Matthew Glowicki

@MattGlo

The Kentucky Supreme Court has issued a highly anticipated ruling that concludes judges do not have the authority to dismiss randomly selected jury panels that lack racial diversity.

In the unanimous opinion issued Thursday, the justices found that giving a judge that power would be “short-sighted” and its potential advantages “short-lived." Such latitude would create many questions for judges over what constitutes a "proper" jury composition, the justices wrote.

The justices expressed little appetite to change the “indifferent and color-blind computer” process that randomizes the selection of citizens for jury duty, noting that random selection helps “suppress the overt, subtle, and even subconscious bias that can accompany human intervention.”

The case garnered national attention and reignited discussion and some action, particularly in Louisville, on racial diversity of juries and fairness of the criminal justice system.

In early 2015, the Jefferson Commonwealth’s Attorney’s Office asked the state supreme court to take up the issue after Jefferson Circuit Court Judge Olu Stevens dismissed a nearly all-white jury panel of 41 prospective jurors in the autumn of 2014 in a theft case with a black defendant after repeated requests by the man's public defender.

Prosecutors objected, arguing there was no evidence of "systemic exclusion" of any group of peoples in the jury selection process.

Stevens said at the time that the racial composition was unusual and that even though the process was random, the result troubled him.

The supreme court agreed to hear the matter in fall 2015, saying Thursday the issue was of "significant public importance." It ruled that defendants don't have a constitutional right to a jury that looks like them, only to a jury that is drawn from a larger group of potential jurors that reflects "a fair cross-section of the community."

When the state supreme court heard oral arguments in June, prosecutors argued that Stevens erred in dismissing the jury panel because there was no evidence that the process to select the potential jurors wasn’t random.

The Office of the Louisville Metro Public Defender asserted it was impossible for the defense to prove systemic exclusion in the absence of data on the race of potential Jefferson County jurors at multiple stages of the process. It further called on the state to implement a number of changes, including enforcement of juror summonses, collection of juror racial information and expansion of jury source lists.

Dan Goyette, Louisville Metro chief public defender, said Thursday he was disappointed that the justices did not accept his office's argument that lack of data leaves defendants with an "impossible burden."

"Randomization sounds fine, but how can you prove that the randomization process is capturing a fair cross-section without knowing who is ultimately in that pool?" he said in an email.

It was near the end of the June hearing that Deputy Chief Justice Mary C. Noble brought up the results of a study cited in a brief filed in support of the public defender's office by the National Bar Association and the NAACP. The study found that all-white juries tend to more harshly sentence African Americans.

"We see a growing social issue and a social concern because what is fairly selected may not actually give a fair result," Noble said in court. "What are the limits on what a trial court has to do in order to kinda balance those two issues?"

And while the justices spoke of the jury diversity issue more broadly in their opinion Thursday, they did address the November 2014 case before Stevens, saying that his decision to dismiss the panel was “unsupported by sound legal principles and was, thus, an abuse of discretion.”

Assistant Commonwealth’s Attorney Jeff Cooke, office spokesman, said Commonwealth’s Attorney Tom Wine was pleased that the justices clarified the law “so that all judges know how to proceed going forward.”

“Tom continues to be concerned with having complete representation in jury pools and continues to strive for that goal,” Cooke said.

The legal question ignited public tension between Stevens and the prosecutor’s office, particularly Wine.

After the high court agreed to take up the case, Stevens took to his personal Facebook page to express his frustrations. He addressed jury diversity and fairness for minority defendants and eventually penned attacks on Wine and defense attorneys, including an allegation that Wine was a racist who wanted to preserve the right to all-white juries.

Wine denied the accusation, saying he only sought legal clarification and advocated for state law to be followed.

Stevens' words led to charges levied by the state Judicial Conduct Commission as well as public demonstrations and rallies in support of Stevens and diverse juries.

In accepting a 90-day unpaid suspension in August, Stevens said the intent behind his words “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.”

He apologized for expanding the scope of his words to include personal attacks on Wine. Stevens has since returned to the bench.

Meanwhile, the Kentucky Administrative Office of the Courts – the operational arm of the state judicial branch – moved to make changes in parts of the state's jury process with the aim of boosting minority representation.

The topic dominated this year's meetings of the Jefferson County Racial Fairness Commission, which has examined the issue for years. The body, of which Stevens and Wine are both members, called on the Administrative Office of the Courts, lawmakers and the community to implement a number of changes with diverse jury pools in mind.

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Reporter Matthew Glowicki can be reached at 502-582-4989 or mglowicki@courier-journal.com.