Kentucky Supreme Court Chief Justice John Minton has ordered mediation for Jefferson Circuit Judge Olu Stevens and Commonwealth’s Attorney Tom Wine.
The order is the latest in an ongoing dispute between the judge and the county’s top prosecutor, who earlier this year asked Minton to remove Stevens from all criminal cases after Stevens accused Wine of seeking “all-white” juries in a series of Facebook posts.
Minton’s order, delivered on Wednesday, gives the judge and prosecutor until Saturday to complete mediation.
To remove a sitting judge from all criminal cases would be “highly disruptive,” Minton wrote in the order.
“A disqualification order of that magnitude may well delay justice for litigants in the affected court, require appointment of special judges or the transfer of the disqualified judge’s cases to other courts already confronted with heavy dockets of their own, and leave the disqualified judge unable to perform fully his constitutional duties,” he wrote. “In sum, disqualification from all criminal cases would be highly disruptive not only for the litigants but for the justice system as a whole.”
The chief justice appointed a four-person panel to conduct the mediation. His office declined to name them, saying their identities wouldn’t be disclosed until after the process is complete.
In an email to reporters, Leigh Anne Hiatt, a spokeswoman for the Administrative Office of the Courts, offered some context about the group.
“The group of mediators is well-known in the Jefferson County community and has in-depth experience as attorneys, judges and community activists,” Hiatt said. “In addition, one of the four is a trained mediator.”
The dispute between Stevens and Wine dates back to November 2014, when Stevens dismissed a jury panel in a case with a black defendant because it had no black members. Wine asked the state Supreme Court to weigh in on whether the judge had the authority to dismiss potential jurors on the basis of race.
In response to that, Stevens — who also dismissed a jury this year for its lack of racial balance — wrote in a series of Facebook posts that Wine was trying to secure the right to have all-white juries in cases with black defendants. He also called on his followers to stand up to Wine and protest.
Wine has denied the accusation.
Last month, Minton recused Stevens from two criminal cases after Wine’s office said the judge was rendered biased because of his Facebook posts.
Racial imbalance on local juries has long been a concern. According to the state’s Racial Fairness Commission, which monitors jury makeup, only 14 percent of potential jurors in Jefferson County during October were black. African-Americans are nearly 23 percent of the city’s population, according to the U.S. Census.
The court has yet to rule on the underlying legal question of whether Stevens was abusing his authority by dismissing a jury and jury panel based on their racial makeup.
Batson v. Kentucky, a 1986 U.S. Supreme Court decision stemming from a Louisville case in which James Batson, an African-American, was convicted of burglary by an all-white jury, bars attorneys from striking potential jurors because of their race. In the Batson case, the prosecutor struck four black jurors from the panel, which later convicted Batson.
But that precedent doesn’t apply to judges. Sam Marcosson, a professor at the University of Louisville’s Brandeis School of Law, recently told WFPL News that Stevens is challenging whether Batson goes far enough to achieve the goal of racial balance and fairness on juries.
“I think what’s going on now, in all that we’ve seen and the publicity surrounding Judge Stevens’ actions, has been whether or not that law that we’ve developed to date is sufficient to really get diverse juries trying cases in our criminal courts, or whether we need to take additional steps to get them to be more diverse and fairer, and embody a sense of justice for those who are coming into our criminal courts,” Marcosson said.
Stevens has not given an interview on the matter, although he has said in court that all-white juries are not representative of the community.
The dispute between Stevens and Wine has inspired several protests in Louisville. On Monday, a group of protestors affiliated with the Black Lives Matter movement attempted to occupy Wine’s downtown office. The group — some of whom later met with Wine — gave the prosecutor three demands, including that Wine withdraw his motion to the state’s high court that Stevens be removed from all criminal cases.
They also called on Wine to issue a public apology to Stevens and remove the motion from his record.
After a meeting with a few of the protesters Monday afternoon, Wine declined to withdraw the motion.
Chanelle Helm, who helped lead the protest Monday, said the judge’s decision is only “slightly satisfying.” She said she fears the mediation — and the quibbling between Stevens and Wine — will overshadow the larger issue activists are working to call attention to, which is the need for more diversity on local juries.
“The issue is this man, Tom Wine, is questioning whether it’s a judge’s duty to have a diverse jury for a person of color in a criminal case,” she said. “And it should damn be, it really should.”
The West Louisville Urban Coalition — a group of citizens seeking to elevate West End issues and neighborhoods — called a meeting for Thursday to discuss the ruling. James Linton, the group’s vice president, said in a statement Wednesday afternoon that the group would be working to find ways to diversify local juries.
“We respect the ruling that Kentucky Chief Justice Minton gave today,” Linton said. “There is much work to be done to ensure there are fair and equitable juries in Louisville and the state of Kentucky. This ruling acknowledges the complexity of this issue and that we all need to work together to improve the way our juries are selected.”
Read the judge’s order:
Featured image by J. Tyler Franklin/WFPL News.