As one of only three black circuit court judges in Kentucky, Olu Stevens wasn’t afraid to talk about race on the bench.
There was the time in 2015 that he publicly accused a mother of being racist when she said her 3-year-old daughter was “terrified of black males” after a black man invaded their home and robbed them at gunpoint.
“Do three year olds form such generalized, stereotyped and racist opinions of others?” Stevens wrote in a Facebook post. “I think not. Perhaps the mother had attributed her own views to her child as a matter of sanitizing them.”
Then, earlier this year, Stevens sentenced a white defendant to jail for hurling a racial slur at the judge. After Stevens revoked the bond for the defendant on drug charges, the man yelled “punk ass nigger” as he left Stevens’ courtroom.
A visibly upset Stevens ordered the man back in.
“You don’t speak those words in here,” Stevens said. “And that word particularly, you don’t use that word. I’m going to give you 60 days for having used that word. I’m going to hold you in contempt right now for having used it in this courtroom. It’s disrespectful; don’t ever do it again.”
But it was Stevens’ passionate crusade against an all-white jury in his courtroom that made national headlines and renewed a debate about the racial makeup of juries. The resulting legal challenge, which is unfolding in a place with a history of excluding black jurors, could have long-term effects on cases in Kentucky. And the incident could have cost Stevens his job.
It began as a run-of-the-mill theft case.
James Doss, an African American man, was charged with theft and was all set for a jury trial in November 2014 in Louisville. All that was left was to choose a jury.
When it came time for jury selection, 41 people were called into the courtroom. Forty of them were white. Only one was black.
Judge Stevens, who was presiding over the case, said it was the first time in his life that he had ever had a jury panel with just one African American. About 23 percent of Jefferson County’s population is black.
Stevens repeatedly expressed his concern, but told the lawyers to proceed.
The attorneys for both sides then went through the process of winnowing down the jury, eliminating jurors they felt could not be impartial or didn’t want for other reasons.
After each side had chosen which jurors to remove, the clerk randomly removed several more jurors to get a 12-person jury. The one black man wasn’t chosen.
That was too much for Judge Stevens.
“There is not a single African American on this jury, and (the defendant) is an African American man,” Stevens said, according to local news reports. “I cannot in good conscience go forward with this jury.”
He dismissed the jurors, calling for jury selection to begin again.
The next day, a new batch of jurors was called in. This time, four of the 41 prospective jurors were African American – and all of them made it onto the jury.
On December 11, 2014, that jury acquitted Doss, finding him not guilty on all counts.
That’s when Jefferson County’s prosecutor went to the Kentucky Supreme Court.
Thomas Wine, the Jefferson County commonwealth’s attorney, asked Kentucky’s high court for clarity on whether Judge Stevens was allowed to dismiss an all-white jury simply because it lacked diversity, even though there were no procedural problems with jury selection.
“There was no evidence that the particular jurors selected to hear the trial could not be fair and impartial,” Wine wrote in a request to the state’s Supreme Court. “Nonetheless, those jurors were stricken because of the perception that without a jury of the same race … the jury could not be fair.”
Wine wrote that “trial judges may feel societal, political, and other pressures about the appearance of racial fairness on specific panels, especially when a defendant of a specific race argues that the absence of persons of that race on the jury is unfair and results in bias.”
But Wine said that Stevens dismissed the jury “based on nothing more than an unsupported fear or impression that the jury might not be fair because of its racial makeup.”
But research shows that the racial makeup of juries does matter. Minority defendants tried by all-white juries are more likely to be convicted than black defendants who face more diverse juries.
A 2012 Duke University study found that all-white jury pools – the people called in for jury duty on any given day – in Florida convicted black defendants 16 times more often than white defendants. The study examined conviction rates in felony trials in two counties in Florida from 2000 to 2010.
“These findings imply that the application of justice is highly uneven and raise obvious concerns about the fairness of trials in jurisdictions with a small proportion of blacks in the jury pool,” according to the study.
In cases with no African American jurors, black defendants were convicted 81 percent of the time, while whites were convicted 66 percent of the time. The study also found that the disparity in conviction rates disappeared when the jury included at least one black person.
Mixed juries, the study explained, “tended to deliberate longer, discuss more case facts, raise more questions about what was missing from the trials, and be more likely to discuss race issues, such as profiling.”
Getting racially diverse juries has been a problem in Jefferson County, too. It starts with who shows up for jury duty.
The Jefferson County Racial Fairness Commission, a group of judges, lawyers and civil rights advocates who study disparities in the county’s court system, concluded in a 2007 report that the disparity between the county’s black population and the percentage of blacks who show up for jury duty is “indeed significant and must be addressed.”
In an average month, according to the Courier-Journal, about 15 percent of people who report for jury duty in Jefferson County are black – well below the county’s population, which is about 23 percent African American.
There’s an additional hurdle to getting diversity on juries. For decades, prosecutors have deliberately worked to keep minorities off them.
In one of the most famous cases, Batson v. Kentucky, James Batson, an African American man, was on trial for burglary and receipt of stolen goods. The prosecutor used his peremptory challenges – a right to remove jurors without providing a reason – to remove all four of the African Americans from the jury pool. The resulting all-white jury convicted Batson.
Batson appealed his conviction to the U.S. Supreme Court, arguing that deliberately removing all the black jurors violated his right to a fair and impartial trial. In 1986, the Supreme Court sided with Batson, saying that jurors cannot be excluded from juries simply because of their race. Lawyers now must provide race-neutral reasons for dismissing jurors if they are challenged as to why a juror was struck.
But prosecutors have continued to find ways to keep minorities off juries.
A study by the Equal Justice Initiative in 2010 found what the group called “shocking” evidence of racial discrimination in jury selection in eight Southern states. In Houston County, Alabama, for example, 80 percent of African Americans who qualified for jury service were struck from juries by prosecutors in death penalty cases. Prosecutors in other counties were even trained to exclude minorities from juries and mask their racial bias so as not to get caught violating anti-discrimination rules.
“In many cases, people of color not only have been illegally excluded but also denigrated and insulted with pretextual reasons intended to conceal racial bias,” according to the study. “African Americans have been excluded because they appeared to have ‘low intelligence’; wore eyeglasses; were single, married, or separated; or were too old for jury service at age 43 or too young at 28.”
Jury discrimination wasn’t the issue in Judge Stevens’ courtroom in Louisville – the all-white jury was the result of a random process. But Stevens was still concerned with the practical effect of having no minorities sitting in on the trial of a black defendant, saying his concern was “not with intent but rather the result.”
So was Stevens right to request a new jury? In October 2015, the Kentucky Supreme Court agreed to consider that question. A ruling on whether judges have the authority to dismiss non-diverse juries is expected sometime this fall.
What started as a professional dispute soon got personal.
A few months after Wine, the Jefferson County prosecutor, sought clarity from the Kentucky Supreme Court, Stevens went on the attack. In a barrage of Facebook posts, the judge said Wine had “sinister” motives for even asking the court to review the jury issue.
“Going to the Kentucky Supreme Court to protect the right to impanel all-white juries is not where we need to be in 2015,” Stevens wrote on Facebook in October 2015. “Do not sit silently. Stand up. Speak up.”
Stevens continued, “History will unfavorably judge a prosecutor who loses a jury trial in which a black man is acquitted and then appeals the matter claiming his entitlement to an all-white jury panel.”
A few weeks later, Stevens doubled down on his attacks on Wine at a presentation to the Louisville Bar Association.
“Does he want want to go down in history? He will live in infamy, and he will be the butt of every prosecutor’s jokes,” Stevens said of Wine. “You lose a trial, and then you go to the Supreme Court of the commonwealth of Kentucky to complain about what? The composition of the jury? How dare you!”
Wine, who sits on the Racial Fairness Commission in Louisville, filed a complaint with the state’s Judicial Conduct Commission, the body that investigates judicial misconduct. Wine said Stevens painted his legal request with the Supreme Court “in a way intentionally designed to incite public outrage.”
“That Judge Stevens has presumed and proceeded to tell the world through social media that my actions were dictated by discriminatory attitudes, not only offends me, but leads me to reasonably conclude that Judge Stevens cannot be fair and impartial on cases in which I or my assistants are involved,” Wine wrote in an affidavit.
In April, the Judicial Conduct Commission charged Stevens with multiple counts of judicial misconduct. They said his social media campaign against Wine – which they called “mudslinging” – violated requirements that judges be fair and unbiased.
“The charges do not target Judge Stevens’ ideas or opinions about jury composition,” the commission wrote in court documents. “The potential violations arise from Judge Stevens’ use of his courtroom, bar association events, and social media to shame and exert improper pressure on lawyers … seeking appellate relief on an issue Judge Stevens decided.”
For months, Stevens, who did not respond to requests for comment from Reveal, stood by his remarks, saying his comments were “private” and protected speech under the First Amendment. But on Monday, during a public hearing before the Judicial Conduct Commission, Stevens admitted he was “wrong.”
“My intent in making these comments 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,” Stevens said, reading from a prepared statement. “I recognize how serious it is to accuse someone, either expressly or implicitly, of racism. I do not believe Tom Wine is a racist. I apologize for any statements that implied as much.”
The Judicial Conduct Commission then suspended Stevens without pay for 90 days.