Consider this question posed by Byron McCauley, a columnist and member of the editorial board of the Cincinnati Enquirer. It was published in 2017 on the day the trial of a University of Cincinnati police officer accused of murder ended in a mistrial because the jury was unable to reach a verdict. Tensing was tried twice and twice the jury deadlocked.
McCauley wrote “Just the other day, a woman refused to take her assigned seat on an airplane between two African-American men (one of them me). Instead, she elected to be seated at the windowless rear of the plane. I wondered then what type of juror she would make in a case such as Tensing’s.”
McCauley continued, “The legal system rightly holds a presumption of innocence for defendants such as Tensing. And the standard of “beyond a reasonable doubt” is a high one for prosecutors to meet, as it should be. Yet the continued failure of the legal system to convict police officers for on-duty actions is troubling. How much of that failure represents society’s respect for policing, and how much might it, just maybe, represent the taint of racism?”
Can you read these paragraphs without asking yourself, “Would I be a fair-minded juror? Am I racist?
When I asked myself these questions, the answer was clear. I am not racist.
Both my personal and professional history bears this out.
I joined with my African American law school colleague, Jack Sherman, to form a professional partnership in 1969 upon our law school graduation, and later, together we built the first fully staffed Public Defender office in Cincinnati. We hired both women and black attorneys and support staff. Then years later, as President of the Cincinnati Bar Association, joining with Inyeai Ororokuma, then President of the Black Lawyers Association, we established the CBA/BLAC Roundtable out of which grew the Minority Counsel Program and the Summer Work Experience in Law (SWEL) along with other efforts to enhance diversity in the Cincinnati bar. So, I, nor anyone else, would ever suggest that I’m racist. Bias was just not part of my makeup.
To both prove and explore the point, I took a number of the implicit bias tests developed at Harvard (https://implicit.harvard.edu/implicit/takeatest.html). To my surprise, I learned that I have a preference (bias) for lighter skin tones, for the young over the elderly, for men as scientists. If asked, before these results were provided, I would have fervently denied all three of these implicit biases. The definition of implicit is “implied though not directly expressed”.
I could not now reject the reality that almost by osmosis I had internalized prevalent cultural messages. We all do. But these test results caused me to be on high alert and paying attention. Being more mindful would pay off. Or so I thought.
Some months after my having achieved this heightened awareness, my refrigerator died. The cause appeared to be an electrical problem, so I contacted Duke emergency services. Within the hour, the Duke van approached, and I walked out to greet the driver. A young dark-skinned black man stepped out and I offered a welcoming smile, but my heart sank. My unspoken thought? “Damn, he won’t be able to figure this out.” Twenty minutes later, his obviously intelligent analysis was clearly stated, and the repairs made soon after. I quickly forgot my fall from grace, until a few days later when I read the insightful McCauley article I quoted above.
I would not have acted as that woman on the plane did. My racism is more nuanced, more private. Now you see it, now you don’t. But it is there. Would it arise if I were a member of a jury, judging the credibility of witnesses?
I write spurred on by an article I later read by Ibram X. Kendi*, a 2016 National Book Award winner and professor of history at American University. Kendi addressed why
police officers are rarely charged for taking black lives, and when they are, why juries rarely convict. He traced America’s history from the explicit racism of Jim Crow to what many now consider our “post-racial” society, citing a survey by the Pew Research Center in 2019 that found that fifty percent of whites feel the races are treated equally by the police, compared with sixteen percent of blacks. (See more current data**)
Kendi suggests that this can change, “……… Killing the post-racial myth and confessing racism is the first step toward anti-racism. Americans can recognize that label as an opening to a just future.”
How could I not acknowledge my reality if I am to hold my head high?
*Kendi’s most recent book How to Be an Anti-Racist is now topping best seller lists.
** PBS Newshour poll on 6/5/2020: https://www.pbs.org/newshour/politics/two-thirds-of-black-americans-dont-trust-the-police-to-treat-them-equally-most-white-americans-do.