Biased judges can undermine justice

Jury trials can be brutal on the souls, minds and bodies of parties and their lawyer advocates. Such brutality is layered on top of whatever underlying tragedy or dispute set the stage for a jury to decide the case. The outcome of a trial can have a significant and lasting impact on the lives of all parties involved.

A judge's role in jury trials is to preside over the proceedings, make sure the trial is conducted according to the rules of evidence and procedure, and make rulings on legal issues that arise during the trial. To be fair, trials can be just as brutal for the judges who oversee them. Trials are high-stress situations that can be emotionally and mentally taxing for the judges responsible for making sure they proceed fairly and that the rights of all parties are protected.

As advocates for parties in legal disputes, attorneys must trust that the judges who preside over their trials will rise above their unique circumstances and perspectives and consider only what is in front of them in the courtroom. They must believe that judges will listen to the facts presented and apply the law as it has been written and applied by other courts.

Judges are supposed to apply the law without bias or personal agenda, but they are human beings with implicit biases that may color the way they handle cases. When a judge's unconscious or implicit biases affect decisions and actions in court, they can compromise the fair and impartial administration of justice and result in judicial misconduct. Implicit bias is where we have attitudes (positive or negative), presumptions or stereotypes towards certain groups without our conscious knowledge.

While implicit bias is a universal phenomenon, it has no place in the courtroom. Courts have an affirmative duty to prevent bias: "In all court interactions, each court, its judicial officers, and its employees should refrain from engaging in conduct and should take action to prevent others from engaging in conduct that exhibits bias, including but not limited to bias based on age, ancestry, color, ethnicity, gender, gender expression, gender identity, genetic information, marital status, medical condition, military or veteran status, national origin, physical or mental disability, political affiliation, race, religion, sex, sexual orientation, socioeconomic status and any other classification protected by federal or state law..." (Cal Rules of Ct, Standards of J Admin 10.20(b)(1).)

Most importantly, judges must follow the law. Courts are required to make sure that each judge's orders, rulings, and decisions are based on the sound exercise of judicial discretion and balancing competing rights and interests, rather than being influenced by stereotypes or biases. (Cal Rules of Ct, Standards of J Admin 10.20(b)(3).)

Standard 10.20 requires that courts "effectively communicate to court users regarding existing procedures to submit complaints of bias in court interactions" and states that they "should include information regarding how to submit complaints about court employees directly to the court and how to submit complaints about judicial officers either directly to the court or to the Commission on Judicial Performance."

Judicial misconduct based on implicit bias can show itself in many ways. A judge who consistently favors the defense in civil litigation may be engaging in impermissible bias based on socioeconomic status or perceived status. Gender bias might be evident when a judge gives less weight to testimony from women or assumes that women are less credible as witnesses.

Bias can sometimes be less obvious to trial participants. When a judge makes a ruling that contravenes the facts on record and the operative law, he or she may also be acting with bias and lack of impartiality. If such biases influence a judge's decision making, they may produce a miscarriage of justice, resulting in unequal outcomes with some litigants receiving more favorable treatment than others, even if they have similar cases.

A judge who remarked on the physical appearance of a female African American attorney likely engaged in prejudicial misconduct because he showed improper attention based on her gender, race, and appearance. (Inquiry Concerning Kreep (2017) 3 C5th CJP Supp 1, 28-3.) Another judge who persistently made comments disparaging the defendant's attorney and expert witnesses and who frequently raised objections to the attorney's questions could have been signaling to the jury his preference for the prosecution. (People v Sturm (2006) 37 C4th 1218, 1233, 1237-1238, 39 CR3d 799.)

Misconduct can also occur when judges engage in prejudgment, such as when a judge discounted a witness's credibility by telling jurors that "his credibility is not too high." (Fletcher v Commission on Judicial Performance (1998) 19 C4th 865, 899-900, 81 CR2d 58.) In these cases, the judges' actions were likely to sway jurors' opinions.

Judicial misconduct cases are fact-specific, and there seems to be no clear test for what is misconduct. A judge who made many rulings against a party, some of which were wrong, was found not to have shown judicial bias because his rulings were subject to review. (People v Buenrostro (2018) 6 C5th 367, 405-406, 240 CR3d 704; Schmidt v Superior Court (2020) 44 CA5th 570, 589, 257 CR3d 699.) On the other hand, judges who make disparaging or sarcastic remarks to an attorney, impugn an attorney's performance, chastise an attorney's behavior, or sanction an attorney in front of the jurors are prejudicing jurors' minds and undermining the standards of fairness demanded by the court. (People v Nieves (2021) 11 C5th 404, 477, 278 CR3d 40.)

Although courts have been required to establish bias committees and other mechanisms to address judicial misconduct, a 2020 review showed that few courts were in compliance with the rules and that most complaints against court personnel were never even investigated. In response to the alarming lack of oversight and meaningful action, in November 2020 California Supreme Court Chief Justice Tani G. Cantil-Sakauye appointed a Work Group to Enhance Administrative Standards Addressing Bias in Court Proceedings.

The work group updated the list of protected classifications and implemented changes to help courts maintain an environment free from bias. But this was only a starting point. Until all bias complaints are taken seriously and there are true consequences for judicial misconduct, rules and committees will be no more than window dressing.

Most recently, the bias work group recommended amendments to Standard 10.20, including emphasizing that the goal for courts is not just to prohibit bias, but to actually prevent it. The rules would also ensure that court users understand how they can submit complaints about court employees and judicial officers concerning bias in court interactions.

The bottom line is that judicial bias can significantly impact the integrity of court proceedings and the administration of justice. It is therefore important for judges to be aware of their biases and for courts to take steps to eliminate even the appearance of bias in judicial decisions and actions in the courtroom.