such, the Constitution endows Mr. Tucker with the right to a jury that
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`is free of actual racial bias as well as the likelihood or appearanceofracial bias.
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`Il.
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`IS
`EMPIRICAL DATA CONFIRM THAT IMPLICIT RACIAL BIAS
`UBIQUITOUS AND IS LIKELY TO INTERFERE WITH JURORS’ ABILITY TO
`MAKE FAIR AND IMPARTIAL DECISIONS
`INVOLVING AFRICAN
`AMERICAN DEFENDANTS
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`Recent developments? in cognitive psychology and neuroscience have established that
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`implicit—or unconscious—racial bias is ubiquitous in the United States and compromises
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`individuals’ capacity to make fair and unbiased decisions when the subject of the decision is
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`African American. See PAMELA M. CASEY ET AL., HELPING COURTS ADDRESS IMPLICIT BIAS A-6
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`(Nat?! Ctr. for State Courts 2012), http://www.ncsc.org/ibreport (last visited May 13, 2014)
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`(“[M]ost Whites (and Asians, Latinos, and American Indians) show an implicit attitude in favor of
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`Whites over Blacks .
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`.
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`.
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`."); see also Charles R. Lawrence III, The Id,
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`the Ego, and Equal
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`Protection: Reckoning with Unconscious Racism, 39 STAN. L. REV. 317, 322 (1987) ([Americans]
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`inevitably share many ideas, attitudes, and beliefs that attach significance to an individual’s race
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`> See Robert J. Stephens & Justin D. Levinson, The Impact ofImplicit Racial Bias on the Exercise ofProsecutorial
`Discretion, 35 Seattle U. L. Rev. 795, 795 (2012) (“A scientific revolution... has generated new interest with
`regard to how upstanding people—includingjudges, jurors, lawyers, and police—maydiscriminate without
`intending to do so. This implicit bias revolution has created new opportunities to empirically investigate how actors
`within the legal system can perpetuate discrimination in ways that have been—until now—al most impossible to
`detect.”); see also Anthony G. Greenwaldet al., Measuring Individual Differences in Implicit Cognition: The
`Implicit Association Test, 74 J. Person. & Soc. Psych. 1464, 1478 (1998) (“Findings of three experiments
`consistently confirmed the usefulness of the IAT (implicit associationtest) for assessing differences in evaluative
`associations between pairs of semantic or social categories. The findings also suggested that the IAT mayresist self-
`presentational forces that can mask personally or socially undesirable evaluative associations, suchas the ethnic and
`racial attitudes investigated in Experiments 2 and 3.”).
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`and induce negative feelings and opinions about nonwhites. To the extent that this cultural belief
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`system hasinfluencedall of us, we are all racists. At the same time, most of us are unaware of our
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`racism.”); Jeffrey J. Rachlinski et al., Does Unconscious Racial Bias Affect Trial Judges?, 84
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`NOTRE DAME L. REv. 1195, 1197 (2009) (“Researchers have found that most people, even those
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`who embrace nondiscrimination norms, hold implicit biases that might lead them to treat [B]lack
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`Americans in discriminatory ways.”); David L. Faigman et al., A Matter of Fit: The Law of
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`Discrimination and the Science of Implicit Bias, 59 HASTINGS L.J. 1389, 1434 (2008) (“There is
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`good reason to be confident in the robustness of the phenomenonof implicit bias. The research
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`literature is vast and deep.”); Kurt Hugenberg & Galen V. Bodenhausen, Facing Prejudice:
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`Implicit Prejudice and the Perception of Facial Threat, 14 PSYCH. SCIENCE 640, 643 (2003)
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`(“Compared with individuals low in implicit prejudice, those high in implicit prejudice saw
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`hostility as lingering longer and appearing more quickly on the faces of African Americans. Thus,
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`stereotypic expectancies appear to penetrate a fundamental aspect of on-line person perception.
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`These findings add to the evidence from social cognition research showingthat relatively low-
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`level cognitive processes such as attention and encoding are subject to the effects of stereotypes
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`and prejudice.”); Nilanjana Dasgupta et al., Automatic Preference for White Americans:
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`Eliminating the Familiarity Explanation, 36 J. EXPERIMENTAL SOC. PSYCH. 316, 325 (2000)
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`(concluding that
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`individuals’ automatic “White” preference exists independently of those
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`individuals’ level of familiarity with the stimuli used (e.g. “White” or “Black” names)); Evan P.
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`Apfelbaumetal., Seeing Race and SeemingRacist? Evaluating Strategic Colorblindness in Social
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`Interaction, 95 J. PERSONALITY & SOC. PSYCH. 918, 919 (2008) (“[R]esearch indicates that people
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`are not, by any means, actually colorblind perceivers in most instances.”’).
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`Neuroscientists have corroborated the existence of implicit racial bias using functional
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`Magnetic Resonance Imaging (fMRI) to monitorbrain activity directly. Elizabeth A. Phelps et al.,
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`Performance on Indirect Measures of Race Evaluation Predicts Amygdala Activation, 12 J.
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`Cognitive Neurosci. 729 (2000) (fMRI revealed that the magnitude of amygdala blood-oxygen-
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`level dependent responses in White Americans viewing the faces of unfamiliar Black (but not
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`White) faces was significantly correlated with measures of individuals’ implicit, but not explicit,
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`race-related behavioral attitudes. The correlation was eliminated when the Black faces were
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`famous, positively regarded individuals.); see a/so Damian Stanley et al., Zhe Neural Basis of
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`Implicit Attitudes, 17 CURRENT DIRECTIONSIN PSYCH. SCI. 164, 169 (2008) (“Recent efforts to
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`elucidate the neural basis of implicit attitudes have identified a likely subset of brain regions,
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`including the amygdala, dIPFC, and ACC, whose activity reflects the automatic expression,
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`detection, and cognitive regulation of race-related implicit attitudes.”).
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`Although non-African Americanstend to exhibit more severe implicit bias against African
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`Americans, data suggest African Americans may also exhibit such bias against other African
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`Americans and generally do not exhibit a similar bias against White Americans. Andrea D. Lyon,
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`Race Bias and the Importance of Consciousnessfor Criminal Defense Attorneys, 35 SEATTLE U.
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`L. REV. 755, 760 (2012) (‘[I]mplicit bias is not just a problem for White people—people ofall
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`colors have racial bias, even biases towards people that look like them. Even those within
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`marginalized groups have biases against one another because they internalize the majority’s
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`stereotypes.”); see also Brian A. Noseketal., Harvesting Implicit Group Attitudes and Beliefs
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`From a Demonstration Web Site, 6 GROUP DYNAMICS 101, 105 (2002) (although Black students
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`showed a strong explicit preference for Black over White, the implicit measure revealed that even
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`“Black respondents showed a weak preference for White over Black.”); Leslie Ashburn-Nardo et
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`al., Black Americans’ Implicit Racial Associations and Their Implications for Intergroup
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`Judgment, 21 SOC. COGNITION 61, 80 (2003) (‘[M]ounting evidence suggests that many—though
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`not all—[B]lack individuals do hold outgroup-favoring associations at the implicit level. The
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`present research demonstrates that the associations not only appear to be widely held, but they also
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`have important implications.”) (internal citations omitted); Joshua Correll et al., Zhe Police
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`Officer ’s Dilemma: Using Ethnicity to Disambiguate Potentially Threatening Individuals, 83 J.
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`PERSONALITY & SOC. PSYCH. 1314, 1314 (2002) (finding “equivalent levels of bias among both
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`African American and White participants in a community sample” in an exercise requiring
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`participants to make quick decisions about whether to “shoot” or “not shoot’); Robert W.
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`Livingston, The Role of Perceived Negativity in the Moderation of African Americans’ Implicit
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`and Explicit Racial Attitudes, 38 J. EXPERIMENTAL SOC. PSYCH. 405, 411 (2002) (‘The present
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`research further suggests, however, that African Americans are not only aware of the negativity
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`that Whites feel toward Blacks, but that this negativity may becomepart of the implicit attitude
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`toward the in-group itself.”). Thus,
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`implicit bias will interfere (and have the appearance of
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`interfering) with jurors’ ability to remain fair and impartial regardless of whetheror not the jurors
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`themselves are African American.
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`Implicit racial bias affects all court actors, including prosecutors, judges, and defense
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`attorneys. First, studies have documented the impact of implicit racial bias on prosecutors. Jerry
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`Kanget al., /mplicit Bias in the Courtroom, 59 UCLA L. REV. 1124, 1140 (2012) (“In several
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`studies, researchers used regression analyses to conclude that race was indeed independently
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`correlated with the severity of the prosecutor’s charge.”); Leadership Conference on Civil Rights,
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`Justice on Trial: Racial Disparities in the American Criminal Justice System 15 (2000),
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`http://www.protectciviln ghts.org/pdf/reports/justice.pdf (last visited May 13, 2014) (prosecutors
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`more likely apt to offer White defendants generous plea bargains with sentences below the
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`prescribed guidelines than to offer them to Black or Latino defendants) (citations omitted).
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`Studies have also documented the impact of implicit racial bias on judges. Jeffrey J.
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`Rachlinski et al., Does Unconscious Racial Bias Affect Trial Judges?, 84 NOTRE DAME L. REV.
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`1195, 1197 (2009) (concluding that “[j]Judges hold implicit racial biases” and “[t]hese biases can
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`influence their judgment.”). Jennifer L. Eberhardt et al., Looking Deathworthy: Perceived
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`Stereotypicality ofBlack Defendants Predicts Capital-Sentencing Outcomes, 17 PSYCH. SCI. 383,
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`383 (2006) (“Controlling for a wide array of factors, we found that in cases involving a White
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`victim, the more stereotypically Black a defendantis perceived to be, the morelikely that person
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`is to be sentenced to death.”); David B. Mustard, Racial, Ethnic, and Gender Disparities in
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`Sentencing: Evidence from the U.S. Federal Courts, 44 J.L. & ECON. 285, 300 (2001) (concluding
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`federal judges imposed sentences on Black Americans that were twelve percent longer than those
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`imposed on comparable White defendants); R. Richard Bankset al., Discrimination and Implicit
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`Bias in a Racially Unequal Society, 94 CALIF. L. REV. 1169, 1175 (2006) (“[K]illers of White
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`victims are more likely to be sentenced to death than are killers of Black victims” and “Black
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`defendants are more likely than White defendants [to receive the death penalty].”).
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`Finally, data suggest that defense attorneys demonstrate implicit racial bias. Theodore
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`Eisenberg & Sheri Lynn Johnson, /mplicit Racial Attitudes ofDeath Penalty Lawyers, 53 DEPAUL
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`L. REV. 1539, 1545-55 (2004) (defense attorneys displayed biases that were comparableto the rest
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`of the population); see also L. Song Richardson & Phillip Atiba Goff, /mplicit Racial Bias in
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`Public Defender Triage, 122 YALEL.J. 2626, 2648 (2013) (arguing, “there is abundant reason for
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`concern that implicit racial biases may affect [public defenders’ | decisions”).
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`Individuals’ cognitive incapacity to form fair and unbiased judgments about African
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`Americanstranslates into prejudiced behavior and decision-making. Jerry Kang, 7rojan Horses of
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`Race, 118 HARV. L. REV. 1489, 1493-94 (2005) (“[R]esearch demonstrates that most of us have
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`implicit biases in the form of negative beliefs (stereotypes) and attitudes (prejudice) againstracial
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`minorities.—[t]hese implicit biases have real-world consequences—notonly in the extraordinary
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`case of shooting a gun, but also in the more mundane, everyday realm of social interactions.” );
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`Christine Jolls & Cass R. Sunstein, The Law of Implicit Bias, 94 CALIF. L. REV. 969, 996 (2006)
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`(“It is now clear that implicit bias is widespread, andit is increasingly apparent that actual behavior
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`is often affected by it, in violation of the principles that underlie antidiscrimination law.”); Anthony
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`G. Greenwald et al., Implicit Race Attitudes Predicted Vote in 2008 U.S. Presidential Election, 9
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`ANAL. SOC. ISSUES & PUB. POL. 241, 242 (2009) (“The implicit race attitude measures (Implicit
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`Association Test and Affect Misattribution Procedure) predicted vote choice independently of the
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`self-report race attitude measures, and also independently of political conservatism and symbolic
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`racism.”); John T. Jost et al., Zhe Existence of Implicit Bias Is Beyond Reasonable Doubt: A
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`Refutation ofIdeological andMethodological Objections and Executive Summary of Ten Studies
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`that No Manager Should Ignore, 29 RESEARCH IN ORG. BEHAVIOR39, 39 (2009) (“[R]esearchers
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`have identified the existence and consequences of implicit bias through well-established methods
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`based uponprinciples of cognitive psychology that have been developedin nearly a century’s worth
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`of work.
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`These studies reveal that students, nurses, doctors, police
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`officers, employment recruiters, and many others exhibit implicit biases with respect to race... .
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`[P]articipants’ implicit associations do predict socially and organizationally significant behaviors,
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`including employment, medical, and voting decisions made by working adults.”); Marianne
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`Bertrand & Sendhil Mullainathan, Are Emily and Greg More Employable Than Lakisha and
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`10
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`Jamal? A Field Experiment on Labor Market Discrimination, 94 AMER. ECON. REV. 991, 992
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`(2004) (in labor market study where experimenters sent fictitious resumes to help-wanted ads in
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`Boston and Chicago newspapers with African American or White-sounding names, White names
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`received 50 percent more callbacks for interviews; racial gap was uniform across occupation,
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`industry, and employersize; “A White name yields as many morecall-backsas an additional eight
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`years of experience on a resume.”); Janice A. Sabin et al., Physicians’ Implicit and Explicit
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`Attitudes About Race by MD Race, Ethnicity, and Gender, 20 J. HEALTH CARE POOR &
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`UNDERSERVED 896, 906 (2009) (“a meta-analysis of 155 studies yielding [Implicit Association
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`Test|-behavior correlations, found that IAT measures of implicit race attitudes predicted prejudice
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`and stereotyping related behaviors and discrimination more accurately than didparallel self-report
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`measures.”).
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`People are significantly more likely to infer criminality about an individual when the
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`individual being perceived is African American than when heorsheis not. Jennifer L. Eberhardt
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`et al., Seeing Black: Race, Crime, and Visual Processing, 87 J. PERSONALITY & SOC. PSYCH. 876,
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`889 (2004) (confirming psychological association between race and criminality by finding that
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`“(when officers were given no information other than a face and when they were explicitly
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`directed to make judgments of criminality, race played a significant role in how those judgments
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`were made. Black faces looked more criminal to police officers;
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`the more Black, the more
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`criminal.”). E. Ashby Plant et al., Eliminating Automatic Racial Bias: Making Race Non-
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`Diagnosticfor Responses to Criminal Suspects, 41 J. EXPERIMENTAL SOC. PSYCH.141, 153 (2005)
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`(“[P]articipants’ responses to the early trials of the shooting task were biased by the race of the
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`suspect in a mannerconsistent with the stereotype that Black people are violent and criminal. That
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`is, when the face was Black, participants were morelikely to mistakenly shoot at a face paired
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`11
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`with a neutral object than mistakenly not shoot at a face paired with a gun. In contrast, when the
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`face was White, participants were morelikely to make errors when the White faces were paired
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`with guns compared to neutral objects. These findings are highly troubling and suggest that
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`responses to criminal suspects may be biased by the race of the suspect.”); Joshua Correll et al.,
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`The Police Officer’s Dilemma: Using Ethnicity to Disambiguate Potentially Threatening
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`Individuals, 83 J. PERSONALITY & Soc. PSYCH. 1314, 1314 (2002) (concluding (1) “White
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`participants made the correct decision to shoot an armed target more quickly if the target was
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`African American than if he was White, but decided to ‘not shoot’ an unarmed target more quickly
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`if he was White,” and (2) “magnitude of bias varied with perceptions of the cultural stereotype and
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`with levels of contact, but not with [expressed] personalracial prejudice.”).” In other words, “[I]f
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`a target was African American, participants generally required less certainty that he was,in fact,
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`holding a gun before they decided to shoot him.” /d. at 1325.
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`In addition to documenting the negative impact of implicit racial bias on behavior and
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`decision-making generally, empirical studies have confirmed the consequences of implicit racial
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`bias in particular for jurors in a court-context. See Justin D. Levinson et al., Guilty By Implicit
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`Racial Bias: The Guilty/Not Guilty Implicit Association Test, 8 OHIO ST. J. CRIM. L. 187, 190
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`(2010) (“[S]tudy participants held strong associations between Black and Guilty, relative to White
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`and Guilty, and these implicit associations predicted the way mock jurors evaluated ambiguous
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`evidence.”).
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`Specifically, implicit racial bias leads jurors to view African American defendants as more
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`likely to be “guilty” than White defendants in cases that are otherwise identical. /d. at 207.
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`Accordingly,
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`The results of the empirical study show that, when it comes to racial equality and
`the presumption of innocence, there is reason for concern. First, we found that
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`12
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`participants held implicit associations between Black and Guilty. Second, we found
`that these implicit associations were meaningful—theypredicted judgments of the
`probative value of evidence.
`.
`.
`. These findings, taken together, raise questions
`aboutracial justice in the law and present evidenceto challenge the integrity of the
`presumption of innocence.
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`Id.; see also Justin D. Levinson & Danielle Young, Different Shades ofBias: Skin Tone, Implicit
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`Racial Bias, and Judgments of Ambiguous Evidence, 112 W. VA. L. REV. 307, 319-326 (2010)
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`(mock jurors found identical evidence to be more probative of guilt for Black defendants than
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`White defendants even though when asked about the race of the masked robber, many could not
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`recall it); Robert M. Entman & Kimberly A. Gross, Race to Judgment: Stereotyping Media and
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`Criminal Defendants, 71 L. & CONTEMP. PROBS. 93, 97 (2008) (“[B]lack defendants in criminal
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`cases are especially likely to be presumed guilty because they are subject to the stereotypes or
`399
`heuristics that most Whites apply to the category ‘Black person.””). The impact of implicit racial
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`bias against African Americansis not limited to racially charged crimes or even to any one group
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`of crimes in particular. Samuel R. Sommers & Phoebe C. Ellsworth, White Juror Bias: An
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`Investigation ofPrejudice Against Black Defendants in the American Courtroom, 7 PSYCHOL. PUB.
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`PoL’y & L. 201, 201 (2001) (“[C]ontemporary White jurors are more likely to demonstrate racial
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`bias against a Black defendantin interracial trials without blatantly racial issues. Empirical data
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`suggest that this pattern of bias is not limited to one type of crime or one typeofracialissue.”’).
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`Implicit racial bias also affects the way in which jurors are able to rememberthe evidence
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`adducedattrial. Justin D. Levinson, Forgotten Racial Equality: Implicit Bias, Decisionmaking,
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`and Misremembering, 57 DUKE L.J. 345, 353 (2007) (‘[I]mplicit racial bias automatically causes
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`jurors (and perhaps even judges) to misremembercasefacts in racially biased ways. Theseracially
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`biased memory errors will distort case facts in ways that are completely unknownto the juror but
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`prejudicial to the legal actor (for example, a criminal defendant...)).” For example,
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`in the
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`analogous context of implicit genderbias,
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`[W]hen asked to report on what motivated their judgment, decision makers cannot
`easily backtrack and reconstruct the exact thought process that led from the
`stimulus (e.g., encountering the job candidate) to the judgment(e.g., should we hire
`her?).
`.
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`.[T]hese data imply that if asked to explain the motivating factors that
`drove their evaluations of a particular job candidate, decision makers may not be
`able to faithfully reconstruct their process of thinking; instead they may answerthe
`question by relying on heuristics about what factors typically motivate hiring
`decisions. A job candidate’s sex or pregnancy status may be unmentioned as
`motivating factors because these characteristics are absent from the decision
`makers owntheory of decision making and the decision makeris therefore unaware
`of being influencedbyit.
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`David L. Faigman etal., A Matter ofFit: The Law of Discrimination and the Science of Implicit
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`Bias, 59 HASTINGSL.J. 1389, 1405-06 (2008)
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`Further, implicit racial bias “can .. . cause jurors to falsely recall case facts by attributing
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`evidentiary facts to the wrong party without recognizingit.” Levinson, 57 DUKE L.J. at 383. “Taken
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`as a whole, research on human memory processes indicates that people systematically and
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`implicitly make stereotype-driven memory errors. It also indicates that these errorsare likely to
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`affect decision making and that the nature of group deliberations is unlikely to help.” /d. at 389-
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`90.
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`In sum, implicit racial bias is a widespread and well-documented phenomenonthatleads
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`people to draw adverse inferences about individual African Americans based on race. Those race-
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`driven adverse inferences include an inference of “guilt” and affect decision-making and behavior
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`without the decision-makers’ awareness. Because of the ubiquity of implicit racial bias in the
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`United States, many, if not all, of Mr. Tucker’s jurors will (likely) make (or appear to make)
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`judgments in his case that are driven by their own implicit racial biases in violation of his Fifth
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`and Sixth Amendmentrightto a fair trial by an impartial jury. See Ronald J. Tabak, 7he Continuing
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`Role ofRace in Capital Cases, Notwithstanding President Obama’s Election, 37 N. Ky. L. REV.
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`243, 256-57 (2010) (implicit juror bias “can affect whether there really is a presumption of
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`innocence ....[;] It can affect whether the jury believes that remaining silent, which is a
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`defendant’s constitutional right, is an admission of guilt [;] It can even affect how the jury perceives
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`an expert witness whois a person of color.”).
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`Il.
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`VOIR DIRE ONLY PROTECTS AGAINST CONSCIOUS RACIAL BIAS AND
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`THEREFORE IS INCAPABLE OF ADDRESSING IMPLICIT (UNCONSCIOUS)
`RACIAL BIAS
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`Mr. Tuckerhas a constitutional right to inquire during voir dire aboutjurors’ potential racial bias.
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`See Powers v. Ohio, 499 U.S. 400, 415-16 (1991) (“[W]here racial biasis likely to influence a jury,
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`an inquiry must be madeinto such bias.”) (quoting Ristaino v. Ross, 424 U.S. 589, 596 (1976)); see
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`also United States v. Liddy, 509 F.2d 428, 434 (D.C. Cir. 1974) (‘The requirement of impartiality
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`demands that voir dire examination serve asafilter capable of screening out prospective jurors who
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`are unable to lay aside any opinion asto guilt or innocence and rendera verdict based on the evidence
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`presented in court.”); Rosales-Lopez v. United States, 451 U.S. 182, 188 (1981) (White, J., writing
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`for a plurality of the justices) (“Voir dire plays a critical function in assuring the criminal defendant
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`that his Sixth Amendmentright to an impartial jury will be honored. Without an adequate voir dire the
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`trial judge’s responsibility to remove prospective jurors who will not be able impartially to follow the
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`court’s instructions and evaluate the evidence cannotbe fulfilled.”’).
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`However, because of the unconsciousnature of implicit racial bias, prospective jurors remain
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`unaware of their biases.2 PAMELA M. CASEY ET AL., ADDRESSING IMPLICIT BIAS IN THE COURTS 14
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`(Natl 2012),—http:/(www.ncsc.org/~/media/Files/PDF/Topics/Ctr. for State Courts
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`Gender%20and%20Racial%20Fairness/IB_Summary_033012.ashx (last visited October 4, 2016)
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`(“Implicit, as opposed to explicit, attitudes and stereotypes operate automatically, without awareness,
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`intent, or conscious control.”); see also Patricia G. Devine, Stereotypes and Prejudice: Their
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`Automatic and Controlled Components, 56 J. PERSONALITY & SOC. PSYCH. 5 (1989) (im