The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
The propriety of judicial commentary outside of the courtroom has been in the news a bit, what with the recent flap over Justice Ruth Bader Ginsburg's comments on Donald Trump's fitness to be president (and her subsequent expression of regret for her "ill advised" remarks). Another interesting recent example of the genre comes to us from Kentucky, where Judge Olu Stevens, of the state circuit court in Louisville, has agreed to a 90-day suspension without pay in connection with some rather incendiary remarks he made on social media.
The background, as described here (and in more detail here, in the "Notice of Formal Proceedings and Charges" brought against Stevens by the Kentucky Judicial Conduct Commission), is this: Stevens presided over a criminal trial in late 2014 in which the defendant was African American. In a city that is approximately one-quarter black, of the 41 potential jurors in the voir dire, only one was black. The defendant moved to dismiss the panel, but Stevens denied the motion, noting that "the lack of diversity was unusual" but that "the panel had been appropriately selected at random."
As jury selection neared its end, four jurors too many remained, and the court proceeded to strike four jurors by selecting names at random. The one black juror was among the four who were excused. At this point, Stevens dismissed the panel on the grounds that it didn't fairly represent the racial diversity of the community. After a second jury was impaneled, the trial proceeded and the defendant was acquitted.
The state prosecutor, Thomas Wine, then appealed the case to the Kentucky Supreme Court, asking it to determine whether a judge can dismiss a jury panel for racial imbalance "without providing evidence of systemic exclusion of a class of persons." (Batson v. Kentucky, the leading Supreme Court case dealing with racial imbalance on juries, does not, generally speaking, hold that defendants have a constitutional right to a racially representative jury, but rather that the jury selection process must be fair and color-blind; Wine's argument, in essence, was that insofar as Stevens himself had recognized that the process used to select the jurors in the case had met the Batson standard, that he was without authority to dismiss the jury even though it turned out all-white).
Sounds like a pretty interesting legal question to me, and Kentucky's supreme court agreed to hear the case in late 2015. Stevens, however, didn't see it that way, and he launched an aggressive social media campaign against Wine, accusing him of advocating for all-white juries. Some excerpts:
"Going to the Kentucky Supreme Court to protect the right to impanel all-white juries is not where we need to be in 2015. Do not sit silently. Stand up. Speak up."
"Tom Wine, the Jefferson Commonwealth Attorney and Louisville's top prosecutor is going to the Kentucky Supreme Court to have my ruling overturned and protect his right to seat all-white jury panels in Louisville, Kentucky. … If successful, his actions will have a negative impact on all citizens, particularly our black citizens."
"There is very little question about your intent when a black defendant is acquitted by a jury of eight whites and four blacks and you complain about the trial judge granting a defense motion to dismiss an all-white jury panel."
"History will unfavorably judge a prosecutor who loses a jury trial in which a black man is acquitted and then appeals the matter claiming his entitled to an all-white jury panel. No matter the outcome, he will live in infamy."
"…The Jefferson Commonwealth's Attorney is for all white jury panels…"
It's pretty far over the line, wherever you think the line should be appropriately drawn. Stevens has a First Amendment right to speak, of course, and to express his opinions about public officials; but I also think the Judicial Conduct Commission (which launched proceedings against him earlier this year) could impose sanctions on him for the remarks consistent with the First Amendment. The judge's comments look like a pretty clear violation of the Code of Judicial Conduct, which requires judges "to conduct their extra-judicial activities so that they do not cast reasonable doubt on the judge's capacity to act impartially as a judge." Attacking the motives of a prosecutor who is almost certain to appear in your courtroom in the future surely casts reasonable doubt on the judge's ability to hear that prosecutor's future cases (not to mention sending a rather unfortunate chilling message to other prosecutors or lawyers who might have the temerity to appeal one of Stevens's judgments).
The whole affair became something of a local cause celebre. Somewhat unfortunately, in my opinion, the NAACP weighed in, submitting a letter to the Judicial Conduct Commission
… to express our support of Judge Olu Stevens in the pending disciplinary proceeding concerning his public statements regarding (1) the critical importance of ensuring racial diversity on jury panels in criminal cases … and (2) the opposition of a particular elected official to taking steps necessary to ensure such diversity. Judge Stevens' exercise of his First Amendment right to speak on a matter of substantial public concern should not subject him to additional disciplinary action …
It looks to me like someone at the NAACP didn't look into this carefully enough. The action against Stevens wasn't for anything he said about the importance of racial diversity on juries—it was for his statements implying that the district attorney was "for all-white jury panels" based upon his perfectly appropriate actions seeking an appeal of the judge's ruling.
In any event, a couple of weeks ago Stevens voluntarily agreed to an order suspending him for 90 days without pay, and he issued a public statement retracting and apologizing for his comments.
[Thanks to Byron Walker for the pointer]