McKee, Theodore A.

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Personal Reflections on the Subtleties of Bias

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Fordham Law Review Volume 73 Issue 5 Article 4 2005 Personal Reflections on the Subtleties of Bias Theodore A. McKee Follow this and additional works at: https://ir.lawnet.fordham.edu/flr  Part of the Law Commons Recommended Citation Theodore A. McKee, Personal Reflections on the Subtleties of Bias, 73 Fordham L. Rev. 2073 (2005). Available at: https://ir.lawnet.fordham.edu/flr/vol73/iss5/4 This Article is brought to you for free and open access by FLASH: The Fordham Law Archive of Scholarship and History. It has been accepted for inclusion in Fordham Law Review by an authorized editor of FLASH: The Fordham Law Archive of Scholarship and History. For more information, please contact tmelnick@law.fordham.edu. Personal Reflections on the Subtleties of Bias Cover Page Footnote Judge, U.S. Court of Appeals for the Third Circuit. This Essay represents a lightly edited version of the remarks of Judge McKee at this Symposium. This article is available in Fordham Law Review: https://ir.lawnet.fordham.edu/flr/vol73/iss5/4 PERSONAL REFLECTIONS ON THESUBTLETIES OF BIASHon. Theodore A. McKee*It is really a joy to be here. It's not often I have a chance to engagein thoughtful discussion about topics that are as interesting andchallenging as the topic we're addressing today, and I almost never getto do it in front of an audience as receptive to my perception of thelegal landscape as I assume this audience is.I want to start by making an observation and I will then share someexperiences which I think point out the problem of race. I will thenconclude with a point which I hope will tie together the firstexperience I am going to share with you.I start with a proposition that is neither novel nor unexpected, Idon't think, for anyone in this room. That is that the seed of racismhas been planted in this society and continues to grow to such anextent that its tentacles reach each and every one of us. None of usinside this arena, or anyplace else in this society, can possibly havelived in this society for any length of time and say, accurately, that weare free from the poison of racism, even though we might believe thatto be true at the time we say it.I want to first mention a standing committee that I was on-it was atask force actually-that was formed by the person who was ChiefJudge of our circuit at the time I was appointed by President Clinton.She formed a task force to look into bias in the court system withinthe Third Circuit.' At the time, many of the circuits were doing this.Our mission was to look at not just the bias within the court systemper se, but also examine whether bias affected the employees, thedefendants, and even the jurors.It was a very intensive undertaking. We tried to reach jurors, sentthem some questionnaires to get an idea of their views of fairness, andwe actually tried to reach some defendants. That was a little bitdifficult and a little bit dicey, but we tried to get from them theirfeelings of bias and fairness, and we were able to do that through ourquestionnaires. I was asked to co-chair the part of the task forcelooking into racial bias.* Judge, U.S. Court of Appeals for the Third Circuit. This Essay represents a lightlyedited and footnoted version of the remarks of Judge McKee at this Symposium.1. 1 Third Circuit Task Force on Equal Treatment in the Courts, Final ReportPresented to the Judicial Council (1997).2073FORDHAM LAW REVIEWAt the conclusion of that, we came out with a set ofrecommendations.2 One of our recommendations was that a standingcommittee be formed within the Circuit, as part of the JudicialCouncil, to implement some of the recommendations we hadreached.3A debate ensued about whether or not the implementation of ourrecommendations should be by a special standing committee, orwhether or not the ongoing committees of the Judicial Council of thecircuit could be sufficient to implement the recommendations of thetask force.During one of the discussions that followed, I was at a meeting ofthe Judicial Council. I was then too junior to be on the JudicialCouncil as I am now. I was asked why it was so important that wehave some method of implementing these recommendations. Andthey were not radical recommendations at all. My response was thateveryone needs to be sensitized to the problems of bias and racismthat the task force uncovered and that touches everybody, includingthose of us in this room. None of us are free from it as I have alreadynoted, and we need to be sensitized to it.A response came from a judge who had been on the court for quitea while, and who was a very respected member of the court. He is avery fair judge and I have always respected him a great deal. Hisresponse to me was, "I do not need to be sensitized."I told my wife about that statement and she made a very astuteobservation. She said, "You know, everyone thinks that somebodyelse needs to be sensitized. Nobody thinks that they need to besensitized." I thought about that, and it was very true. I'll come backto that with my last point.The second thing I want to share with you is an incident thatoccurred during jury selection. This was a black-on-white rape thatoccurred at a large university outside of Philadelphia. It was not arape of a student by another student. The person who was accused ofthe rape was not a student at all. He was black, as I've alluded to, andthe victim was white. It was not a date rape or anything of that sort,nor an acquaintance rape. At least as put forward by the prosecution,it was a stranger-on-stranger rape.The defense was consent, and I allowed individual voir dire for theprospective jurors. I would not usually do that except in a homicide,but the case had so many potential problems and was so emotionallycharged, I thought it a good idea to do it. Before we started, thedefense attorney asked me if he could ask each of the prospective2. 1 id. at 30.3. See 1 id. ("The Judicial Council should adopt a mechanism to conduct aperiodic review of the equality of treatment throughout the Circuit regardless ofgender, race or ethnicity, including the status of implementation or therecommendations of the report.").[Vol. 732074PERSONAL REFLECTIONSjurors whether or not they believed that a white woman could everconsent to having sex with a black man. The assistant district attorneyvigorously objected and insisted, "Judge, you can't ask that question."This assistant district attorney was not someone who wasparticularly dogmatic. I always regarded him as fair and even handed.He was not the breed of prosecutor who believes his job is to win. Hehad tried a number of cases in front of me and I had a great deal ofrespect for him. But he nearly went ballistic at the suggestion that Iask this question of potential jurors.I'll refer to him as Joe. I said, "Joe, why do you have a problemwith that question?" He said, "Judge, this is not a race case. The caseis not about race. It is a rape case, and all defense counsel is trying todo is put race into this case and appeal to the bias and the emotions ofthe jury."I said, "Joe, you've got a white woman accusing a black man ofraping her. Help me understand how that's not racial." I noted hisobjection for the record, he gracefully conceded, and sat down.So we went through voir dire, and it went pretty much withoutevent. We got to this one woman, who I'll refer to as "Mrs.Crenshaw." I have no idea what her name was. This morning as I wasthinking about it, for some reason "Crenshaw" seemed to be moreappropriate than "Jane Doe," so I'll call her "Mrs. Crenshaw."However, I am sure that was not her name."Mrs. Crenshaw" comes through the door. She's about maybe fifty-five to sixty, very nattily attired, hair up in a very smart andconservative and meticulously done hairdo. She sits down andmentions to me that she's from the greater northeast. That is apredominately white neighborhood that tends to be moreconservative than the rest of the city. It is fairly divided or stratified,in that there are pockets of Democrats, but it's far more heavilyRepublican than the rest of Philadelphia.We go through voir dire. We get through the regular questions.Without leading up to this, I simply said to her, "As you see, thedefendant is black. During the course of the trial, you'll see thecomplaining witness who is white. The defendant is maintaining thatthe sexual intercourse that he will concede took place was the result ofconsent and not force or rape. Do you believe that a white womancould ever voluntarily consent to having sex with a black man?" Shelooked at me as if I were crazy and said, "No."Of course, the defense attorney immediately jumped up and said,"Your Honor, I move to strike for cause." The assistant districtattorney, almost as quickly, jumped up and said, "Judge, she didn'tunderstand the question." I looked at him and I said, "No, Joe, Ithink she understood the question." However, to err on the side ofcaution, I told the assistant district attorney "But I will repeat thequestion."2005] 2075FORDHAM LAW REVIEWI repeated the question exactly the same as I've just recounted it toyou, and she looked at me and again said, "No."I said, "Now just so that there's no doubt about this, can you tell mewhat you think I am asking you, and then can you give me the answerto the question that you think I'm asking of you?"She looked at me and said, "Judge, you're asking me whether or notone of our girls would ever consent to having sex with a black man,and of course I said no." I said, "Well, Mrs. Crenshaw, why is youranswer no?" She said, "Because such a thing just couldn't happen." Ilooked over at the assistant district attorney and I said, "Joe, do youhave any problem with a challenge for cause with this juror?"He stood up and he said, "No, Judge."The rest of the day-and-a-half of that voir dire Joe said very littleand never again objected to questions intended to probe a potentialjuror's bias even if the question appeared somewhat ludicrous at first.I sincerely think he was dumbfounded by Mrs. Crenshaw's interactionwith me. I think the reason he was so dumbfounded was because itcame as a shock to him that this woman could so honestly, innocently,and fervently believe that there could not be consensual sex between awhite woman and a black man.The only thing that astonished me was that she didn't bat an eyeduring my conversation with her. I mean I'm not someone who canpass for white and she's sitting a few feet away from me as we'rehaving this dialogue. Yet, there was no embarrassment, no hesitation,nothing. It was as though we were having a conversation about thebest way to fertilize lilies in her garden. It didn't faze her at all.I merely said, "Well, thank you very much for your time here, Mrs.Crenshaw, but we're going to excuse you from service on this jury. Ifyou'd be kind enough to go back to the jury room and wait there, youmay or may not be asked to go to another courtroom for jury servicelater on today."She said, "Thank you very much, Judge. Is there anything else I cando for you?" I wanted to say, "Yes, get your ass out of thecourtroom." But I just said, "No, ma'am. Thank you very much. Weappreciate your time and sacrifice in reporting for jury duty today."Then she just kind of moseyed on back to the jury selection room. Idon't know if she was ever put on a jury or not, but if she was, Ishudder to think that she ended up in a courtroom where a blackperson was being charged with a crime, whether or not it was aninterracial crime. I doubt her deliberations in such a case would havebeen the kind of detached consideration of the evidence on which wehope juries base their verdicts.The next case is not nearly so overt; it is much more subtle. It's ahabeas case that we got in the Third Circuit.4 It was a felony murder4. Werts v. Vaughn, 228 F.3d 178 (3d Cir. 2000).2076 [Vol. 73PERSONAL REFLECTIONScase involving a shotgun robbery of a speakeasy and a killing in thecourse of the robbery, which made the killing a murder.In Philadelphia we still have speakeasies. It's a term that is used-I'm not sure if they still exist anyplace else or not, my guess is thatthey do. But there are these places in parts of Philly where people cango to get alcohol after hours or on Sundays when the liquor stores areclosed. The person who owns the home just sells the liquor out of hisor her garage or basement. It's referred to as a speakeasy. Thepeople in the neighborhood know you can go there and get wine orbeer or whatever after the stores are closed and on Sundays, whenstores in Pennsylvania are closed.There were a lot of problems with this prosecution and conviction.There are too many actually for me to get into here today, unless Iextend my fifteen minutes into the time of the reception.But one of the things I wanted to share with you occurred duringclosing argument. One of the problems in the prosecution, and oneof the things the defense attorney tried to argue, was that theprosecution's theory of the case did not make any sense. The theoryof the case was that these three or four people, of which Mr. Werts,the defendant in this case, was one, were sitting around talking andthey just decided to go rob a place, and they knew about thisspeakeasy, so they went and robbed the speakeasy.The prosecutor's closing argument then picked up on that by saying,"[If you're wondering how that could happen,] [b]ear in mind, this isthe way the people are up there." 5"In that remark," I'm reading now from the dissent, "the prosecutorpulled the genie of racial bias out of the bottle.... As the majoritynotes, during his closing argument the prosecutor sought to explainwhy people would be sitting around drinking and decide to commit arobbery 'out of the clear blue' [sky]." 6 I'm quoting now from theprosecutor's closing:[One of the witnesses, Moore,] testified that... in theevening,... he was at home drinking and they came to the houseand Butch Jones came up to him and they went outside and ButchJones was looking for a place to rob. Bear in mind, this is the waypeople are up there. They are sitting at home doing nothing andthey decide to rob a place just out of the clear blue.7Then back to the dissent, which stated as follows:The majority deftly parries this blatant appeal to bias by concludingthat the "remark of the prosecutor appears to be a fair comment onthe evidence presented at trial, which established that Werts'accomplices were at Moore's house on the day of the crime, trying5. Id. at 222 (McKee, J., dissenting) (citation omitted).6. Id. at 221.7. Id. at 222 (second omission in original).2005] 2077FORDHAM LAW REVIEWto decide on a place to rob." Had the prosecutor argued: "This isthe way those people are up there," I would hope that my colleagueswould better be able to recognize this remark for what it was. Ihope that they would concede that the latter is nothing more than acheap, highly inappropriate attempt to exploit the fact of thedefendant's race and class.8Werts, as will be evident to most from the prosecutor's comment, isblack and the neighborhood where Moore lives is an impoverishedblack neighborhood in north Philadelphia. I cannot imagine that theprosecutor would have ever made such a remark if Moore lived in anarea of northern Philadelphia that is predominantly white and upper-class. Chestnut Hill is such a neighborhood, and it strains credulity tothe breaking point to suggest that the prosecutor would have arguedthat "this is the way people up there are" had the same set ofcircumstances occurred in Chestnut Hill, yet that community is no less"up there" than north Philadelphia. There is a little more to that, butI am being flagged here, so let me leave it at that.I will mention one more thing. The ironic and sad thing, when youtalk about "this is the way people are up there," is that the evidenceshowed that two of the people in the speakeasy who were robbed,who were from the neighborhood, were discussing how one of themwas going about completing stage one of his college associate's degreein computer programming, how he was going to finish up hisassociate's degree, then go on to stage two, and then apply to a four-year school in computer programming, because that would help himget the promotion he needed to help support his family. So that wasthe way people "up there" were, but that was not what the prosecutorfocused on.The last thing I want to focus on is a thought that I had, andsomething that really impressed me greatly when I read NelsonMandela's autobiography.9 Some of you may be familiar with it. Itsays something about just how deep, poignant, and sharp is the barbof racism.It's an incident that occurred when he was head of the military wingof the African National Congress. He was being smuggled out ofSouth Africa to go to a meeting in, I believe, Tanzania, and I think itwas a meeting of the Pan-African Congress, although I'm not sure ofthat.He finally got out of South Africa. He is taken to an airstrip wherethere is a small plane that is going to take him to the meeting that hehas been trying to get to. He got on the plane and he recounted howrelaxed he was, that having now escaped capture, which he was afraidof, in South Africa, sitting on this plane, he was on his way to the8. Id. at 222 (citation omitted).9. Nelson Mandela, Long Walk to Freedom (1994).[Vol. 732078PERSONAL REFLECTIONSconference, and he was able to sit back and relax for the first time inweeks.As he was doing that, he looked through the curtain that separatedthe cockpit from the passenger cabin and he saw that the plane was tobe flown by a black pilot. He talked about the fear that seized him atthat moment, knowing that he was on a plane that was going to beflown by a black pilot.He said his initial reaction was to get off the plane, and he thenrealized what was happening inside of him, that he had spent weeksand months trying to get out of South Africa to go to this conference.Now that he was out of South Africa, all he knew about this pilot wasthat he was black, and he could assume by the fact that he got theplane there and that he was a pilot, he was a professional pilot and askilled pilot. But yet, the fact that the pilot was black was enough tomake Mandela momentarily want to flee the plane and rush back tothe open arms of apartheid rather than trust his life to a black pilot. °I think that says something about how deep racism is ingrained inall of us. If Nelson Mandela can have that thought upon seeing ablack pilot, I would submit to you that none of us is beyond thedestructive and poisonous reach of racism. And it is a sadcommentary on my colleague's belief that he did not need to besensitized. It's a much more subliminal and subtle form of what "Mrs.Crenshaw" was expressing when she so kindly looked me in the faceand explained why none of her young girls would ever want to haveconsensual sex with a black man.I don't know how we deal with it, but hopefully through thediscussion today we can begin to get at it.10. Id. at 250-55.2005] 2079Notes & Observations

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Personal Reflections on the Subtleties of Bias

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