Sotomayor: Hey Judges, Maybe We Don’t Arrest Potential Jurors For Being Late

Being late for jury duty is annoying. Getting arrested for it, in front of everyone else waiting to be questioned in a capital murder case, is something else entirely. On Monday, Justice Sonia Sotomayor used the Supreme Court’s denial of cert in Mulkey v. Alabama to say so, in an unusual statement respecting the denial that took aim at the trial judge’s conduct. But alas, it wasn’t enough to get Steven Mulkey a new capital murder trial.

The facts are pretty straightforward. On the second day of jury selection in Mulkey’s 2023 trial, Judge Alaric May of Alabama’s 10th Judicial Circuit learned that one prospective juror hadn’t shown up by 9:00 a.m. Court staff reached him at 9:30, and he said he was getting dressed and on his way. That was not good enough. According to Alabama’s brief in opposition, the judge announced in open court:

Before we begin, I do have an administrative issue to take up. Juror [J.F.], juror number 230, we were able to reach him at 9:30, and he indicated he was getting dressed to come down. The Court is not going to delay this process any more. For the record, the Court has ordered that [J.F.] be taken into custody, and he will be held in contempt of court.

Then, for the benefit of everyone who did make it on time, he added: “To those folks who were late, please understand that we try to begin as on time as possible, and if you are late, you hold up the process, as well as your fellow jurors.”

Message received, maybe a little too well.

When prospective jurors were later questioned individually, at least two made clear what lesson they’d taken away. One, asked about his unwillingness to recommend the death penalty, wanted to know, “Will I be charged or thrown in jail?” Another, asked whether he’d consider mitigating evidence, said, “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.”

Sotomayor didn’t mince words:

The record here amply demonstrates how a judge’s conduct can have a profoundly negative impact on members of the jury pool. 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.

Sotomayor concurred with the denial of cert noting that Mulkey’s trial lawyers didn’t object when the potential juror was hauled off.

Listen, everyone who has ever spent a morning in a jury assembly room already suspected jury duty was a form of detention, but Judge May took it too far.