California's application to stay, pending disposition of its
petition for certiorari, the California Supreme Court's judgment --
reversing respondent's capital murder conviction and holding that
the trial jury, which was empaneled by the use of a voter
registration list, was not drawn from a fair cross-section of the
community -- is denied. It is doubtful that four Members of this
Court will vote to grant certiorari, since it is questionable that
the State, under state law, had preserved for review the issue
whether the need for efficient jury selection justifies resort to
such neutral lists as voter registration rolls even though they do
not perfectly reflect the proportion of blacks and Hispanics in the
population at large.
JUSTICE REHNQUIST, Circuit Justice.
The State of California requests that I stay, pending action by
this Court on its petition for certiorari, a judgment of the
Supreme Court of California that reversed the capital murder
conviction of respondent. The State wishes this Court to review the
holding of the California court that the jury that tried respondent
was not "drawn from a fair cross-section of the community" as that
phrase is used in Duren v. Missouri, 439 U.
(1979), and other cases.
Respondent was tried in Los Angeles County, which at the time
the jury in his case was empaneled summoned jurors by use of a
voter registration list. The majority of the Supreme Court of
California decided that respondent had produced credible evidence
of substantial disparity between the representation of blacks and
Hispanics on the voter lists, on the one hand, and their
representation in the population at large, on the other. 36 Cal. 3d 36
679 P.2d 433
(1984). That court also concluded that the State had failed to
rebut this evidence.
The State contends that the Supreme Court of California has
misapplied this Court's Duren
decision so as to find a
Page 468 U. S. 1304
violation of the jury cross-section requirement where there is
merely underrepresentation of a cognizable class because of the
failure of class members to register to vote. If I thought this
issue were squarely presented by the State's application, I would
grant a stay, because I think four Members of our Court would
probably vote to grant certiorari to review the issue and, with
California's rule requiring retrial in 60 days, the case would
become moot without a stay. Whether this sort of jury selection
procedure can be described as "systematically" excluding classes
that do not register to vote in proportion to their numbers, and
whether the need for efficient jury selection may not justify
resort to such neutral lists as voter registration rolls even
though they do not perfectly reflect population, see
U.S. at 439 U. S.
-370, are by no means open and shut questions under
The plurality opinion of the Supreme Court of California,
however, says in substance that the State failed to preserve the
second of these two questions in defending against respondent's
appeal. The concurring opinion in that court, on the other hand,
indicates disagreement with this view. While I cannot at this stage
of the proceedings determine even to my own satisfaction which is
the correct view of California law, I think this procedural snarl
is likely to deter some Members of this Court who would wish to
review the substantive issues involved in this case from voting to
grant certiorari. While there appears to be no such procedural
objection to the first of these two questions, I am doubtful that
the "systematic" underrepresentation issue alone would attract
enough votes to grant certiorari.
The State's application is accordingly denied.