Colin McCallin Jan. 14, 2016

On January 6, the NAACP and The National Bar Association filed a brief in support of Judge Olu A. Stevens’ practices in relation to jury selection. Judge Stevens has dismissed two all-white juries in cases of black defendants because he did not feel they accurately represented the make-up of the defendant or the community. In response, the Kentucky Supreme Court has sought to remove the judge’s ability to discharge a jury panel. This brief states that the jury must reflect the defendant and the locale in order to be fair and that Judge Stevens was well within his scope to dismiss a jury that did not do so.

We are familiar with the concept of a jury of one’s peers. While those exact words are not a part of the 6th amendment, they are a good summary of our understanding that one important aspect of trial fairness is a jury which can relate to the context and circumstances of the defendant. But does that specifically mean that one or more jurors should be of the same race or culture as the defendant?

Judge Stevens believes that the answer to that question is yes. Stevens has an excellent reputation in Louisville, KY, where he has served for years as an attorney and now a judge, and he is considered tough on crime. But these recent moves have been viewed as controversial on the surface. In the case of the all-white juries though, it is not just about the race of the defendant, but the community where the alleged crime occurred. Louisville is a town with a population of 25% African Americans. An all-white jury does not reflect that. And in the two cases where he rejected all white juries in favor of a more diverse group, one jury still returned with a guilty verdict, while the other did not. 

Stevens’ moves come during a time of criminal justice reform, and one area in need of this reform is the jury selection process. Juries do not always reflect the race or culture of the defendant and there is evidence that prosecuting attorneys actively use peremptory challenges to eliminate jurors based on race. Normally when lawyers interview potential jurors (a process called voir dire) they must provide reasons why they want a juror removed. However, each side is allowed several peremptory challenges, meaning they can strike a potential juror off the list for no reason at all. 

In 1986, the case Batson v. Kentucky was heard by the Supreme Court concerning the issue of peremptory challenges and race. The court concluded that peremptory challenges cannot be used to eliminate a juror based on race (and later on, gender too). However even then, the justices recognized that there was still room for abuse. In fact, Justice Thurgood Marshall himself said that while he supported the ruling, it was not enough, and only eliminating peremptory challenges would protect the jury selection process from abuse.

The voir dire process is highly regulated, but over time, various ways to get around restrictions and take advantage of those peremptory strikes have been used, as Justice Marshall once predicted. Judge Stevens is, in effect, seeking to close this loophole by scrutinizing if the jury is truly a jury of the defendant’s peers.

Stevens is an accomplished judge who is challenging racially motivated practices in the system. While his moves are gaining attention from the higher courts, he is also bolstered and supported by major organizations and a growing awareness of how things operate and the reforms those operations require. Yet, it may be that Judge Stevens has overstepped his authority on the matter of juries. That will be up to the Kentucky Supreme Court to determine. Regardless of how the court rules, the incident provokes important questions about peremptory challenges and the jury selection process, and whether the process should be more closely examined in reform efforts.