- Hi, welcome to NYU APALSA's
15th Annual Korematsu Lecture.
My name is Michelle Kim,
and along with Minju Kim,
we are the co-chairs for this event.
The Korematsu was started
in 2000 by a group
of NYU Law students who wished to create
a lecture series in honor of Japanese
internment challenger, Fred Korematsu.
This lecture provides a
space in which to address
Asian American perspectives on the law
and to honor Asian Americans
who have substantially
contributed to the development of the law
while challenging the status quo.
Each year we invite a distinguished member
of the Asian American
legal community to speak
on issues current to the
evolving legal landscape.
This year we are honored to
have Judge Lorna Schofield
as our Korematsu lecturer.
She became the first
Filipino American to serve
as an article three
federal judge when she was
confirmed by unanimous US Senate vote
as the United States district judge
for the southern district of
New York on December 13, 2012.
Without further ado,
I'm happy to introduce
the Dean of the Law School, Dean Morrison,
who will introduce our
esteemed guest tonight.
(audience applauding)
- Thanks, Michelle, welcome,
everyone, and good evening.
It's terrific to be with you for the
15th Annual Korematsu Lecture.
As you just heard, it's
named after Fred Korematsu,
who famously challenged the internment of
Japanese Americans in World War II,
leading to his prosecution for violating
an exclusion order in
a case that ultimately
found its way to the Supreme Court.
So those of us who teach
and study Constitutional law
know the last name of Fred Korematsu
as the name also of the Korematsu case,
which is truly one of the
least happy moments in
US Constitutional law over the
course of the 20th century.
So it's both worth
celebrating Fred Korematsu
and it's a sobering
reminder of the judicial
system's engagement with
themes of bias, in fact,
themes that will be
addressed by our honored
speaker this evening.
And we all really look forward to that.
It's my job to introduce her,
the honorable Lorna Schofield,
class of 1981 from NYU Law School and now
a judge sitting on the
southern district of New York.
Judge Schofield was
confirmed by unanimous vote
on December 13, 2012.
That by itself is a
massive accomplishment.
In an era where unanimity
is utterly lacking,
it's wonderful that she
was confirmed in that way.
She is the first person of
Filipino American ancestry
to serve as an article three federal judge
in the history of the United States.
Previously, she was a litigation partner
at Debevoise & Plimpton where her practice
focused on complex commercial litigation.
Prior to that, she served for four years
as an assistant United States attorney
in the southern district of New York
working on a range of cases
from domestic terrorism to tax fraud.
And for three years before that,
she was an associate at Cleary
Gottlieb Steen & Hamilton.
Throughout her legal
career, Judge Schofield
has been heavily involved
with public organizations
such as the American Bar Association,
holding many leadership positions,
including chair of the
section of litigation.
She's also written and spoken
widely about trial tactics,
women in the legal profession,
and a host of other issues.
We are deeply proud to
count Judge Schofield
as a graduate of this law school
and very grateful that
she is with us tonight.
So without further ado, Judge Schofield.
(audience applauding)
- So first of all,
thank you APALSA and NYU
for this wonderful
invitation and opportunity
to talk to you and to think
about some important issues.
Thank you, Dean Morrison,
for the introduction
and also making the time
to be here and join us.
Thank you also, I'll be
done with the thank yous
in a minute, but thank
you also to my partner
and my daughter, who are here
and support me in all things,
and especially the team from my chambers,
who almost outnumber the rest of of you,
and who make all things
possible in my work life,
including their support
on this wonderful speech.
So I wanted to talk to
you a little bit about
being a new judge and what that's like
and how I've encountered
some of the issues
that a judge does encounter.
And first of all, you have to understand,
being a judge is sort
of an odd experience,
because all of a sudden when you walk by,
people say, "Hello, your honor."
And your first name becomes Judge
and you're taller and more beautiful
and you weigh less.
You no longer need cosmetic surgery,
and all things are good in your life.
The other good news is
you wear a black robe
to cover whatever you're wearing,
so at least in the courthouse,
no one mistakes you
for the court reporter,
the stenographer, somebody's
wife, somebody's secretary,
or anything else they might think you are.
There are other surprises too.
And one of them is working with juries.
I have great respect for juries.
And when you think about what they do,
that's a little bit odd too.
We take people and we
basically force them to come in
and leave their lives
and give up their jobs
and whatever other commitments they have
and spend several days
to several weeks with us.
And we force them to
listen and look at things
that they may have no interest in,
that they may find repugnant,
that they may find even painful,
and yet they participate in this
as part of their civic duty.
And then we lock them in a
room with a group of strangers
and we make them make important decisions
about somebody else's life and livelihood.
And it's an extraordinary system
and extraordinary that it works.
But of course, it's a part of our history.
But as a judge, I bring
my unique worries to it.
My daughter will tell you I bring
my unique worries to everything.
But my unique worries about being a judge
are that as a judge, I
actually have a lot of...
A large role to play in
how a jury gets selected
and who we end up with in our juries
that sit in my courtroom.
And so I feel that I
have to think about it
and have to think about what that means.
So as I said, the jury
system seems a little odd
when you think about it.
But another aspect that is a little odd
is we don't look for people
who are experts in the law.
We don't look for people who
are experts in the facts.
In fact, we might get rid of
jurors or prospective jurors
because they're experts in this fashion.
And instead what we do
is we look for people
who we think and hope
know absolutely nothing
about the case at hand.
And you might say, well,
what are we looking for
if we're not looking for expertise?
And what we're looking for,
of course, is impartiality.
And the US Constitution,
of course, says that
at least for criminal cases,
the defendant is entitled to a trial
by an impartial jury.
That's been extended to civil cases.
So impartiality is what
we're all looking for.
But the problem is when you
think about impartiality,
it's not so easy to figure
what that really means.
So when I think about it,
everyone has a viewpoint.
Everyone has their experience.
Everyone has what they've
done in their lives.
And so how can it be
that someone has no bias?
In the southern district of New York,
you can see as much diversity
as we might see anywhere in the world.
And so where are these screens?
Okay, we have screens here and here.
You can see just on this little map that
there are all sorts of cultural
communities in Manhattan.
There are communities like
Chinatown and Korea Town
here in the city.
You have a Vietnamese
and Cambodian community
in University Heights in the Bronx.
And so there are all sorts of people.
There are old people and young people.
There are highly literate
people and uneducated people.
It's a very diverse place.
Also if you look at the geography,
and who knew where all
these counties were.
How many native New
Yorkers do we have here?
Please raise your hands.
Okay, not very many.
But this is the southern
district of New York.
And we think mostly of
Manhattan and the Bronx
as being the southern
district of New York,
but you can see geographically
there are very tiny areas at the bottom.
And we also have counties
like Westchester,
which of course is a suburban place.
And then we have counties
that I think qualify as rural.
We've got Rockland
County, Putnam, Duchess,
Orange, and Sullivan Counties.
So just looking at the
southern district of New York,
you can see that we have
an urban environment,
a suburban environment,
and a rural environment,
and the people who come
from all those places.
So it's nearly impossible
to think that a newly
naturalized citizen in Chinatown,
and I'm told you will
all know who this person
on the left is, holds the same views
as a hipster from the Lower East Side.
And I think you can just vaguely see
her tattoos there in the middle.
Or a farmer in Duchess County.
And you see him with his calf.
So as many studies have shown,
what we aim for to try to get
impartiality in juries is diversity.
And what studies have shown
is that the more diverse
a jury is the more robust
their deliberation,
the more they consider
different points of view,
and the more deliberative
they are about the evidence.
So the goal, generally
speaking, in getting an
impartial jury is to get a diverse jury.
So what I want to talk
about now is the process
of jury selection, at
least in my courtroom,
and how that fits with this whole idea of
bias and impartiality.
So to begin with, there
are various requirements
for jurors that serve in New York City.
First, anywhere, you have to be a citizen
before you can serve on a jury.
You must be English speaking.
And I'm told approximately 44% of Latinos
and 40% of Asian Americans have
limited English proficiency.
Of course, we don't know if
all of those people are citizens.
So we don't know how much
this limits the juries.
But we know that already to some extent
jurors are limited by these requirements.
And in the southern district of New York,
the juror names come exclusively
from the voting roles.
It's different in different districts.
They can set their own requirements.
So that also means that a certain segment
of the population will
appear as potential jurors.
So when I get to the courtroom,
I make a speech something like this.
And I don't think I'll read it to you,
because I hate when
people read PowerPoints.
But you can sort of see what it says.
And the language that I wonder about
and that I was wondering about
as I was giving this talk
is telling the jurors that
we're trying to select
people who are free from
any preconceived notions
or any sympathies or prejudices that might
prevent them from returning
a fair and just verdict
based solely on the evidence.
What are those preconceived notions
and sympathies or prejudices
that stand in the way of a fair verdict?
And then what we're trying to find out,
we tell them, is we're trying to find out
if there's anything in your background
that might improperly
affect you as a juror.
Well, what are those
things that will improperly
affect someone as a juror?
So what we do is we have a
process called voir dire.
I know you're all law students,
so maybe you all know this,
but the voir dire is the
questioning of the jurors.
And the first thing that
happens is there's a
summary of the case.
I tell them a little bit what it's about
so they understand why I'm
asking these questions.
And then there are questions, basically,
to eliminate jurors for cause
based on their inability to serve
or what is perceived as bias.
And then once I have a
panel of jurors who are
free from cause and the right number,
which means the number
of jurors plus the number
of alternates plus the number
of peremptory challenges,
then I ask biographical questions.
The lawyers make their
peremptory challenges
and then we have a jury.
Sounds simple, usually
takes about half a day.
But as I began to think about this,
I began to think more
about bias and whether
our voir dire really does a good job
of getting at the issue of bias.
So the first thing we do or
that I do is I ask questions
that are aimed at getting at
people who are unable to serve.
In other words, people
who have trouble hearing,
people who might not speak English,
people who can't sit for
long periods of time,
anything that would actually
disable them from serving.
But then I get to
questions that are designed
for the issue of bias.
And that is what I really
want to focus on here.
So most of the questions
that we ask during voir dire
are aimed at getting at a
particular kind of bias.
So I ask whether the jurors,
this part is obvious,
I ask whether they know the parties
or the lawyers or the witnesses
who will be involved in the case.
And I ask whether they have experiences
with the legal system as
lawyers, as witnesses,
as participants, as parties
that left them in a position
or with a state of mind
that they can't participate.
But most relevant for
our purposes right here
is that I ask them questions about matters
that touch on the lawsuit.
Questions that might
uncover whether they're like
the judge here, vis a vis a
defendant here in the slide.
So for example, in a
personal injury lawsuit
by someone who's been hurt when their back
went out when a train derailed,
and I really had a case
like that in federal court.
Don't think it doesn't happen.
I'll ask if anyone's been
injured while they were
on a train or if anyone
has suffered a back injury.
And in an employment
discrimination case, for example,
I'll ask if anyone feels
that they have been
treated unfairly in the workplace
on account of their race or
gender or sexual preference
or age or some other characteristic.
And all of those questions
are designed to see
whether these people are too close,
whether there is a proximity bias.
And so if the answer is
yes, I'll take them back
in the robing room with
the lawyers and the parties
and speak to them as privately
as you can with those people
and try to get more information about
what their experience
was and how close it is
and whether or not they
identify with the parties
or with something that
happened in the lawsuit.
And finally, I'll ask
whether that experience
would prevent them from being fair
and impartial in this case.
And generally if somebody
says that they can't be fair,
they're struck, and if
someone says they can be fair,
we take them at their word
and they are not struck for cause.
And that's it.
That's it at that phase, anyway.
So you can see that there is questioning
to try to test for this proximity bias.
And now I want to tell
you a little bit about
challenging a juror for cause.
Generally what happens is
then that juror walks out
of the robing room, I stay
with the lawyers and parties,
and I'll say, I'd like to
strike this person for cause.
And usually it's so obvious, I will do it,
and the parties don't even have to move.
And it's the judge who
makes the strikes for cause.
So the first kind of person who is struck
is I call this the gleeful juror.
The gleeful juror is someone who clearly
wants to be excused,
who has heard that
serving on a jury is like
standing in line at the
Department of Motor Vehicles,
and someone actually told me that once,
but just so you feel better about it,
he said I thought it would be like that,
but actually it was a
wonderful experience.
But I've actually had a
juror, prospective juror,
who said, you know, I
know this is a case where
the police will testify
and you asked if I could
be fair and impartial and
give the police testimony
just as much weight as
anybody else's testimony.
Well, you know, my best
friends are all cops.
I know they're telling the truth,
and I'm gonna give their
testimony a lot more weight
than everybody else's testimony.
And then I get a big,
broad grin from the person
because they know, we all know,
that I have to excuse them.
And who knows if they're
telling the truth,
but they clearly don't want to serve
and with that kind of record,
they clearly will not serve.
So the next kind of person
who gets struck for cause
I call the reluctant or apologetic juror.
And they often say, oh,
I will try to be fair,
but I'm not sure I can.
I had an experience that
was sort of like this,
and I really hope that I can,
and I really, really will try.
And then I say, sorry,
trying is not good enough.
Will you be fair and impartial?
And that is often where
the rubber meets the road.
And if they don't say unequivocally yes,
then I will usually strike them for cause.
And then, and this is
actually the hardest,
is the pained juror,
because I tell the jurors
that they can speak to me privately
if there's someone
they'd rather not discuss
in front of everyone else.
But what they don't realize
is that privately means
with all of the lawyers and the parties.
So we go off into the robing room
and often there's a
crowd of maybe 10 of us.
And so these are people
who've had a painful
or traumatic experience in their life
that excuses them from the jury.
And in a recent case, it was
a child pornography case,
a criminal case.
One of the prospective
jurors came in and explained
that he had been sexually
abused as a child.
It was clear he was having trouble
telling us all of this.
He said he thought he had
left that memory behind him,
but as he was listening
to me describe the case,
his hands became sweaty
and his heart started
beating quickly and he realized
he just couldn't do it.
And of course I excused him.
So there are many different reasons
and kinds of challenges for cause.
But basically, they're jurors who say that
they can't be impartial.
So I talked about proximity bias.
And that's what we all think of
when we think of bias and whether someone
is too close to the case to be fair.
But just as a closely
related personal experience
can create bias, so can the
lack of knowledge or experience.
Being too far from a case
may mean that the juror
lacks any knowledge or perspective
to judge what the case is about,
what the motives of the witnesses may be,
and what the credibility
of witnesses may be.
And this is my slide for distance bias.
So it seems pretty clear that this fellow
is going to have a lot of trouble relating
to what he hears on the witness stand.
And so the idea is that
there is a kind of bias
from being too far from the facts
in the same way that there is from being
too close to the facts.
And I was, as I was preparing this,
I was sort of struck by how
profound an idea this is.
And this was not my idea.
I've actually encountered only one article
that addressed it, and
it's by Martha Minow,
who's the Dean at the Harvard Law School.
And she wrote it some years ago in 1992.
And it talks about bias and impartiality
of judges and jurors.
And it was a very unique
way of looking at bias.
She says jurors need
sufficient knowledge of the
life experiences of those
before them to make sense
of testimony and motivations.
And the reason this idea of distance
and being too far from the facts,
the reason this struck me is because
when there seems to be
some imbalance on the jury,
it's usually about this.
It's usually because
there is too much distance
on the part of the jurors
from what's happening.
So let me give you an example.
Take a personal injury
case involving a woman
who was trampled on an
escalator in Penn Station
on New Year's Eve.
The train platform got too full.
People are coming down the escalator.
The platform fills up.
People on the elevator start
saying go back, go back.
So some people are turning around,
trying to go up backwards on the elevator.
She's from out of town.
She doesn't know what to do.
She eventually gets trampled
and she's seriously injured
in this incident on New Year's Eve.
So consider some hypotheticals
about picking a jury.
So here's one prospective juror.
Let's say you have someone
who works in Manhattan,
lives in the burbs,
commutes by train every day
let's say into Penn Station,
and is there during rush
hour five days a week.
And that person is close but I would think
not too close to the facts.
No one is going to try to
strike that juror for cause
or say that that juror can't be fair.
And let's just add one more fact.
Let's say that juror was in Penn Station
on New Year's Eve on the
night the woman got trampled.
Is he likely to stay on the jury?
Probably not, because you
might say he was too close.
He might become, in effect,
a witness or an expert
and sort of take over
the jury deliberations.
So now contrast somebody else.
You remember the picture of
the farmer with the calf?
So let's take that guy.
Let's assume that he is on our jury panel.
And let's assume he's never
been on a train in rush hour.
He's never been in a crowd
that required crowd control.
He's never been in
Manhattan on New Year's Eve,
which is something not to be believed
unless you've been there, right?
I assume some of you have done that.
And just so you understand,
that was basically me
when I came here to NYU
to go to law school.
I had not been in any of those situations.
So the first issue is it's unlikely you'll
discover those facts in voir dire.
You're not going to learn
about all those things,
because those aren't the
questions that get asked.
But you might ask yourself,
how is this person who
is unfamiliar with crowds
and busy train stations
in a position to evaluate
the reasonableness of the defendant
train station's actions in
preventing this problem?
And how good a position is that person in
to evaluate the contributory negligence
of the plaintiff in acting the way she did
on the stairs of this escalator?
And you might say that that person is not
in a very good position
at all and that's because
that person is too distant from the facts.
But those are the kinds
of questions that don't
really get asked in voir dire.
And so then add another layer to it.
Let's imagine that the plaintiff
is just like the prospective juror,
someone who's never been
in a dangerous crowd
on an escalator on New Year's Eve.
Is that a useful perspective in the juror?
Or is that a biased perspective?
You can imagine that
the defense regardless
is going to find a way
to get rid of that juror,
either for cause on a
peremptory challenge.
So let's take an even
more challenging case.
Let's take a case about a department store
that's being sued for doing surveillance
on people who are of a different
race than other people.
And let's say that during jury selection,
there are people like the plaintiff,
the same race as the plaintiff,
who've been subject to the
same type of surveillance.
And so we'd ask during voir dire,
has anyone ever been subjected to the same
kind of surveillance that
the plaintiff complains of?
And you have these people of the same race
raising their hands.
And again, if you're the defendant,
it's very likely that you will try to get
these people dismissed for cause
or that you'll at least want the judge
to ask questions like,
can you be fair and
impartial if you've been
subjected to the same treatment
that the plaintiff has been subjected to?
How did you feel about that treatment?
Did it make you angry,
did it make you upset?
Are you sure you can be fair?
And there's likely to be a real question
about the impartiality
of the person who has
suffered that experience.
But then let's take a look
at the flip side of the coin.
Let's look at a different kind of juror,
the one who comes from
the majority viewpoint,
the person who has never
had that experience,
who is of a race so that
they never get surveilled
in department stores.
So that person is likely to
think that this experience
is rare or that it's improbable
or perhaps they're more
likely to credit people
in the department store
who say that this person
was acting suspiciously.
Is that person impartial?
You might question that.
But because of the way
the questions get asked,
it's very likely that in the
case that I just gave you
the people of the same
race as the plaintiff
who have suffered the
same kind of surveillance
will be struck from the jury
and you will be left only with people
for whom this is entirely foreign.
And that struck me as something that
really needed to be thought about,
an issue that I as a judge
needed to think about.
But before I go into how
one solves these problems,
because I confess right now I don't have
quick and easy answers,
I'll go to the next
stage of the voir dire.
So after we do the questions to eliminate
jurors for cause and ask
these questions about bias,
we end up with the right number of jurors
so that basically all we have to do is
strike the ones who are subject
to peremptory challenges.
And so I ask the biographical questions.
I ask where they live.
Basically if they're the
hipster on the Lower East Side
or if they're the farmer with a cow.
And I ask what they and
members of their household
do for a living.
And I will confess that
I think it was in my
first jury trial, I
asked whether they lived
with their spouse and outed
somebody unintentionally
as I was doing the voir dire,
so now I just ask who
lives in your household.
I ask about hobbies,
what they read regularly,
how they get their news,
what organizations they belong to.
And I actually love this
part of jury selection,
because it goes very quickly.
It's like speed dating.
You get just a little
bit about each person
and you feel like you know
them just a little bit.
So after the speed dating
come the peremptory
challenges from the lawyers.
And the lawyers are
entitled to strike people
for any reason at all as long as it's not
based on race or gender.
So from the lawyer's point of view,
it's a tool for eliminating
jurors who will be
less sympathetic to their client
or who may be undesirable
for some other reason.
And as you can imagine,
these peremptory challenges
are often based on stereotypes
and generalizations.
So lawyers defend them
saying they have so little
information about prospective jurors,
they don't have any choice but to rely on
generalizations and stereotypes.
And so they judge people based on the
limited information they have.
They look at them, they
look at their race,
their gender, their age, their
attitude in the courtroom,
and they have a small
amount of information.
So if you know that
someone is the president
of their co-op board, oh, a leader.
Is that someone we want on the jury?
Depends on what their other
views are likely to be.
So you should also know that some people
pay jury consultants a
lot of money to try to
figure these things out for them.
Peremptory challenges have been criticized
on the ground that they encourage bias
and they encourage stereotypes
and Justices Breyer and Marshall
and several scholars
as well have advocated
just getting rid of peremptory challenges.
But leaving all that aside,
it's not always obvious
why people strike the jurors that they do.
And so going back to this
child pornography case
I recently had, I looked
at what the strikes were
to see if I could find any patterns.
And on the defense side,
I saw them striking
parents of small children.
Well, that's not really a surprise
in a child pornography case
because of that proximity bias.
You might be afraid that
people would identify
too much with the children
that they were seeing.
They were also striking on
the defense side churchgoers,
perhaps thinking that they
were more conservative
than other people, and non city dwellers.
All those people from
those big counties north
of the Bronx and Manhattan.
Again, perhaps thinking
that they were not as
sophisticated or perhaps
more conservative.
On the other hand, the government,
there were two gay men in this jury panel.
Both of them were struck
by the government,
perhaps generalizing
and thinking that they
might be less prudish than other people.
Again, relying on stereotypes.
And what you may not
know, and I did not know,
is that a child pornography
case is almost entirely
about tech issues and computers
and peer to peer file
sharing and things like that.
I learned more about that than
one could ever want to know.
And that was the issue of proximity.
The government didn't want tech experts
on the jury panel who could second guess
the experts who they were
putting on the stand.
And so the peremptory
challenges are an opportunity
for the lawyers to make
these kind of generalizations
and strike people based on them.
But now I have to talk
about another issue.
And that is the final voir dire question,
which sort of relates to the
first issue I talked about.
So I say to them, when
all of this is done,
let me ask you one final time.
Is there anything, whether
I've asked you specifically
about it or not, that
would affect your ability
to render a fair and impartial
verdict in this case?
And there you get into two kinds of bias
that people talk and write
about more these days.
One is explicit bias.
And if people haven't already
tried to get off of the jury
because of their bias,
it's unlikely that they will admit to you
that they are racist or
that they feel a prejudice
for or against somebody
who's involved in the case.
But there's also something
called implicit bias.
And there's a lot of
writing that's been done
about implicit bias in
the last, I don't know,
five years or so.
But implicit bias is
a kind of bias or it's
attitudes, feelings, and
beliefs that you may not
even be aware that you have
and that you probably don't endorse.
And so for example, you
may have recently, in fact,
this is the kind of crowd who might have,
there was a study of faculty
members at universities
who received applications
and they were much more
likely to respond to applications from
American, in quotes, sounding names
as opposed to other kinds of names.
Now, do we conclude from
this that all of those
university professors
were blatantly racist
and were looking for those white names?
No, probably not.
The answer is that there
was some kind of implicit
bias going on that they might
not even have been aware of.
Or just to bring it more close to home,
you don't have to confess to me,
have you ever made an
assumption about someone
based on a stereotype?
Somebody's talk about their doctor,
and you say, oh, what did he say?
And the person says she.
And you think, oh yeah,
she, well, of course.
Or worse, you get in an elevator
and the person with you is
a person of another race
and you think, oh, that
person must work here.
And you don't think they're visiting here
until you talk to them for a moment
and you find to your embarrassment that
you have just been
guilty of implicit bias.
I think we've all been there.
And we don't like it
when it happens to us,
because it reveals something that
we don't like about ourselves.
But the fact is it's there
and it affects things
we do and you can't get
jurors to confess to it
because they don't even know it's there.
So there are difficult
questions about voir dire
aimed at sort of self
confession about bias
when what you're trying to
uncover is implicit bias.
So what I've identified
are a couple of what
I think are hard problems.
One is this too much distance problem.
And the other is implicit bias.
And I think the voir dire
that we currently have
doesn't really do very much
to address these problems.
And so I thought, what
can I as a judge do?
The nice thing about voir
dire and being a judge
is you can pretty much
do whatever you want.
You can ask whatever you want.
And so I thought that as far
as the distance question,
I could actually ask questions like,
have you ever been in a
crowded train station?
Have you ever been in a crowd
that required crowd control?
The kinds of questions
that might not be asked
if you were only looking
for proximity bias.
And then perhaps I could
ask questions that might
tee up challenges for
cause for these people.
I could also in the
biographical questioning,
I could elicit more information about
people's experience that could elicit
more peremptory challenges
based on distance.
And I could try in some
abstract way to get a jury
that is more diverse,
because that, of course,
is the goal, by having people both who are
close and distant.
Because if you have both those
perspectives on the jury,
in theory, you'll have
a more impartial jury.
Now, as to the issue of implicit bias,
what I've read is that it's malleable.
Once people realize they have this bias,
they're much more likely to be able to
be conscious of it and
try to counteract it.
And I have also seen
studies that say if you
give an instruction to the jury about
implicit bias and the
danger of implicit bias
before they hear the evidence,
it is likely to be more
effective, at least,
than giving the charge after
they've heard the evidence.
And finally, you could
tailor these charges
to the facts of the case.
So this has been a
wonderful opportunity for me
to begin to think about what I can do
as a judge about these hard areas of bias.
Oops, not yet, okay.
Not the wedding picture.
So in any event, that's juries and bias.
And I'll just say a little
bit about judges and bias,
because of course, I like to think,
we all like to think
that we're not biased.
But as I just explained,
of course we all are
at least a little bit.
We all come from our own perspective.
We all have our own
experience and point of view.
So we tell the jury that the facts
are the province of the jury
and the law is the province of the judge.
And I'm told that the
reason we wear black robes,
and in England they also wear white wigs,
is so that everyone will look alike
and in theory then it
will send the message
that we are all the same.
All the judges are the same and impartial
and will apply the law in the same way.
And Justice Roberts
likes to say that judges
are like umpires.
We're just calling the balls and strikes.
And that's actually
true a lot of the time.
People say how can you
rely on your law clerks,
many of whom are here, to help you make
all these hard decisions?
And the reason is that another saying is
we find the law, we don't make the law.
So what you learn in law
school about finding the law
is actually what judges
do 95%, 98% of the time.
But the challenge is
that other 2% of the time
when a judge is really required
to use some discretion.
And of course, there are
guidelines and principles.
There are courts of appeal,
who I suppose are only
too happy to reverse us.
But there are times like
sentencing a defendant
where a judge has tremendous power
and tremendous discretion and by the way,
that is the most unpleasant part
of this otherwise wonderful job.
Another aspect where a judge
exorcizes great discretion,
you might not even appreciate this,
is in the management of a case.
How fast it gets to go,
how many depositions
someone's permitted to take,
how much document discovery happens.
All of those things
can dramatically impact
the outcome of a case,
but it's all sort of under the rubric of
case management where a judge
has tremendous discretion.
So are judges biased?
Well, I think we've seen
there are issues of bias.
Too much distance, implicit bias,
and people who are human.
That is just the nature of being human.
And there's one judge, if you
want to see if you're biased,
and I bet you are, there's a
test at the Harvard website,
and it's called the
Implicit Association Test
where you can go to test
yourself for racial bias.
And there was one judge
who wrote an article
and said he was very smug and proud
that he knew he harbored
no bias and took this test
and sure enough, it showed that he did.
And he was quite horrified by it.
And so I think, again, knowing
that there's bias there
is something that is the first step
in trying to deal with it
in these 2% or 3% of cases
where judges have so much discretion.
But bias is a funny word,
because it's so value laden.
There's another way of looking at it,
which is just perspective.
We all have the perspective of who we are
and where we've been,
what our experiences are,
where we grew up, what's happened to us.
And some things are foreign,
some things are not,
some things we know about,
some things we don't.
And this was brought home to me recently
when I read a book called "On The Run."
Has anybody read "On The Run"?
No, you all are studying too much.
One person, okay, good.
So it was written by a
white woman, a sociologist,
who lived with and wrote
about the experience
of young black men in a
neighborhood in Philadelphia.
And she explained how
onerous it was for them
to be supervised by the
probation department
when they got out of prison.
Because normally there are
a lot of conditions imposed.
You can't be out after curfew.
You can't be caught smoking pot.
You have to report to
your probation officer.
And in the normal course,
it's easy for these young men
to violate these conditions.
And so as a result, they have
arrest warrants out for them.
And that means, this sort of
struck me and horrified me,
that they avoid places
where the police hang out
expecting to find them, like hospitals.
When they're injured, they
don't go to hospitals.
They don't go to the hospitals
to see their girlfriends
when their girlfriends are having babies,
because they don't want to
be caught by the police.
They don't go to the funerals of friends
for the same reason.
And they don't even go to places to work.
And so as a result, these young men
are literally on the run.
So as a judge, I impose
post release supervision
conditions all the time
and I think nothing of it.
I think, oh, well, I'm
helping with these people.
Somebody's gonna supervise
them and help them
get their life together.
And I assumed that it was not a big deal
or at least a good thing.
But I think that comes
from being uninformed.
I had no idea.
How would I know?
That's not my background.
And so what I realized is
having more information
coming from another place,
knowing other things,
and trying to educate
myself can help counteract
some of this just limited perspective
that all of us have just
from living in our own skin.
So you probably are now wondering, well,
what's she like, what is her story
and what is her perspective?
So I'll share a little bit of that.
I grew up in an unlikely place, I think,
in New Haven, Indiana.
I was the only child of
a Filipino war bride.
Now you get the wedding picture.
This is my mom.
She married an American serviceman
and came to this country and was thrilled
and delighted to become
an American citizen,
because that was her goal.
The Americans saved the
Philippines in the war,
at least in her view.
And so that was great until I was three
and my father left.
And I don't fault him.
There were a lot of reasons that marriage
wasn't going to work out.
But I think of how different
my life would have been
if my mother had gone
back to The Philippines
and taken me with her.
I'd be giving this speech
in The Philippines, right?
I wouldn't be here in New York.
But she couldn't go
home to The Philippines.
She always called it home.
And the reason is that
divorce was shameful there.
In fact, in those days,
not until very recently,
has divorce even been legal or recognized
in The Philippines.
And so she stayed here
because she really didn't
have an option to go anywhere else.
And she was a pharmacist
and perhaps because she
was divorced she stressed achievement
and independence and self sufficiency.
She said don't rely on
anyone to take care of you.
You need to be able to
take care of yourself.
And she was determined to
raise me as a real American.
And so she made rice for
herself and potatoes for me.
She spoke Tagalog with her friends,
but she spoke English only with me.
And that is how I grew up in a very white,
blue collar community in the Midwest.
How many of you are from the Midwest?
One, come on.
Okay, so one.
This was a very small,
white, religious town
and there wasn't really
very much ethnic awareness.
Now, it was also the
times we were living in.
There wasn't ethnic awareness at all.
So I was the only Asian
American in my class.
This is my, I found my junior high,
I'm sorry, my junior year
of high school yearbook.
And you get an idea of what
all these folks looked like.
And they don't look a whole lot like me
except Tom is not in this picture.
There was one African American
boy in my entire class.
And I didn't even realize
it till I looked back
at the yearbook, there were
a couple of Hispanics too,
but I didn't notice it,
I didn't realize it,
because that's just not how people
thought about these things.
And there as no obvious prejudice
in that time and place against minorities,
but just a refusal to
acknowledge otherness.
So it was like if you're a
woman having your slip showing
or your bra strap showing,
everybody was very polite
and would kind of avert their eyes
and just pretend it wasn't so.
And people were nice.
But clearly there was something
that had to be overlooked.
And this other fellow here,
this is one of the people
who I figured out was Hispanic
when I looked at my yearbook.
I said, my gosh, there were
Hispanic people in my class.
I didn't even know that.
So I saw Tom, who was the
black person in my class,
at a high school reunion.
And what I was really
dying to say but I thought
it would be impolite, I wanted to say,
Tom, when did you discover you were black?
But like I said, I thought
that would be rude.
But what I really meant
was, when did you become
aware that you were culturally
and ethnically different
from all these people we grew up with?
So I wasn't, you can guess this,
I wasn't one of the popular girls.
I wasn't a cheerleader.
You knew that, right?
So to do that at my school,
you needed blonde hair,
and you needed a particular kind of figure
that I never had,
and other qualities that I also never had.
Never mind.
But apart from that, I had
a certain amount of respect
because I was exotic looking
and that had some value to it.
And I was the cornerstone of
our speech and debate team,
and so that had some value.
And I was a little bit of a celebrity,
because I did community theater.
And I acted in a television commercial
for auto car parts
wearing a red mini skirt
and white go go boots.
And you can imagine this made me
an instant celebrity in my high school.
I wish I had a picture of
that to show you, but I don't.
So looking back, I now realize that as an
Asian American I was exoticized.
And by that I mean looked
at with a certain distance
because I was different.
And so in the community theater,
I'll tell you the roles I had.
Here were three big ones.
I was Tintinabula, the Asian courtesan in
"A Funny Thing Happened
on the Way to the Forum"
and I had these little hand
cymbals that I got to use.
I was Patsy, the errant
teenager who gets pregnant in
"Rimers of Eldritch."
And I was the girl who boils
her cat as a science project
in "The Effect of Gamma Rays
on Man-in-the-Moon Marigolds."
And I knew because I'm a
realist that I could never
be cast as part of the on stage family
or the girl next door because
I just didn't look the part.
So you have to understand
this is long before
the word diversity had made
it into our daily vocabulary.
But despite that, I knew
that my place was secure
as one of the three Mary's.
I have to explain to you the three Mary's.
Every Christmas there
was a Christmas pageant,
and there were three Mary's,
a black Mary, a white
Mary, and an Asian Mary.
But I was always the Asian Mary,
because there wasn't anybody
else to be the Asian Mary.
And I actually found this picture.
So that is me as the Asian Mary.
So although I didn't feel
prejudice because I was Asian
or any obvious discrimination,
I did learn that being a woman
could be a really serious problem.
The women's movement was in full flower
in my circle of friends.
We read magazines,
excuse me, Ms. Magazine.
We didn't wear bras, we
refused to shave our legs,
we paid for our own way on dates,
and this was all fairly
radical coming when it did,
and we also understood
what was very plain to see,
which is that women
didn't make as much money
as men and they didn't have
the same opportunities as men.
We created a club for feminists,
and I became the Governor
of Girls State in Indiana
running on a platform of
empowerment for women.
Then I left and I went
to Indiana University
and this showed me a
bigger but demographically
similar world like the one you just saw.
There were no women's
studies programs yet,
no Asian studies programs.
I majored in English and German.
And while I was there, my mother died.
And so my single tenuous relationship
with The Philippines was gone.
And I was 20 years old.
I came back to New Haven.
I picked out the things that
I wanted from our house.
There was a carved wooden
caribou from The Philippines
which I brought and still have.
And I was sad and actually
cried because one of my
friends cleaned out the refrigerator,
and all of the wonderful
frozen Filipino food
that my mother put away in the freezer
had been thrown out.
So that was sort of it
as far as my Philippine
experience for a long time.
After that, I went to Rhode
Island for graduate school.
I moved to New York for law school.
And on my first subway ride,
I remember being startled by how different
everyone looked from the
people where I had grown up.
And then when I went back to New Haven,
I was startled again
because I suddenly realized
I didn't look like they did,
something that had escaped
me for many of the years
when I was living there.
I remember when I got to NYU
being a research assistant
for Professor Andy Lowenfeld.
And I mention Andy because
I just learned today
that Andy died last summer.
And I had been his research assistant
and we had been friends over the years
and I was actually hoping
to see him tonight.
But Andy was Jewish, and
his wife Elena was this
wonderful, glamorous Cuban woman.
And he had me, his Filipina
research assistant.
And this was back in the day,
and I am so grateful to him.
And I mention him because he was open
and gave me as a woman
and a woman of color
that wonderful opportunity
that built a foundation
for the rest of my career.
I was astonished, though,
at all of the little fine
distinctions that white
people make among themselves.
The German people and the Jewish people
and the Irish people.
This was completely foreign to me.
And I will tell you,
I'm still learning what
my own ethnic and cultural identity is.
It didn't really happen
to me until I was about
to become the first Filipino
American article three judge.
And suddenly people were saying, well,
what have you done for us?
You want us to sponsor you,
we're the Filipino community,
but we don't know you.
Who are you?
And so given this title and
being seen in this position,
I am now a part of this community
that I really want to know more about
but that in some ways
is very unknown to me.
So this is me at the Filipino
Independence Day Parade
in 2014 with Senator Schumer,
who recommended me to President Obama.
And I love these dresses, wow.
Filipino dresses, they are the best.
So what does all this mean?
I'll wrap it up now, I
know it's been a while.
What does it mean for me as a judge?
I have my own viewpoints,
I have my own perspectives.
I like all judges try to
overcome those things.
And I believe that the
principle benefit of having
a diverse bench is the
message it sends to people
that our system of justice is open
and accessible to everyone.
And so another benefit
is for those of you who
came from the law school today,
and it shows you that
if it could happen to me
and Judge Denny Chin and
to Judge Doris Ling-Cohan
and lots of other people,
it can happen to you.
So thank you very much for listening.
It's been a pleasure to be here,
and I thank you for the opportunity
to think about these
interesting and serious topics.
(audience applauding)
- [Woman] If you have any questions now
to Judge Schofield, if we could get a mic.
- I'll stand here and listen.
Ask me questions.
Is there anybody Filipino here?
I'll as that question.
(laughter)
My daughter, anyone else?
Okay, hello.
Where did you grow up?
- [Student] California.
- Ah, San Diego?
- [Student] Northern California.
- Ah, good, are there a
lot of Filipinos there?
- [Student] Not a lot.
(student speaking faintly)
- You should come to the
Filipino Independence Day Parade.
(laughter)
Yes?
- [Student] I have a question.
So if you have the gut feeling that
one side in a trial is
using peremptory strikes
in a way that is biased with
respect to race or gender,
what can you do?
- Well there's something called the...
Can you hear me, I don't know.
There's something called
the Batson challenge.
The United States versus Batson
was a Supreme Court case.
And it's the case that
tries to assure that people
don't exercise the peremptory challenges
based on race or gender.
The problem, though, is first of all,
you wait for one of the parties
to make a Batson challenge.
And then let's say it's a criminal case
and the government is striking
people of a particular race.
So you say to the government,
can you articulate non race based reasons
for your challenges?
And all they have to do is
articulate a colorable reason.
It doesn't even have to be probable.
So anything, oh, they're from
upstate, I don't like that.
Oh, they read the New York
Times instead of The Post,
whatever, and then the
burden shifts to the defense
who has the burden of
persuasion to show that
that reason is pretextual.
And I have read studies that say that it's
very hard to succeed
on a Batson challenge.
I've only had one made in front of me,
and I frankly don't think
that's what was going on.
So that is what is supposed to happen,
but it's a difficult situation.
And I'll also say in
fairness to the lawyers
who appear in front of me,
they know they're not supposed to do that,
and so they don't.
And so even if you see people
in a civil case, for example,
both sides will get three
peremptory challenges.
You might see two.
Let's say they don't want women,
but they'll strike two women and one man.
Because they know they're
not supposed to strike
based on any of those categories.
Other questions?
Yes?
- [Student] Hi Judge Schofield.
Thank you so much for the
speech, this is wonderful.
My question is about combating bias
in districts apart from the
southern district of New York.
It seems that the southern
district of New York
is probably the most
hopefully diverse place.
Certainly the country is not the world.
So how do you go about
finding such diverse jurors
in places like where you
grew up, for example?
- You know, it's an interesting question,
because in some ways it might be easier.
What you really want, and
there's actually a statute
that's been enacted that says that,
what you want is a fair cross
section of the community.
But if your community
is sort of all the same,
it's not so hard to get
a fair cross section
of the community and then
you don't have this problem
of someone who's very
distant from the facts
and someone who's very close to the facts
and the kind of tensions
you get in the surveillance
case that I told you about.
If you live in a community
that is entirely white
and everyone is the same,
you don't have some of those tensions.
Yes?
- [Student] Judge Schofield,
you mentioned that
people like Judge Denny Chin and yourself
have shown us that it is possible to
break through the ceiling
to the extent that it still exists.
What are some of the qualities that either
speaking for yourself or in general
you feel are valuable
in helping us reach the
(mumbling)
- I think the answer
is a little bit boring.
But let me ask it in a sideways way.
How many of you here are second generation
and by that I mean how many of you
have one parent who
was born somewhere else
and immigrated here?
Okay, I just happen to be looking,
because someone asked me to talk
about second generation people.
And it seems second generation people
are distinctive because they do the things
that we all need to do to succeed,
which is work incredibly hard,
even when it doesn't feel good,
and to persevere even
when we are discouraged.
I mean, just all the
kind of not so exciting,
boring things you hear.
But I mean, you can
look at your classmates
and see who's successful.
There are people who don't do that
and they don't do very well
and people who do often do.
Now, that doesn't mean that
there aren't more obstacles,
because clearly there still are prejudices
in the workplace and society about Asians
as well as about all
sorts of other people.
And another thing to do is to be conscious
of what the stereotype is.
So actually, to prepare for this speech,
I Googled stereotypes about
Asians just to see, right?
And it's really hard for women,
because you have the Madam Butterfly
and the China doll and the
dragon lady and the tiger mom.
I mean, that's all in the
mix, that's really hard.
But a consistent theme is the perception
that Asians are meek and not assertive
and very good at technical things
but not very creative or brilliant.
So if you know that those
are the perceptions,
you should be doing things
all the time to fight them.
So if you're in a meeting
as a young professional,
open your mouth and speak.
Find something to say.
Be conscious of the fact
that you haven't spoken yet.
I used to think, oh, I
haven't said anything.
I don't have anything
to say, it's all right.
But then I learned pretty quickly
you have to find something to say
so people will notice you,
so people will know that you're there
and that you're not quiet
and lacking in leadership
and not assertive.
Yes?
- [Student] Your honor, thank
you for your wonderful lecture
and sharing your personal biography.
My question to you is with respect to bias
in particularly in the context of outside
of suspect classifications,
protection of gender,
race, ethnicity, so on, and so forth.
At what point does such judicial bias
rise to the level of an
unconstitutional violation?
And in those situations,
what remedy might the
aggrieved party have?
Obviously equitable relief comes to mind,
but if the petitioner
is suffering the bias,
what thoughts do you have
as an article three judge
as to remedies in a particular situation
versus broad policy academic
considerations on this topic?
Thank you.
- I'm happy to answer that.
And the question is what does one,
perhaps a litigant, do when
faced with bias in a judge.
And what you can do is try to make a rec,
be sure you're on the record every time
that this bias occurs.
And then you can make
a motion for the judge
to recuse him or herself.
And you can keep pursuing that
and eventually I think if
the judge refuses to do it,
if you ever get to an
appellate course because you
have a final decision,
that's one of the things
that you can challenge.
Of course, that's difficult,
because most cases don't get
to the appellate court
for various reasons.
Most cases just resolve and settle.
But challenging the judge in
that way is one possibility.
Another is you can try
and mandamus the judge
for some obvious ruling that seemed
obviously biased and wrong.
But that's a very high standard to meet.
Anything else?
I'm standing between you and the food.
Okay, I'll be here, so
if anyone would like
to talk one on one, I'm happy to do that.
(audience applauding)
- On behalf on NYU Law
and APALSA community,
I'd like to express great
gratitude to Judge Schofield
about your inspirational
and wonderful lecture.
We'll now have a reception.
So please enjoy the food and
refreshments that are prepared.
And you can ask questions
to Judge Schofield
while staying here.
Thank you for everyone
for attending the event.
Thank you.
(audience applauding)
