Trine | JURY BIAS

Recognizing and Countering Implicit Bias

By Bill Trine

W

hat is implicit or subconscious bias, and how does
it differ from explicit or conscious bias? As trial lawyers, we are trained to identify explicit bias and use that
knowledge to assist our clients in achieving justice in the
courtroom. However, we have not been trained to understand
and counter implicit biases which, by definition, are attitudes
or stereotypes that affect our understanding, decision making
and behavior without our even realizing it. It has only been
in the last twenty years that social cognitive psychologists
have discovered novel ways to measure the existence and
impact of implicit biases.1

Conscious bias can be present in many forms—gender,
racial, ethnicity and through many attitudes and stereotypes.
The list is endless because it involves thinking and acting in
ways that are not rational. When we recognize overt bias that
is detrimental to our clients, we take steps to counter the bias
to protect our clients from prejudicial decisions influenced
by that bias. We may use evidence of bias to seek appellate
review of adverse discretionary decisions or to disqualify the
presiding judge. We may use evidence of bias in the crossexamination of witnesses. Lawyers have been trained at the
Trial Lawyers College to discover the ‘danger points’ in
their cases, and how to design a voir dire examination of
Explicit bias, on the other hand, can be so open and obviprospective jurors to ferret out concealed explicit bias.
ous that it is easy to detect, or it may be intentionally hidden
All of this is well and good. But how do we identify and
or denied to avoid detection. Anytime discretion is at play in
the civil and criminal justice system, overt or explicit bias counter implicit or subconscious bias, when it is an attitude
may influence the outcome, and nearly every decision being or stereotype that affects our behavior, understanding and
made during the judicial process contains an element of dis- decision-making, without our even realizing it?
cretion. Likewise, as this article will demonstrate, implicit
Perhaps the first step is to discover and identify some of
bias can influence the outcome of discretionary decisions
our own implicit attitudes and understand how our own life
being made at every step in the judicial process.
events and experiences have created those attitudes. How
For example, in a criminal case the police often exercise can we identify possible implicit biases in others, without
discretion in deciding who to investigate and ultimately, who first going through the process of identifying the source of
to arrest. The prosecutor then decides whether to bring charges our own attitudes? Much of this work has been accomplished
and if so, what charges to bring. The judge then makes deci- by lawyers who have participated in psychodrama as protagosions about bail and pretrial detention. The prosecutor decides nists, auxiliaries and soul-searchers. Once I recognize my own
what plea bargain to offer and the defense lawyer makes re- implicit attitudes and how they have affected my behavior, I
commendations to the client regarding a plea bargain. If the can more readily understand how others may develop, but not
client is convicted, the prosecutor makes sentencing or post- recognize, similar attitudes. In that regard, I highly recommend
trial recommendations and the judge decides what sentence to two important sources of information that every trial lawyer
impose. Every step in the process involves an element of dis- should study: Adam Benforado’s book, Unfair,2 and a law
cretion that is potentially subject to explicit and/or implicit bias. review article, Implicit Bias in the Courtroom.3

Likewise, in a civil case, the court must exercise its discretion in ruling on pre-trial motions including evidentiary
motions in limini, motions made during jury selection, evidentiary motions during trial, and post-trial motions. Jurors
must make verdict decisions. Again, every step in the process
is potentially subject to explicit and/or implicit bias.

Colorado Trial Lawyers Association

As we know, attitudes and stereotypes can pose threats to
fairness at every step of the judicial process. But the threat
posed by implicit bias can sometimes be far more dangerous
than explicit bias in, for example, a jury trial. Why? Because
we have a much better chance of identifying jurors with
explicit bias. As Jerry Kang stated,

Trial Talk

December/January 2017

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JURY BIAS | Trine
For instance, the threat to fairness posed by jurors with explicit
negative attitudes towards Muslims
but who conceal their prejudices to
stay on the jury is quite different
from the threat posed by jurors that
perceive themselves as nonbiased
but who nevertheless hold negative
implicit stereotypes about Muslims.4

People often do not relate their
existing attitude or stereotype to an
underlying bias, and, in fact, they
would deny such a bias. A recent
article on racial and gender bias in
large law firms and in the court room
contains many examples of this.5
• A new black associate attorney is
in a nearby parking lot when told
by a partner, “I hope you aren’t
planning to break into that car.”
• A female attorney has been working
250 billable hours per month preparing for a trial. She hurriedly
leaves the building to go meet a
witness, and when she passes a
partner he asks if she is beginning
her “mom time.”
• A male lawyer, while negotiating a
settlement with female opposing
counsel states, “I bet there aren’t a
lot of men who say ‘no’ to you.”
• A female lawyer cross-examines a
male medical expert at trial. The
expert, in frustration, exclaims to
the judge and jury, “I feel like I’m
talking to my wife.”

How many lawyers refer white clients
to white trial lawyers only rather than a
highly qualified and respected black
trial lawyer, and do so out of habit,
without giving it any consideration?
If questioned about this, the referring
lawyer might honestly say that he or she
has never given it any thought. But in
now thinking about it, the lawyer might
explain his conduct with the rationalization that “my white client might not
feel comfortable with a black lawyer,”

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December/January 2017

two million people online at the website
Project Implicit.9 This test has been
used to find anti-black prejudice among
75 percent of whites and, surprisingly,
59 percent of blacks.10 “This bias, unconscious or otherwise, has consequences
–not just in our daily interactions, but
Franz Hardy, an African American
in matters of life and death. Racial prelawyer from Colorado, was recently
judice among police officers has been
questioned about his experience with
at the top of the public agenda after
implicit bias. He explains that, because
fatal shooting of an unarmed black
of his name, new clients, expert
teenager, Michael Brown, by a white
witnesses, and even opposing counsel
officer in Ferguson, Mo. Though it’s
who meet him for the first time, often
difficult to know for sure that bias has
express surprise—if not dismay—to
played a part in any individual case,
see that he is black and not a white
Brown’s killing echoed that of other
German. They express their surprise
unarmed young black men—Trayvon
with statements like, “Oh, I didn’t
Martin, Amadou Diallo, Oscar Grant—
appreciate you would look like you
all of whom died under circumstances
do” or “you don’t look like a Franz.”
that made people suspect they’d still be
“I don’t get the next question out loud,
alive if they hadn’t been black.”11
‘are you as good as a white lawyer?’”6
So, how do we know that the killing
There have been many studies of
of blacks by cops may sometimes result
implicit bias, including one in which
from implicit bias and not just outright
60 partners in a law firm evaluated the
prejudice? Well, the IAT test detects in
same legal memo.7 Those who were
milliseconds the time it takes for a retold that a lawyer of color wrote the
spondent to associate black faces with
memo evaluated it more harshly than
positive and negative words relative to
those who were told it a Caucasian
the time it takes to match white faces.
lawyer wrote it. Professor Eli Wald,
“When a respondent pairs black faces
who has studied this subject states,
and negative words more quickly than
[B]ecause of implicit bias,
other pairings, it reveals implicit bias.”12
minority lawyers are systematically
As stated by Chris Mooney in the
graded more harshly than their
Washington Post, “It is very important
counterparts, and consequently,
to note that implicit bias is not the same
over time, receive worse evaluathing as conscious racism. People who
tions, are handed worse
harbor implicit biases may not think of
assignments, and do worse in
themselves as prejudiced, and in fact,
terms of promotion for partnership.8
might consider prejudice to be abhorrent.
They also may not know they even have
How does implicit bias affect the
13
discretionary decisions being made in these biases.” For example, the ITA
the civil and criminal judicial process? test showing that 59 percent of the blacks
taking the test demonstrated implied
Let’s look first at racial bias.
bias against blacks came as a surprise to
Racial Bias
many of the blacks who took the test.
The most relied upon psychological
However, social scientists have exmeasure of implicit racial bias is the
plained this phenomenon in numerous
computerized Implicit Association Test studies showing widespread negative
(IAT), which has been taken by over
attitudes toward African Americans as

or “he might be at a disadvantage with
some judges or jurors.” In any event,
the lawyer might honestly insist that he
or she has no overt prejudice toward
blacks or black lawyers. But is there a
previously unrecognized implicit bias?

Trial Talk

Colorado Trial Lawyers Association

Trine | JURY BIAS
well as stereotypes about their being
violent and criminal.14 It should come
as no surprise that police could have an
implicit association between blackness
and weapons that could affect how
quickly shots are sometimes fired.
Testing has shown that the decision to
shoot or not shoot can be made in a
half second, the same length of time it
takes to distinguish black from white.
“In the policing context, that half
second might mean the difference
between life and death.”15 Without an
implicit bias linking black with
violence and weapons, shots may not
be so quickly fired.
Armed with the knowledge that the
shooting of black men might often be
the result of implicit bias, rather than
overt prejudice, many police
departments have recently started
programs to train officers to recognize
and mitigate their biases. This is a
work in progress. For example, the
social psychology professor Jennifer
Eberhardt, who did the testing and
experiments that showed how quickly
people link black faces with crime and
danger, is heavily involved with the
Oakland Police Department in raising
awareness about implicit bias. Her
work has resulted in changes in police
policy and training.16

Prosecutorial Bias

Prosecutors are not immune from
implicit bias, if not outright explicit
bias. For example, various studies in
Los Angeles, Florida, and Indiana,
found that prosecutors are more likely
to press charges against black than
white defendants when such disparities
could not be accounted for by raceneutral factors such as weapons, criminal
history, or seriousness of offense.19 Further, a U.S. Sentencing Report found
that at the federal level prosecutors were
more likely to offer white defendants
generous plea bargains below the prescribed guidelines than to offer them to
black or Latino defendants.20

selective prosecution in United States
v. Armstrong,21 There, defendant filed a
discovery motion in the United States
District Court with an affidavit showing
that in every one of the 24 crack distribution cases handled by the prosecutor’s
office during 1991, the defendant was
black. The motion requested the court
to order the prosecutor to disclose the
names of similarly situated suspects of
other races who were not prosecuted.
When the court granted the motion, the
prosecution refused to provide the information. The court dismissed the
indictment, and the Court of Appeals
for the Ninth Circuit upheld the dismissal.

However, the Supreme Court reversed
and remanded the case to the lower
However, establishing this bias in a
court, stating that for a defendant to be
criminal case can be very difficult as
entitled to discovery based on a claim
evidenced by defendants’ failed motion
of selective prosecution because of
to dismiss the indictment alleging
race, the defendant must meet the

Eberhardt’s research also
demonstrated that the blacker the face
of an African American, the greater the
prejudice toward that person. In 44
murder cases in Philadelphia involving
black defendants and white victims,
the half of defendants rated as
stereotypically black were more than
twice as likely to receive the death
penalty as those not as black in color.17
This is consistent with many other
studies demonstrating the implicit bias
associated with facial appearance,
body tattoos and shapes, and even hair
style and color.18
Colorado Trial Lawyers Association

Trial Talk

December/January 2017

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JURY BIAS | Trine
threshold requirement of showing that
the government did not prosecute
“similarly situated suspects of other
races.” But how is a defendant going
to obtain such bias evidence without
formal discovery—discovery that is
not permitted unless the defendant first
meets the threshold requirement?
Judicial Bias

It should come as no surprise that
every judge, like the police, prosecutors,
trial lawyers and jurors, has implicit
biases that can affect discretionary rulings. Like all of us, a judge’s attitudes
and stereotypes result from a lifetime of
experiences. Implicit biases have been
identified by researchers who administered the race attitude IAT to judge’s
from three different judicial districts and,
consistent with the general population,
the white judges showed strong implicit
attitudes favoring whites over blacks.22
Further testing of these judges by Rachlinski and colleagues demonstrated that
black judges who showed a stronger
black preference on the IAT were less
likely to convict a black defendant, as
compared to a white defendant, and
those black judges who showed a white
preference on the IAT were more likely
to convict a black defendant.23

Since implicit biases function automatically, without thought, can a judge
set aside the bias once he or she recognizes it? Several studies involving state
judges have shown that when a judge
recognizes implicit bias as a potential
problem, he can then be motivated to
take steps to counter the bias by
1) not responding quickly without
deliberation—try to avoid snap
judgments when implicit bias is
most likely to occur;

2) engage in behavioral
modification programs to decrease the
influence of such biases; and

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October/November 2016

3) take the IAT tests to become more the local city park. The transformation
of the popular park to a community of
fully aware of unrecognized attitudes
homeless hippies did not sit well with
and stereotypes.
many of the Boulderites who wanted
Countering Implicit Bias
them removed.
What can we do as trial lawyers to
Someone in the park called 911 when
overcome implicit bias in the courtroom? Jim began vomiting blood. When the
First, we must identify what it is about police arrived, observed his condition,
our case and client that could produce and decided to take him to the hospital
adverse attitudes and stereotypes among for observation, he resisted, was kickpotential jurors. In a properly prepared ing at them with his dirty, bare feet,
and directed voir dire examination, ex- spitting at them, screaming profanities,
plicit attitudes will generally be revealed and had to be restrained. All the officers
and discussed, but not implicit biases. wanted to do was help him. They were
So, what can we do? Studies have shown just doing their job. However, on the
that if a person has unconscious nega- way to the hospital, he struggled against
tive attitudes about particular groups of the belts, screamed and kicked, and
people, that attitude or bias will not be continued spitting. The officers pulled
directed toward a member of that group over, opened the back door, and assaultif it is a member that the person has
ed him, allegedly to restrain him, on
grown to respect and like—that compas- their way to the hospital.
sion and understanding can negate the
I told the jury this story during voir
implicit bias.24 That being the case, it
dire,
and explained that when I first
becomes critically important in a jury
trial to transfer the client’s humanity to heard the story, my reaction was that my
the jury—the common human empathy client got what he deserved. How many
that we all share—in order to overcome felt the same way? With the hostile feelings, the community had toward the
any and all potential implicit biases.
hippies, nearly every hand shot up.
The first step is to get to really know Jurors expressed their anger toward
and understand our client and the story hippies and Jim, with many stating they
of our client’s case. If we have not lived could not render a verdict for Jim, no
our client’s life through re-enactments, matter what additional evidence might
role reversals and discovering the client’s be introduced. The explicit bias and
life stories, how can we transfer ‘the
prejudice toward hippies and Jim, refeelings’ and human elements of the
sulted in many successful challenges
client to a judge and jury? We cannot
for cause. But what about probable
transfer the client’s humanity to the jury implicit biases among the remaining
without becoming the client—without seated jurors? Instead of filing motions
walking in their shoes. We cannot over- in limini to keep out evidence of Jim’s
come the implicit biases of jurors without sordid life history, I decided to use his
transferring the human elements of the life events to humanize him and perhaps
client to the jurors.
overcome any remaining bias by touchMy first experience with this simple ing upon the jurors’ basic compassion
and understanding—by touching the
truth occurred in the 1970’s in a civil
lawsuit against police officers in Boulder, jurors with the basic elements of
Colorado. The client, Jim, was portrayed humanity that we all share and that
make us human.
as one of the homeless, drunk, dirty,
long-haired hippies who were living in
Trial Talk

Colorado Trial Lawyers Association

Trine | JURY BIAS
In opening statement, I said,
During jury selection, I told you
a story that was true and will be
supported by undisputed evidence.
Now let me tell you the rest of
that story. It starts when Jim was
a young boy living in Arizona
when his mother died. With her
death, there was no one at home
to protect the children from an
abusive, alcoholic father, who
frequently beat them. At age 13,
Jim ran away. He traveled some
distance to the home of an aunt
who took him in for awhile, but
his aunt had a family and an unhappy husband who could not
afford to feed another youngster.
Jim was asked to leave. He
was shoveled from family to
family, and he was sometimes
homeless until he turned 17, lied
about his age and joined the military. While in Viet Nam his best
friend was decapitated in his presence. He began using drugs and
became addicted.
After discharge he continued
using drugs, but was able to work,
and he married a woman with two
children. He lost his job, they had
serious marital problems, and she
kicked him out and filed for divorce. One day, in a drug induced
state, he confronted her with a shot
gun and forced her to drive him
out into the countryside where he
threatened to commit suicide if
she would not drop the divorce.
She refused. He left the car, she
drove away, and he turned the shot
gun on himself, pulled the trigger
and shot himself in the abdomen.
A passing motorist called 911.
He was in critical condition, had
emergency surgery and survived.
They charged him with kidnapping
(a felony), convicted him and
Colorado Trial Lawyers Association

sentenced him to prison. While in
prison, two armed guards brutalized him for disobeying an order.
Upon release from prison four
years ago, he obtained steady employment as a construction worker
in Utah and stayed clean – no
alcohol or drugs. He understood,
following his abdominal surgeries,
that alcohol consumption could
cause internal bleeding. He worked
hard for three years, and then left
for a vacation in Boulder, where
he met a group of friendly hippies
and began using alcohol. Three
weeks later he was in the city park
with other hippies – drunk and
vomiting blood.
Now, during jury selection I told
you that when Jim was in the park
he didn’t look like he does today
in the courtroom. But neither did
these officers. Officer Jones is in
a coat and tie today, but in the
park that day he was in uniform,
with a revolver on one hip and a
flashlight, 16 inches long, weighing
three pounds on the other hip.
When he stands up, you will see
that he is six feet, two inches, 220
pounds and all muscle. Officer
Smith is also in a coat and tie
today, but in the park that day, he
also was in uniform with a revolver and a heavy flashlight that can
be used as a club, and when he
stands up you will see that he is
6’ tall, weighs about 200 pounds
and stays in good physical shape.
Now I will tell you what happened on the way to the hospital.
Officer Jones lost his cool and
pulled over and stopped. Officer
Smith stopped behind him. Jones
opened the back door, Smith grabbed Jim by his long hair with his
left hand and yanked his head
down exposing the back of his
head, then used his flashlight as a
Trial Talk

club and beat and beat and beat
Jim over the back of his head,
leaving three dents in the roof of
the car, and crushing his skull!
Folks, Jim Brough has paid in
rare coin for all his mistakes, and
there have been many. As a result,
he lost his family, spent time in
prison, had no friends, has severe
internal injuries resulting from
his attempted suicide, and now
suffers brain damage. These officers also made a serious mistake
and it’s now time for them to pay
for viciously beating Jim and
crushing his skull.

Some of the jurors looked at Jim
during the opening statement with
expressions of understanding and
compassion, and I saw one brushing
away some tears. The first offer of
settlement came after opening statements,
and we settled the case during trial.

I believe that the human aspects of
the client’s life stories helped to overcome any remaining subconscious biases
held by the jurors, and perhaps any implicit bias by the court, based on the
favorable evidentiary rulings during
trial. And what about defense counsel?
Well, they settled.

The Universal Truth

So, why does demonstrating the
client’s humanity help overcome implicit biases? A famous and successful
trial lawyer, Dan Rodriguez,25 describes
the implicit racial prejudice toward the
Latino or Latina plaintiff that “is alive
and well in our present-day society,”
and how this can be overcome in a jury
trial26. He explains that since, “it’s easier
to relate to and even like those people
who are most like us,” we must look
for the elements in the client’s story
that are universal to all people – the
elements that make us “all the same –
that make us all human.” Then present
October/November 2016

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JURY BIAS | Trine
this “Universal Truth” to the jury in
the client’s stories.27 Dan gives these
excellent illustrations of elements of
the Universal Truth that can unite the
client with the jury and dispel the
implicit biases against Latinos:

Bill Trine was a practicing trial lawyer
money to get her son the video game
he’s been wanting, is trying to figure out in Boulder, CO for 55 years before retiring
whether to let her 15 year old daughter in 2015. He is a past president of the Colgo out on her first date?”
orado Trial Lawyers Association, a

As explained by Dan in conclusion:
“The power of telling of our client’s
“For instance, take the case where
Universal Truth is that it shows the jurors
our client is a Latino male who lives
a truth that is also their truth. After all,
on the ‘Hispanic side of town’ and
our client’s Universal Truth is a conglodoesn’t speak English. A not too uncom- meration of his fears, ambitions, hopes
mon case for a lot of us. Yes, we can
and dreams. And, our client’s fears are
highlight those things that make our
no different that the fears, ambitions,
client different from the jurors. Or, we hopes and dreams of our jurors. Our
can also look to see what makes our
client’s truth is the juror’s truth; that’s
client similar to the rest of us in the
why it’s universal. Our Job is to show
courtroom. Might it be that our client is our client’s truth.”28
a man, who works to support his family,
who likes sports, who likes to barbeque, Conclusion
who annoys his wife with his snoring
In conclusion, we have all developed
at night… Might it be that our client stays attitudes and stereotypes that affect our
up at night trying to figure out what he behavior and decision making, often
has to do to get promoted at work to get without our even realizing it. This can
a raise? Might it be that our client stays result in implicit biases toward particular
up at night waiting for his daughter to groups of people, organizations, and
come home from a date? Might it be that institutions. However, when we discover
our client beats himself up because he that a member of that group is just like
thinks he’s not spending enough time
us and has the same human elements
with his elderly mom?
that we all share, the implicit bias does
“How about if our client is a Latina not surface or is overcome by the comwho works cleaning houses and is paid passion and understanding we develop
cash under the table and doesn’t speak for that individual. It may not remove
a word of English? Should we highlight our attitude toward the group the
individual belongs to — although it
those things about her that make her
might open the door — but we will
different from everyone else in the
courtroom? Or, should we look for the treat the individual fairly.

Universal Truth? Might it be that this
client is a woman, who’s trying to figure
out whether she’s going to fit into the
dress she picked out for the Christmas
party, whether she’s going to call her
sister that night because she hasn’t talked
to her in a month, whether she’ll be able
to get time off work to make it to the
parent-teacher meeting next week…
Might it be that this client is trying not
to think about the lump that appeared
on one of her breasts a month ago, is
trying to figure out how to save enough

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October/November 2016

So, to overcome any implicit biases
in jurors, we must discover the life
stories of our client that demonstrate
the human qualities that create compassion and understanding in all people
– that bond all of us as human beings—
and then show those qualities to the
jury during the trial in the stories told
by the client and witnesses. This describes the important process of
demonstrating the client’s humanity,
and showing the jury the client’s
Universal Truth, which is also their truth.
Trial Talk

founder and past president of the Trial
Lawyers for Public Justice and on the
Board of Directors of the Human Rights
Defense Center, which publishes Prison
Legal News. He has been on the teaching staff of the Trial Lawyers College in
Wyoming since its inception in 1994. He is
the co-author of a book and the author
of over 75 published articles.
Endnotes:

See, Kang, Jerry, et al., Implicit Bias in the
Courtroom, 59 UCLA L. Rev. 1124 1126
(2012), which references the numerous studies that have been published in recent years,
which “have provided convincing evidence that
implicit biases exist, are pervasive, are large in
magnitude, and have real-world effects.”
2
ADAM BENDORADO, UNFAIR: THE NEW SCIENCE OF CRIMINAL INJUSTICE (2015).
1

Kang, supra note 1.
Id. at 1134.
5
See, Ronald M. Sandgrund, Esq., Can We
Talk? Bias, Diversity, and Inclusiveness in
the Colorado Legal Community, Part 1—
Implicit Bias, COLO. LAW., Jan. 2016, at 48.
6
Id. at 50.
7
See, Reeves, Dr. Arin, Yellow Paper Series:
Written in Black & White --- Exploring Confirmation Bias in Racialized Perceptions of
Writing Skills, NEXTIONS YELLOW PAPER
SERIES, 2014), available at www.nextions.com/
wp-content/files_mf/14468226472014040114
WritteninBlackandWhiteYPS.pdf
3
4

8
9

Sandgrund, supra note 5, at 48.
See, Greenwald, Anthony G., et al., Measuring Individual Differences in Implicit Cognition: The Implicit Association Test, 74 J.
PERSONALITY & SOC. PSYCHOL. 1464, at
1464-66 (1998) (introducing the implicit
association test (IAT). For more information
on the IAT, see Nosek, et al., The Implicit
Association Test at age 7: A Methodological
and Conceptual Review, in AUTOMATIC
PROCESSES IN SOCIAL THINKING AND BEHAVIOR
265 (John A. Bargh, ed., 2007).
Colorado Trial Lawyers Association

Trine | JURY BIAS
10

See, Neyfakh, Leon, The Bias Fighters:
Psychologists are Testing Ways to Reduce
Unconscious Racial Prejudice—Not Just in
the Police, But in All of Us, THE BOSTON
GLOBE, Sept. 21, 2014, available at
www.bostonglobe.com/ideas/2014/09/20/the
-bias-fighters/lTZh1WyzG2sG5CmXoh8dRP
/story.html.

PERSONALITY & SOC. PSYCHOL. BULL. 1139
(1995).
15
Kang, supra note 1, at 1138.
16
See, Sam Scott, A Hard Look at How We
See Race, STANFORD MAG., Sept./Oct. 2015,
available at alumni.stanford.edu/get/page/
magazine/article/?article_id=80755.

22

See, Rachlinski, Jeffrey J., et al., Does
Unconscious Racial Bias Affect Trial Judges?
84 NOTRE DAME L. REV. 1995, 1210 (2009).

Id. at 1220.
See, Neyfakh, supra note 10, referring to the
tests performed by Calvin Lai and the work
of Lorie Fridell, an associate professor at the
17
Univ. of S. Florida.
Id.
11
Id.
25
18
Daniel Rodriguez is a graduate of the Trial
Benforado, supra note 2, at 47, 141-2, and
12
See, Johnson, Theodore R., Black-on-Black
Lawyers
College where he has been on the
see Bibliography pages 193+.
Racism: The Hazards of Implicit Bias, THE
teaching
staff
for many years. He is the sen19
Kang, supra note 1, at 1140.
ATLANTIC, Dec. 26, 2014, available at
ior partner in the law firm that he founded in
www.theatlantic.com/politics/archive/2014/1 20 See, Justice on Trial: Racial Disparities in
Bakersfield, CA. He grew up in a family of
2/black-on-black-racism-the-hazards-ofthe Criminal Justice System, Leadership
migrant farm workers and experienced many
implicit-bias/384028/.
Conference on Civil Rights (2000), available
episodes of racism starting at a very young age.
13
26
See, Mooney, Chris, Across America, Whites at www.protectcivilrights.org/pdf/reports/
See, Daniel Rodriguez, Fighting for Justice
justice.pdf. See also McNally, Kevin, Race
Are Biased and They Don’t Even Know It,
for the Latino or Latina Plaintiff, presented
and Federal Death Penalty: A Nonexistent
WASH. POST, Dec.8,2014. www.washingtonat the AAJ Convention (Feb. 2012), availProblem Gets Worse, 53 DEPAUL L. REV. 1615
post.com/news/wonk/wp/2014/12/08/acrossable from Amer. Assoc. for Justice.
(2004) (compiling studies on the death penalty).
america-whites-are-biased
27
Id. at 2.
21
14
United States v. Armstrong, 517 U.S. 456,
See generally, Patricia G. Devine & Andrew
28
Id. at 3-4.
116 S. Ct. 1480, 134 L. Ed. 2d 687, 517 U.S.
J. Elliot, Are Racial Stereotypes Really Fad456 (1996).
ing? The Princeton Trilogy Revisited, 21

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