Opening Statement

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Public attention focused on my ruling dismissing a jury panel and on my criticism of a petition for certification of law. While that petition was pending before the Supreme Court of Kentucky, the Kentucky Court of Appeals issued an opinion in a subsequent matter directing that I was not to find a violation of the fair cross section requirement—even if I believed one existed. Shortly thereafter, I was suspended from the bench.

Dismissing a group of white jurors is racial discrimination in almost any other context. It was not in this one. This book explains why, and what happened when the false narrative took hold. 

Systematically Excluded: A Trial Judge’s Fight for Justice—a true story—details the events following the 2015 case in which I granted a defendant’s motion to dismiss a nearly all-white jury panel. The new jury panel produced a racially diverse jury that acquitted the defendant, a Black man. 

After the acquittal, the prosecutor filed a petition for certification of law in the Supreme Court of Kentucky, challenging my decision and asserting his entitlement to the original nearly all-white jury panel. My criticism of the matter (which I dubbed Commonwealth v. All Black Defendants) and its reprisal by the popular, well-connected local prosecutor would ignite one of the biggest firestorms in the history of Louisville. 

Furthermore, my criticism followed my remarks earlier that year concerning what I believed was racist language in a victim impact statement sent on behalf of a child. Those remarks resulted in a barrage of threats from hate groups all over the country, and prompted my first appearance before the Kentucky Judicial Conduct Commission. That disciplinary body would pursue me for over a year. 

When I criticized the prosecutor’s petition for certification of law in Commonwealth v. James Doss, I soon learned that I was not only taking on the prosecutor, but the Chief Justice of the Supreme Court of Kentucky, and the Kentucky Judicial Conduct Commission, which I believed the Chief Justice controlled. I found myself in a prolonged fight for my reputation and judicial career. 

While some in the community celebrated my ruling, others condemned it and me, as did many in the legal community. I believe those at the highest levels of the legal establishment embarked on an effort to counter my ruling and words. 

I eventually served a seven-month suspension, three of which were without pay. This tested my commitment to the principles for which I initially spoke. Nevertheless, I returned to the bench, while studying and preparing for the time I would once again address the issues. 

In this book, I invite you to journey through a tumultuous period of my life as a judge—a time marked by intense challenges and realizations. 

The focus of this book is the lawful basis of my ruling, my criticism of a petition for certification of law, the institutional response, and my experiences in the seven years that followed. 

The lawful basis of my ruling, the Sixth Amendment fair cross section requirement, has been the subject of my constant thought for many years. Upon completion of my suspension in 2016, I decided I would retire at the end of my term. 

At that point, I believed that I would have the knowledge, experience, and freedom to address the issues surrounding the petition for certification of law in Doss. Writing this book fulfills my deep desire to finally give my perspective on the issues that emerged from the controversy surrounding my ruling and my criticism.

I want to make clear that the constitutional right to which I refer, the Sixth Amendment right to a jury drawn from a fair cross section of the community, applies to all defendants in felony criminal cases, regardless of race or ethnicity. But defendants of color, primarily Black defendants, are the people who assert it. 

In my experience, these issues elicit visceral protectionism in certain judges and others within the legal system. For the first and undoubtedly not the last time, speaking to these issues does not mean speaking against anyone. I believe that justice means fairness for all people. Raising these issues of fairness ultimately benefits everyone. 

Plenty of ink has been spilled mischaracterizing my rulings, words, and motivations. Mainstream media may have vast reach, but it is often ill-informed in the law, particularly in the complexities of felony criminal jury selection. Unfortunately, I believe that some media outlets do the bidding of their influential friends. As a conscientious jurist, I must emphasize that, in matters of justice, I have no alliances or friendships.

It is not my purpose to reengage in past disputes or settle old scores. The subsequent years provided me with valuable experience and an opportunity to reflect on events. I write about what happened to provide transparency, clarify past misunderstandings and bring closure to a matter that has lingered since 2016. 

Some readers will meet me in these pages without having known me in the role that shaped much of what follows. For years, I served as a Circuit Court trial judge, a position that required speaking with clarity, confidence, and conviction—not as a matter of personality, but as a matter of responsibility. Words carried weight. Decisions had consequences. I wrote this book from that perspective.

The voice you will hear reflects both my personal experience and the authority that came with serving the public. For some, that tone may feel unfamiliar, particularly if they have known me only in other ways.

This book is not a legal treatise. It is not meant to teach the law in all its particulars. Most importantly, it is an account of what it means to confront injustice from inside an institution, to act according to conscience, and to live with the consequences of doing so. 

The experiences I detail here are real, and so are the emotions that go with them. I have tried to be faithful to what I experienced.

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