Steven Mulkey was charged with capital murder in the 2018 killings of two hotel owners in Irondale, Alabama. During jury selection, his Jefferson County trial judge held a potential juror in contempt for being 30 minutes late to court and ordered him arrested in front of all the other potential jurors, leading jurors to express fear of sharing their views about the case with the judge.
Mr. Mulkey was convicted and sentenced to death. After the state courts affirmed on appeal, EJI petitioned the Supreme Court for review, arguing that the trial judge’s extreme actions undermined a fair and impartial jury as required by the Sixth and Fourteenth Amendments.
The Court declined to review the case this week. Justice Sonia Sotomayor, however, wrote a separate statement “to highlight that this case provides an example of why judges should restrain themselves from conducting any proceedings that are collateral to the trial in front of a jury.”
A Critical Function
“The right to an impartial jury, embedded both in the Sixth Amendment and the Fourteenth Amendment’s Due Process Clause, is fundamental to our system of justice,” Justice Sotomayor wrote. “It is the role of a judge to protect, not endanger, that impartiality.”
To identify biases and prejudices, judges and lawyers ask potential jurors questions and assess their responses during a process called voir dire, which the Supreme Court has held “plays a critical function” in assuring an impartial jury.1 Rosales-Lopez v. United States, 451 U.S. 182, 188 (1981) (“Voir dire plays a critical function in assuring the criminal defendant that his Sixth Amendment right to an impartial jury will be honored.”).
The process depends on the jurors’ ability to be open and honest about beliefs they hold—including beliefs or opinions that conflict with the law or the judge’s instructions—and it is the trial judge’s job to ensure that jurors feel comfortable giving candid and truthful answers during voir dire.
But here, the trial judge’s own extreme actions tainted the jury selection process. At the outset, the judge told all of the potential jurors that, because one potential juror was running 30 minutes late to court, “the Court has ordered that [he] be taken into custody, and he will be held in contempt of court.” The court later disclosed to the parties that the potential juror, a young Black man, was “currently in jail” and would be left there “overnight.”
The judge did nothing to reassure the other jurors that they would not meet a similar fate for a seemingly minor infraction—and potential jurors expressed concern they would get in trouble or be “charged or thrown in jail” if they gave answers during voir dire that did not comply with the judge’s instructions or the law.
The record shows that jurors were described as “com[ing] in here looking nervous” when they entered the courtroom for individual questioning, “coming in like it’s the trouble seat,” and the judge “heard somebody say uh-oh” when they were called back for individual voir dire.
“After the judge ordered the tardy juror arrested, two potential jurors, who were questioned individually during voir dire, expressed fear of sharing their views about the case,” Justice Sotomayor wrote.
One potential juror asked, after the judge inquired about his unwillingness to recommend the death penalty, “Will I be charged or thrown in jail?” Another, after being asked whether he was willing to consider mitigating factors in deciding whether to recommend a death sentence, stated: “Well, I kind of based [my opinion] on what the Judge told me, because I don’t want to get in trouble for my beliefs.”
Although the judge assured these jurors that they would not be punished for sharing their views, this assurance was given during the individual questioning and not in the presence of the rest of the jury pool. It is unknown how many other potential jurors felt similarly but did not share their fear because they were not called for individual questioning.
“The record here amply demonstrates how a judge’s conduct can have a profoundly negative impact on members of the jury pool,” Justice Sotomayor concluded. “Such conduct may affect not only what potential jurors are willing to say in front of the judge, but also whether they will apply their independent judgment instead of following what they perceive the judge may personally think.”
If potential jurors are not comfortable expressing their own views, voir dire’s “critical function” of identifying and removing prospective jurors who cannot be impartial is undermined. “The influence of the voir dire process,” moreover, “may persist through the whole course of the trial proceedings.”
This danger is especially acute in a capital case such as this one, where the defendant’s life hangs in the balance. To guard against it, judges should limit exposing a jury to collateral proceedings, particularly when those proceedings might frighten or intimidate the jury.