Research has documented the role that implicit bias plays in the disproportionately
high wrongful-conviction rate for people of color. This Article proposes a novel solution
to the problem: empowering individual appellate judges, even over the dissent of two
colleagues, to send cases back for a retrial when the trial record raises suspicions of a
conviction tainted by the operation of implicit racial bias.
A factual review on appeal is unavailable in most jurisdictions. But the traditional
arguments against it, which highlight the importance of deference to the jury’s
fact-finding powers, are overly simplistic. Scholars have already demonstrated the
relative institutional competency of appellate judges to review jury verdicts gone awry,
even when the evidence is legally sufficient. The operation of implicit bias in jury
deliberations only enhances the need for this review.
But the review must be more robust than traditional three-judge panels can offer.
Judges, too, fall victim to implicit bias, including bias in favor of affirming trial court
results. Further, the demographics of judges do not reflect those of the populations they
serve, increasing the possibility that implicit bias will hamper the review process. So
requiring two of three judges to concur in reversing on the basis of a factual review is
too high a burden to achieve the necessary reduction in wrongful convictions influenced
by bias. Each individual judge should have that power. The benefits to the justice system
outweigh the costs.