Judge Tests Limits of Free Speech with Facebook Jury Remarks

Bruce Schreiner, Associated Press, August 6, 2016

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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.

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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.

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