KEY POINTS
- It is impossible for judges to be unbiased because it is impossible for human beings to be unbiased.
- While judges cannot be unbiased, they can be impartial, if they possess the skills, abilities, and motivation to keep their biases in check.
- While ensuring the safety of judges is important, their safety does not lead to a free, fair, and impartial judiciary.
- The fact that in 2022, members of the legal profession strive for the elimination of bias as a goal and for unbiased judges is outrageous.
I just read an article by Reginald Turner, the President of the American Bar Association, titled Congress needs to enact legislation and provide funding to ensure the safety of our judges, in which he states the following:
"A free, fair and unbiased judiciary is essential to the rule of law and a properly functioning democracy. But judges cannot do their jobs effectively if they are under attack or feel their families are being threatened.”
While I could not agree more, what invariably seems to be missing from such discussions is the reality that ensuring the safety of our judges does not mean that we have or will have “a free, fair, and unbiased judiciary.” We did not have “a free, fair and unbiased judiciary” before the increase in threats and violence against federal judges, or any judges, for that matter.
This is a reality that has shaped the trajectory of my life more than anything else.
My personal experience with the lack of “a free, fair, and unbiased” judiciary is what led me to attend law school in 1987.
I will never forget receiving a call from my criminal defense attorney, who was representing me in criminal assault and battery prosecution during my sophomore and junior years in college, when I was 19 and 20 years old. He asked me if I had read that day’s edition of the Los Angeles Times. I said I had not, at which point, he proceeded to tell me that he had gotten someone acquitted in a prosecution for murder and that it was in that edition of the paper. He then said that he knew that the person he got acquitted committed of murder had committed the murder and that he knew that I did not commit the crime for which I was being prosecuted. He explained why he was able to get his other client acquitted and that his best advice to me was that I enter a plea of no contest and agree to summary probation with the option to have the file sealed if I complied with the terms of my probation.
The reason for his recommendation had to do with unfair personal opinions that influence people’s judgment, otherwise known as bias. He explained to me that, among other things, my demeanor whenever discussions of the case came about would cause a judge and jury to wrongly convict me and I would be far worse off than if I pled no contest, which I did.
Shortly thereafter, the attorney who was representing me in the civil case related to the same alleged incident settled the case for policy limits on the homeowner’s insurance policy on my mom’s house. For frame of reference, this was in approximately 1986 and the house across the street from my mom’s house sold for $1,535,000 that year, so we are not talking an insignificant amount of money. In fact, according to the CPI inflation calculator, the value of that money today is $4,149,976.14. I never met that attorney until years later, while I was finishing my final year in law school. The attorney told me that he had agreed to the settlement, in good part, because I had pled no contest to the criminal matter.
It is important to note that I did not apply to law school because I wanted to practice law. I applied to law school because I wanted to better understand our “justice system,” so that I could avoid future legal injustices and possibly help others to do the same. However, when I went to the career center at my law school to ask them about job options outside of the legal field for recent law school graduates, they looked at me as if I were from Mars. So, I reluctantly entered the legal profession, after graduating from law school in 1990.
Then, in 2007, I experienced another very personal legal injustice at the hands of our “justice system.” That experience related to a creditor claim brought by my deceased mother’s ex-husband of ten years, who did not father any of her children. His claim was based upon an alleged verbal agreement to which there were no witnesses. Among other things, he had to convince the judge that he was not aware that my mother had Stage IV cancer and waited for the only other witness to the alleged verbal agreement to die before pursuing the claim.
He testified in court that he was unaware that she had Stage IV cancer before she died. In reality, I first learned that my mother had Stage IV cancer from him. He confided in me at a time in which my mother was keeping that information from everyone other than him and her medical professionals. He used to take her to her oncologist appointments, until they had a falling out. The trial judge, however, believed him, did not believe me or the other witnesses testifying for the defense, and made a factual finding that he did not know that my mother had cancer before she died. That was just one of a great many erroneous factual findings made by the trial judge.
Unfortunately, the way our “justice system” operates, assuming there is some basis in the record for the judge or jury to have made factual findings, such findings cannot be reversed on appeal. At the end of the day, the judge awarded my mother’s ex-husband $900,935 of my mother’s estate. In other words, the judge aided and abetted in his stealing almost $1M from my mother's children.
When people comment on the importance of ensuring the safety of our judges, the elephant in the room being ignored is the pervasiveness of legal injustice caused by a lack of "a free, fair and unbiased judiciary" and how that leads to many such safety concerns. I know because I used to fantasize about how I was going to kill the judge who committed the legal injustice that led to my segueing out adversarial work, almost giving up my law license and almost moving abroad because I was so disgusted at how unjust our "justice system" is and that the training I received in law school and the experience I received practicing law for over fifteen years were useless in preventing it - the exact reason I attended law school in the first place.
It is easy to address safety concerns. The bigger problem, the problem that tends to be ignored, and the one that is far more difficult to address, involves the increased lack of credibility in our "justice system" because of a lack of "a free, fair and unbiased judiciary."
Rather than moving abroad, my life’s mission became trying to educate people about biases, how they are formed and shaped, their impact, and what can be done to keep them in check, to the extent possible. My published work on such issues has been sought out by prestigious national family law publications, has been cited in a Kansas Supreme Court opinion, and is part of the curriculum in some law schools, in addition to being used in many other ways.
In a 1991 study, which is one year after I graduated from law school and over thirty years ago, Paul Ekman and Maureen O’Sullivan proved that California judges fared no better than random chance in making factual findings based upon demeanor evidence. Other researchers have made similar findings regarding jurors. Ekman and O’Sullivan also found that the length of time a judge has been on the bench does not improve their ability to decipher truth from fiction, although it likely causes them to be overconfident and overestimate their abilities in that regard. This is referring to credibility findings made by judges. They make credibility findings all the time in each and every case. Such findings are based upon the judge’s preferences, which is another term for biases, most of which are unconscious.
Understand the implications of this reality. If one, two, three, or four facts in any given case are in dispute and the trial judge or jury makes factual findings based, in part, on their interpretation of demeanor evidence, there is a 50%, 25%, 12.5%, and 6.25% chance, respectively, that their assessment of all those facts will be correct.
Do you have any idea how many factual findings are made in any given case based upon credibility determinations of people’s demeanor? It is rarely just one in any given case. What that means is that if, for example, four such findings were made in a particular case, there is a 93.75% chance that at least one of the factual findings made was wrong.
Based upon the statistics, losing parties’ claims that the trial court made erroneous factual findings that resulted in a legalized injustice is much more likely to be accurate than that the trial court made no erroneous factual findings.
Furthermore, such “preferences” do not just impact a judge's factual findings. Unless the law is unambiguous, the law itself is subject to interpretation, as is its application, and this includes the exercise of judicial discretion.
I vehemently oppose threats and violence against judges and jurors and I could not agree more that efforts need to be made to ensure the safety of our judges. There is also no reason to ignore the elephant in the room because I guarantee that ensuring the safety of our judges will not address the lack of credibility in our “justice system” that is caused by a lack of “a free, fair and unbiased judiciary.”
It also bears mentioning that no human beings are unbiased, including judges, and no human beings can ever be unbiased. Therefore, commenting on the importance of an “unbiased judiciary” is outrageous, especially coming from the President of the American Bar Association. The best we can expect is for judges to have the skills, abilities, and motivation to keep their biases in check, to the extent possible, which allows them to act in an impartial manner. Only then is it even possible to expect fairness from our “justice system.”
* People are emotional beings. I have a very difficult time believing that divorcing spouses, for example, involved in a contentious divorce don’t, at some point, have a passing thought in which they wished their spouse dropped dead or even fantasized about helping in that regard. It’s human. We’re human.
VERY few people who have such thoughts actually act on them.
Having the thought doesn’t make one unstable - it makes them human. Acting on it or intending to act on it does. Admitting that you’re human doesn’t make you any more or less stable than anyone who doesn’t admit they’re human. In fact, I’d say those who admit they’re human are likely more stable than those who pretend otherwise.
I’m making this statement because I know I’ll be judged for admitting that I fantasized about such a thing at one point.
In fact, that is just one of many things I mentioned in this article for which I expect to be judged, which has not stopped me yet.
** After this article was first published, someone asked what I would suggest to solve the problem. I responded as follows:
"First of all, I suggest, as I’ve long suggested, that people avoid the “justice” system altogether, if they expect “fairness” and “justice,” to the extent possible.
Second, the “justice” system be used only as the means of last resort. Unfortunately, that’s not how it’s used.
Third, since the research indicates that appellate court judges are better able to assess truth from fiction by not being led astray as a result of “demeanor evidence” since they only see the transcripts, that the system is changed, such that they stop accepting trial court factual findings as golden because the trial court received the demeanor evidence in making credibility findings.
Fourth, that trial court judges consist of panels, so there is more than one and they can challenge each other on credibility findings.
Fifth, that judges be selected based upon very different criteria. They be selected based upon their skills and abilities to keep their biases in check.
Sixth, that there be much stronger boundaries and accountability for judges that motivates them to keep their biases in check, to the extent possible.
Those are six suggestions I have."