Judge Can’t Strike Jury Panel Because It’s Too White

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By Lance J. Rogers

A trial judge overstepped his authority when he dismissed an all-white jury for not having enough diversity and ordered a jury selection do-over that produced a more racially balanced panel, the Kentucky Supreme Court ruled Dec. 15 ( Commonwealth v. Doss , 2016 BL 416663, Ky., No. 2015-SC-000018-CL, 12/15/16 ).

Allowing judges to order a redo just because the final numbers are lopsided would be a recipe for chaos with each judge using an arbitrary standard to subjectively reach a more “pleasing composition,” the court said in an opinion by Justice Daniel J. Venters.

“What personal characteristic of the parties, such as religion, ethnicity, gender, and national origin, should be selected to achieve a fairly composed jury?” the court wondered.

Judge Disciplined for Facebook Posts

The case is noteworthy not only because the court made it clear that trial judges lack the power to enforce their personal notions of diversity, but also because the Louisville judge who dismissed the panel got hit with a 90-day suspension after he publicly denounced the prosecutors for challenging his order in a certification of law request.

The trial judge, Olu A. Stevens, gave a speech and posted comments on Facebook, saying the prosecutor had asked the Kentucky Supreme Court to protect his “right to select all-white juries.”

Stevens characterized the prosecutor’s request as a complaint that “I lost because I didn’t have my all-white jury.”

Stevens’s suspension ended Oct. 30.

‘Color-Blind Computer.’

The original jury empaneled to hear James Doss’s felony theft trial didn’t include any blacks, even though blacks make up close to 20 percent of the county where Doss was tried.

That disparity, however, didn’t give the trial judge discretion to dismiss the panel and go through the whole selection process again to get a more gratifying racial mix, the court ruled. Doss didn’t have a constitutional right to a jury that included a black person “or even one that reflected the racial or ethnic makeup of his community,” it added.

Random selection of a jury pool drawn from driver’s licenses and registered voters “by an indifferent and color-blind computer” is the most effective way to root out discrimination. it added, saying there would be a justified hue and cry if people got kicked off juries because of their race.

“Outrage would be properly expressed if a trial judge said to a juror, ‘You are excused because you are white and I need to get a black person on the jury;' or ‘You are excused because we have enough African-Americans on this panel and I need to have an Asian’,” the court said.

The second jury in this case was more racially inclusive and voted to acquit Doss.

That acquittal barred retrial because of double jeopardy, so the Kentucky Supreme Court reviewed the matter as a certification of law.

Chief Justice John D. Minton Jr. and Justices Mary C. Noble, Bill Cunningham, Lisabeth Hughes Abramson, Michelle M. Keller and Samuel T. Wright III concurred.

To contact the reporter on this story: Lance J. Rogers in Washington at LRogers@bna.com

To contact the editor responsible for this story: C. Reilly Larson at rlarson@bna.com

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Full text at http://src.bna.com/kOJ.

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