Pennsylvania Justice

 

The Status of Pennsylvania Justice

Final Report of Pennsylvania Supreme Court Committee on Race and Gender Bias in the Justice System .

Below are some direct quotes from the Committee Report itself dated 2005 describing some of the research and suggested amendments and recommendations :

304
INTRODUCTION
While other chapters of this report discuss instances of bias in specific typesof legal cases and settings, this chapter discusses instances and perceptionsof racial, ethnic, and gender bias that cut across all aspects of the judicial system. Specifically, the Committee reviewed instances of racial, ethnic, and
gender bias as perceived, reported and reflected by actual participants in the judicial process—judges, attorneys, litigants, witnesses, and court employees throughout Pennsylvania, in both the civil and criminal justice systems.

RACIAL AND ETHNIC BIAS
Many people who come into contact with the Pennsylvania justice system report that there is racial and ethnic bias within the system. While most agree that intentionally offensive behavior has declined in recent decades, many people of color still detect evidence of bias lingering in judicial hallways, in the workplace, and in courtrooms. Bias may be evident when, for instance, an African American attorney is called a derogatory, racially inspired name. The signs of bias may also take a more subtle form when, for example, counsel refers to an African American witness as “Johnny” and a white witness as “Mr. Smith,” or when a court employee raises an eyebrow as an African American man stands to answer the question “Who represents the plaintiff?”

Through public hearings, interviews, focus group sessions, and other research tools during the past two years, the Committee has grappled with fundamental questions concerning courtroom speech or conduct that calls attention to a person’s race or ethnic identity. When are comments improper and demeaning? How does the court respond when a litigant has been insulted, demeaned, or disrespected on the basis of race or ethnicity? And when do disrespectful comments and behaviors materially undermine the ability of a person to perform professionally in the courtroom?
Statements made to the Committee in public hearings and focus groups suggest that, at a minimum, race- or ethnic-based comments and conduct tip the courtroom’s level playing field, whether the persons being singled out are attorneys, litigants, or witnesses. Expressions of bias impose upon people of color a barrier to effective performance that does not exist for white courtroom participants. Displays of respect and disrespect are bound to register on judges and jurors as they make the myriad decisions associated with a trial. Therefore, any conduct warrants scrutiny and correction when it singles out one participant and places him or her in an unfavorable light.
The Melior Group and V. Kramer & Associates conducted focus groups and interviews on the topics of racial, ethnic, and gender bias in the courtroom. During these sessions, they gathered “numerous accounts” of apparent offhand comments that injected condescension or hostility into courtroom proceedings. An assistant district attorney in Philadelphia, for instance, used the term “boy” in reference to a 50-year-old African American defendant.1 Elsewhere, court personnel were overheard using stereotypical code-speak (“What can you expect from them?”)2 to characterize litigants.

PERCEPTIONS AND OCCURRENCES OF RACIAL, ETHNIC, AND GENDER BIAS IN THE COURTROOM
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There can be no doubt that such statements are made. There is no need here, however, to determine their frequency or precise location because, as the attached final report of The Melior Group and V. Kramer & Associates notes, arguments about the depth and breadth of racial or ethnic bias are “largely
extraneous,” or beside the point. “We think that the Committee should direct its considerations to the central issue that is commonly expressed by the study’s participants,” the report says. “That is, racial bias, whether emanating from
insensitivity, indifference, ignorance, or negative prejudice, compromises and injures the parties affected. It fosters unequal treatment and unequal outcomes in the one area where justice is sought.”3 Sources of Information .The Committee conducted an extensive literature review, examining more than 20 recent task force reports on racial and ethnic bias from other states
and federal judicial circuits. Many of the reports regard perceptions of bias as a critical element to be examined. As a judge said in the Second Circuit’s 1997 report on gender, racial, and ethnic fairness in federal court, “After all, even if the courts are fair, unless those appearing in them think so, we have a
problem.”4 One consistent finding in most studies is that a large percentage of women and people of color regard bias as common within the courts, while men—and particularly white men—believe it occurs only in rare instances. This finding appears to hold true for groups of judges, litigators,
witnesses, and litigants.

A summary of key findings from other state and
federal task force reports, including the 1997 report of the Third Circuit Task Force on Equal Treatment in the Court, is included later in this chapter. The Committee found the same dichotomy in perceptions of biased conduct in Pennsylvania that were noted in other state and federal task force reports. The Committee reviewed prior relevant studies conducted in Pennsylvania,
notably the Philadelphia Bar Association’s 1988 Report of the Special Committee on Employment of Minorities in the Legal Profession. The Committee also generated current data through its own study conducted by The Melior Group and V. Kramer & Associates and through public hearings held throughout the Commonwealth. The consultants conducted interviews
with judges and litigants and held focus groups with attorneys and court employees in Philadelphia, Erie, Harrisburg, and Pittsburgh.

366
MODEL CODES OF PROFESSIONAL
CONDUCT
The Committee concluded, based upon the findings of its study of Perceptions and Occurrences of Racial, Ethnic, and Gender Bias in the Courtroom, that the codes of professional conduct governing the behavior of judges, attorneys, and court personnel should be modified to specifically address biased behavior by those members of the legal community. In December 2000, the Supreme Court of Pennsylvania adopted the Code of Civility, designed to “assist judges and lawyers in how to conduct
themselves in a manner that preserves the dignity and honor of the judiciary and the legal profession.” While the Committee applauds the effort of the Court to encourage civility among members of the legal community, given the data collected by the Committee, it recommends that new sections be added to the existing Code of Judicial Conduct and to the
Code of Professional Responsibility specifically prohibiting the judiciary and attorneys from manifesting bias in the performance of their duties. The Committee also recommends that a code for court employees be adopted in Pennsylvania prohibiting discriminatory conduct based on race, ethnicity, and gender, among other factors.
JUDICIARY
Toward that end, the Committee reviewed codes of judicial conduct enacted by other states and the model code recommended by the ABA. After much deliberation, the Committee decided to recommend that the model code
drafted by the ABA be incorporated into the existing Pennsylvania Code of Judicial Conduct. The pertinent sections are set forth below:

PERCEPTIONS AND OCCURRENCES OF RACIAL, ETHNIC, AND GENDER BIAS IN THE COURTROOM
367
CANON 3 A JUDGE SHALL PERFORM THE DUTIES
OF JUDICIAL OFFICE IMPARTIALLY AND
DILIGENTLY.
CANON 3B(5) A judge shall perform judicial duties without
bias or prejudice. A judge shall not, in the
performance of judicial duties, by words or
conduct manifest bias or prejudice, including
but not limited to bias or prejudice based upon
race, sex, religion, national origin, disability,
age, sexual orientation or socioeconomic
status, and shall not permit staff, court
officials and others subject to the judge’s
direction and control to do so.268

CANON 3B(6) A judge shall require lawyers in proceedings
before the judge to refrain from manifesting,
by words or conduct, bias or prejudice based
upon race, sex, religion, national origin,
disability, age, sexual orientation or
socioeconomic status, against parties,
witnesses, counsel or others. This Section
3B(6) does not preclude legitimate advocacy
when race, sex, religion, national origin,
disability, age, sexual orientation or
socioeconomic status, or other similar factors
are issues in the proceedings.269

ATTORNEYS
Similarly, the Committee reviewed codes of conduct for practicing attorneys in other states, as well as the model rules of professional conduct recommended by the ABA. Pennsylvania’s Code of Professional Responsibility incorporates the model rule of professional conduct recommended by the ABA set forth below:
Rule 8.4 Misconduct
It is professional misconduct for a lawyer to:
− (d) Engage in conduct that is prejudicial to the administration of justice. Based upon its review, the Committee recommends that the Code of Professional Responsibility governing the behavior of attorneys licensed to practice in Pennsylvania be amended to include the following additional provision:
PERCEPTIONS AND OCCURRENCES OF RACIAL, ETHNIC, AND GENDER BIAS IN
THE COURTROOM
368
A lawyer violates the prohibition against conduct that is
prejudicial to the administration of justice when, in the course
of representing a client, manifests by words or conduct, bias or
prejudice based upon race, sex, religion, national origin,
disability, age, sexual orientation or socioeconomic status.
COURT PERSONNEL
Codes of professional conduct for court employees are a recent
development built on similar codes for judges and lawyers. New Jersey adopted the first state code for court personnel.270 There is also a national code promulgated by the National Association for Court Management.271

Additionally, the states of California and Vermont have adopted a code of conduct governing the behavior of judicial branch personnel.272 Based upon its review of the various conduct codes for court personnel, the Committee recommends that Pennsylvania adopt the following code for employees of
the court to follow:
Employees of the court shall not, in conduct of service to the
court and public, discriminate on the basis of, nor manifest by
verbal or written comment or conduct, a bias or prejudice based
upon race, color, sex, religion, national origin, ancestry, age,
disability, marital status, sexual orientation or socioeconomic
status that adversely affects the person’s ability to use the
facilities or services provided by the Judiciary. Discriminatory
behavior also includes any actions, either implicit or explicit,
which adversely affect an employee’s work assignment, work
environment, salary, career or promotional opportunities due to
a bias or prejudice based upon race, color, sex, religion national
origin, ancestry, age, disability, marital status, sexual orientation
or socioeconomic status.

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