This is the latest salvo in an ongoing dispute between Judge Olu Stevens and the Kentucky Prosecutor who represents the greater Louisville area, Tom Wine. As some will recall, Judge Stevens dismissed an empanelled jury last year because it had no African-Americans. The jury panel in that case had 41 people of whom only one was an African-American. According to Judge Olu Stevens, “[t]here is not a single African-American on this jury and (the defendant) is an African-American man…I cannot in good conscious go forward with this jury.” Currently, African-Americans make-up 21% of the population in Jefferson County. This was the second time that Judge Stevens dismissed a jury due to a lack of diversity.
Not surprisingly, Wine responded to the judge’s actions with a petition to the Kentucky Supreme Court asking that court to determine whether Stevens has the authority to dismiss juries based on racial composition. Rather than await the state court’s decision, it appears that the judge has taken to Facebook to voice his views on the subject. According to the affidavit of the Commonwealth Prosecutor, Judge Stevens has made the following Facebook posts about the pending matter:
Going to the Kentucky Supreme Court to protect the right to impanel all-white juries is not where we need to be in 2015.
If people, particularly affected people, would stand up and call him [Wine] out, he would go right back in his corner
Do not sit silently. Stand up. Speak up.
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
We have a chance to prove the commonwealth is about progression and not regression
We have the opportunity to stand for inclusion and not exclusion.
At least initially, the Commonwealth Prosecutor was able to get the judge recused from two pending criminal cases because of the Facebook posts. It remains to be seen whether the state high court will remove all pending criminal cases from the judge and or allow any state judge to dismiss a jury or jury panel because it lacks diversity.
This article reviews a growing body of social science research indicating that race, ethnicity, and culture can influence the judgments and behaviors of juries. The first section addresses research on jury bias, which shows that jurors often make harsher judgments of defendants from other racial and ethnic groups and are more likely to give death sentences in cases involving Black or Latino defendants and White victims. However, these effects are moderated by several factors related to the trial parties, context, and crime. Further, juror bias often involves subtle or implicit psychological processes that can be difficult to recognize and correct. The second section discusses research conceptualizing jurors as a genetic forces whose judgments and behaviors may reflect their racial, ethnic, and cultural backgrounds. This work shows that jurors' backgrounds may influence their reactions to defendants, trial judgments, and deliberation behaviors. The final section offers recommendations for future research in these areas.
This is the question being presented before the Kentucky Supreme Court. The issue arose after Judge Olu Stevens of the Jefferson Circuit Court dismissed an empanelled jury that contained no African-Americans. According to Judge Olu Stevens, “[t]here is not a single African-American on this jury and (the defendant) is an African-American man...I cannot in good conscious go forward with this jury.” Currently, African-Americans make-up 21% of the population in Jefferson County. This is not the first time that Judge Stevens has dismissed a jury due to a lack of diversity.
Here is a link to a Motion in Limine filed by an attorney representing one of the police officers charged in the Freddy Gray case. For those interested in learning more about the jury issues that arise in high profile cases like Freddy Gray, I suggest giving this 8-page motion a quick once over.
Among other things, the defense counsel has requested that the jurors be told in both "preliminary instructions, and during final instructions, that the juror names will never be revealed to the public, nor the media, and that they may remain entirely anonymous should they choose to do so." The motion also requests that the judge sequester all jurors. Absent sequestration, the motion requests that "jurors congregate at a third party location, and be driven to the courthouse by security officers."
I will be on WBAL this Sunday at 6:00 am to talk about the motion and other jury related issues involving the Freddy Gray Case.
This article takes a look back at two of the major opinions of the criminal procedure revolution - Duncan v. Louisiana and Baldwin v. New York - and contends that, in retrospect, extending the right to jury trial to all felonies and misdemeanors was a mistake. Instead of protecting defendants from the power of the state, these decisions have had the opposite effect: criminal trials are increasingly rare and those defendants who dare to insist on their rights pay a substantial and sometimes brutal price if convicted.
The article makes its case comparatively by taking a look at two other common law countries - England and Canada. Each has two trial courts and two trial models for most felonies and all misdemeanors. The two models are distinguished in such a way that it is usually to the strong advantage of both prosecutors and defendants to opt for the simpler nonjury trial model if possible. Prosecutors get a much shorter trial and defendants are assured a rather lenient sentence if they are convicted. This contrasts sharply with the United States where only one trial model is available and it is strongly to the prosecutor’s advantage to charge as high as ethically possible for plea-bargaining leverage.
We often lament “the vanishing trial” in the United States. But Canada and England show there are options we could take to make more trials available for defendants without requiring additional resources. But, first, we must begin by reconsidering the wisdom of what the Court did in Duncan and Baldwin.