When we take a case to trial, we’d like to believe that our system is set up to minimize bias and hand out just and fair rulings for all. However, we’re all human: no judge or jury is without some kind of bias. Sometimes that bias is clear and easy to work around, and sometimes the bias is impossible to see.
Other times, the judge or jury members believe that despite their personal experience (positive or negative) with the subject matter, they are able to decide the case in an unbiased manner.
Bias in the Jury
Here’s an example of how bias may show up in the jury. I tried a case once and ended up with one of the most challenging juries I could imagine.
This was a DUI trial, and there were six jurors: one was the wife of a police officer, one was a woman whose sister was killed by a drunk driver, two were members of MADD (Mothers Against Drunk Driving), one was married to a violent alcoholic and the last person was someone who thought it was improper for anybody to drink at any time.
During the jury selection process, the attorney gets so many “peremptory” selections where you can kick people off the jury for no reason. The people I listed above were the jurors I was left with after I had removed several people who I thought would be even more biased against my client.
I tried to get each of the jurors kicked off the case because they could not be objective toward my client. In my opinion, their personal experience would affect their ability to decide the case, but for every juror I raised an objection to, the judge asked the person, “I realize you’ve got feelings based on your history, but could you put aside your biases and follow the law as I instruct you to?”
Each of them said yes, so the judge kept each of them on.
Bias in the Judge
The same personal biases that can exist in jury members can exist in judges.
For example, there was once a judge whose mother was an alcoholic. He had a history of being hard on DUI drivers, but he refused to recuse himself from DUI cases. His argument was, “Yes, my mother was an alcoholic, but that won’t affect my ability to be unbiased in this case.”
A difficult situation. It’s very hard to show a bias; how can you distinguish clearly between a justified and unjustified bias?
For instance, following the Aurora theater shooting in 2012, the shooter was put on trial. The judge hated the guy, understandably. How could anyone not hate a person who had recently terrorized his or her community? However, just because the judge may have hated the man doesn’t mean he was biased against him.
We all have bias. The issue is: can you give a fair trial to someone even if you don’t like them?
Our Court system bets that the answer is yes. On a subtle level, it very well may come down to the honor system: does a judge or jury member have enough personal integrity or self-awareness that he or she would take him or herself off of a case if they recognized a bias?
At the end of the Aurora trial, after the shooter was sentenced to multiple life sentences, the judge turned to the bailiff and said, “Get this guy out of my courtroom.”
Our Court system does its best to be fair and just, but because of the nuance of the law it is important to have someone on your team who understands the system well. If you’re getting ready to go through a divorce or DUI case, let’s talk. Call us at 303-449-1873 to set up a free consultation.