Earlier this year, I released my 60 practice points based on my experience on the bench and presiding over nearly 100 felony criminal and complex civil jury trials. I have elaborated on a select few in a series I have named 60 Points Defined. I will select others in advance of the NBI Seminar in June and post them at olustevens.com. I will also release an additional 40 practice points at the Seminar.
Trial lawyers make every effort to preserve issues for appeal. Yet some continue to miss opportunities to assert Batson challenges. One of the points I made in my article for the KJA was the political correctness and fear of offending others has minimized the usefulness of Batson and its progeny. If you are afraid of the implications of asserting a Batson challenge and your fear prevents you from doing so, you are doing your client a disservice. By the very nature of Batson challenges, they cannot be addressed as palpable error. Arguably, the failure to assert a Batson challenge cannot be addressed by RCr 11.42 motion or by a legal malpractice in the civil context. If true, the effect of an attorney’s failure to assert a Batson challenge during trial is to forever waive it. During a recent trial in my court, the Commonwealth exercised its discretion in favor of eliminating three of the remaining four African American jurors by peremptory strike. It is not of consequence to the Batson analysis, but I will tell you that the Defendant was an African American male. Defense counsel did not assert a Batson challenge. One African American female juror was selected for the fourteen-person jury, but as a result of the clerk’s random draw, she was eliminated at the conclusion of the trial. The all white, twelve-person jury convicted the Defendant on all counts. What difference did counsel’s failure to assert a Batson challenge have on the outcome of the trial? The answer is none that I can discern. But that is not the point. Am I saying the Defendant did not receive a fair trial? The answer is of course I am not saying that. But that is not the point either. Consider the following: Would counsel ever forget to make a motion for directed verdict at the close of the Commonwealth’s case? I think not. Then why would counsel fail to assert a Batson challenge when the Commonwealth eliminated 75% of the available African American jurors by peremptory strike? Interestingly, counsel did make a record of what jurors he would have struck by peremptory should I have granted two of his cause motions.
My opinion is that it is incumbent upon counsel to make a Batson challenge whenever the opposing party has eliminated a majority of jurors within a protected class. There is no legitimate reason not to make a challenge under these circumstances. If it makes it more palatable, think of it this way: It is not a matter of attributing motive to opposing counsel. It is a matter of protecting the client’s rights on appeal. In that sense, it should be done as a matter of course.
Kentucky New Era newspaper January 23, 2014 full article and photo.
Since I assumed the bench in July 2009, I have accumulated a list of hundreds of practice pointers based on the many hearings and trials over which I have presided. These are the top sixty of them. There are plenty more to say about them, but here are the basics:
LOUISVILLE, Ky. January 27, 2014. In follow up to his article on race and jury selection, Jefferson Circuit Judge Olu Stevens visited Brown Mackie College Louisville to speak on jury selection and Batson issues. Judge Stevens gave an overview of the jury selection process and discussed the Batson challenge steps. He also discussed public access to the courts and the basics of giving opening statement. Judge Stevens gave the students copies of his article, his order on jury selection and his order on public access to the courts. “I always enjoy speaking at Brown Mackie Louisville” said Judge Stevens. “The students are engaged and serious about learning. Thanks to my friend, Professor Kate Eberle for inviting me back.” Copies of the Judge Stevens article, originally published in the Jan/Feb. issue of the KJA Advocate, as well copies of the orders given to the students are available at olustevens.com.