Why Governor Nixon has to remove prosecutor from Michael Brown Case

buzz westfall justice center

The Buzz Westfall Justice Center, where on August 20th, St. Louis County Prosecuting Attorney Robert P. McCulloch presented evidence to a grand jury on the shooting death of Michael Brown. That same day protesters marched outside the Justice Center calling for McCulloch to remove himself from the case. Photo: stlphotoblogger.

[This article originally appeared in the St. Louis Post-Dispatch, August 27, 2014.]

We are a long way from knowing precisely what happened in Ferguson, two weeks ago, but one thing is clear: The town’s name has become yet another synonym for the chasm of experience dividing white and black America. Time and again, young African-American men have been fatally shot by police under ambiguous circumstances: Amadou Diallo, Oscar Grant, Sean Bell … the list goes on. Yet public opinion polls show that a majority of whites consistently fail to see a racial component to these incidents.

Part of this perceptual gap stems, I believe, from a fundamental misunderstanding of the nature of prejudice today. Say “racism” and most Americans visualize Bull Connor and his dogs, or Gov. Wallace at the schoolhouse door. Yet psychological scientists have long known that the problem is far subtler and more insidious. The stereotypes and prejudices that people harbor today reside outside of their conscious awareness, causing them to behave discriminatorily despite their best intentions. One of these enduring stereotypes is associating blacks with crime and violence.

This is just as true — but the consequences most profound — in the split second when police have to decide whether to use lethal force. In psychological research simulating street conditions, police are faster to shoot armed blacks than armed whites, and more likely to shoot unarmed blacks than unarmed whites. Other research has shown that when police officers are subliminally influenced to think of black men, they are faster to identify weapons; when they are primed to think of crime, their visual attention gets drawn to black faces.

Say “racism” and most Americans visualize Bull Connor and his dogs, or Gov. Wallace at the schoolhouse door. Yet psychological scientists have long known that the problem is far subtler and more insidious.

These behaviors are not restricted to laboratory settings. The New York State Task Force on Police on Police Shootings reported in 2010 that of the 10 fatal shootings of off-duty police officers by on-duty officers since 1982, nine of the victims were black or Hispanic. Because off-duty officers are unlikely to be posing a threat to on-duty officers, this staggering disproportion is evidence of an endemic problem of bias.

Police are normal human beings with normal human cognition doing an abnormally difficult job. Part of that means that they harbor the same implicit stereotypes and prejudices that the rest of us do, and these biases can cause them to behave in ways they don’t consciously want to. When placed in a potentially fatal situation, they have a fight-or-flight response that compromises higher level brain functioning. At that point, they have to rely on extensive training to follow basic protocol, but subtler distinctions are difficult.

The issue of nonconscious bias is also at the root of the current dispute over the failure of St. Louis County Prosecuting Attorney Robert McCulloch to recuse himself from the case. The problem at issue is very serious. When McCulloch was 12 years old, his father, a police officer, was shot to death by a black assailant. Because the current case involves a white officer allegedly being confronted by a black assailant, McCulloch’s personal history raises reasonable questions about whether he can be objective.

But consider McCulloch’s dilemma: If he recuses himself from this case for this reason, after being county prosecutor for 20 years, he will signal that his objectivity is in question for any prior or future case involving white officers, black suspects and force, a scenario that represents a good share of the cases he — and almost any other American prosecutor — will take.

In this case, however, justice must be served with unambiguous fairness. Mr. McCulloch’s objectivity is tainted by his tragic past. We cannot blame him for this and shouldn’t fault him for believing he can be objective. But we know that our conscious goals are often contravened by our nonconscious biases. Furthermore, even the appearance of a conflict of interest is enough to undermine the legitimacy of this process.

The obvious solution is for Gov. Jay Nixon to remove McCulloch from the case. This will allow McCulloch to maintain his claim of professionalism and integrity, and it will allow the community to move forward without the distraction of McCulloch’s unique personal history. It will not, however, solve the endemic problem of racial bias in the criminal justice system. For that, there is much work to be done.

jack-glaser_200_280_80Jack Glaser is associate professor and associate dean at the Goldman School of Public Policy at the University of California-Berkeley. He received his Ph.D. in psychology from Yale University in 1999. He is a social psychologist whose primary research interest is in stereotyping, prejudice, and discrimination. Most recently, he has initiated research on capital punishment, the effect it has on legal decision making, and how that interacts with defendant race. Additionally, Glaser has been involved in training California State judges in the psychology of stereotyping, prejudice, and discrimination, and how they might operate implicitly, and undermine fairness, in the courtroom.

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