In To Kill a Mockingbird, Atticus Finch said to the jury, “Our courts have their faults, as does any human institution, but in this country our courts are the greatest levelers, and in our courts all men are created equal.”
It’s a nice thought, but our justice system has never been a “great leveler” of society. We know what happened at the conclusion of Tom Robinson’s trial in To Kill a Mockingbird, and we know how the justice system in real life fails people of color, particularly Black people, time and time again. With modest exceptions, the justice system has largely served to promote the interests of the powerful and to preserve the status quo.
Right now, in the midst of a pandemic that disproportionately harms people of color because of systemic racism, we are also reeling from the news of George Floyd’s death at the hands of police officers in Minneapolis on May 25th, not long after the killings of Ahmaud Arbery by a former police officer and his son in Georgia and of Breonna Taylor by police officers in Kentucky.
Black people, especially Black men and boys, are far more likely than white people to be killed by police, and in many cases, there is video evidence showing the brutality. Americans in privileged positions purport to be appalled, and people demand justice, but nothing changes.
Derek Chauvin, a White police officer with 18 previous complaints about misconduct who knelt on George Floyd’s neck, has been arrested. That’s something, but it isn’t enough. In most cases involving excessive force, justice is elusive. Officers are rarely convicted, and lawsuits alleging deprivations of civil rights are often thrown out because of unduly high legal standards like qualified immunity, which sharply limits the circumstances under which government officials can be sued.
In Kisela v. Hughes, 138 S. Ct. 1148 (2018), a lawsuit by a woman who survived being shot four times by a police officer for holding a kitchen knife in her driveway, the U.S. Supreme Court decided the officer was entitled to qualified immunity—meaning the case was dismissed before a jury ever heard it—because his behavior did not violate “clearly established” law. As Justice Sotomayor said in her dissent, joined by Justice Ginsburg:
[The majority’s] decision is not just wrong on the law; it also sends an alarming signal to law enforcement officers and the public. It tells officers that they can shoot first and think later, and it tells the public that palpably unreasonable conduct will go unpunished.
Indeed. But qualified immunity isn’t the only obstacle to plaintiffs suing police officers for misconduct. In cases that aren’t dismissed by judges, unsympathetic juries are a problem too, forcing attorneys who represent plaintiffs in police misconduct cases to choose only the most egregious examples to take to court.
I’ve served on two juries—yes, lawyers do get selected for jury duty—and I saw firsthand how bias is the elephant in the jury box. Neither case alleged police misconduct, but one involved police testimony, and some members of the jury valued the testimony of officers more than the testimony of other witnesses. In the other case, involving a car accident, one juror fervently argued to reduce the plaintiff’s award because the juror assumed the plaintiff had a large family to take care of her (and therefore wouldn’t “need” the money from the insurance company) because she was Asian.
To counter juror biases like these examples, a judge in a California trial court gave a presentation to prospective jurors before jury selection began in Pinter-Brown v. Regents of the University of California, a case against UCLA by a doctor alleging gender and age discrimination in employment. The judge described America’s history of injustice, including a discussion of the civil rights movement and various civil rights leaders, and quoted To Kill a Mockingbird:
The movie–Gregory Peck plays Atticus Finch, and in the movie, Atticus Finch stands up in front of the jury and in his summation, he tells the jury the following:
Then he goes on to say, ‘Ladies and Gentlemen, a court is no better than each one of you sitting before me here on this jury. A court is only as sound as its jury, and a jury is only as sound as the men and women who make it up.”
After the trial, the jury found in favor of UCLA on the age discrimination claims and in favor of the plaintiff on the gender discrimination claim, rendering a $13 million judgment.
UCLA appealed, and the appeals court reversed the judgment, concluding in an opinion on April 23, 2020 by Judge Stratton that the trial court erred in several ways, including “by framing the case at the outset in prejudicial terms.”
The Court focused on the following remarks from the trial judge about Dr. Martin Luther King:
The arc of the moral universe is long. Dr. Martin Luther King said these words in 1965. The arc of the moral universe is long, but it bends toward justice… If you are selected as a juror in this case, your job will be to help bend that arc toward justice.
Now, why do I talk to you about Dr. King and bending the arc? Is the plaintiff in this case a Dr. King or a Rosa Parks or Elizabeth Jennings? No. Is the defendant in this case a Dr. King or A Susan B. Anthony or Cesar Chavez? No. But you as jurors in this case are going to become Dr. King. It’s going to be your job to help bend that arc toward justice by rendering a verdict based on the law and the evidence that you are going to be hearing in this case.
The trial court’s presentation rambles, but it’s clear that the judge was telling jurors to be Dr. King in the sense that they were supposed to ensure that justice prevails by rendering a decision free from bias. The judge said both “plaintiffs and defendants… come to court… to stand up for justice.”
Despite the trial court’s “both-sides” framing, the appeals court said, “the remarks of the trial court here were not an impartial call to duty; they were a resolute and stirring call to action which stacked the deck against UCLA.”
To the appeals court, “impartiality” requires ignoring America’s long history of injustice. This type of ignorance maintains the status quo, in which the deck is automatically stacked in favor of powerful institutions like UCLA, corporations, and government entities like the police. With these biases, the courts will never be a “great leveler” in society.