Case Document 14-11 Filed 05/10/16 Page 1 of 25 PageID 248 EXHIBIT 10 Case Document 14-11 Filed 05/10/16 Page 2 of 25 PageID 249 JEFFERSON CIRCUIT COURT a pnsa .- r' :11 r" In re: All Jefferson County Indictments in which the Commonwealth is represented the?; Of?ce of Thomas B. Wine, Commonwealth?s Attorney for the 30??1 Judicial Circuit of Kentucky, which are now pending or will in the future be assigned to Division 6 of the Jefferson Circuit: 7 Court - - i . AFFIDAVIT OF THOMAS B. WINE, FOR THE 30TH JUDICIAL CIRCUIT OF KENTUCKYSEEKING DESIGNATION OF SPECIAL JUDGE PURSUANT TO KRS 26A.020 STATE OF KENTUCKY JEFFERSON COUNTY Comes now Thomas B. Wine, Commonwealth?s Attorney, being first duly sworn, under oath, and states as follows. 1. I am Thomas B. Wine, Commonwealth?s Attorney for the 30?h Judicial Circuit of Kentucky. Prior to being Commenwealth?s Attorney, I was a Circuit Court Judge in Jefferson County from 1992 until 2006 and a Court of Appeals Judge from 2006 until 2012. I continue to be and have been a member of the Racial Fairness Commission since its inception in 2000'. 1am also currently a member of the Jail Policy Review Committee in Jefferson County. 2. In my role as Commonwealth?s Attorney, I am the prosecuting attorney for nearly every felony prosecution in Jefferson Circuit Court. To assist me in ful?lling that responsibility, my of?ce employs numerous Assistant Commonwealth?s Attorneys who serve as my agents in Jefferson Circuit Court. 3. Because of recent events, it is my belief that Judge Stevens will not afford the peepie of the Commonwealth fair and impartial pretrial or trial proceedings in cases in which the Commonwealth is represented by my of?ce. Speci?cally, and as more fully . Case Document 14-11 Filed 05/10/16 Page 3 of 25 PageID 250 described below, within the last 30 days, Judge Stevens has made a number of comments and accusations on social media,1 including the following: 0 He has opined that there are sinister motives behind my seeking review of his actions. He has accused me of seeking to impanel all-white juries. He has accused me of opposing diversity on juries. He has accused me of calling him. a racist. He has accused me of stirring up the media against him. He has accused me of deceiving the people. He has accused me of ignoring national prosecutorial standards in jury selection. . a He has accused me of not serving him with a copy of a motion for certification of the law. He has accused my Assistants of being intimidated into acquiescing in my actions. 0 He has encouraged citizens to actively oppose me and support of his cause. 0 He has expressed his opinions about the merits of the pending Kentucky Supreme Court case, wherein the Kentucky Supreme Conrt granted certi?cation of law to review his actions during jury selection. a He has declared that I will live in infamy because of my decision to seek review from a case tried in his Court. 4. Accordingly, and pursuant to KRS 26A.020, offer this af?davit outlining the reasons for my belief that Judge Stevens will not afford the Commonwealth a fair and impartial trial or pretrial proceedings and requesting that this Court appoint another judge to preside over all current and future cases assigned to Jefferson Circuit Court Division 6, in which the Of?ce of the Commonwealth?s Attorney represents the Commonwealth. 5. As a prosecutor and retired judge, I know that ?every litigant is entitled to ?nothing less than the cold neutrality of an impartial judge?? and should be able to feel that his I It should be noted that I do not have full access to Judge Stevens? social media accounts, and what is described in this motion may only be a portion of what he has posted on Facebook?, Instagram, Snapchat, and other forms of social media. Case Document 14-11 Filed 05/10/16 Page 4 of 25 PageID 251 cause has been tried by a judge who is wholly free, disinterested, impartial and independent.? Petzold v. Kessler Homes, Inc, 303 467, 471 (Ky. 2010) quoting Dotson v. Burchetr, 301 Ky. 28, 34, 190 697, 700 (1945). 6. In order to ful?ll this mandate, I know that the law places certain standards and requirements on judges. For example, judge shall performjudicial duties without bias or prejudice. A judge shall not, in the performance of judicial duties, by words or conduct manifest bias or prejudice, . . . SCR 4.300, Canon This means: A judge must perform judicial duties impartially and fairly. A judge who manifests bias?on any basis in a proceeding impairs the fairness of the proceeding and brings the judiciary into disrepute. Facial expression and body language-in addition to oral communication, can give to parties or lawyers in the proceeding, jurors, the media and others an appearance of judicial bias. A judge must be alert to avoid behavior that may be perceived as prejudicial. SCR 4.300, Canon Commentary. 7. I am familiar with the dif?culties that judges face, speci?cally when they have strong personal feelings about issues and parties who appear before them. Nonetheless, as explained by former Justice Frankfurter: I 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 judicialrobe does not change the man within it. It does. The fact is that on the whole judges do lay aside private views in diacharging 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 in?uence of feelings of which it is unaware. When there is ground for believing that such unconscious feelings may operate in the ultimate judgment, or may 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 Case Document 14-11 Filed 05/10/16 Page 5 of 25 PageID 252 justice should reasonably appear to be disinterested as well as be so in fact. Public Utilities Commission of DC. v. Pollak, 343 U.S. 451, 466-467 (1952) (Frankfurter, in chambers). 8. As dif?cult as it might be, I know that the law also restricts the type of public comments judges may make about pending cases. Speci?cally, the rules instruct: judge shall not, while a proceeding is pending or impending in any court, make any public comment that might reasonably be expected to affect its outcome or impair its fairness or make any nonpublic comment that might substantially interfere with a fair trial or hearing.? SCR ?The requirement that judges abstain from public comment regarding a pending or impending proceeding continues during any appellate process and until ?nal disposition.? Commentary. 9. Further, I know that KRS 26A.015 requires disqualification of a judge in any procceding: [W]here he has a personal bias or prejudice concerning a party, or personal knowledge of disputEd evidentiary facts concerning the proceedings, or hasexpressed an opinion concerning the merits of the proceeding; [or] Where he has knoWledge of any other circumstances in which his impartiality might reasonably be questioned. 10. A similar rule is contained in the Code of Judicial Conduct, which provides: judge shall disqualify himself or herself in a proceeding in which the judge?s impartiality might reasonably be questioned.? SCR This includes when ?the judge has a personal bias or prejudice Concerning a party or a party?s lawyer.? son Case Document 14-11 Filed 05/10/16 Page 6 of 25 PageID 253 11.1 know and understand that under the rules, recusal .is mandatory .when a judge ?determines that ?his impartiality might reasonably be questioned,? Jacobs v. Com, 947 416, 417 (Ky. App. 1997), and that this mandate should be broadly interpreted, Poorman v. Corn, 782 603, 606 (Ky. 1989). 12.1 know that one of the critical purposes in these rules is ?to promote public confidence in the integrity of the judicial process.? Liijeberg v. Health Services Acq. Corp, 486 US. 847, 859?860 (1988). The goal is to ?avoid even the appearance of impartiality.? Id. at 860. The inquiry ??is anrobjective one, made from the perspective of a reasonable observer who is informed of all the surrounding facts and, circumstances.? Dean v. Bondarant, 193 744, 746 (Ky. 2006) quoting Microsoft Corp v. United States, 530 US. 1301 (2000). 13. I am personally aware that ?people who have not served on the bench are often all too willing to indulge suspicions and doubts concerning the integrity of judges,? and the purpose of requiring recusal under certain circumstances ?is to promote con?dence in the judiciary by avoiding even the appearance of impropriety whenever possible.? Liljeberg, 486 US. at 864-865. In one case, for example, recusal was warranted when a judge was aware that ?members of the i'victim?s family questioned his impartiality.? Jacobs, 947 at 417. 14. I, of course, am not a stranger to the bench. Unlike the general public, I recognize the difficult tasks facing Kentucky judges, and I am not quick to ?indulge suspicions? and. doubts about the integrity of judges. However, given the highly unusual circumstances I describe below, I am convinced that Judge Olu Stevens cannot, whether intentionally or unintentionally, afford ?a fair and impartial trial? and pretrial Case Document 14-11 Filed 05/10/16 Page 7 of 25 PageID 254 proceedings (KRS 26A.020) to the people of the Commonwealth when represented by me or my Assistant Commonwealth?s Attorneys. Accordingly, I am asking this Court, by the authority of KRS 26A.020, to assign a special judge to or reassign all current and future cases assigned to Jefferson Circuit Court Judge Olu Stevens in which my of?ce is involved. 15. Recent events that I will describe in detail below spur this request, but to fully understand them, Imust' provide some background. Assistant Commonwealth?s Attorney Alex G'addis, previously represented the Commonwealth in case number 13CR2070. One of the defendants in that case was James Doss, who was tried in Division Six of the Jefferson Circuit Court in November 2014. The jury acquitted Mr. Doss. Following the acquittal and pursuant to 115 of the Kentucky Constitution and CR 7637(10), at my request and through one of my Assistants (who. for purposes of the request was appointed as a Special Assistant Attorney General), the Commonwealth sought certi?cation of the law from the Kentucky Supreme Court concerning certain circumstances surrounding the jury selection in Mr. Doss? case. Specifically, the Commonwealth requested that the Kentucky Supreme Court certify the law concerning the following questions: May a trial court dismiss a jury based upon a claim that "the fair cross-section requirement has been violated when there has been no evidence of systematic exclusion of a class of persons from jury service? Does it matter if there was only one African American juror on the panel and that juror was struck randomly? (2) Does the Conunonwealth have a right. to proceed with a duly selected jury when a prima facie case that the jury violates the fair cross-section requirement has not been made? Is the Commonwealth or a defendant?s right contingent upon the racial makeup of the petit jur[y] selected? Case Document 14-11 Filed 05/10/16 Page 8 of 25 PageID 255 (3) What, if any rights, do citizens who have been duly selected as jurors have to be sworn and hear a case when there is no evidence of systematic exclusion of a class of persons from jury service? (4) May a trial "court disregard and instruct the parties to disregard prior sworn statements made on the record by prOSpective jurors during a previous voir dire proceeding? Should the trial court consider such statements in evaluating whether the juror should be struck for cause? May the parties rely on such prior statements as grounds for seeking removal for cause or as grounds supporting the exercise of a peremptory challenge? See Exhibit 1. 16. The Commonwealth?s Motion for Certi?cation of the Law was ?led with the Kentucky Supreme Court on January 12, 2015. I have been advised by Assistant Commonwealth?s Attorney Dorislee Gilbert that on that same day a copy of the Commonwealth?s motion was delivered to the Honorable Judge Olu Stevens, Judge for Division Six of. the Jefferson Circuit Court, through the Circuit Court Clerk?s Of?ce. I have con?rmed thrOugh the Kentucky Courts Case History for the case that the document was received and entered into the case. See Exhibit 2. 17. On September 24, 2015, the Kentucky Supreme Court granted the Commonwealth?s motion requesting review and certification of the law, noting that oral argument would be scheduled by later order. See Exhibit 3. 18. In October 2015, Assistant Commonwealth?s Attorney Ebert Haegeie, represented the Commonwealth in the felony criminal prosecution ?of Damon Shanklin, 15CRI450. Though the case was originally assigned to Division Three of the Jefferson Circuit Court, it was reassigned to Division Six for trial. During Mr. Shanklin?s trial, similar issues in jury selection arose as had previously arisen in Mr. Doss? trial almost a year earlier. I have been advised that after the parties engaged in Case Document 14-11 Filed 05/10/16 Page 9 of 25 PageID 256 voir dire, Judge Stevens expressed his concerns about the racial makeup of the jury to the parties. Judge Stevens then granted a motion to strike the jury panel based on a claim that it was not representative of the community. He released that particular jury panel and recommenced voir dire with a new pane] of jurors. A jury was seated, trial commenced, and Mr. Shanklin was convicted. His sentencing is scheduled for December 3, .2015. 19. Following Mr. Shanklin?s trial, local court news reporter, Jason Riley, wrote an article for concerning the jury selection in both cases and the Commonwealth?s motion for certi?cation of the law. See Exhibit. 4. 20. I learned in. the days following publication of that news story that Judge Stevens took to social media and speci?cally commented on the pending certi?cation of law proceeding. He explicitly and implicitly called into question and denigrated me and my of?ce for pursuing the Commonwealth?s constitutional right to seek certi?cation of the law (see Ky. Const. 115; CR My of?ce is seeking to clarify the law on behalf of jurors who participate in voir dire and are tentatively selected for jury service but then dismissed despite any showing that they cannot be fair or that there was systematic exclusion of minority jurors (see Georgia v. McCollwn, 505 US. 42, 48 (1992) (?As the representative of all its citizens, the State is the logical and proper party to assert the invasion of the constitutional rights of the excluded jurors in a criminal trial?). Importantly, Judge Stevens has mischaracterized the issues about which I have sought certi?cation of law. He has also attempted to stir public opinion and ignite public action in an effort to intimidate me into withdrawing my request for certi?cation of the law andfor to bait me into some sort of social media Case Document 14-11 Filed 05/10/16 Page 10 of 25 PageID 257 debate. Judge Stevens? public comments are in?ammatory and call into question his ability to fairly adjudicate cases in which. the Of?ce of the Commonwealth?s Attorney .is involved. I also have grave concerns about how Judge Stevens? comments might be unjustly biasing potential jurors against the Of?ce of the Commonwealth?s Attorney. 21. For example, I have received the attached Exhibit 5 which shows that on October 27, 2015, Judge Stevens posted a quote from the National Prosecution Standards of the National District Attorneys Association, and accused me of not complying with the standards: ?When the Jefferson Commonwealth?s Attorney opines that I did not make inquiry of the jurors as to their impartiality before their dismissal, he ignores the first part of the equation: A jury should be REPRESENTATIVE of the community.? See Exhibit 5. 22., I have also received the attached Exhibit 6, which shows that on or about October 29, 2015, Judge Stevens posted to Fa'ceb?o?ok, ?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.? See Exhibit 6. In a series of related comments and a written exchange between another individual on Facebook, Judge Stevens explained that by this post he was explaining ?what Tom Wine is trying to do.? See Exhibit 7, P. 2. In the same series, Judge Stevens wrote, ?Wine has called me a racist, And set. the media on. me to deceive the people while he does his deeds. If people, particularly affected people, would stand up and call him out, he would go right back: in the corner.? See Exhibit P. 3. In response to Judge Stevens? comments about me, the other individual expressed, ?i did not know about wine so i Case Document 14-11 Filed 05/10/16 Page 11 of 25 PageID 258 was not totally informed?. See Exhibit 7, P. 3. Judge Stevens subsequently wrote: ?those seeking to divide our community will do so? under the cover of darkness. It is time to turn on the lights. If you believe you have a right to seat all-white jury panels in Louisville, Kentucky in 2015, tell the people. Wine shouldn?t deceive the people by focusing on me and calling me a racist." See Exhibit 7, P. 4-. 23. I subsequently learned that a letter purportedly authored by Judge Stevens was posted on Facebook by Dr. Boyce Watkins, identi?ed as ?The People?s Scholar.? The letter encouraged its recipient ?and others? if they were ?so inclined? to please contact Mr. Wine and ask him why he is against racially diverse juries in Louisville, Kentucky. Ask him why? he is going to the Kentucky Supreme Court to protect his right to seat all-white juries in 2015 in Louisville, Kentucky. Ask him who are the people he purports to represent when he seeks approval to seat all? white jury panels in a city with a black populatioo of 20%. See Exhibit 8, P. 2. In additional posts, purportedly written by Judge Stevens, the writer expressed he ?did not receive a copy of? Conunonwealth?s Attorney Wine?s- ?motion with the Kentucky Supreme Court to determine [Judge Stevens] was incorrect in dismissing an all?white jury panel.? See Exhibit 8, RB. 24. Even more recently, I received the attached Exhibit 8, showing that on the morning of November 3, 2015, Judge S'teVens posted: When the prosecution loses a trial and goes complaining to the Kentucky Supreme Court about their entitlement to the all-white. jury panel the trial judge set aside, their purpose is readily apparent. And it is wrong. And it is unbecoming of our community. Do not believe those who would have you think this is about excluding anybody. It is not. It is aboutincluding everybody. If you have ever used Facebook to say ?vote for me?, but remain publicly silent or indifferent on this issue that threatens the inclusion of black peeple and other minorities on our jury panels, shame on you. Stand up-for something other than yourself. Speak the truth. ?10 Case Document 14-11 Filed 05/10/16 Page 12 of 25 PageID 259 See Exhibit 9. 25. Judge Stevens? comments did not stop there. In the day or two after that comment, Judge Stevens commented again on my actions and provided his opinion about the merits of the pending Kentucky Supreme Court case. This time, he also included comment about the Jefferson County Assistant Commonwealth?s Attorneys in my employ. Iknow a. lot of good prosecutors. They are also good people. I know they do not agree with what Wine is doing. But they are likely not in the position to tell him so. Complaining he should have had an all" white jury panel after losing a trial is poor form at the very least. At most, it is something much more sinister. And if he is successful, it will be a very sad day for the criminal justice system in Kentucky. See Exhibit 10. 26. On or about November 8, 2015, I learned that Judge Stevens made an additional post to .Facebook. This time, he directly addressed the pending certi?cation of the law case pending in the Kentucky Supreme Court and commented speci?cally about his actions in the underlying case; expressed his opinions about a local attorney and Attorney General Jack Conway; disparaged other judges; and again painted my request for certi?cation of the law in a way intentionally designed to incite public outrage. He wrote: Last week I received an email. from an active member of the local Civil bar. He said he had been following the matter and he ?supported? what I was doing. But I detected otherwise. The many who prefer to offer private support usually do so via inbox message on social media, not by letter or private email. He ended by reference to an audio clip and the statement, assume you?re arguing for an extension of the law.? His statement, at the very least, demonstrates a fundamental misunderstanding of the procedural posture of this matter. I am the trial judge. I gave the law of the case. I?m not arguing anything. The Commonwealth?s Attorney is. Through our Kentucky Attorney General (although surely our Attorney General, who only days ago 11 Case Document 14-11 Filed 05/10/16 Page 13 of 25 PageID 260 was seeking the votes of peeple who will be excluded from jury panels, does not support the Commonwealth?s Attorney effort). His pleading seeks ?certification of law. He supported it by stating there is no law on point and that the trial courts need ?direction? on the issue. To be clear, the case is over. Forever. The defendant was acquitted by a jury of eight white people and four black peeple. Even the Kentucky Supreme Court is powerless to change the result. So what is the problem here? There is a bigger issue you say? You fear judges sustaining motions to set aside all-white jury panels on a widespread basis? Look around you. There is little risk the others will grant motions to set aside jury panels, no matter what the Supreme Court decides. The truth is the Jefferson Commonwealth?s attorney does not have to pursue his right to impanel all-white juries. He is doing so because he wants to. He is doing so becausehe is seeking to in?uenCe a change in my approach and decisions. And if that were the only objective, I would not say a word because he has undertaken an impossible task. But that is not the only objective. Proper of 'Batson requires judicial intervention and exercise of discretion. But before we reach the protections of Batson, we must seat a jury panel that is representative of our community. Please hear me: We never reach the issue of proteCting black people from discrimination if black people do not exist. The Jefferson Commonwealth?s Attorney now seeks to eliminate judicial intervention and exercise of discretion to set aside an all?white jury panel and randomly select another. The Rev. Dr. Martin Luther King, Jr. once said, ?There comes a time when silence is betrayal.? I will continue to publicly speak to this. I will hold the line. If you believe in justice, you must hold the line too. Don?t believe what the opposition says. This is not about exCluding anyone. It is about including. everyone. See Exhibit 11. 27. Then Judge Stevens posted again on Facebook. Like many of his posts before, he unjustly posited that in seeking certi?cation of law, my intentions must be contrary to concepts of justice, equality, and diversity on juries. He expressly quoted from the Commonwealth?s request for certi?cation of law; and purporting to direct his remarks. to me, be publicly offered his opinion as to the merits of a portion of the issues raised. He wrote: The ?rst words of the Jefferson Commonwealth?s Attorney?s motion for certification of law, via the Kentucky Attorney General, read as 12 Case Document 14-11 Filed 05/10/16 Page 14 of 25 PageID 261 follows: ?May a trial court dismiss a jury based upon a claim that the fair cross section requirement has been violated when there has been no evidence of systematic exclusion of class of persons from jury service? DOES IT MATTER if' there was ONLY ONE AFRICAN AMERLAN UROR on the panel and that juror was struck randomly?" [Emphasis added]. My answer to the second question is yes. If you believe in the concepts of justice, equality and inclusion for ALL people, it absolutely matters Mr. Prosecutor. See Exhibit 12. Since Judge Stevens ruled in open court in accord with this expressed opinion, his purpose by this post surely was not to express to me his opinion but to continue to in?uence public opinion about me and my of?ce. The Supreme Court has accepted the matter for review. It is not appropriate for him to discuss on Facebook iSsues pending before the Kentucky Supreme Court. 28. On November 10, 2015, JudgelStevens posted again and thanked others in joining in ?the cause and against the Jefferson Commonwealth?s Attorney?s action before the Kentucky Supreme Court.? See Exhibit 13. Perhaps in an effort to intimidate me, he wrote: ?Tonight there are indications that national legal entities will join the fight.? Exhibit 13. In this post, he continued to imply discriminatory motives behind the request for certi?cation of the law when he wrote: ?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.? Exhibit 13. His next words?~?And still you are silent? Luckily it is not too late for you to encourage social media debate and action about an issue that has yet to be ?nally determined by the Kentucky Supreme Court. Exhibit 13. 13 Case Document 14-11 Filed 05/10/16 Page 15 of 25 PageID 262 29. To be sure, my decision to seek certi?cation 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 quali?ed jurors because of that random strike. My decision to seek certi?cation 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 certi?ed include not only whether. striking a jurypanel 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. 30. In fact, in one of his recent posts, Judge Stevens invited people to ?work against those seeking to ensure the right to impanel all-white juries.? See Exhibit 14, P. 1. Though that is certainly not what I am doing, that is precisely how Judge Stevens has described by request for certi?cation of law in prior Facebook posts. Sec 8.3., Exhibit 1.1. In this particular post, Judge Stevens charged that I am doing the ?exact opposite? of offering support for ?diverse juries.? Exhibit 14, P. 1, 2. He criticized ?those who merely profess their ?support? for diversity? for their ?silence on the key issue? and accused. them of doing ?just as much a disservice to the cause? as .I. 14 Case Document 14-11 Filed 05/10/16 Page 16 of 25 PageID 263 Exhibit 14, P. 2. This indictment of my character is uncalled for as I have not remained silent on the issue of diversity in our juries. In fact, I am pursuing clari?cation of the law from the Kentucky Supreme Court about the very iSSue that has now twice arisen in Judge Stevens? courtroom and fueled his ?cause? on Facebook. The perceived silence is my failure to engage in the social media debate fueled by Judge Stevens- and related to??but deliberately misconstruing the issues raised in?an active case pending in the Kentucky Supreme Court. 31. More recently, Judge Stevens posted to Facebook: History will unfavorany judge a prosecutor who loses a jury trial in which a black man is acquitted and then appeals the matter claiming his entitlement to an all white jury panel. No matter the eutecme, he will live in infamy. Exhibit 15. 32. He has attempted to shame the public into opposing my actions in seeking certification of law; For example, he wrote: ?When a black man is acquitted and then the prosecutor asserts his right to an all white jury panel, those who remain silent have chosen comfort over principle.? Exhibit 16. 33. On Monday, November 16, 72015, Judge Stevens posted the following on Facebook (see Exhibit 17): 15 Case Document 14-11 Filed 05/10/16 Page 17 of 25 PageID 264 ?g 95%t?' 7:28 AM far-5?. wt Olu Stevens 48 mins nit Debunking the that divide us. 1. Certi?cation of law means I vioiated thelew. Not true. It means the Supreme Court believes the matter involves an aspect of the law that is unsettled. In the words of the Commonweaith's Attorney, ?there is no law on point." 2. acted over the objection of the defendant and the prosecutor. False. The motion was made?by the Louisville Metro Public Defender on behalf of the defendant. granted the defendant's motion to dismiss the panel for the reasons he cited. The jury panel was 40 whites and 1 black. 3. I allowed jurors of the ?rst panel to participate in the second panel. Nottrue. The secondgroup was a different group than the ?rst panel. No juror in the first panel served on. the second panel. 4. determined the whitejurors in the ?rst panel could not be fair and impartial because they were white. False. granted the defense motion to dismiss the entire panel. I did not make a determination that those jurors could net be fair Write a 16 Case Document 14-11 Filed 05/10/16 Page 18 of 25 PageID 265 mi 96%i?l 7:28 AM 4. I determined the white jurors in the ?rst. panel could not be fair and impartial because they were white. False. I granted the defense motion to A dismiss the entire panel. 1 did not make a determination that those jurors could not be fair and impartial. If those jurors could not be fair and . impartial. they would have disquali?ed for cause. The panel was dismissed because it was not property constituted. It represented a substantial departure from the racial makeup of the average jury panel. 5. tam a racist. Not true. tam not a racist. . Granting a defense motion to dismiss a jury panel of 40 Whites and 1 black does not make me. a f' racist. And calling people on racist language doesn't make me a racist either. . I received a copy of the motion the Commonwealth ?led in January. Not true. i did not receive a copy. I did not learn of it until a couple of 5 weeks ago while watching the evening news. 1 3 immediately requested a copy and began to speak against the Jefferson Commonwealth's Attorney going to the Supreme Court claiming his right to an ali-whitejury panel after he lost the trial. 7. Why didn't the Public Defender respond? He Write a 17 Case Document 14-11 Filed 05/10/16 Page 19 of 25 PageID 266 t3? ?It 7. Why didn't the Public Defender respond? He did. Heiust never noti?ed me. You will have to ask him why he remains silent when he is the one who asked me to set aside the jury panel and so many of his clients will be affected by an adverse decision. We have obtained a copy of his response. it is little wonder the motion for certi?cation was granted. The response did not address the issues presented. 8. This subject matter is the same as the one currently before the US. Supreme Court. Not true. i But the case before the U-.S. Supreme Court does not, matter if the Jefferson Commonwealth's Attorney getswhet he wants. The truth is all-white juries present few Batson issues. if you are against racial discrimination, you must first be against racial exclusion. That is battleground here. "i ?1 ?ma? . i . Write- oorn - Then, he added (see Exhibit 18): 13 Case Document 14-11 Filed 05/10/16 Page 20 of 25 PageID 267 . Thank you for reading. 1 hour ago - Like Reply Olu Stevens Replied 2 Replies Olu Stevens Another is that I will just'be speaking publicly and will not respond. False. I am preparing a sternly worded response for the Supreme Court's consideration. i 1 hour ago Edited Like - ?i Reply Janice Reed How can we put some fire under the 3 public defender? D. '1 hour ago Like - Reply Olu Stevens I will be posing some questions to him as to why he said the things he said in his response. And why he is quiet when his lawyers routinely ask for the relief I granted him in this case. 44 minutes ago - Like - JiirZ - Reply Ht. - .im 4? A Write a comment." 19 Case Document 14-11 Filed 05/10/16 Page 21 of 25 PageID 268 34.Just yesterday morning, Judge Stevens posted the following on Facebook. (See Exhibit 19). 5 . .I. 49 mine are Open letter to the Louisville Metro Public Defender and Louisville Criminal Defense Lawyers 2 4 . 1,221 332?! ?15? 21:1?; - - I: girl" Dear Counse . r1; a; 1f} 1 Where are you? You asked me to dismiss thejury panel consisting of 40 whitejur?ors and 1 black juror. Yet you are silent. r; 5, .u .1 1333} (Y. - v-s?n 'r - - - -a ??2311 .uv' at: I "tr 31-3- 4:2; "a ."vr *2 . .11..-. rr 4: I You are the ones- who regularly ask me to set 'asidejury panels for lack of racial diversity. Yet . - 3 - you are-silent. . . . The Jefferson Commonwealth's Attorney Is for all- whitejury panels. The people are for racially diverse jury panels. What are you for? Thank you for your consideration. Judge Olu Stevens Write a 20 Case Document 14-11 Filed 05/10/16 Page 22 of 25 PageID 269 35. I believe not only that when considered from the perspective of a reasonable observer who is informed of all the surrounding facts and circumstances (Dean, 193 at 746), Judge Stevens? impartiality in cases in which my office represents the Commonwealth might reasonably be questioned. Additionally, I believe, whether intentionally or not, Judge Stevens-?because of his passionate and public outcry against my exercise 0f the constitutional right of the Commonwealth to seek certi?cation of the law and review of his actions in this case?cannot give the people of .the Commonwealth fair and impartial treatment in cases where they are represented by me and my Assistants. 36. On November 17, 2015, my of?ce made mot-ions asking Judge Stevens to recuse himself in two criminal cases that were scheduled for trial, 14CR3357, Commonwealth v. Sellers, and 15CR0621, Commonwealth v. Hodge. Judge Stevens heard oral arguments on both motions. During oral arguments, he accused my Assistant, who was arguing the motion, of not trusting the community, raised his voice at her, and chastised another Assistant on the Hodge case for wasting his time on the recusal motion? when he should have been getting ready for trial. Notably, that Assistant announced ready for trial, but had not yet prepared the written plea sheets in accord with the offer that had previously been discussed with Ms. Hodge. Judge Stevens repeatedly assertedhis ability to be fair andimpartial and his right to publicly express disagreement with me. He also ordered my Assistant to relay a message to me that included telling me that what I say is not ?the gospel.? He denied the recusal motions. He also denied motions to stay the proceedings while the Commonwealth sought appellate review of his denial of the motions, and he denied the 21 Case Document 14-11 Filed 05/10/16 Page 23 of 25 PageID 270 Commonwealth?s motion for his denial of the motions to be reduced to a written order. Judge Stevens began pretrial and trial proceedings in Mr. Sellers case. 37. On November 17, 2015, I ?led an af?davit similar to this one under KRS 26A.020 concerning two cases that were scheduled for trial in Division 6 of the Jefferson Circuit Court. Based upon the statements outlined above, on November .18, 2015, after Mr. Sellers? trial had commenced over the Commonwealth?s objection, the Chief Justice, disquali?ed Judge Stevens from presiding over two cases, 14CR3357, Commonwealth v. Sellers, and 15CR0621, Commonwealth v. Hodge, ?nding that ?the Commonwealth?s Attorney has demonstrated disqualifying circumstances that require the appointment of a special judge under KRS See Exhibit 19.. For the same reasons that the Chief Justice found that Judge Stevens could not provide fair and impartial proceedings in those Cases?the same reasons described in paragraphs 1-34 above, he cannot provide fair and impartial proceedings in all current. and future cases aSSigned to him in which my office is involved. In addition, Judge Stevens? reactions to the motions to recuse-despite his protestations otherwise-?m show his bias against my office. 38. The Chief Justice's ?ndings certainly provided Judge Stevens with ?knowledge of any other circumstances in which his impartiality might reasonably be, questioned.? KRS and on November 18, 2015, the Commonwealth made written motions for voluntary recusal pursuant to KRS in all seven criminal cases on Judge Stevens? docket, During arguments on each, the Commonwealth also requested that Judge Stevens recuse himself frontal] pending criminal cases. Judge Stevens denied each motion, expressing his desire to have an opportunity to reSpond 22 Case Document 14-11 Filed 05/10/16 Page 24 of 25 PageID 271 before the Chief Justice considered disquali?cation. He did not, however, speci?cally respond to whether the Chief Justice?s ?ndings gave reason to believe his impartiality might be reasonably questioned. He expressed dissatisfaction with the Commonwealth for not providing him personally with a copy of my previously ?led af?davit, even though the af?davit was ?led in the Circuit Court Clerk?s Of?ce and was contained in the court?s ?le. Judge Stevens consistently maintained that he could be fair and impartial and said he would be incorporating his reasons from the previous day. Judge Stevens did not address public perception of his ability to be fair and claimed that nearly all the Facebook posts attached to the motions were intended to be private messages. He also repeatedly said that his disagreement with the Commonwealth?s Attorney is a matter of public concern. The Commonwealth made one motion to continue proceedings until appellate?review could be Sought because the defendant in that case sought to enter a diversion plea. Judge Stevens denied the motion, and the plea was entered. I 39. Given all these circumstances, I do not believe that Judge Stevens can provide the Commonwealth with a fair trial in any casein which my of?ce is involved. 40'. I believe that the only adequate remedy is for this Court to reassign or appoint a special judge to hear all current and future cases assigned to Judge Stevens of the Jefferson Circuit Court in which my of?ce is involved. 23 Case Document 14-11 Filed 05/10/16 Page 25 of 25 PageID 272 Under penalty of perjury, I swear or af?rm that the above statements are true and correct to the best of my information, knowledge and belief. ?W?m THOMAS B. WINE Commonwealth?s Attorney 30th Judicial Circuit of Kentucky Ii fv/W??t??/ngf 1159/ Date Subscribed and Sworn to me on November I 2015. M1 Gr?i?ebor? Notary Public My commission expires on C3 24