Unhappy with the number of potential black jurors called to his court last week, Jefferson Circuit Court Judge Olu Stevens halted a drug trial and dismissed the entire jury panel, asking for a new group to be sent up.
“The concern is that the panel is not representative of the community,” said Stevens, who brought in a new group of jurors despite objections from both the defense and prosecutor.
And this wasn’t the first time Stevens, who is black, has dismissed a jury because he felt it was lacking enough minorities. Now the state Supreme Court is going to determine whether the judge is abusing his power.
On Nov. 18, after a 13-member jury chosen for a theft trial ended up with no black jurors, Stevens found it “troublesome” and dismissed the panel at the request of a defense attorney.
“There is not a single African-American on this jury and (the defendant) is an African-American man,” Stevens said, according to a video of the trial. “I cannot in good conscious go forward with this jury.”
A new jury panel was called up the next day.
After that, the Jefferson County Commonwealth’s Attorney’s Office and Attorney General asked the Kentucky Supreme Court to look at the issue and see if Stevens has the authority to dismiss jury panels because of a lack of minorities. And last month, the high court agreed to hear arguments.
Jefferson County has long had a problem with minorities being underrepresented on local juries. Several black defendants have complained over the years that they were convicted by an all-white jury – not of their peers.
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, 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, 13 percent of potential Jefferson County jurors were black.
“It’s a problem,” said Appeals Court Judge Denise Clayton, head of the commission. “We are not hitting that representation.”
But should judges take it upon themselves to try and ensure a more representative jury?
Stevens said through a secretary at his office that he has no comment.
Commonwealth’s Attorney Tom Wine declined to comment. But in the November case, prosecutors argued the jury panel was chosen at random, as is typically done.
And prosecutors said dismissing a jury after they had learned about the case and sending them back to be with the original pool could taint jurors.
But Stevens said both sides should “erase” what happened with jury selection from their minds and pretend it didn’t happen. In fact, the judge forbade each side from making any motions based on anything the previous jurors had said and referred to the questioning of the second batch of jurors as the first day of trial, according to court documents.
In requesting the Supreme Court hear the issue, 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.”
In the recent case, on the second day of the drug trial on Oct. 14, 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.
The defense attorney, Johnny Porter, suggested ensuring that the lone remaining black member of the panel makes the final jury.
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.”