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Judge tests limits of free speech with Facebook jury remarks

Posted at 1:27 PM, Aug 06, 2016

LOUISVILLE, Ky. (AP) — A Louisville judge, incensed when a prosecutor questioned his authority to scrap a jury panel because it lacked minorities, did not turn to appeals courts, legal precedent or other avenues typical for aggrieved jurists.

He took to Facebook.

In provocative posts that now threaten to end his judicial career, Judge Olu Stevens, who is black, railed against the white prosecutor, Commonwealth's Attorney Tom Wine.

He wrote that Wine's request that the state Supreme Court review Stevens' decision to dismiss the jurors amounted to an attempt "to protect the right to impanel all-white juries," a charge Wine vehemently denies. Stevens suggested there was "something much more sinister," and wrote that the prosecutor will "live in infamy."

The Kentucky Judicial Conduct Commission believes Stevens went so far in misleading the public about Wine's request and undermining his own impartiality that it charged him with multiple counts of misconduct. Stevens is scheduled for a hearing Monday that could usher him off the bench for good.

But his posts ignited a debate about racial fairness, judicial impartiality and free speech that seems far from finished.

Experts say his cause was worthy: Stevens shined a light on a racial imbalance that has dogged the criminal justice system for generations. But his attack on a prosecutor for requesting an appellate opinion could cross an ethical line and threaten to drown out the issue he attempted to highlight.

"I think people in the minority community are grateful that he had the courage to raise the issue," said Reginald Glass, a member of the Louisville Metro Human Relations Commission and chairman of its advocacy board. "There's not total agreement on whether it was the right way or the wrong way to do it."

The judicial conduct commission wrote in court filings that it believes Stevens' comments violated Kentucky laws that require judges display no bias in cases before them. The commission also said Stevens' posts amounted to publicly pressuring Wine not to legally challenge his decisions.

Stevens and his supporters, including the National Association for the Advancement of Colored People, insist he was exercising free-speech rights.

His punishment could range from a reprimand to removal from the bench. Wine declined to discuss the case. Stevens' lawyers didn't respond to requests for comment.

In April, Stevens agreed to temporarily step down from the bench. He also filed a federal lawsuit against the disciplinary panel, saying any punishment would have a chilling effect on judges, but he withdrew it Thursday without explanation.

The case began in late 2014 during an African-American defendant's trial. In a city that is 23 percent black, 41 potential jurors arrived — only one African-American, according to court records. The defense asked Stevens to dismiss the panel. He declined, noting the lack of diversity was unusual but the panel had been appropriately selected at random.

Neither side struck the black juror. As jury selection neared its end, four jurors too many remained. The clerk drew names randomly to strike. One was the African-American.

Stevens then dismissed the panel because it didn't represent the community's racial diversity.

In January 2015, after the defendant was acquitted by another jury, Wine asked Kentucky's Supreme Court to review whether a judge could dismiss a random jury panel for racial imbalance absent any evidence that minorities were intentionally excluded.

The Supreme Court agreed to hear the case in late 2015, and Stevens launched his social media campaign against Wine, chastising him for "complaining he should have had an all-white jury panel after losing a trial" and trying to "deceive the people."

Activists rallied outside Wine's office. The prosecutor said he had no intent to exclude black jurors, was not to blame for the racial make-up of the randomly-selected panel and merely wanted clarification on the law so it could be applied evenly statewide.

Kentucky's Supreme Court heard arguments but hasn't ruled.

The U.S. Supreme Court case that set the standard for juries' racial makeup — Batson v. Kentucky, born in the same court system nearly three decades ago — doesn't guarantee that black defendants get black jurors, only that the process for eliminating them be fair and color-blind.

But "unless you are totally blind, no judge can help but realize that when 100 people come into a courtroom for jury selection and there are one or two or none, at times, who are visible minorities, it's a severe problem," said attorney Ashish Joshi, a member of the American Bar Association's diversity committee.

The problem has been known in Louisville at least since 2005, when the Courier-Journal reported that people from the lowest-income, predominantly-black neighborhoods were less likely to sit on juries.

Stevens' case reinforces the need to re-examine jury representation, said State Rep. Reginald Meeks, D-Louisville, but "the personalities in this instance have overshadowed the issue." Meeks has pushed for a comprehensive study on juries' racial makeup but said efforts have been stymied in the legislature.

Underrepresentation is a legitimate issue that should be debated, said Charles Gardner Geyh, an Indiana University law professor. But, he added, there are limits, and the accusations against Stevens hinge on the balance between judicial ethics and a judge's right to speak out.

"It's generally regarded as a bad idea for judges to weigh in outside of court on a matter that could well wind up back in the judge's court," Gardner said.

Stevens — appointed in 2009 by then-Democratic Gov. Steve Beshear and retained by voters in 2010 and 2014 — has never skirted the spotlight. He's a prodigious contributor to social media — one colleague dubbed him "Judge Selfie," the Courier-Journal reported. In one 2015 post, months before his feud with Wine, Stevens criticized home-invasion victims who said the crime left their 3-year-old afraid of black men. Stevens called their opinions "stereotyped and racist" — echoing his comments in court. The disciplinary commission accused him of misconduct in that incident in its recent batch of charges against him.

Judges must be mindful when speaking out, but Stevens raised legitimate concerns about jury diversity, said Dallas attorney John G. Browning, who writes about judges using social media.

"Do we want judges to be cloistered in their ivory towers, closed off from the very public that they serve and the issues that are of concern to the community?" Browning said. "Or do we allow them to speak publicly on some issues that may very well have some bearing?"