It seemed like a simple enough question: “Have you ever had any particularly positive or negative experiences with persons of Somali descent or heritage?”
The inquiry was one of 66 items on a questionnaire handed out to prospective jurors in the murder trial of former Minneapolis police officer Mohamed Noor, who is Somali-American, in the shooting death of Justine Ruszczyk Damond. With race expected to play a key role — Noor is black, Damond was white — attorneys have gone to some lengths to tease out racial bias among potential jurors, stemming from news coverage and personal experiences.
Studies have shown that people harbor automatic prejudices — or negative attitudes and beliefs toward members of other social groups, particularly black people — that influence their decision-making. These attitudes, referred to as implicit biases, exist outside of people’s conscious awareness and control, making them difficult to root out.
“When race is a salient issue — or gender — implicit biases can definitely come into play and can definitely have an impact in decision-making by jurors or (even) judges,” said Mark Bennett, a retired federal judge who has studied the role of implicit bias in jury selection.
“Let’s say that the situation was reversed so that the victim was Somali and the officer charged with the murder was Caucasian — there’d be a natural tendency, everything else being equal, for the Caucasian jurors to favor the officer,” said Bennett, the first federal judge in the country to specifically instruct juries on implicit bias. “The in-group favoritism, it operates at a subconscious level; you don’t consciously say, ‘Oh the police officer and I are both Caucasian so I’m going to have a greater affinity for him.’ ”
As a result, he said that judges should “go beyond the simple admonition that you need to forget about any views that you had prior to the case and just go off the evidence.”
Seven women and 17 men remain on the panel of potential jurors in the Noor case, six of them people of color. Attorneys will ultimately settle on 16 jurors for trial, four of them alternates, likely early this week.
Noor’s defense team spent part of last week asking prospective jurors about their “unconscious” and implicit biases.
A handful of people were dismissed outright from the jury pool earlier in the week for expressing “inappropriate” views about Somali people on their questionnaires. Others were brought in individually to clarify their responses.
One man wrote on his questionnaire that he was “concerned about how some in the Somali community treat their women.”
“I would definitely say it’s not a racial bias,” the man said under questioning by Noor’s defense. “It’s more of an ethnic, cultural bias.” He was later dismissed.
Abdifatah Mohamed, president of the Somali American Bar Association, said it was no surprise that some people would harbor prejudices against the former police officer considering the “Islamophobic tropes” that have circulated on certain news outlets and on social media since Damond was shot, tying Noor’s actions to his ethnicity and religion.
“I think there’s the theme of xenophobia and Islamophobia that’s permeating the public discourse that results in things like the Christchurch attacks,” he said, referring to last month’s white extremist attacks in New Zealand that left 50 people dead and scores more injured.
Research has shown that racial biases are hard-wired into people’s minds. In one often-cited study, participants were shown photos of black and white men while hooked up to MRI machines that measured activity in their amygdalae, the portion of the brain that regulates emotions such as fear and anxiety. The participants’ amygdalae activated more when shown the face of a black man than that of a white man.
Before the Noor trial, defense attorneys proposed showing potential jurors a video explaining how ingrained biases can influence their decision-making. The state opposed it, saying the video included “objectionable imagery” such as racial segregation in the South and the internment of Japanese-Americans during World War II that were irrelevant to the case. Hennepin County District Judge Kathryn Quaintance denied the motion, writing that the information covered in juror orientation sessions was adequate. She added that she was open to proposed jury instructions on implicit bias.
“I think you want to ask about what people’s interactions and experiences have been with communities of color in general — depending on the particular case — and in this case, the east African community in the Twin Cities,” said attorney Bruce Nestor, who defended a Somali-American client in another high-profile case in which the issue of implicit bias was raised during jury selection.
While no jury will ever be completely impartial, it’s “better to have somebody who is a little bit aware of their prejudices than someone who doesn’t think he has any,” said Diane Wiley, a longtime jury consultant.
“I see why defense attorneys are concerned about Mr. Noor: because he’s black and he’s Somali, and they don’t get the benefit of the doubt like he would if he was a white officer,” said Wiley, who previously served as president of the National Jury Project Midwest.
Reminding jurors that they have biases helps, researchers say, but too much talk of prejudices can also backfire by leading jurors to think themselves more objective than they really are. Studies have found that one way of minimizing their impact is by having more racially diverse juries, which tend to deliberate more carefully about the facts of a case and to consider a wider variety of perspectives.
Jonathan Kahn, a law professor at Mitchell-Hamline, said that while training aimed at countering stereotypes can help reduce these biases, every juror will invariably bring some psychological baggage to court. At the same time, he said, attorneys are sometimes too quick to attribute questionable juror comments about ethnic minorities to implicit bias without probing further to determine whether those attitudes are more entrenched.
“I think it’s a way that would make racism more palatable by calling it implicit bias,” said Kahn, who has written a book on the subject. “The kind of response to implicit biases is: ‘You’re not to blame, there’s no problem, let’s just work on your unconscious biases.’ ”