Theoritical

[JamesVincent]

There is a case here in Kentucky right now that has an interesting twist. I'm pretty sure Arayder has seen it since it's his neck of the woods but I wanted to put it on here for all the attorney's to take a look at. If it gets deemed too political feel free to delete but I think it's a discussion worth having.

In Louisville, KY there is a criminal court judge named Judge Stevens. Judge Stevens is of island descent (Tortola, Antigua, those sort of islands, don't know what you would call them.) He also is the heart of some very bizarre behaviour for a judge. In April of this year he sat in a robbery trial. The defendants were 2 black males and the victims were a white family. During the sentencing the mother and father both testified that the whole experience of being robbed at gunpoint had made their (at the time of the robbery 3 years old) afraid of black males. The judge's reaction?

The Grays were not present at the sentencing, but Stevens said he was "deeply offended that they would be victimized by an individual and express some kind of fear of all black men."[13] He also stated that although their daughter was victimized and couldn't help the way she feels, he believes the fault is with parents for "accepting that kind of mentality." He sentenced Wallace to five years of probation.[13]

https://ballotpedia.org/Olu_A._Stevens

I'll leave that one right and get to the current issue.

In November of this year Judge Stevens dismissed 2 juries, one at the beginning of a trial and one during the trial itself. Why? Too many non-minorities. Back to Ballotpedia:

In November 2014, Stevens dismissed a jury panel, at the request of a black public defender, because the panel was made up of 40 white people and one black person. Commonwealth Commonwealth Attorney Tom Wine of Jefferson County questioned the Stevens' impartiality based on Facebook posts the judge had made about his decision to dismiss the jury. "Granting a defense motion to dismiss a jury panel of 40 whites and 1 black does not make me a racist. And calling people on racist language doesn’t make me a racist either," one post read.[11] In a request to Kentucky Supreme Court Chief Justice John D. Minton, Jr. sent on November 18, 2015, Wine asked that Judge Stevens be removed from all criminal cases. A day before Wine's request, Assistant Commonwealth's Attorney Dorislee Gilbert requested Stevens removed from two cases for "inflammatory" comments made online. Chief Justice Minton removed Stevens from those cases later that day.[12]

During the trial of a black man, Stevens dismissed the all white jury because it lacked diversity.

“There is not a single African American on this jury, and [the defendant] is an African-American man,” Stevens said to a jury on a courtroom recording. “I cannot in good conscience go forward with this jury.”

http://yourblackworld.net/2015/11/25/de ... hite-jury/

It is the second time that Jefferson Circuit Court Judge Olu Stevens has brought in a new jury over diversity concerns, and now the state Supreme Court is going to determine whether he is abusing his authority,

http://www.washingtontimes.com/news/201 ... s-entire-/

Now, the reason I am bringing this up is this: Kentucky was the setting for a 14th amendment conflict back in '86. Batson v. Kentucky to be precise. This case arouse out of a prosecutor using his dismissals to take out 4 blacks from a jury. The Supreme Court, in the opinion of Justice Powell:

In a 7–2 decision, the Court held that, while a defendant is not entitled to have a jury completely or partially composed of people of his own race, the state is not permitted to use its peremptory challenges to automatically exclude potential members of the jury because of their race. "The Equal Protection Clause guarantees the defendant that the state will not exclude members of his race from the jury venire on account of race or on the false assumption that members of his race as a group are not qualified to serve as jurors."

http://www.uscourts.gov/educational-res ... v-kentucky

So we have what appears to be a judge who is disregarding not only following the letter of this ruling but it's spirit as well. Again, something that is not in Q's purview but an interesting intellectual exercise.

[The Observer]

Unfortunately, this is also a topic that is just ripe for political discourse and polarity. If this starts spinning off from discussing the legal issues, I will be locking this thread. Please don't make me regret not deleting the topic as I wanted to do.

[LaVidaRoja]

How are the jury panels selected? Are citizens pulled from voter registration lists, from driver's license listings? Is there any way the State could be selecting the potential juries based on race? I guess the question would be whether the jury panel closely represents the demographics of the county where the jury will serve. IF (and that is a very big if) the county is more than 50% black and the jury panels are uniformly more than 75% white, I believe there could be some serious constitutional concerns.

[wserra]

The short version: There are basically two routes to a race-based challenge to the composition of a jury. They address difference situations. First is what this KY judge, according to the news reports (I qualify because news reports frequently get legal stuff wrong), apparently did: look out at the entire jury pool (not just the trial jury in a particular case) and see obvious underrepresentation of minorities. This is the so-called "fair cross-section" requirement, a component of the fair and impartial jury requirement of the Sixth Amendment. In order to establish a fair cross-section violation, a defendant must show "(1) that the group alleged to be excluded is a 'distinctive' group in the community; (2) that the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) that this underrepresentation is due to systematic exclusion of the group in the jury-selection process.'' Duren v. Missouri, 439 U.S. 357, 364 (1979). There is a body of law for each of these requirements. A successful fair cross-section challenge will require a change in the way people are called for jury service in that jurisdiction.

The second type of challenge is directed to the manner in which a party uses peremptory challenges in selecting a particular jury. In order to prevail, a party (no longer limited just to the defendant) "first must show that he is a member of a cognizable racial group, and that the prosecutor has exercised peremptory challenges to remove from the venire members of the defendant's race. The defendant may also rely on the fact that peremptory challenges constitute a jury selection practice that permits those to discriminate who are of a mind to discriminate. Finally, the defendant must show that such facts and any other relevant circumstances raise an inference that the prosecutor used peremptory challenges to exclude the veniremen from the petit jury on account of their race. Once the defendant makes a prima facie showing, the burden shifts to the State to come forward with a neutral explanation for challenging black jurors." Batson v. Kentucky, 476 U.S. 79, 96 (1986) (citations omitted). A successful Batson challenge will result in disallowance of the racially-based challenges.

It seems to me that the KY judge - again, based only on news reports - was confused. If he looks out at a panel and sees what he believes not to be a fair cross-section, he orders a hearing about the county's practices in summoning jurors. He doesn't dismiss that panel, because the composition of one panel hardly establishes a fair cross-section violation. And a Batson challenge must be made during jury selection, and will never result in the dismissal of an entire jury.

The news account of the sentencing on the robbery is just bizarre. It seems pretty clear that, far from causing or contributing to it, the parents were quite dismayed by their child's fear of black men. They certainly seemed to be saying that it existed following the robbery despite their efforts to dispel it.

[Arthur Rubin]

The second type of challenge is directed to the manner in which a party uses peremptory challenges in selecting a particular jury. In order to prevail, a party (no longer limited just to the defendant) "first must show that he is a member of a cognizable racial group, and that the prosecutor has exercised peremptory challenges to remove from the venire members of the defendant's race.

What if the defense exercised peremptory challenges to remove the venire members not of the defendant's race? Seems to be equally questionable, although probably legally impossible to demonstrate intent.

[JamesVincent]

I looked up the stats on minorities in Kentucky in general and all minorities make up less then 24% of the population around Louisville and less then that outside of it. There was also mention somewhere in the articles that although blacks comprise 21% (IIRC) of the population of where they pull juries they only make up 11% of jurors called up.

According to this jurors are called up from income tax, voter registration and driver license registration. I know that if you go to the courthouse or social services for any reason they will ask you if you are registered to vote and help you register if not.

The Kentucky Court of Justice strives to ensure that as many Kentuckians as possible are available for jury service so that jury pools are truly representative of the population. The Administrative Office of the Courts compiles a county-by-county master list of prospective jurors for the entire state. The master list includes all people filing a Kentucky resident individual tax return, in addition to registered voters and licensed drivers over the age of 18

There would seem to be a concerted effort to try to make it more friendly, I guess would be the word, but it is what it is, it was never meant to be a fun experience.

Wes, one of the articles I went through said that the second time he dismissed the jury was during a trial. He stopped the trial, removed the jury, and ordered a new one found, even though the defendant's attorney had selected the jurors together with the prosecution and was happy with the jury selection. In that case the prosecutor has argued that Batson would prevent that and has taken the case to the Kentucky Supreme Court. Judge Stevens was removed form hearing criminal cases at one point, not sure for how many since a couple of articles I looked said for 2 cases or until Supreme Court hears this case. I totally agree with your first case, that an under representation should make for an adjustment in how jurors are called, not the dismissal of one pool.

Legal points aside I guess one of the most bizarre parts of this is that Judge Stevens uses social media to talk about cases he hears, to the point that other judges call him "Judge Selfie". One of the complaints against him is that he called out the prosecuting attorney on Facebook and was kinda nasty with him.

[JamesVincent]

Boy, you weren't kidding that there was a lot of case law dealing with that situation. I started wondering through just Supreme Court decisions . All the way back to Strauder v. West Virginia and the cases that used it as a reference. That's a lot of reading.

Arthur, IANAL, but it would seem through what I've read that it would apply to the defendant as well since they are not guaranteed nor should they expect a jury composed entirely of their race but I would also say that a defendant is usually given more leeway then the prosecution.

[AndyK]

In South Carolina, juror pools are pulled from lists of registered voters, people with driver's licences, and a few other sources.

However, that's only the beginning of the process.

First, there's an automatic exemption from jury duty (if the citizen requests) for anyone over 65 years of age.
Next, almost all elected officials and law enforcement personnel are automatically exempted.
Next, although it requires a written request to the judge overseeing the jury pool, single parents, caretakers for disabled children and adults, people with medical issues such as small bladders, poor hearing or poor vision, or transportation problems are regularly excused.
Next, people who would suffer significant economic stresses or job peril from an extended case are regularly excused.

Then there are the people who just don't bother to show up for the jury call. Although the court normally issues bench warrants for their arrest, it doesn't help to fill the jury pool.

Last year, I was called for jury duty. Approximately 150 other people were called. By the time for selection onto case juries came, only about 70 people were available.

Now, as to racial makeup: The county I live in is majority African-American. However, the final jury pool was (at most) 25% people of color.

However, ALL but one of the 15 cases which were called had African-American defendants.

Go figure.