Paragraph 31 on Page 14 of the attached affidavit provides a summary of our position on this issue:

31. To be sure, my decision to seek certification of law is not motivated by any desire to seat all-white juries or to exclude African Americans or other minorities from jury service.  In Mr. Doss’s case, the Commonwealth did not strike any African American juror.  The Court, by random selection, struck the lone African American juror.  Then, Judge Stevens dismissed the entire panel of properly qualified jurors because of that random strike.  My decision to seek certification of law is motivated by a desire for the law to be clear to judges, prosecutors, defense attorneys, defendants, victims, witnesses, and potential jurors and for there to be uniformity amongst the courts.  Importantly, the questions certified include not only whether striking a jury panel that includes only white jurors, by no action of the prosecution or defense, is correct, but also-if such a dismissal is correct, how additional jury selection should proceed.  That Judge Stevens has presumed and proceeded to tell the world through social media that my actions were dictated by discriminatory attitudes, not only offends me, but leads me to reasonably conclude that Judge Stevens cannot be fair and impartial on cases in which I or my assistants are involved.

As explained by Justice Frankfurter:

The judicial process demands that a judge move within the framework of relevant legal rules and the covenanted modes of thought for ascertaining them. He must think dispassionately and submerge private feeling on every aspect of a case. There is a good deal of shallow talk that the judicial robe does not change the man within it. It does. The fact is that on the whole judges do lay aside private views in discharging their judicial functions. This is achieved through training, professional habits, self-discipline and that fortunate alchemy by which men are loyal to the obligation with which they are entrusted. But it is also true that reason cannot control the subconscious influence of feelings of which it is unaware. When there is ground for believing that such unconscious feelings may operate in the ultimate judgment, or many not unfairly lead others to believe they are operating, judges recuse themselves. They do not sit in judgment. They do this for a variety of reasons. The guiding consideration is the administration of justice should reasonably appear to be disinterested as well as be so in fact.

For the full affidavit of Mr. Wine, click here [11MB PDF].

Due to public interest concerning the unique jury selection practice of one circuit court judge in Kentucky, attached are copies of the certification of law request and Supreme Court order granting the request for oral arguments.

There are several important points to be emphasized.

1. Our request for guidance is important because we believe the right of a properly empaneled juror to serve is fundamental to our judicial process. Kentucky courts have consistently held the process used in Jefferson County is fair and insures all persons regardless of race or gender the opportunity to serve.  In Rodgers v. Com., 285 S.W.3d 740, 759 (Ky. 2009), the Kentucky Supreme Court clearly stated,

“It is not enough to allege merely that a particular jury or a particular venire failed to mirror the community, for . . . defendants are not entitled to a jury of any particular composition, . . . but the jury wheels, pools of names, panels, or venires from which juries are drawn must not systematically exclude distinctive groups in the community and thereby fail to be reasonably representative thereof.”

The United States Supreme Court held in Powers v. Ohio, 499 U.S. 400, 404 (1991),

“[A] defendant has no right to a petit jury composed in whole or in part of persons of [the defendant’s] own race”; however, “he or she does have the right to be tried by a jury whose members are selected by nondiscriminatory criteria.”

2. Our office values diversity. Despite assertions to the contrary, we do not advocate all white juries.  We do advocate juries selected in accordance with our Supreme Court Rules.  The rules require the initial group be selected in a nondiscriminatory process to allow for the best cross-section of the community.  That group is qualified to serve until they are called for a specific case where individual jurors might be removed either by the court, at the request of a party, or randomly

3. For nearly two decades, I have served on local and state committees advocating changes to our statutes and Rules to increase juror participation. These changes include using any government issued ID to get on jury rolls, increased jury pay, and requiring employers to pay jurors’ salaries while in jury service. Such changes would benefit all jurors, generally, and economically disadvantaged jurors, specifically.

4. Because we are committed to the right of jurors to serve regardless of race or gender, we have asked the Kentucky Supreme Court to review the practice of setting aside a properly empaneled jury. This practice of setting aside a properly empaneled jury has been adopted in only one of the over 200 trial courts in the Commonwealth and is worthy of review.

Thomas B. Wine
Commonwealth’s Attorney for the 30^th Judicial Circuit

Attached: Motion for Certification of the Law and Order Granting Certification of Law and Set for Oral Argument [PDF]