In Kentucky yesterday, Jefferson Circuit Court Judge Olu Stevens was suspended for 90 days without pay after posting Facebook comments questioning the local prosecutor's racial bias.
Stevens, who is black, made the comments about a Jefferson County prosecutor, Commonwealth's Attorney Tom Wine, who is white.
The case has been framed as a critical free speech issue, but its more than that. Olu’s comments highlight issues of jury discrimination and the problematic expansion of prosecutorial power.
The Facebook posts stemmed from a controversy that began in late 2014, during jury selection for a theft trial in which the defendant was black. Forty of the 41 potential jurors in the case were white, and the thirteen people chosen to serve were all white. Stevens decided to dismiss the jury at the request of the defense attorney.
“There is not a single African-American on this jury and (the defendant) is an African-American man,” Stevens said, according to the AP. “I cannot in good conscience go forward with this jury.” The next day, a new jury was impaneled.
Then, in October 2015, Stevens again dismissed an all-white jury panel, this time before jury selection had been completed. From WDRB:
Stevens said he was concerned that the panel of jurors attorneys were to choose a jury from included 37 white people and only three black citizens. And two of the three potential black jurors had already been eliminated.
[...]
Stevens told both sides about the Nov. 18 trial, how the second panel of jurors he called up included four black citizens and was more representative.
“We’ve already done this one time,” Stevens said. “So right off the bat, you’ve got a blueprint and we can be a lot more efficient, in theory.”
After Stevens’ second jury dismissal, Wine decided to file a motion with the Kentucky Supreme Court, asking them to determine whether Stevens had the authority to remove all-white juries. That's when Stevens took to Facebook.
From the New York Daily News:
"When a black man is acquitted and then the prosecutor asserts his right to an all white jury panel, those who remain silent have chosen comfort over principle," Stevens wrote on Nov. 14.
"History will unfavorably judge a prosecutor who loses a jury trial in which a black man is acquitted and then appeals the matter claiming his entitlement to an all white jury panel. No matter the outcome, he will live in infamy," he wrote Nov. 12.
"The Jefferson Commonwealth's Attorney claims I am the only one of 200. I would venture to say he is the first prosecutor in the history of American jurisprudence to lose a jury trial and appeal claiming the jury panel should have been all white. I guess he believes that would have changed the result," he wrote Nov. 11.
Stevens didn’t stop there. From the AP:
[Stevens] wrote that Wine's request that the state Supreme Court review Stevens' decision to dismiss the jurors amounted to an attempt "to protect the right to impanel all-white juries," a charge Wine vehemently denies. Stevens suggested there was "something much more sinister," and wrote that the prosecutor will "live in infamy."
Prior to the most recent jury dismissal, the judge's comments about racial bias had already made headlines last year. During an armed robbery case in February 2015, the victims stated during trial that their 5-year-old daughter was scared of black men since the robbery. Both defendants in the case were black.
Stevens was critical of their comment and told the couple that they were "fostering" their daughter's views. "I wonder if the perpetrator had been white, would they be in fear of white men?" Stevens said at the time. "The answer would probably be no. I’m offended by that."
In April of this year, after months of consideration, the Kentucky Judicial Conduct Commission formally charged Stevens with six counts of misconduct "for his treatment of victims who came before him and public comments the judge made about prosecutors and defense attorneys."
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Again, many on both sides find the incidents and subsequent charges to be an issue of free speech. And certainly its fair to ask whether or not Stevens' Facebook posts crossed an ethical boundary.
But there are two much more significant issues at play here: racially biased juries and prosecutorial power.
Thirty years ago this year, the Supreme Court found in Batson v. Kentucky that prosecutors could not intentionally exclude minorities from juries. But while explicit discrimination against minority jurors on the basis of race is prohibited, a defendant is not entitled to jurors of color. A jury of your peers does not entitle a person to a racially diverse jury.
Batson is considered one of the most important rulings in criminal law, but it didn’t exactly set a very high standard. It basically said that as long as prosecutors and defense attorneys provide a non-discriminatory reason for not choosing a minority, there technically isn't a problem. This standard was strengthened somewhat in a recent Supreme Court decision, Foster v. Chapman.
Yet in practice, both rulings still leave ample room for subtle discrimination. And the reality is that nationwide, minorities are simply not fairly represented on juries. It varies in its extremity across jurisdictions, but there's really no question that America faces a jury exclusion problem. “Unless you are totally blind, a judge cannot help but realize that when 100 people come into court for jury selection that there are one or two, or none, who are visible minorities," U.S. District Judge Victoria Roberts has said.
Systematic minority exclusion is an issue in courthouses all across America—including Jefferson County, Kentucky. From WDRB:
Minorities long have been being underrepresented on local juries. Several black defendants have complained over the years that they were convicted by an all-white jury[.]
The Racial Fairness Commission -- a group made up of local judges, lawyers and citizens -- has studied the issue for years, monitored the make-up of jury panels and found them consistently lacking in minorities.
For example, in October [2015], 14 percent of potential jurors were black, far below the estimated 21 percent for all residents of Jefferson County, according to records kept by the commission. In September [2015], 13 percent of potential Jefferson County jurors were black.
Whether it’s intentional, political, or subconscious—or whether it stems from other legal and social barriers that disproportionately affect black people—the reality is that juries in Jefferson County are not sufficiently representative of minorities.
The reasons minorities aren't adequately represented can't entirely be blamed on the jury selection process. There are other factors in play, including felon disenfranchisement, which prevents people with felony records from voting or serving on a jury. Kentucky has one of the worst felon disenfranchisement laws, excluding 140,000 people from the civic process. (Last November, former Gov. Steve Beshear implemented an application process to reinstate people’s rights— but one month later the current Gov. Matt Bevin took office and immediately issued an executive order reversing that decision.)
Felon disenfranchisement exacerbates already existing racial inequity in the system. Black and brown people have long suffered from America's racist criminal justice system and are more likely to be over-policed, over-prosecuted, and over-sentenced.
As a result, felon disenfranchisement means that the more likely a black person is to be in the defendant's chair, the less likely they are to be in the jury box.
When Wine's office requested the Supreme Court decide whether Stevens' had the right to dismiss the jury, they expressed concern about the jurors' rights. From WDRB:
Assistant Commonwealth’s Attorney Dorislee Gilbert argued that other judges “may feel societal, political, and other pressures” to dismiss a jury for lack of minorities if allowed.
And Gilbert said that there was no proof the jury in the November case could not be fair and impartial just because of their race.
The judge “struck the jury based on nothing more than unsupported fear or impression that the jury might not be fair because of its racial makeup,” Gilbert wrote in the case, commonwealth vs. James Doss. “There was no consideration of whether the commonwealth or the citizens who had sacrificed of their own lives to make themselves available for jury service had any rights or interests in continuing to trial with the jury as selected.”
Interesting that Wine's office is troubled by bias against white jurors, but not troubled by bias against minority jurors. How fascinating that racial bias became a concern to Wine as soon as entirely white juries were dismissed.
There are a few questions here that deserve answers.
If a jury can be trusted to be impartial regardless of race, as Gilbert argued, then why don't prosecutors choose more black jurors? And if a judge doesn't have the right to correct racial inequity, who does?
During trial, judges have the authority to ensure that both parties adhere to procedural and substantive rules. If a judge is aware of systemic lack of representation on a jury, shouldn't he have the authority to rectify that problem? Black representation in Jefferson County exceeds the nationwide average. If a black defendant is going to be tried in front of a jury of his peers, doesn't it seem reasonable to have even a single minority juror out of the dozen?
Which leads us to the second primary issue regarding the uproar over Stevens’ jury dismissal.
In June, the Kentucky Supreme Court heard arguments from both sides on whether a judge has the right to dismiss a jury for lack of minority representation.
It would be a complete failure of justice for the court to rule that judges lack any authority over the jury selection process. Such a ruling wouldn't simply be a limitation on judicial control, but yet another expansion of prosecutorial power—a power that already far exceeds ethical limits and the boundaries of justice.
Prosecutors and defense attorneys have significant control when it comes to empaneling the jury, and the vast majority of the time they are able to do so without incident. But a judge exists for a reason, and part of that reason is to ensure compliance to constitutional and legal standards.
The prosecution is especially prone to jury discrimination against minorities. This is not surprising— in America, defendants tend to be disproportionately people of color, and many attorneys in the adversarial system believe that minority jurors are more likely to be sympathetic to such defendants. That's why prosecutors are more likely to be accused of discriminating against minority jurors—they want people who will side with the state. A prosecutor doesn't necessarily have to be a fuming racist to be swayed by those incentives to discriminate.
Meanwhile, the judge is basically the prosecution's only oversight mechanism in the courtroom. If the defense believes that a prosecutor has violated Batson or Foster, or been discriminatory in jury selection, they have the judiciary as their only recourse.
It would be disastrous to remove such oversight in something as important as jury selection. By removing—or diluting—the judiciary's power to ensure a representative jury, the court would also reduce the opportunity for defense attorneys to demand fairness for their clients. Meanwhile, the power of the prosecutor would expand ever larger.
WDRB reported that Wine was particularly bothered by one of Stevens' posts, where he "asked local activists and officials to come to court and support him and called the actions by the commonwealth’s attorney’s office and media a 'public lynching.'"
“There are certain words that are used for one reason and one reason only, and that is to engender animosity towards the party that you are making that accusation about,” Wine said. “I just can’t understand how anybody can think that those comments don’t show bias toward me and our office.”
What is hard to understand, though, is how Wine becomes so aware of bias when it’s against him, but apparently lacks all awareness of bias if it implicates him and his lawyers. It’s disturbing how shaken Wine is by the use of the word lynching, yet how unaffected he is by minority exclusion.
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The conflict over jury selection has morphed into a debate about judicial decorum and free speech, and those issues are certainly important too. But watch out: There's more at stake than just a judge's right to post on Facebook. We're not only failing to address racial inequity in the courtroom, but we're punishing a judge that has the temerity to fight for representational equity.
Earlier this year, Stevens filed a lawsuit against the commission. That lawsuit has now been dropped, and Stevens and the commission agreed to his 90-day-sentence. He also had to issue a public apology. From the Courier-Journal:
“My intent in making these comments was to emphasize the need to have jury panels that reflect our Commonwealth’s racial and ethnic diversity so that all individuals can receive fair trials,” Stevens read [Monday] in court from a prepared statement.
Stevens apologized…for broadening his comments to include critiques on Wine and his motives rather than a sole focus on racial representation.
“I realize now that this was wrong,” Stevens said Monday, adding later he doesn’t believe Wine is a racist.
“I apologize for any statements that implied as much,” he added.
Again, the question of whether Facebook was the right venue for Stevens' complaints is a fair one. But the issue here is much broader and much more serious than that. Exclusion of minority jurors and ever-expanding prosecutorial power are two concerns with much more disturbing implications, and both issues deserve more attention.