A judge has decided not to play a video on implicit bias for potential jurors at a Lincoln man's upcoming trial.

In his order, Lancaster County District Judge Robert Otte acknowledged that volumes have been written about implicit bias.

"There is no doubt that it exists," he said. "The authority submitted suggests that implicit biases are pervasive and exist in the legal system."

Social scientists describe it as the unconscious, personal attitudes people hold about race, gender, nationality or other characteristics that can affect their interactions and decisions.

But, the judge said, while the defendant advocates for "active judicial intervention" with jurors, the question really is whether trial judges should engage in or stay out of the implicit bias arena.

More specifically, whether he should include implicit bias as part of potential juror instructions or formal instructions at the end of this trial.

"The court respectfully declines such invitation," Otte said.

At a hearing in May, Deputy Lancaster County Public Defender John Jorgensen asked the court to play an 11-minute video — shown to all prospective jurors in federal courts in Seattle and Tacoma, Washington — to make people think of hidden biases they might bring with them into the courtroom.

He argued it was important in all cases, but particularly in this one, in which a black man is charged with sexually assaulting a white woman.

Jorgensen contended the normal jury-selection process can pull out the "bad weeds" to get at those with explicit bias. But implicit bias is different and more subtle.

"This is something we need to be concerned about. This is something we need to do something about. This is something that is not going away," Jorgensen said then, arguing for Lincoln to be at the forefront of this issue to ensure that fairness, equality and justice prevails.

Deputy Lancaster County Attorney Charles Byrd objected to the motion, saying, "there's no real reason to reinvent the wheel."

He said these types of issues are best addressed in the voir dire process, when attorneys question potential jurors.

Byrd also argued that the video mainly focused on skin color, but there were other potential biases, too, like manner of speech, weight and handicap.

In his order, Otte agreed with Byrd, saying the defendant has invited the court to show a video adopted by a small number of federal courts and hasn't pointed to any state courts using it.

"The defendant has invited the court to jump into issues that have not been addressed by our Supreme Court, the Court of Appeals or the authors of (Nebraska Jury Instructions-Criminal, 2nd Edition)," the judge wrote.

Otte said pattern jury instructions already include a preliminary admonishment telling jurors not to allow sympathy or prejudice to influence them or to indulge in speculation, guess or conjecture or make inferences not supported by the evidence.

At the end of trial, jurors are told to determine what the facts are with open minds, consult with one another, freely and honestly exchange their views, and consider the views of other jurors.

That's what jurors will hear at trial in this case in August.

On Wednesday, Jorgensen said they were heartened to see the court has "no doubt" that implicit bias exists.

"However, we respectfully disagree with Judge Otte’s decision to not address biases that we all hold on race, and we remain convinced that the courts will eventually make implicit bias training a standard practice in all cases," he said in an email. 

Jorgensen said the public defender's office remains committed to fighting for racial justice and will continue working tirelessly to ensure equality before the law.

"And we are confident we will ultimately prevail on this issue," he said.

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Reach the writer at 402-473-7237 or lpilger@journalstar.com.

On Twitter @LJSpilger.



Lori Pilger is a public safety reporter.

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