today he was sentenced in a court in kansas city to cumulatively twenty years in prison that was fifteen years for the felon in possession of the firearm with the mandatory minimum with the a c c a plus an additional five years making it a total of twenty he appeals two issues today and i wanted to start with the one that was hardest for me to get my head around and that's the issue of how to address racial and implicit bias in the in the process of a trial and particularly in the near miss way and i'm right since you're beginning with that issue i'd like to ask a as i understand they claim that this issue was raised by after the judge said if you know if you want me to address this issue of race let the jury i'll do that and then we said ok that's fine i don't know that  waves and certainly i didn't intend to waive that issue when we went up to the bench this was done in a bench conference not in open court in front of the veneer pale obviously we went up there i honestly wasn't expecting the judge to ask all of my questions but i had proposed these twelve questions that were open ended questions that were supposed to be designed to to elicit some discussion not just yes or no questions but open ended what when he said that he would address the issue of racial prejudice it was clear to me that he wasn't going to go into the weeds of this issue like i wanted to so i said that's fine you can do that but then what he said i think turned out and maybe to have made the situation slightly worse because the way he addressed it was a way that i don't think anybody would alyson a positive response out of essential he said well counseling did you follow up and suggest additional questions after that i didn't and the reason i didn't is because at that point i felt like there was some hostility about a significant difference between what i would call generally explicit bias or over racial bias implicit bias and if the judge addressed the former right and you are arguing on appeal that the latter issue should've been addressed i just don't see where we're just recruit was put on notice that it failed to do something that you wanted to do i mean other than the fact that i wrote these questions about the implicit bias and we had the bench meeting where i said look i'd really like to you know if you don't want to address the judge or address the veneer panel with these questions that i presented i'm happy to do that but i would like some more dire about him said bias and what he said and maybe i just didn't understand him at the time was i'm happy to address the issue of racial bias and then the way it was done was was obviously not the way that we had intended and also i think a way that was pretty ineffective i mean just saying is anybody here think that because this defendant is african american they won't be able to be fair i think it's unrealistic to expect anybody even someone who has a very racist feelings towards people of color to say oh yeah i'm going to be the i'm going to be the person that i'm not going to be able to be fair so how is w work in your district it looks like the district court judge did gosh ninety nine percent of it is that is that pristine pure and their lawyers don't have a you know a set amount of time to ask their own set of questions it really depends on the judge there are some of the judges that will allow anywhere from five to twenty minutes after the judge is finished doing the questioning to allow the counsel to address the panel if if they want to usually that's worked out before hand whether or not someone's going to ask any questions but there are some judges that allow it and some judges that don't so there's not something that's like a blanket rule does is there any kind of local rule or local expectation that you should request that if you have a particular topic that you want to explore with the jury i don't honestly i'm i don't know if there's any sort of local rule the way that we do it i've you know as we submit these questions and then when we have our pretrial meeting to discuss everything the judge asks about these you know the questions that we  and then asks if they're going to allow counsel to present asks if we want to present or if we're going to want to present or if we if the judge is going to do all of it so i don't think there's anything official is what i'm my brief and the one of the reasons that i wanted to start with this is because this is a hard issue to address it's a hard issue to talk about and it's a hard issue to address and it's a hard issue to address in a court room setting but it is something that i think that is very important the way judge been at described it you know there's a constitutional standard like in the constitution requires that this be with perception and the fact is that my client and most of my clients of color have had very different experiences with the criminal justice system then i have or that most of you know my my white friends have and he felt very strongly that this was a racist stop and because of that he wanted to make sure that the jury that was sitting in judgment of him you know we can't just say don't be prejudiced and suck all the prejudice out of everybody's head but it does nobody wants to be thought of as racist and nobody wants to be thought of as they are someone that has biases against people but when you bring up these issues  is implicit bias required to be addressed you know i honestly think that it is i mean i don't under i don't see one of the guard governments arguments is that this would have just taken too long and you know my clients are facing years and years and years in prison my client in this particular case is almost sixty and he got a twenty year sentence that could very well be that he spends the rest of his life in prison on this you know having a couple  questions and maybe the way i went about it isn't isn't the best way to do it but but this is something i think that we need to beast be thinking about and putting in the forefront of our minds when we're when we're doing these cases and you know maybe it could be done like with the video that for example the washington court place or jury instruction about implicit bias or allowing counsel to conduct a little bit of limited war dire about this issue but yeah i think if there is a chance if the defense is feeling like this case is stacked against them already inquiring about whether or not people feel the way a certain way or another about whatever group the defendant is you know if it makes and i see that i'm out of time so i'll wrap up i apologize it makes from warner confidence in our system that we're trying to be fair and we were trying to recognize that some people have a different playing field than other people thank you thank you they can judge kelly and may please the court david wain or for the united states i'll just start briefly with the topic of waiver which i think was i don't have a lot more to say on that i think judge copus hit the nail on the head when he pointed out that based on the colloquy with but with the district court there's really no way for the district court to know that what he had done what he proposed to do and then did was was in any way inadequate for what the defense wanted in this case and i think that question i don't i don't actually find it if they get the prize i think i think the district court explained very clearly that there's there can be questions about implicit bias on the one hand or there can be questions about race his proposal was to ask a question about race and to that defense counsel said ok that would be great so i think i think it was pretty clear what he was proposing to do to the nd part of your question about an opportunity to inject obviously he didn't turn the distinguish saying ms williams asks for a little bit of what do you hear about race and he says well all right there are great questions and there are implicit bias questions right  and she says i'll be happy to broach the subject of race is i don't i guess another way you could look at that is it's an implicit denial of her request for implicit bias questions and then it's preserved oh i don't read it that way at all i think it is offering the court was offering is essentially a compromise or or suggesting a compromise and i think there's also the issue of the response there it wasn't it wasn't you know to to to need to say well i would also like some implicit bias question but to say that would be great i don't know how to read that other that other than but let me move on for in the rd other questions about waiver i'd like to move on and get to them into the merits of this issue because i think the fundamental disagreement here between the defense and the government in this case is that the government doesn't think that the defense's position accounts for all the safeguards that we have a trial to protect against the risk of bias whether it be racial bias gender bias religious bias any any sorts of bias like that and i and i think those safeguards were very important as a supreme court and in result slope is one of the two reasons the supreme court found there was no reasonable possibility of racial prejudice in that case was because the district court had asked a question about aliens and therefore the supreme court said that would cover the concern about bias towards mexican ginger wagner here are we are we sort of in a different world altogether i don't mean literally world but world of dioceses we clearly i think that the supreme court and traditionally we've talked about when we said bias we're talking about explicit biases that that the courts have said look you know instructions that address that directly that's good you know juries are going to listen to that and don't know what else we can do but in implicit bias just seems to be a different different animal altogether in some ways even though it's still it and it may not even be something that is a for cause and strive for someone but it's something that is there and that the descendants want to talk about it can get should be addressed that distinction if you also see  one i think there may be a little bit of its distinction there i still think that the case log out that deals with explicit bias or seems to deal with explicit bias i'm not sure exactly distinguishes between the two i still think that's useful framework but i do understand your point and that's why i want to go back to the point about safeguards in the case because i don't think implicit bias is so much an issue of getting jurors to admit that they're biased and i think that it's often called unconscious bias i'm not entirely sure anyone i think the idea is you know you can't necessarily recognize that you have it there and it causes you to have a certain reaction but you don't recognize you have it but the way to address that is not necessarily to get people to admit it but to make sure there's other safeguards in place so to a can you can you commit to deciding this case not based on anything that you know or that you or any preconceptions based only on the evidence and the law i give you as there is can you separate yourself from the news and you know don't worry don't think about all the things that you've heard in the news that might in fact the way you think about this case and may contribute to whatever buys input devices that you harbor within yourself but only focus on the evidence in this case can you reserve decision and so you've had an opportunity to talk with actually certainly i didn't mean to imply that was set at trial ok that's what i wanted to ask if that was actually in the instructions i didn't think it was but i wanted to make sure i understood the record you're absolutely correct the words implicit bias were not in the struct the exact instruction was quote to not allow sympathy or prejudice to influence you the law demands of you a just verdict unaffected by anything except the evidence your common sense as a lawyer that's you and the law as i give it to you and  course it doesn't say the words implicit bias but it is reminding the jurors and encouraging them don't think you know don't act on your preconceptions don't act on sympathy or prejudice think about the fact think about the law i gave you and also very importantly in the supreme court has has recognized that this is a critical safeguard against the risk of bias among jurors which is to reserve decision intil fold a liberation and that deliberative process talking about it with fellow jurors rather than coming to you know knee jerk reaction based on what you what some evidence that you see in the case i think that's a very important safeguard against the risk of jurors basing a verdict on their implicit or unconscious bias so all those things although they don't use the words implicit bias and maybe those safeguards were put in place at a time before you know this was this concern was at the forefront of juris minds i think they all exactly this issue and protect against it i think that's so that's also why these these these studies of how some people have reacted you know to to situations that involve a racial  in finding that some people have people of a different race more more guilty than if the background is presented as somebody d of another race i think that's why those are very unpersuasive in this context because those people didn't receive any instruction they didn't hear evidence in the solemn setting of a court and they didn't take an oath to abide by the court's instructions they didn't deliberate with fellow jurors they were just coming up with thoughts off the top of their has and that's exactly what we want to guard against in trials and that's exactly why courts give the sorts of instruction  i'd like to address just very briefly judge grass point about whether the defense position case would require overruling rizal a slope and it lopez doesn't involve implicit bias specifically but i think the framework there is the question is whether race is an issue in the case such that there's a reasonable probability that a jury can be impacted  by racial bias and we know that because the example is a violent crime involving a victim and perpetrator of different races to say to take root results lopez and say there's a reasonable probability in any case that involves a minority defendant i think would really turn that precedent on its head and i don't think it can be consistent with that precedent i would also point out that the supreme court said in results lopez and i'm quoting there's no constitutional presumption of juror bias for or against members of any particular racial or ethnic groups it seems to me that a the per se rule that the defendant is asking for creates just that that presumption i see him out of time i'd be happy to answer any more questions but otherwise would ask the court to affirm thank you mr weiner does news williams have any rebuttal time left would you do you need a minute to respond or would you like to stand on your main argument if i could just have one minute i just have one sometimes and one thing i think and while we all want to feel like what the government said is one hundred percent true by being in a court and being solemn and having the judge say you can't have this other stuff affect you everybody wants to think that they are going to be fair and they are not going to let that stuff happen and i think that most people would say oh well i'm absolutely not thinking this person is guilty because he's black that's not what i'm talking about all the cases related to this were were done in the eighty's in the sevent s and there's a different mindset now race is much more of a forefront of an issue we we have recognized systematic racism within our courts and our policing system as something that exists and and we need to do a better job addressing it particularly for our defendants of color who are facing the rest of their life in prison i think asking a few questions to elicit this isn't something that is is too much to ask thank you thank you to both counsel for your arguments in the case and for your briefing and will take the matter under advi