LOUISVILLE, Ky. (WDRB) – When Charles Washington’s death penalty trial began in March, the pool of 174 potential jurors revealed something many trials in Louisville consistently lack.
Among the panel of potential jurors were 46 black residents – 27 percent of the total – along with five Asian and five Hispanic people. And the prospective jurors represented a broad range of the city’s socioeconomic spectrum, according to the attorneys involved.
“We had union members on our panel, we had managers on our panel,” said Annie O’Connell, one of Washington’s attorneys. “We had men, we had women. We had white people and people of color. It was one of the most diverse juries, certainly in a murder trial, I’ve seen in Jefferson County.”
That hasn’t always been the case. Last year, for example, black people comprised about 15 percent of the citizens who responded to jury duty, even though Jefferson County’s population is 21 percent black.
So what was the difference in the Washington case?
O’Connell and co-counsel Ted Shouse asked Jefferson Circuit Court Judge Charles Cunningham to send out “show cause” orders -- letters to citizens who don’t respond to jury summonses ordering them to show up to court or face a possible contempt charge.
And judicial officials took notice.
Appeals Court Judge Denise Clayton, head of the Racial Fairness Commission, a group made up of local judges, lawyers and citizens that has for years monitored the make-up of jury panels, saw the results and met with Chief Circuit Court Judge Brian Edwards.
As a group, the 13 circuit court judges decided not to threaten citizens who failed to respond to a jury summons with the show cause contempt orders used by Cunningham – at least not yet – but instead agreed to send out follow-up notices reminding people they need to appear.
Clayton said the courts do not yet want to go the extreme of having citizens “drug in here kicking and screaming.”
The theory, she and other court officials said, is that a lot of citizens miss the initial jury summons because it went to a bad address or they just forgot about it – not necessarily ignored it.
“People need a reminder,” Clayton said. “You get a reminder notice for everything else; people need a reminder notice for this.”
Currently, in order to get the necessary 300 people to show up for a two-week stint of jury duty, Jefferson County’s jury administrator has to send out more than 1,000 summonses.
Jurors are selected through an automated system pulled from state databases for driver’s licenses, Kentucky revenue records and voter registration.
The sheriff’s office sends out a summons 30 days before jury duty. Jurors are supposed to reply to their summons within five days. Jurors are paid $12.50 a day for two weeks of service.
Judge Edwards cited not only the Washington trial, which ended with an acquittal, but a similar case in 2016 as swaying the judges to take action recently.
That year, again at Shouse and O’Connell’s request, Circuit Judge Mary Shaw agreed to have show cause letters sent out to citizens who didn’t reply to their jury summons.
After the letters went out, the response rate was about double what it normally is, and with a more representative jury panel of 33 percent African Americans. Four minorities made it on the final jury.
“Ultimately that’s what we are looking for,” Edwards said. “We want our jury panels to be a reflection of our community.”
It remains to be seen whether “reminder” letters will have the same effect without the potential threat of being held in contempt of court.
“We’re hoping that it will,” Edwards said. “It may not generate as significant of an increase in percentage as the original (show cause) letter” but it is expected to have a positive impact.
Commonwealth’s Attorney Tom Wine, the city’s top prosecutor, said the letters are a “good strong first step,” but he hopes judges will consider sending the contempt threat if the reminder is ignored.
As a chief circuit court judge 15 years ago, Wine for a time sent out show cause orders to people who didn’t respond to jury summonses. The results, he said, were encouraging.
“There should be consequences,” he said of skipping jury duty. “It’s an insult to the people who do show up.”
But subsequent chief judges – including Edwards – say sending deputies to the homes of citizens and holding hearings for citizens who didn’t show up for jury duty would not be feasible given the time, resources and cost involved.
And the failure to follow the jury summonsing procedure -- including having a sheriff personally serve citizens who fail to respond -- was unsuccessfully challenged in a 2008 Kentucky Supreme Court ruling.
Minor errors in jury selection are not enough to overturn a case, the high court ruled. And the jury process is meant to “ensure that the court has enough jurors present,” which Jefferson County is successful at doing, the court noted.
Still, if the reminder letters don’t help increase the number of no-shows to jury duty, Edwards said the judges will consider show cause orders.
Ignoring jury duty, he said, “is not an acceptable response.”
The language for the reminder letters has not yet been formalized but Edwards said the goal is for the letters to start being sent out to citizens for the July panels.
O’Connell and Shouse said the letters are a move in the right direction but the issue must continue to be monitored.
“Anything that forwards our efforts to get the most diverse and reflective panel in Jefferson County possible I think is a step forward,” O’Connell said.
And both stressed that it is not just a racial issue, but also socioeconomic.
“Having the broadest spectrum, the broadest franchise in the jury box directly impacts the quality of the decision making process,” Shouse said. “Just as we want the broadest franchise voting in the ballot box, we want the broadest cross section of people in the jury box.”
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