The Kentucky Supreme Court heard arguments Thursday over whether a judge can dismiss a jury panel based on its racial makeup.

The hearing stems from a Jefferson County Circuit Court case in which Judge Olu Stevens dismissed a nearly all-white panel of 41 potential jurors at the request of the public defender representing an African-American defendant.

The prosecutor in the case requested the court weigh in on whether Stevens abused his judicial discretion by dismissing the panel.

During arguments on Thursday, Assistant Commonwealth’s Attorney Dorislee Gilbert said defendants don’t have the right “to have someone who looks like you or sounds like you on your jury.”

“What you’re entitled to is a fair jury,” Gilbert said. “If you can’t show that somehow the process unfairly discriminated against people or somehow these people on this particular panel individually can’t be fair to you, then you have not shown that your constitutional rights have not been upheld.”

Courts use state records from voter registration rolls, income tax filings and drivers licenses to populate the pool of citizens selected for jury duty.

Potential jurors are randomly divided between courts before they are whittled down by opposing attorneys in the jury selection process called voir dire.

Cicely Lambert, who represents the public defender’s office, argued that Stevens’ dismissal of the jury panel was reasonable because defendants are entitled to a jury that is racially representative.

“The Supreme Court has said the defendant is entitled to the fair cross-section at all these levels,” Lambert said.

Lambert went on to argue that no one knows if the initial pool of potential jurors is a racially representative cross-section.

“Because Kentucky doesn’t collect any information on juror race, we don’t really know if it was properly constituted or if it was a fair cross-section or not,” she said.

Stevens is currently being investigated by the Kentucky Judicial Conduct Commission for alleged judicial misconduct related to comments he made online about prosecutors.

Stevens has repeatedly clashed with Jefferson Commonwealth’s Attorney Tom Wine over jury diversity.

During questioning, Justice Mary Noble said the racial makeup of jury panels is a “social concern” because “what is fairly selected may not get fair results.” Noble also said there needs to be “reasonable limits” on judicial discretion.

A final ruling in the case will come in a few months.

Ryland Barton is the Managing Editor for Collaboratives.