Courts: Assault on Bias
A Pa. Supreme Court Committee Offers Concrete Steps to imporove the System
|by Lynn A. Marks, Roberta D. Liebenberg and Shira J. Goodman
Fall 2003, Vol. 66, No. 3
After nearly four years of comprehensive research, study and analysis, the Pennsylvania Supreme Courts Committee on Racial and Gender Bias in the Justice System issued its final report in March 2003. While the committee found that there were many positive things about the judicial system, it also concluded that racial, gender and ethnic bias still exist. Consequently, the committee recommended concrete steps that the court system can take to eliminate bias. In addition to the courts, the committee also recognized that other stakeholders in the justice system, including bar associations, defenders organizations, district attorneys, the legislature and the governor, could take specific measures to improve the system of justice in the Commonwealth.
The committees findings have serious implications for all lawyers. First, as participants in the court system, attorneys have an important role in maintaining the integrity and decorum of the courts. Through public hearings, interviews, focus group sessions and other research tools, the committee gathered accounts of conduct by judges, court personnel and attorneys that exposed minority and women attorneys, litigants, witnesses and court employees to hostile, demeaning or condescending treatment and comments. The committee observed that while bias is generally manifested in subtle rather than overt ways, such behavior compromises the ability of minority and women attorneys to advocate effectively for their clients. Moreover, whether such conduct results from insensitivity, indifference, ignorance or prejudice, the committee concluded that disrespectful and biased conduct and attitudes have a serious negative impact on the administration of justice and the publics confidence in the justice system.
Second, regardless of whether lawyers practice areas bring them into the courtroom, as officers of the court, lawyers must act to ensure that the justice system is fair and free of bias. As the Honorable Kathryn S. Lewis of the Philadelphia Court of Common Pleas stated at the Philadelphia public hearing, [e]qual justice for all will only be guaranteed, or at least furthered, by the development and implementation of an action plan to eradicate racial and gender bias wherever it is.
But what can any individual lawyer, or even a group of lawyers, such as a local bar association, accomplish to address many of the problem areas identified by the committee? First, and foremost, the committee found that education and training about biasthe form it takes and how it can be overcomeshould be provided to all participants in the justice system, including judges, attorneys, court personnel and law enforcement agencies.
While the committee recognized that courts, under the supervision of the Supreme Court, would and should have a significant role in implementing such training, law schools, bar associations and individual lawyers must also play a role. For example, one of the committees recommendations is that law schools should educate both students and faculty about the effects of racial, ethnic and gender bias within the legal system. Likewise, bar associations should also take the lead in educating members about the myriad issues raised in the committees report. This will require more than articles in bar magazines and an occasional CLE course. Rather, bar associations should go beyond these traditional methods to educate their members and implement techniques so that diversity training becomes part of the core CLE curriculum.
The expertise of bar associations and their members is a ready resource for developing, marketing and implementing such training programs. While some may skeptically question whether education and training truly have an effect, the committee has no doubt on this score: so much of the bias within the system is the product of ignorance and lack of experience.
Knowledge about the differing needs of litigants with limited English proficiency or of low-income litigants, for example, may inform court personnel of realities of which they had no prior knowledge. Such new information can affect attitudes, which in turn drive behavior and create new programs or procedures that increase access to the courts.
In particular, bar associations can help in the implementation of the committees recommendations regarding perceptions and occurrences of bias in the courtroom. The committee has recommended that all court personnel throughout the Commonwealth receive training in matters such as civility in the courtroom; cultural diversity and its effect upon treatment in the courtroom; what constitutes or can be perceived to constitute racial-, ethnic- and gender-biased language and conduct; the effect of bias on determinations of credibility and confidence; and the stereotypes and cultural impediments that inhibit minorities, persons of different ethnic backgrounds and women from having confidence in and using the states judicial system.
Lawyers are particularly well suited to develop and conduct training sessions addressing these issues. Lawyers have been struggling with these very issues as they learn and strategize about picking juries, presenting witnesses and using demonstrative evidence. The lessons that have become integral to trial preparation could be translated easily to courses about bias, perception and different types of learning. Examining ones own conduct toward litigants, court personnel, judges, witnesses and jurors can lead a lawyer to understand whether he or she is allowing, even if unconsciously, racial, ethnic or gender bias to infect courtroom proceedings. Moreover, lawyers have unique insights from their clients about their treatment by the courts and by court personnel. Such trial war stories would go far in instructing court personnel about the effects their attitudes and cultural biases have on the litigants who come into the courts.
Bar associations can also play a role in establishing and maintaining grievance mechanisms for any person who believes he or she may have been the recipient of racial-, ethnic- or gender-biased speech or conduct by an attorney. For example, the Women in the Law Committee of the Allegheny County Bar Association established a committee in 1993 to receive and resolve specific reports of gender bias made by attorneys against judges, lawyers and court personnel. Likewise, in 1999 the Philadelphia Bar Association appointed a similar committee, the Committee to Promote Fairness in the Legal System, but its mission extends beyond gender bias to include reports of bias against any protected class of persons in the Philadelphia Fair Practices Ordinance (i.e., religion, age, sexual orientation, race, gender, etc.). The Philadelphia committee collects and evaluates information about bias in the citys legal system by lawyers, judges, court-related personnel and other persons acting in a judicial capacity. The Bar Associations Board of Governors adopted a set of procedures for individuals to use in filing reports of bias and obtaining effective resolutions of the issues raised in the reports.
Unfortunately, bar association grievance procedures have not been widely used. The Pennsylvania Supreme Courts Committee on Racial and Gender Bias in the Justice System found that despite the existence of such grievance procedures, individuals feared coming forward because of a perceived harm to their careers or clients by filing a complaint. Thus, a challenge remains for bar associations to publicize grievance mechanisms and to encourage aggrieved individuals to come forward to report a problem, without fear that there will be adverse ramifications.
Elimination of bias is a difficult and daunting challenge. The Supreme Court of Pennsylvania made this commitment in 1999 by appointing the Racial and Gender Bias Committee and again in 2003 by appointing two task groups to recommend the means of implementing the reports conclusions. The Philadelphia Bar Association has also taken up this challenge by appointing a new Special Committee to Coordinate the Bars Response to the Supreme Court Racial and Gender Bias Report and Recommendations. Chancellor Audrey C. Talley charged this committee with seeking ways for the Bar Association to implement some of the Supreme Court Committees recommendations and to provide input to the Supreme Courts task groups. We are hopeful that lawyers will participate in this important work and make the achievement of a more equitable and non-discriminatory system of justice a priority in the Commonwealth.
Examples of Racial, Gender and Ethnic Bias Taken From Testimony Before the Bias Committee
In a most egregious incident of racially offensive conduct by the court, an African-American attorney was admonished by a white judge in a suburban Philadelphia county to, stop being Stepin Fetchit because, in the judges opinion, the attorney was taking too much time to conduct cross-examination in the case.
A system that devotes little time and resources to domestic violence cases sends a message that it is indifferent to the needs of domestic violence survivors, many of whom are all too willing to believe they do not deserve protection, and all too likely to abandon their cases for the least excuse.
Several bilingual advocates who were in court to serve as witnesses complained that judges had drafted them to serve as interpreters, despite their apparent involvement in the case and their lack of specialized training.
Philadelphia Bar Association Committee to Promote Fairness in the Philadelphia Legal System
- Collects and evaluates information about instances of bias in the Philadelphia legal system on the basis of all classes of persons protected by the Philadelphia Fair Practices Ordinance;
- Recommends and implements programs in furtherance of promoting fairness in the legal system; and
- Provides an opportunity to mediate and/or conciliate differences among the individuals involved and takes appropriate action consistent with the committees procedures and the parties willingness to participate.
The committee will accept confidential reports of alleged bias from any person who has observed bias in the Philadelphia legal system regarding lawyers, judges, court-related personnel (judicial, prothonotary, quarter sessions staff, etc.) or persons acting in a judicial capacity (e.g. arbitrators, masters and judges pro tem).
Written Report Forms should be completed and returned to one of the committees co-chairs or you may call either of the co-chairs directly to make an Oral Report. Both Written and Oral Reports will be kept confidential. Anonymous Reports will be accepted, but the name of the subject of the Report will not be retained. Other information provided in Anonymous Reports will be retained only for statistical and record-keeping purposes. Copies of the Report Form and the names of the members of the Committee are available by calling the Philadelphia Bar Association at (215) 238-6300 or on the Associations Web site at www.philadelphiabar.org.