Racial-bias video won’t be shown to jury weighing police shooting of black man in Fife

Potential jurors in the upcoming civil-rights trial over the deadly police shooting of an unarmed black man in front of his 4-year-old son in Fife will not get to see a federal court video intended to make them aware of unconscious racial bias after lawyers for the officers objected to it being shown.

An order issued Tuesday by U.S. District Judge Barbara Rothstein precludes potential jurors in the wrongful death and excessive-force lawsuit filed by the family of Leonard Thomas against the cities of Lakewood, Fife and members of a multidepartment Pierce County Metro SWAT Team from viewing the 10-minute video.

The video has been shown to prospective jurors in the Seattle federal court since it was completed in March, Court Clerk William McCool said.

However, attorneys for the Pierce County police officers being sued by Thomas’ family say it would “re-inject race” into a trial where the judge already has excluded attorneys from making references to racism. Jury selection begins Friday, with opening statements in the 15-day trial expected Tuesday, according to lawyers and the court docket.

“The necessary implication from the video will be that” the white officer who fired the fatal shot, Lakewood sniper Brian Markert, “was (like everyone else) unconsciously biased when he shot Leonord Thomas because Leonard Thomas was of a different race,” wrote attorney Brian Augenthaler, one of several lawyers representing the cities and officers.

“Whatever minimal assistance this video could provide to the jury is greatly outweighed by the unfair prejudice to the defendants,” he wrote.

They also pointedly complain about the appearance in the video of Jeffery Robinson, a respected Seattle criminal and civil-rights lawyer and the current deputy legal director of the American Civil Liberties Union and the director of the Trone Center for Justice and Equality in New York. The defense attorneys point out that four out of five of Robinson’s last personal blog posts — found on his ACLU page — were “highly critical of law enforcement.”

Thomas’ family alleges that police turned a family argument into a siege at Thomas’s Fife home in May 2013, where two armored vehicles and dozens of heavily armed officers descended to arrest a drunk and despondent man wanted only for misdemeanor assault.

A four-hour standoff appeared to be ending when Thomas, 30, agreed to let his son go home with his grandmother for the night. As Thomas led the boy onto the front porch, members of a SWAT assault team used explosives to blow open a back door, forcing their way in and killing the family dog with a burst of gunfire.

Thomas — who was unarmed — reportedly lunged for his son, and he was fatally shot by a police sniper as he reached for the boy.

The shot was announced on the radio with the word, “Jackpot!” according to court records.

Rothstein sent the case to trial earlier this month, saying there was evidence that police violated policy and the Constitution in using deadly force to subdue Thomas.

The family’s lawyers have argued that race played a role in the shooting.

McCool, the court clerk, explained that the unconscious-bias video was put together by a committee of judges and legal scholars led by senior U.S. District Judge John Coughenour, who appears in the video in his judicial robes, explaining that unconscious biases are “something we all have, just because we’re human.”

The video segues to Robinson, who is followed by U.S. Attorney Annette Hayes.

Both point out that people often aren’t even aware of their biases, and argue that justice and the truth benefit when jurors recognize, acknowledge and confront their prejudices.

“We need to question our decisions by asking whether they would be different if the witness, lawyer or person on trial were of a different race, age or gender,” says Hayes, the Western District of Washington’s top federal law-enforcement officer.

“Understanding that this can happen is an important first step in prevent it from tainting your decision-making process during a trial,” she said.

Coughenour, who was appointed to the federal bench in 1981 by then-President Ronald Reagan, wraps up the video stating, “The fact is, honest intelligent really good people are impacted by unconscious biases every day,” and says that being aware of them — the intent of the video — “can actually help us all become more conscious about the decisions we make.”

McCool said the video was introduced in March in Seattle and Tacoma courthouses, and that other federal judicial districts have expressed interest in using it or making their own.

“We’re very proud of it,” he said.

Rothstein’s ruling was made as an entry in the docket, and contains no reason for granting the objection. The objection was filed Monday and Rothstein ruled Tuesday before the attorneys for Thomas’ family had a chance to respond.

David Whedbee, one of the Seattle attorneys for Thomas’ family, declined to comment on the judge’s ruling.

A telephone message left for the lead attorney for the cities and police, Jeremy Culumber, was not returned.