Mimesis Law
20 April 2019

Jumping the Gun: Judge Dismisses Jury Panel Because It Isn’t Black Enough

Nov. 2, 2015 (Mimesis Law) — Judge Olu Stevens of Louisville, Kentucky, dismissed a jury panel because in a pool of 40 potential jurors, only three of them were black.  Judge Stevens stated:

“My concern is that the panel is not representative of the community although it was randomly selected.”

Or, translated from official judge language, the jury panel wasn’t black enough. According to Judge Denise Clayton, of the Chief Justice’s Commission on Racial Fairness in Jefferson County:

“The last panel, called on October 12, was at 14% [African American], so we’re not hitting the numbers that we need to, or we would hope to.”

(Per the Census Bureau, the population of Jefferson County is about 21% black.)

By Kentucky law, the jury pool consists people living in the county who either have valid driver’s licenses, filed an individual tax return, or registered to vote.  Kentucky law also excludes those who have an insufficient knowledge of English, are not U.S. Citizens, and have a felony conviction.

This significantly skews the jury pool:

Given these restrictions, the Commission will have a hard time hitting its target—if only 3 in 4 blacks are even eligible to serve on a jury, their presence in the jury pool is only going to be about 75% of their proportion in the population. In real terms, about 16% of the pool.

But that isn’t the main problem.

Flip the rationale: Jefferson County is 77% white. Does that mean that a white defendant is entitled to nine white jurors? In a county with a 1.4% Asian population, is an Asian defendant entitled to one Asian juror? That would be 8.3% of the jury, hardly a “fair cross section of the community” if numbers are the only criterion.)

But that still isn’t the main problem. The main problem is that a jury is not reducible to its demographics.

A defendant has his best shot in front of a jury of 12 thoughtful people who aren’t dazzled by a badge and with the smarts to know when a prosecutor is substituting the volume of his voice for the weight of the evidence. People who believe, in their guts, not just as an intellectual proposition, that a defendant is innocent until proven guilty beyond a reasonable doubt. A black defendant stands a far better chance in front of twelve white people who believe in the presumption of innocence than twelve who don’t.

The only way to pick a good jury is to ask good questions, get them talking, get a sense of how they think. The best voir dire examinations become less about the lawyer’s questions and more of a group discussion among the panelists, with the lawyer acting as moderator. In some statistical sense, one might use race as a proxy to guess a juror’s attitudes. But that’s bad lawyering—worse than that, lazy lawyering—and a lawyer who thinks that way is not doing right by his client.

Judge Stevens dismissed a jury for the same reason last year, with two key differences. First, he dismissed a jury that had already been selected and sworn, not the whole panel from which the jury is picked. Second, he did so at the request of the defense attorney, presumably over the prosecutor’s objection. Without reading the voir dire transcript, it’s impossible to know if that was good decision. But that’s exactly the sort of call the judge is paid to make; after weighing the arguments of the lawyers, he made his decision according to the law. Agree or disagree, it was his call to make.

In this case, Judge Stevens jumped the gun. He dismissed the panel before voir dire, based purely on its racial makeup. He didn’t have to do this. Judges in Kentucky have “wide discretion” in how to conduct voir dire in their courtrooms.  He could have taken as active a role in questioning the panelists as he liked. He could have allowed the lawyers considerable latitude in asking their own questions. In short, he should have based his decision on the juror’s individual answers during voir dire, not on their racial make-up.

Instead, he looked only at one demographic aspect of the panel, decided he didn’t like it, and cleared the Etch-a-Sketch. He took the easy way out. It’s not that race doesn’t matter, but that race isn’t the only thing that matters.

4 Comments on this post.

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  • Beth
    2 November 2015 at 9:22 am - Reply

    You can’t presume the three classes (felony conviction, not registered to vote, no driver’s license) can be added to result in 3 out 4 blacks not being eligible serve on a jury. For example, a felony conviction in many states means the individual is not eligible to vote, so of the 28% who are not registered to vote, you can expect that a large proportion of them may also be felons.

    Of course, even if only 1 in 4 rather than 3 in 4 blacks are not eligible to serve, it’s still a significant problem. Your conclusions may still be valid. It’s just that I’m a statistician and it bugs me to see such statistics incorrectly asserted.

    • James Gordon
      2 November 2015 at 1:47 pm - Reply

      Was the article edited after your comment? If not, your comment is not well formed.

      The author assumes that 25% of black Kentuckians are unable to serve on a jury. Given that 22% are ineligible to vote due to a felony conviction, the 25% assumption is off by at most 3% (felony conviction also renders the person ineligible to serve as a juror). The other disqualifications from jury service (English speaking and US citizenship) will increase the ineligible percentage above 22%. And yes, while there will be significant overlap, there probably are some blacks who are eligible to serve as jurors but who are not in the jury pool because they aren’t registered to vote, don’t have a driver’s license, and don’t file tax returns.

      25% does not seem an unreasonable estimate. If anything, it seems to be conservative.

  • The Problem With Race As Proxy | Simple Justice
    2 November 2015 at 10:07 am - Reply

    […] As Noel Erinjeri bottom-lined it at Fault Lines: […]

  • jdgalt
    2 November 2015 at 1:22 pm - Reply

    Give us context: How many whites are disqualified in those ways? The poor and felons are not all black.