Judging The Judges: Lavery V. O'Connell In Jefferson County Circuit Court Division Two
Circuit Court is Kentucky’s highest trial court. Judges here hear civil matters, as well as capital offenses and felonies. The court can also “issue injunctions, writs of prohibition and writs of mandamus and to hear appeals from District Court and administrative agencies,” according to the Kentucky Court of Justice.
Circuit judges serve in eight year terms, and eligible candidates have to be U.S. citizens and live in both Kentucky and the district where they’re seeking office for two years. They have to be licensed to practice law in Kentucky, and have been a licensed attorney for at least eight years.
Jefferson County is in the 30th judicial circuit, and there are 13 divisions. Only one is on the ballot this year: the 2nd division.
He’s being challenged by Annie O’Connell, who practices criminal defense in Louisville and is a former public defender. O’Connell is also the daughter of Jefferson County Attorney Mike O’Connell.
At a judicial forum held last month by the League of Women Voters, both candidates answered randomly-selected questions posed by a moderator. Listen or read their answers below, which have been edited for clarity.
“Hi, I'm Annie O'Connell, and I am running for Circuit Court Judge. Let me tell you a little bit about myself. I have been a trial lawyer for 12, going on 13 years. I graduated from law school in 2006 from the University of Louisville and I went straight to work as a public defender. For those of you who may not know, public defenders represent people in court who cannot afford to hire a lawyer to represent them themselves. Typically, my client base when I was a public defender was a group of people who also struggled with issues such as substance abuse, addiction, mental health issues, of course, poverty. Through that work, I really learned how to be a lawyer and how to work with people from all walks of life.
I was in the trial division at the public defender's office for a couple of years. Then I worked in appeals and then my student loans caught up with me. So I opened my own practice in 2011, where I continue to practice as a solo practitioner. Criminal defense is my primary area of practice, but I do a little bit of everything, including some personal injury, some civil rights work. I have dedicated one day a week to representing parents on the dependency neglect and abuse docket in family court.
In my practice, I have represented people from all walks of life: I've represented teachers, law enforcement. I've represented children, parents, grandparents. I've represented small business owners and I've represented millionaires. Justice Sonia Sotomayor has said that the experiences that a judge has affect the decisions that they make and the way they see cases on the bench. And so, I think it's really important for those of you who are here tonight and the people that I talked to on the campaign trail to know that that's my experience and background.”
Judge Darryl Lavery:
“Good evening, everyone. My name is Darryl Lavery and I'm your Jefferson Circuit Court judge in Division Two.
I have been on the bench a little over a year. I absolutely love what I do. Prior to becoming a judge in the Jefferson Circuit Court, I was in private practice for 16 years at a large law firm here in Louisville: Boehl Stopher and Graves. I was primarily a defense attorney in civil cases defending a variety of individuals, companies, nonprofits. For several years I defended the YMCA. CSX railroad was another one of my clients. I did work representing truck drivers — individuals all the way up to large multinational corporations.
I have been very involved in the community over many years. Part of my passion was education and working with Junior Achievement of Kentuckiana, where we went into high schools — typically for me, I preferred the high school students — going in and teaching them about entrepreneurship, teaching them about financial literacy, about work readiness. I did that for several years, both as a classroom instructor as well as serving on the board of directors.
I've also represented women who were victims of domestic violence as part of the Legal Aid Society domestic violence advocacy program, and I also served as a member of the citizens Foster Care Review Board reviewing foster care files here in Louisville.
Doing all of that ignited a flame in me that I wanted to do more. It was a pay cut to go from a large law firm into public service. And I did it because I wanted to do it. It was important to me, I'm very happy to be here. I'm working every day to make a difference in civil cases — 80 percent of the cases in circuit court are civil cases, and I have 16 years of civil experience. I also want to make a difference in criminal cases. And I'm working hard to do that by getting young people on the right path to success and not send everyone to the penitentiary.”
Question: What role can the circuit court — or you as a judge — play in the jail prison reform efforts that are going on all over the country?
“As you might imagine, I love this question because this is really in my wheelhouse. Kentucky has the highest number of incarcerated individuals throughout the country. The United States has the highest incarceration rate throughout the world.
There have been a number of discussions, especially lately on the issue of criminal justice reform. One of the most important issues is on the subject of bail reform. Our jail in Louisville is overcrowded. If you talk to the staff and personnel at the jails, you will hear first and foremost that the Louisville Metro Department of Corrections jail facility is the number one detox facility in Jefferson County.
What that tells me is that we don’t have enough resources for treatment and detox here in Jefferson County, and it’s leading to more crime, more criminal charges. And we're seeing defendants wind up in jail with medical conditions that need to be treated.
So going back to the idea of bail, judges — particularly circuit court judges, but also district court judges — have a lot of discretion in terms of setting bail and whether or not a person stays in jail before trial, awaiting trial, or if they are released on non-financial conditions and that sort of thing. I think that we can really improve both the quality of representation for individuals, as well as improve the overcrowding, jail and prison issue by really focusing on this topic of bail reform.”
“I think the most pressing issue really, in Jefferson County is with respect to jail reform. The simplest answer to your question is to make sure that the people who are in custody truly need to be in custody. And if you don't need to be in custody, then you should not be in custody.
I work hard to make sure that if you don't need to be there in custody, you're not there, because it has a huge ripple effect. If you're not a danger to the community, if we have reasonable assurances that you're going to show up for court, it's best that you are out there, continue to work — so you're not losing your job — that you will be out there continuing to support your family by paying child support — which is another issue when people go in custody, oftentimes, they lose their job, and then they're not able to pay the child support. The people who are dependent upon them are being hurt because of their actions. Oftentimes because of a bond that really doesn't need to be set as high as it set. So — [we’re] working hard on that.
The other thing with respect to prison reform, like I said, in my opening remarks, we have got to do more to get young people on the right path by — not just telling people who come into the court: ‘You got two choices, you can be on probation, or you can go to the penitentiary. If you're on probation, don't use drugs, don't use alcohol, don’t violate the law.’ That's not enough for people on probation. You have to give them a plan. A plan to get their GED, a plan to get some kind of work readiness skills, a plan to get certifications — we have some of that in Jefferson County, we need more of it. And we need to push more and more young people in particular to those kind of things so that they can be productive.”
Question: The volume of cases in circuit court is overwhelming. What new ideas do you have to use court time more efficiently and expedite the issuance of written opinions?
“I can tell you since I've been there — for about a year — the very first thing I did when I got to court on the bench is I had my staff attorney come up with a list of all outstanding dispositive motions that have not been ruled upon, and I had them prioritized. And every single week over the last year, I've made it a commitment to issue written opinions on each and every one of those cases, to get rid of the backlog that we have. Now, when cases come in, they're ready for a ruling because all the briefing is complete and there has been a hearing. I typically get the ruling out within a week unless it's something that takes further review. I'm working on that right now.
The other thing is we need to have expedited discovery, abbreviated discovering cases. Cases last now — many times, particularly the civil cases — for years. You don't have to have scorched earth litigation for every kind of case. Not everyone has to be deposed in a case. Not every piece of paper has to be produced in terms of discovery. There's disputes of all kinds and sizes in circuit court, you get you need to bring the parties together and say, ‘What do you really need to know what your side of the case is about?’ And then have them get the essentials and then hopefully go to mediation — some kind of alternative dispute resolution — so that they can come up with a resolution to the case early on, within months of the filing of the lawsuit, before the case is 2, 3, 4 years old. This is a thing that I pushing now, and I've got lots of reform ideas. But with being a sitting judge and campaigning, it's a little bit much right now. So once that's finished, I'm looking forward to implementing a lot of that.”
“One of the great things about being a public defender is that I formed good habits as a lawyer very early. As a public defender, I handled the caseloads of hundreds of clients at a time. That really forced me to be organized and stay organized. Because if I made a mistake, or I didn’t give the right level of attention to a case, my client was potentially going to jail or prison. So I have been managing those kinds of caseloads ever since I was a baby lawyer.
This is a really interesting question and an important question. During the campaign. I've gone to a number of law firms and have asked lawyers, ‘What are you looking for in a circuit court judge?’ And one of the top responses that I get is: ‘We want to judge who gets us orders out on time.’ And I have listened to that.
More importantly than the lawyers though, I think, are the people in the courtroom. If you've ever been the subject or party of litigation, whether it's criminal or civil, and you've ever been in that limbo, where you're waiting on a judge to decide, it can be excruciating. And I can tell you from my experience that I appreciate that because I've sat next to clients who are in that position, and I will do everything I can to get out orders in a timely fashion so that all parties can move on.”
Question: What can you do as a judge to decrease the problems of inequality and bias both in sentencing and in juror selection?
“Well, I've already done some of that actually. Just in the past year, I had a death penalty trial in March.
Ordinarily, you get one juror summons, and there's a very low percentage of jurors who actually show up for their service. And the people who typically show up tend to be of certain races and ethnicities, certain incomes and certain ages, which is not diversity. So in this particular case, my co-counsel and I asked the court to send out an additional letter prompting those jurors who had not responded to their summons, reminding them that they had an obligation to come to court. And when we did that, we vastly increased the percentage of jurors who showed up for service for our case, and it was a far more diverse panel. As a result of that, the current Chief Sitting Circuit Court Judge, Brian Edwards, took it to the circuit court panel, and they have decided to issue those letters in every single case. I am proud to say that I am actually somewhat responsible — not 100 percent responsible — but I was part of the effort to actually expand diversity in juries here in in Jefferson County.
I will also add that I think it's really important to have a critical mass of judges who come from a diverse set of experiences. We are fortunate enough to have a number of women judges, of course, in Jefferson County now, but I think its diversity in all shapes and forms, whether it's sexual orientation, whether it is education, economic background, race or ethnicity. We want people in Louisville to see judges who look like them. And so I think that's very important.”
“Very important question. This came up recently for a vote with the general term of the circuit court judges in Louisville. I was happy to vote on that, in favor of that. Honestly, I think was unanimous among all the Jefferson Circuit Court judges.
This was something that had been done years ago, it’s my understanding, sending out a second letter. And there had been a period of time when the court just got out of the habit of doing that. It's become more a point now that individuals who are defending death penalty cases have made it a point to bring up and it's important. We did it. I just was in the process of going through the broad year process in a death penalty case in my courtroom. We did send out a second letter, we did get a more diverse group of jurors. And that was great to see.
The other thing that I do personally, is when I go down to speak to the jury panel of about 300 or so jurors on the second floor of the judicial center during the orientation, and I welcome them to the courthouse and I welcome them on behalf of my 13 colleagues in the Jefferson Circuit Court. I emphasize to them that while the case is pending that they’re a juror on — potentially — they are not to discuss the case. But when the cases over they are permitted to talk about the case.
And I say, ‘Not only can you talk about the case, but you should talk about the case. You should go out and you should tell your neighbors, your friends, your family, what an amazing process this is that before anyone's liberty is taken away that we go through this jury process.’ And encourage them: ‘When you get that summons, respond to it, get here.’ We need to have a very diverse jury pool and tell them what a great experience it is and how important it is. So that encourages everyone to come into the courthouse and participate in this very important process.”
Question: What makes you more qualified than your opponent?
“Circuit court has a ton of cases — each division of circuit court has over 200 criminal cases and over 800 civil cases. So about 80 percent of the caseload in circuit court is made up of civil cases. Looking out here, among all the law-abiding citizens we have in this room, if you find yourself in circuit court, it's probably because you are involved in some kind of civil case.
So, you need to have good civil experience. And that's what I have: 16 years. I've tried cases in state court, federal court. I’ve argued cases before the Kentucky Court of Appeals, before the Kentucky Supreme Court. I've handled all kinds of complex civil cases. And I can tell you — despite being a defense attorney for 16 years — the people who have supported me in this race are not just defense attorneys who want a good civil-experienced judge on the bench, but plaintiff attorneys, personal injury attorneys who have sued my clients before, who have been against me in cases because I have united a large segment of the civil bar behind me because they want civil experience on the bench because we deal with complex cases of all kinds.
And as someone I can tell you who had no criminal law experience prior to taking the bench, criminal law is very procedural. It's not to say it's easy, because it's not easy. It's very complex, it's very involved, I would not feel equipped to practice as a criminal defense attorney or prosecutor. But it's much more procedural-based. And it's not as vast and broad as the civil cases that come before circuit court. So that would be the biggest advantage that I would bring to the bench.”
“I'm more qualified because I have represented hundreds of clients. I have logged thousands of hours representing individuals in all courts and Jefferson County, I have practiced in every single court in Jefferson County, including the one where I am seeking office.
Though percentage-wise, there may not be as many criminal cases, I'm not going to assume that anybody out here has never been touched by the criminal justice system, especially when we are living in an era of opioid addiction which spreads throughout our community. It doesn't matter whether you're in the East End, the West End or the South End of Louisville. Even if you have never yourself been a defendant, my guess is, you know, someone who has. You may have a child or grandchild or a family member who has been caught up in the system, particularly if they are suffering from addiction and/or mental illness.
In addition to that criminal law is just as complex as civil law. Especially because people's lives are at stake and they're looking at whether or not they're going to prison for life or potentially sentenced to death. And if you go on the American Bar Association website, you will learn that death penalty practice is some of the most complex lawyering that you can do as a lawyer — it's highly specialized. I must say I take a little bit offense at the insinuation that my practice is not as complex as civil practice. I have handled civil cases as well. I'm familiar with all the rules of procedure. I am a lawyer just like Judge Lavery is and just as qualified — more qualified — to be the circuit court judge here in Jefferson County.”
For information about other 2018 judicial races in Jefferson County, click here.