Kentucky Chief Justice recuses judge over posts saying top prose - WDRB 41 Louisville News

Kentucky Chief Justice recuses judge over posts saying top prosecutor wants 'all-white' juries

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LOUISVILLE, Ky. (WDRB) – Kentucky Chief Justice John Minton took the unusual step of removing a judge from two cases after the judge, Olu Stevens, refused to recuse himself following a request by prosecutors, who argued Stevens had shown bias against Commonwealth's Attorney Tom Wine in Facebook postings.

In an order Tuesday afternoon, Minton disqualified Stevens from presiding over an assault trial that started earlier in the day, ruling prosecutors had "demonstrated disqualifying circumstances that require the appointment of a special judge."

Prosecutors had asked  Stevens to recuse himself from two cases - and potentially all cases in front of him - arguing comments he has made on Facebook about Wine regarding the race of jurors shows bias.

Assistant Commonwealth’s Attorney Dorislee Gilbert argued in motions and in court on Tuesday that Stevens has accused Wine in Facebook posts of wanting "all-white" juries to decide verdicts in cases with black defendants.

Stevens’ Facebook postings came after a WDRB story last month reporting that Wine had asked the state Supreme Court to determine whether the judge was abusing his power by dismissing a jury because he felt it was lacking enough black people.

Stevens has written on Facebook that Wine was going to the Kentucky Supreme Court to “protect the right to impanel all-white juries” and that “is not what we need to be in 2015. Do not sit silently. Stand up. Speak up.”

But Stevens overruled the motion, presiding over a guilty plea in one case and starting a trial in the other.

“I disagree with Mr. Wine about a lot of things but I can still do my job and I will do it,” Stevens said during the hearing Tuesday. “I will be fair and impartial.”

Minton, however, ruled a few hours later, granting the motion from prosecutors and ordering Chief Jefferson Circuit Court Judge McCay Chauvin to choose a different judge to preside over the assault trial.

The assault trial later started in Judge Mitch Perry's courtroom. A secretary for Judge Stevens said he does not give interviews.

It is unclear what will happen with the rest of the cases that come before Stevens. Prosecutors said Tuesday a decision had not been made a decision on whether to ask Stevens to recuse himself in all cases involving their office.

Wine declined to comment Tuesday.

On Facebook, Stevens wrote that Wine had called him racist and “set the media on (the judge) to deceive the people while he does his deeds.”

“If people, particularly affected people, would stand up and call him out, he would go right back in his corner,” Stevens wrote, according to copies of the postings attached to the motion by prosecutors.

In her argument Tuesday, after Gilbert said “all people of any color are entitled to a fair trial,” Stevens interrupted her.

“Do you believe that all people of any color are entitled to serve on a jury panel in Jefferson County?” Stevens asked the prosecutor. “Yes or no?”

Gilbert said she and the entire Commonwealth’s Attorney’s office believed that.

“Well thank you very much, I appreciate that,” Stevens responded.

But Gilbert maintained that Stevens’ “disagreement with Tom Wine on this issue” made it impossible for the judge to be impartial, even if it was inadvertent.

“Sometimes we unintentionally act on our own feelings,” Gilbert said.

Attorney Mike Goodwin, who represents defendant Chauncey Sellers, said prosecutors only filed the motion because Sellers is black and was shot by white police officers. And he asked why the motion was just now made, though Stevens has been handling cases every day.

Gilbert said it was not an easy decision to make to ask the judge to recuse himself, but it now may be made in all of Stevens’ cases.

After the hearing, Gilbert said she anticipated “seeking additional review” of Stevens’ ruling.

In October, Stevens halted a drug trial and dismissed the entire jury panel, asking for a new group to be sent up because the potential jurors were "not representative of the community."

And on Nov. 18, 2014, after a 13-member jury chosen for a theft trial ended up with no black jurors, Stevens found it “troublesome” and dismissed the panel at the request of a defense attorney.

“There is not a single African-American on this jury and (the defendant) is an African-American man,” Stevens said, according to a video of the trial. “I cannot in good conscience go forward with this jury.”

A new jury panel was called up the next day. 

The Jefferson County Commonwealth’s Attorney’s Office and Attorney General asked the Kentucky Supreme Court to look at the issue and see if Stevens has the authority to dismiss jury panels because of a lack of minorities. The high court has agreed to hear arguments.

Minorities long have been being underrepresented on local juries. Several black defendants have complained over the years that they were convicted by an all-white jury - not of their peers.

The Racial Fairness commission - a group made up of local judges, lawyers and citizens - has studied the issue for years, monitored the make-up of jury panels and found them consistently lacking in minorities.

For example, in October, 14 percent of potential jurors were black, far below the estimated 21 percent for all residents of Jefferson County, according to records kept by the commission. In September, 13 percent of potential Jefferson County jurors were black.

On Facebook, however, Stevens called on people to call Wine and ask him why he is against “racially diverse juries” and join “the cause” against the commonwealth’s action before the Kentucky Supreme Court.

“If you believe you have a right to seat all-white jury panels in Louisville, Kentucky in 2015, tell the people. Wine shouldn’t deceive the people by focusing on me and calling me a racist.”

Stevens also wrote that Wine will “live in infamy.”

In the November 2014 case, prosecutors argued the jury panel was chosen at random, as is typically done.

And prosecutors said dismissing a jury after they had learned about the case and sending them back to be with the original pool could taint jurors.

In requesting the Supreme Court hear the issue, Gilbert argued that other judges “may feel societal, political, and other pressures” to dismiss a jury for lack of minorities if allowed.

And Gilbert said that there was no proof the jury in the November 2014 case could not be fair and impartial just because of their race.

The judge “struck the jury based on nothing more than unsupported fear or impression that the jury might not be fair because of its racial makeup,” Gilbert wrote in the case, Commonwealth vs. James Doss. “There was no consideration of whether the commonwealth or the citizens who had sacrificed of their own lives to make themselves available for jury service had any rights or interests in continuing to trial with the jury as selected.”

In the case from last month, on the second day of the drug trial on Oct. 14, Stevens said he was concerned that the panel of jurors attorneys were to choose a jury from included 37 white people and only three black citizens. And two of the three potential black jurors had already been eliminated.

The defense attorney, Johnny Porter, suggested ensuring that the lone remaining black member of the panel makes the final jury.

Stevens told both sides about the Nov. 18 trial, how the second panel of jurors he called up included four black citizens and was more representative.

“We’ve already done this one time,” Stevens said. “So right off the bat, you’ve got a blueprint and we can be a lot more efficient, in theory.”

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