LISTEN: Seeking — and Not Finding — Racial Balance on Louisville Juries
On Monday, Kentucky Supreme Court Chief Justice John Minton announced he would delay a decision on whether to sanction Jefferson Circuit Judge Olu Stevens for comments the judge made on Facebook.
The case has drawn national attention – not for what Stevens said on the social networking site, but for the issue he was raising: racial bias on juries.
Stevens has twice dismissed jury panels in Louisville over the past year because they lacked black members.
Kentucky’s high court still must decide whether a judge has the legal authority to dismiss a jury because of its racial makeup.
University of Louisville law professor Sam Marcosson discussed the case — and its connection to a U.S. Supreme Court case with Kentucky ties — with WFPL’s Stephen George.
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"[A criminal defendant] has a right to a jury that is selected from a cross-section of the community and that is selected by a process that does not reflect racial bias," Marcosson said. "The ultimate jury may or may not be cross-sectional in how it turns out, but the attorneys can be questioned — and challenged — if it appears they are taking race, or gender, or religion into account in how they exercise their peremptory challenges."
In Batson v. Kentucky, a 1986 U.S. Supreme Court case that originated in Louisville, the justices held that attorneys could not use race as a reason to strike potential jurors from a jury. Marcosson said the Stevens case is challenging whether that precedent goes far enough to achieve the goal of racial balance and fairness on juries.
"I think what's going on now, in all that we've seen and the publicity surrounding Judge Stevens' actions, has been whether or not that law that we've developed to date is sufficient to really get diverse juries trying cases in our criminal courts, or whether we need to take additional steps to get them to be more diverse and fairer, and embody a sense of justice for those who are coming into our criminal courts," Marcosson said.
A spokeswoman for Minton said Monday the chief justice would issue a decision on whether to sanction Stevens for the judge's Facebook comments the week of Nov. 30.
Jefferson Commonwealth's Attorney Tom Wine has asked the chief justice to remove Stevens from all criminal cases, arguing that the judge's claims in Facebook posts — in which he said Wine sought "all-white" juries for black defendants — rendered him biased. Stevens, who has not given an interview, said in court he can separate his criticism of Wine from his role on the bench.
Minton recently recused Stevens from two cases as a result of his Facebook comments.
In his first interview on the matter Monday, Wine told WDRB Stevens' allegations on Facebook are "absolutely false."
Meanwhile, supporters of Stevens held rallies late last week and on Monday, saying the judge is right to press the issue of racial imbalance on Louisville juries.
According to the Kentucky Racial Fairness Commission, only 14 percent of potential jurors in Jefferson County in October were black; the month before, the group estimated that figure was only 13 percent. The U.S. Census reports that African-Americans make up 23 percent of Louisville's population.
The effects can be staggering. A Duke University study found that from 2000-2010, all-white juries in Florida convicted black defendants 16 percent more often than white defendants. Researchers found that figure went to nearly zero when at least one member of the jury was black.
"The danger is the things we bring in are stereotype notions, that we judge people not on the basis of the facts and evidence and the law that jurors are told to apply, but on assumptions about a particular defendant based on his or her race or religious background," Marcosson said. "And those biases can be very difficult to conquer."