FRANKFORT, Ky., (WDRB) – Kentucky Supreme Court justices asked - and sometimes seemingly answered - some version of the same question several times on Thursday:

Does a judge have the authority to dismiss a jury if it doesn’t represent a fair cross-section of the community?

The question stems from a Nov. 18, 2014, theft case in which Jefferson Circuit Court Judge Olu Stevens dismissed a 13-member jury because it had no black jurors.

The Jefferson County Commonwealth’s Attorney’s Office and Attorney General asked the high court to look at the issue and see if judges have the authority to dismiss jury panels because of a lack of minorities.

Justices heard arguments for more than an hour, often interrupting the attorneys before they answered one question to ask another. A decision is not expected for months. 

Justice Lisabeth Hughes questioned whether a judge should also consider the gender of a juror. Should a Hispanic defendant have Hispanics on the jury?

“How far do you take this cross section?” Hughes said.

Attorney Cicely Lambert, who represents the public defender’s office, argued that the U.S. Supreme Court has said defendants are entitled to a jury that reflects the racial makeup of the community.

Justice Mary Noble, however, said it would be “impossible” to get a “perfect” cross-section of the community and asked whether Kentucky is going to allow judges to dismiss juries based on the "appearance" of unfairness. 

“It just needs to be fair in how" the jury is randomly chosen, she said.

But Noble also pointed out that studies show black defendants are more harshly punished by all-white juries. 

"What can judges do?" she asked. 

The justices also discussed the lists Kentucky uses to pull names of potential jurors and the importance of ensuring that initial jury pools are racially diverse.

“Everybody needs to redouble their efforts to make sure that people who walk into the (courthouse for jury service) represent a fair cross-section of the community,” Hughes said.

Assistant Jefferson Commonwealth’s Attorney Dorislee Gilbert said defendants have a right to a randomly chosen jury, not jurors who “look” like them.

She said it was "impractical if not impossible" to get a fair representation of all minorities on every jury. 

Stevens has written on Facebook that Commonwealth's Attorney Tom Wine was going to the Kentucky Supreme Court to “protect the right to impanel all-white juries” and that “is not what we need to be in 2015. Do not sit silently. Stand up. Speak up.”

Wine has said his office is not fighting for the right to seat all-white juries but to “preserve the right to juries selected in accordance with the law.”

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