This Sunday’s New York Times article about a Texas candidate for the state board of education is an illustration about how human beings really make decisions and then justify them. Mary Lou Bruner, a 68 year old former kindergarten teacher, is running for an important seat on the Texas State Board of Education. Her Facebook posts reveal a strong anti-Obama, anti-Islam, anti-evolution and anti-gay bias. For example, she believes President Obama had worked as a gay prostitute in his youth, that the United States should completely ban Islam, that the Democratic Party had John F. Kennedy killed and that the United Nations had hatched a plot to depopulate the entire world. She’s also expressed the belief that the massacre at Sandy Hook Elementary school in 2012 was a government staged hoax. On her Facebook page she called Obama “Ahab the Arab” and wrote that “he hates all white people and all wealthy people because to him wealthy means white.” She has also posted her claim that he was a male prostitute while he lived in New York with his male partner and writes: “How do you think he paid for his drugs?”
Now, how would you expect ordinary, rational people, even conservatives, to react to these ideas? Wouldn’t you expect a reaction that someone this far to the extreme fringe of eccentric beliefs is not qualified to be the Education Board, even if they were a Texas conservative Republican? How anyone believe intelligent and rational voters would vote for her to represent a 31 County section of Texas on a 15 member board that sets the curriculum standards, reviews, adopts textbooks and establishes graduation requirements in Texas public schools?
However she was the top vote getter in the Republican primary winning 40% of the 220,000 cast. What’s the most probable explanation? It’s the way human beings reach conclusions. In general, most of our thinking and decisions are done at an unconscious level without our being aware of it. We form firm beliefs and values based upon our significant life experiences, thoughts and emotional reactions. We also have a reptilian, primitive and instinctive brain that is shared by all reptiles and mammals including humans. It functions automatically at a subconscious level whenever survival or reproduction is involved. That “fight or flee” adrenaline reaction is controlled by this part of the brain stem. Offer any threat to survival or protection issues and it is on alert.
So, if you are a conservative who sees a threat from the U.S. government, the president and immigration your instinctive brain is activated in favor of protective ideas even if outlandish. If you are a Texan voter whose deep seated values generally favor her conservative positions then you subconsciously have a supportive attitude about her. Not only that, this process goes on without conscious analysis. Once the subconscious conclusion is reached it is consciously defended by offering reasons, defenses or excuses on a rational level.
For example, Texans, interviewed for the article, offered excuses or reasons why, in spite of these ridiculous claims, it was perfectly reasonable to vote for her. A 75 year old retired commercial pilot wasn’t aware of her views in this regard and yet was quoted as saying:
“I would not discount her on the basis of having those beliefs. It convinces me, though, that she’s quite conservative, and if I were going to her either way, I would want to err toward the side of the conservative.”
The chairwoman of the Republican party in an adjoining county was quoted as saying about her: “She’s a nice older lady who doesn’t understand social media and the impact that it can have. I’m still going to vote for Mary Lou, and I’m going to encourage people to do the same.”
Other Republicans have rallied around her and arguing that her views do not disqualify her from sitting on the state Board of Education. One of them, age 85, said: “I believe, like Benjamin Franklin said, stand on principle even if you stand alone. If she’s standing alone, she standing on her principles, and for that I can admire her.” (Actually the saying is credited to John Adams)
What does this political news have to do with our trying cases to juries? It is essential that we as trial lawyers approach our cases fully understanding how our jurors think and arrive at their conclusions. This is a good example of how it happens. Sorry: No, judges, law professors and lawyer intellectuals, people don’t carefully sift through all testimony, evidence, exhibits and then carefully weigh it in analyzing to a logical decision. And, while we are talking about it judge, nor are jurors capable of obeying your instructions to disregard what they heard or saw or to follow your instructions to disregard their existing opinions and follow the law you will give them even if they sincerely try. That’s contrary to human nature.
Many publications such as Blink by Gladwell, How we Decide by Lehrer and The Social Animal by Brooks, have outlined the how the human brain makes decisions as documented in neuroscience through the technique of fMRI. What we know is that it is not a conscious rational and logical process. Instead, it is a process involving a large part of emotion along with unconscious and rather instant decision making. Only then is it followed by a conscious statement of the decision or a “rational” reason for it.
In practical application it means our jurors are quickly forming impressions at an unconscious and mostly emotionally driven level based upon their deep seated values and past experiences. Once a firm impression or conclusion is reached they will filter all other information presented and make it consistent with their conclusion or they will ignore it, reject it as untrue or construe it to be consistent even when it is not. Trials are battles of impression and not logic.
With candidate Bruner in Texas or to Donald Trump, it means that if the person or their positions or claims are consistent with our basic values we are compelled unconsciously to identify with them and then we filter everything else to retain our unconscious decisions. No matter what the law or the evidence we are unable to unconsciously reject our values. Once we reach the conclusion we rationalize the actions and statements of the person involved, even if clearly ridiculous or outrageous or even untrue, and keep our initial conclusion or decision unchanged. In trials, jurors always make up a story about what the case is about even in the absence of any evidence. They will believe a story with a beginning, middle and logical end as well as filtering everything else out. That happens early in the trial. Impressions are being formed as soon as the jurors file into the courtroom and begin looking around listening. But, each one them bring their own value system, bias and attitudes with them whether they admit it or not.
Let’s try our cases with full awareness of the process and especially our non verbal communications which impact decisions.