Opposition Brief — California v. Harris

oO

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1984

No. 84-265

STATE OF CALIFORNIA,

Petitioner,

ve

LEE EDWARD HARRIS,

Respondent.

On Petition for a Writ of Certiorari

to the Supreme Court of the

State of California

RESPONDENT'S BRIEF IN OPPOSITION and

MOTION TO PROCEED IN FORMA PAUPERIS

FRANK O, BELL, JR.

State Public Defender

DONALD L.A. KERSON

Deputy State Public Defender

107 South Broadway, Suite 9111

Los Angeles, California 90012

Telephone: (213) 620-5447

Attorneys for Respondent

TABLE OF CONTENTS

Page

RESPONDENT'S BRIEF IN OPPOSITION 1

l. Petitioner Waived Presentation

of Rebuttal Evidence 3

2. The Opinion Below Deals With

Matters of State Procedure 5

3. The Federal Rights Asserted By

Petitioner Were Not Timely

Raised Below 10

4. Conclusion 12

APPENDIX 13-20

MOTION TO PROCEED IN FORMA PAUPERIS 21

AFFIDAVIT OF DONALD L.A. KERSON 22

AFFIDAVIT OF LEE EDWARD HARRIS 24

CERTIFICATE OF SERVICE 25

' TABLE OF AUTHORITIES

Cases

Atherton v. Sup. San Mateo Co.

(1874) 48 Cal. 157

Cardinale v. Louisiana

(1969) 394 U.S. 437; 22 L.Ed.2d 398

Castaneda v. Partida

(1977) 430 U.S. 482; 51 L.Ed.2d 498

Chandler v. Florida

(1981) 449 U.S. 560; 66 L.Ed.2d 740

County of Imperial v. McDougal

(1977) 19 Cal.3d 505; 138 Cal.Rptr. 472

Davis v. Zant

(llth Cir. 1983} 721 F.2d 1478

Duren v. Missouri

(1979) 439 U.S. 357; 58 L.Ed.2d 579

Eddings v. Oklahoma

(1982) 455 U.S. 104; 71 L.Ed.2d 1

Exxon Corp. v. Eagerton

(1983) U.S. ; 76 L.Ed.2d 497

Hanson v. Denckla

(1958) 357 U.S. 235; 2 L.Ed.2d 1263

Herndon v. Georgia

(1935) 295 U.S. 441; 79 L.Ed. 1530

Leland v. Oregon

(1952) 343 U.S. 790; 96 L.Ed. 1302

Miche’ v. Louisiana

(1956) 350 U.S. 91; 100 L.Ed. 83

Morrison v. California

(1934) 291 U.S. 862; 78 L.Ed. 664

Murel v. Baltimore City of Criminal Court

(1972) 407 U.S. 355; 32 L.Ed.2d 791

Patterson v. New York

(1977) 432 U.S. 197; 53 L.Ed.2d 261

People v. Harris

(1984) 36 Cal.3d 36

People v. Jones

(1984) 151 Cal.App.3d 1029; 199 Cal.Rptr. 1865

ii

Page

1l

12

12

11

11

10

TABLE OF AUTHORITIES (Cont'd)

Cases

People v. Sirhan

(1972) 7 Cal.3d 710; 102 Cal.Rptr. 385

Speiser v. Randall

(1958) 357 U.S. 513; 2 L.Ed.2d 1460

Spencer v. Texas

(1967) 385 U.S. 554; 17 L.Ed.2d 606

State v. Gretzlar

(Ariz. 1980) 126 Ariz. 60; 612 P.2d 1023

Tarrance v. Florida

(1903) 188 U.S. 519; 47 L.Ed. 572

Taylor v. Louisiana

(1975) 419 U.S. 522; 42 L.Ed.2d 690

Texas Dept. of Community Affairs v. Burdine

(1981) 450 U.S. 2486; 67 L.Ed.2d 207

Webb v. Webb

(1981) 451 U.S. 493; 68 L.Ed.2d 392

Williams v. Georgia

(1955) 349 U.S. 375; 99 L.Ed. 1161

Statutes

Cal. Code Civ. Proc., §§ 203

204.7

286 U.S.C. § 1257

Constitutions

U.S. Const., Amend, VI

U.S. Const., Amend, XIV

Rules of Court

U.S. Sup. Ct. Rule 21.1(h), 28 U.S.C.A.

Texts and Others

Stern & Gressman (5th ed. 1978) Supreme Court

Practice, p. 221

9 Wigmore, Evidence (Chad. Rev. 1981),

pp. 292-297

Page

3,4,5,10

10

1,2,6

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IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1984

No. 84-265

STATE OF CALIFORNIA,

Petitioner,

Vv.

LEE EDWARD HARRIS,

Respondent.

RESPONDENT'S BRIEF IN OPPOSITION

There are at least four reasons why certiorari

should be denied in this case. First, and probably most

critical, is the fragmented and incomplete record which does

not lend itself to an intelligent discussion of the Sixth

Amendment issues, The record is replete with "procedural

snarls" and “evidentiary gaps" because the State abdicated

its responsibility to come forward with controverting

evidence. Petitioner waived its opportunity to present

evidence, not because of any reliance on the trial court's

ruling (as suggested in the Petition for Certiorari), but

because of a prosecutor's myopic and misinformed reading of

existent law.

//

//

Second, this case is fundamentally about state

evidence law. The California Supreme Court reacted to a

a one-sided and incomplete record with a decision on the

law of evidentiary burdens. The court's opinion is impor-

tant not to Sixth Amendment scholars, but to California

lawyers concerned with when the burden of going forward with

the evidence shifts from one party to the other.

Third, this Court's jurisdiction under 28 USC §

1257 is questionable since the federal rights asserted in

the petition were never “raised, preserved, or passed upon

in the state courts below." The request for an evidentiary

remand was not made until the petition for rehearing.

Even then it was argued as a question of statutory law.

Petitioner never informed the state court that federal

rights were at stake.

Fourth, respondent is scheduled to appear for trial

on September 20. His jury will then be chosen from multiple

lists according to a new statute which specifically remedies

1/

the challenge made below.~

In short, this case does not present the Sixth

Amendment issues "in a manner that warrants the exercise of

the certiorari jurisdiction of this Court." (Murel v.

Baltimore City Criminal Court (1972) 407 .S. 355, 357,

32 L.E.2d 791.)

//

1. California Code of Civil Procedure section 204.7 has

been amended to provide for the selection of jurors from

registered voter and motor vehicle lists when the latter can

be added without significant cost. The statute is repro-

duced in the appendix to this brief at page 20.

1. Petitioner Waived Presentation

of Rebuttal Evidence

Petitioner paints a picture of the State lulled

into not presenting rebuttal evidence by reliance on

the trial court's ruling that respondent had not made a

prima facie case, and then being “blind-sided” by a revolu-

tionary California Supreme Court which radically departed

from "all existing authority." (Pet. Cert. pp. 22, 24.)

This portrait bears little resemblance to the record.

Petitioner never intended to meet respondent's case

with evidence. From the very beginning the prosecutor saw

this as a settled legal matter, rather than an open eviden-

tiary question. Through a misreading of California law he

believed that the selection of jurors solely from voter

registration lists was constitutionally valid no matter what |

evidence might be presented. “The People's position is

quite simple,” he told the court, the selection of jurors

from voter registration lists “satisfies the law."

The prosecutor was willing "to stipulate to any

evidence [respondent] wishes to present regarding

demography, population, ethnic variances ... [because]

once the evidence that the juror rolls are drawn at random

from registered voters is before the Court, that that wil)

- « « Satisfy the law as the People believe it exists under

certain cases that I will cite to the Court... ."

The California Supreme Court opinion in the Sirhan

case, according to the prosecutor, was “controlling in this

//

//

case," and established that the selection of jurors solely

from registered voter lists was constitutional per ae.*

Relying on this mistaken reading of Sirhan the

prosecutor was content to quibble with respondent's evidence

-- the census data was too old, the surveys were not long

enough, disparities were not calculated correctly and total

population figures had to be reduced to sets of jury

silethics.”

Petitioner offered no evidence that respondent's

data was inaccurate. Petitioner presented no evidence that

the statistical refinements it wanted would make any consti-

tutional difference. Petitioner offered no testimony

suggesting that the disparities respondent proved were

caused by something other than the jury selection system

itself. And petitioner presented no evidence of any com-

pelling state interest that would justify these disparities.

//

//

//

2. People v. Sirhan (1972) 7 Cal.3d 710, 102 Cal.Rptr.

385. The prosecutor's opening and closing arguments are

appended hereto at pp. 13-18.

3. For some unarticulated reason, both sides tried the

case on the assumption that the jury had to be represen-

tative of the entire country rather than of a 20 mile

radius around the courthouse which may be the California

law. (See People v. Harris (1984) 36 Cal.3d 36, 48 and Code

of.Civ. Proc., 203, reproduced below at page 20.)

2. The Opinion Below Deals With

Matters of State Procedure

On appeal to the California Supreme Court, peti-

tioner continued to argue that the use of voter registration

lists was constitutionally sacrosanct, again citing Sirhan.

The court responded that it had never said such a method of

selecting jurors was unassailable and pointed to language in

Sirhan that clearly foreshadowed the holding now under

review:

"In Sirhan, however, this court held that ‘[t]he

use of voter registration lists as the sole

source of jurors is not constitutionally invalid

[citations], at least in the absence of a showing

that the use of those lists resulted "in the

systematic exclusion of a ‘cognizable group or

Class of qualified citizens'" [citations], or

that there was “discrimination in the compiling

of such voter registration lists.” [Citations.]'

(Id., at pp. 749-750.) However, it is exactly

the requirement of Sirhan regarding exclusion of

a cognizable group that defendant has attempted

to Show (36 Cal.3d at p. 57, emphasis added.)

It never has been the law that voter registration

lists are unassailable. Even the authorities cited by peti-

tioner recognize this.” Attacks on voter registration lists

have been going on for years, but have uniformly failed

because either the defendants presented no proof (e.g.,

Sirhan) or because the state had come forward with con-

vincing rebuttal evidence.

4. Davis v. Zant (llth Cir. 1963) 721 F.2d 1478, 1484:

Although “courts have sanctioned the use of voter registra-

tion lists as the sole means of jury selection... the use

of such lists does not establish as a conclusive fact that a

true cross-section of the community is being drawn."

State v. Gretzlar (Ariz. 1980) 126 Ariz. 60, 612 P.24

1023, 1040: "The use of voter registration lists as a sole |

source of jurors is not constitutionally infirm absent a

showing of systematic exclusion in the compiling of such

lists."

It is respondent's uncontroverted proof that makes

this case unique. What the California Supreme Court did was

5/

to apply principles settled by Duren and Taylor to a case

where “the state has not attempted to rebut the defendant's

proof but has shortsightedly rested its entire argument on

the mistaken claim that defendant failed to present a prima

facie case." (Harris, 36 Cal.3d at p..59, emphasis added.)

The opinion below expresses no novel Sixth

Amendment doctrine. It is concerned with California rules

ef evidence. The court saw the “fundamental” question in the

case as being which party had the burden of refining the

Statistical studies to show that a “more narrowly defined

population would or would not result in a disparity of

constitutional significance." (Harris, 36 Cal.3d at p. 45.)

This was answered by a classic Wigmorian analysis of eviden-

6/

tiary burdens. After looking to the difficulty and expense

of obtaining the data petitioner claimed is important, and

after balancing the parties' opportunity for knowledge, the

Court shifted the burden of refinement to petitioner. The

ultimate burden of persuasion (on whether the Sixth

Amendment has been violated) remained untouched; the court

held only that respondent had presented enough evidence to

shift the burden of going forward to petitioner.

In fact the treatment of the burden of production

issue by the California Supreme Court was not all that

//

5. Duren v. Missouri (1979) 439 U.S. 357, 58 L.E.2d

579; Taylor v. Louisiana (1975) 419 U.S. 522, 42 L.Ed.2d 690.

6. .9 Wigmore, Evidence (Chad. Rev. 1981), pp. 292-297.

different from that of this Court in Texas Dept. of Community

Affairs v. Burdine (1981) 450 U.S. 248, 253-255, 67 L.£d.24d

207.) But whether different or not, whether wise or noc, the

decision below is concerned with matters of state evidence law

and is beyond this Court's certiorari jurisdiction.

Without question it is within the power of California

to regulate its own legal procedures “including the

burden of producing evidence and the burden of persuasion,”

(Speiser v. Randall (1958) 357 U.S. 513, 523, 2 L.Ed.2d

1460.) This Court has recognized that allocation of the

evidentiary burden of production is “an important prodecural

Gevice" retained by the States, so they can fairly and expedi-

tiously regulate the course of trials. (Patterson v. New

York (1977) 432 U.S. 197, 230, fn. 9, 53 L.£d.2d 261.)

Pederal rights are litigated through the medium of

state procedural laws. Within certain broad limits states are

free to experiment with their own procedural and evidentiary

Gevices. (Williams v. Georgia (1955) 349 U.S. 375, 382, 99

L.2d. 1161; Chandler v. Florida (1981) 449 U.S. 560, 562, 66

L.£4.24 740.) State rules on how and when to challenge a

jury venire have been upheld by this Court as valid exer-

cises of state power. And if states can assign the burden

of persuasion to one party or the other, surely no federal

issue is raised by a fair and rational allocation of an

//

//

//

7. Tarrance v. Florida (1903) 166 U.S. 519,

47 L.e4. 572; Aichel v. Loulsiana (1956) 350 U.S. 91,

100 L.ed. 83.

~~ ~

6/

intermediate burden of production. This Court has even

dismissed, for want of a substantial federal question, a

petition raising the constututionality of a statute allo-

cating the burden of production.

The opinion below stands for the proposition, often

stated here, that a prima facie case cannot be met by

“mere suggestions or assertions," and that the burden of

production calls for admissible evidence, not "argument of

counsel.” (Duren, 439 U.S. at p. 369; Burdine, 450 U.S.

at p. 254, fn. 9.) The court's holding is rejeat «sy limited

to the key fact in this case -- the absence of any rebuttal

10/

evidence. The opinion leaves open, for prosecution proof,

the many ways in which the single source use of voter lists

can be upheld. Por example, disparities might be reduced to

constitutional limits by showing that the jury was represen-

tative of the 20 mile area around the courthouse rather

than of the county at large. Or perhaps a longer survey at

the courthouse door would reveal a better ethnic mix. Or

perhaps the state could come forward with evidence showing

8. Leland v. Oregon (1952) 343 U.S. 790, 96 L.Bd 1302;

see also, Patterson ¥. Tew York (1977) 432 U.8. 197,

53 L.£4.26 e

9. Morrison v. California (1933) 266 U.S. 591, 77

L.£6. 970, Alscussed In Patterson v. New York, supra, 432

U.S. 197, 230, fn. 9, 53 D.2d.7d 261 and Morrison v.

California (1934) 291 U.S. 62, 76 L.ed. 664,

10. “In this case, defendant has made a showing adequate

to demonstrate, in the absence of rebuttal evidence by the

etate « « «..*

"In the present case, however, the state has not

attempted to rebut the defendant's proof but has short-

sightedly rested its entire argument on the mistaken claim

that defendant failed to present a prima facie case." (36

Cal.34 at p. 59, emphasis added.)

there is no significant disparity when minority group eli-

gibles are counted instead of total populations.

The opinion also leaves room for the state to demon-

strate that the disparities are not inherently caused by choosing

jurors solely from voter registration lists. The prosecutor

might show that the underrepresentation does not occur until

after the initial drawing is made, perhaps, for example,

because Blacks and Hispanics do not mail back the original

questionnaire with the same frequency as other ethnic

groups. Or that the disparities are caused by statutory

qualifications (such as language proficiency) or exemptions

(such as hardship) which might fall differently on different

ethnic grouse.”

And finally, the prosecution might show that any

disparity is justified by compelling state interests.

That is not an insurmountable burden. In a recent

California case the prosecutor came forward with evidence of

"explanation and justification" and established that the

county was “doing all that reasonably could be expected to

achieve the constitutional goal.” (People v. Jones (1964)

151 Cal.App.34 1029, 199 Cal.Rptr. 165, 1867.)

The decision below was a legitimate response to a

local problem -- at what point during the proof of a

controverted fact does the burden of producing evidence

shift to the opposing party? This is a matter of

state evidence law which need not, and in our federal

System, cannot, be of concern here. “It would be a wholly

ll. The California statutes on juror qualifications and

exemptions are appended hereto at page 19.

TSS A a er ee ae oe

unjustifiable encroachment by this Court upon the constitu-

tional power of States to promulgate their own rules of

evidence to try their own state-created crimes in their own

state courts, so long as their rules are not prohibited by

any provision of the United States Constitution, which these

rules are not." (Spencer v. Texas (1967) 385 U.S. 554,

568-569, 17 L.Ed.2d 606.)

3. The Federal Rights Asserted By

Petitioner Were Not Timely

Raised Below

This Court has “consistently refused” to decide

federal issues raised for the first time in a

petition for certiorari. (Webb v. Webb (1981) 451 U.S 493,

499, 68 L.Ed.2d 392; 28 U.S.C. § 1257.) It is equally

established that “the attempt to raise a federal question

after judgment, upon a petition for rehearing, comes too late,

+ « « «” (Herndon v. Geogia (1935) 295 U.S. 441, 443;

12

79 L.Ed. 1530. )=/

Petitioner did not request an evidentiary remand

until the petition for rehearing. This could have been

advanced in earlier briefs as an alternative form of relief,

3°. bat was not. The presumption now is that the request was

7 ;

: denied under a long established California rule that a party

ee * will not be heard “to suggest upon petition for rehearing,

+ ner

* that, after all, there are questions of fact which [it]

,

“tm 12. This is not a case where a state court ruling was

y he so unanticipated that the federal question could only have

any % “iad been raised on rehearing. As discussed above, the result in

5 this case was clearly foreshadowed by Sirhan. Petitioner

‘a Be -" Zwas bound to have known this and cannot claim surprise. Stern &

~~ *“Gressman (Sth ed. 1978) Supreme Court Practice, p. 221.

, P

E 10

BEST AVAILABLE COPY

me eee

desires to have determined, and upon which [it] might have

relied, had [it] chosen to do so." (Atherton v. Sup. San

Mateo Co, (18674) 48 Cal. 157, 160; County of Imperial v,

McDougal (1977) 19 Cal.3d 505, 513, 138 Cal.Rptr. 472.)

Even if the petition for rehearing was a timely

assertion of the State's constitutional rights, it was not

done with the specificity required to invoke this Court's

jurisdiction. The petition for rehearing asks for a remand

13/

It does not even contain a

14/

under a state statute only.

hint that any federal rights are being asserted. While

this Court's jurisdiction may “not depend on citation to

book and verse" (Eddings v. Oklahoma (1982) 455 U.S. 104,

113, fn. 9, 71 L.2d.2d 1) it at least requires that the

state court be “apprised of the nature or substance of the

federal claim... ." ("ebb v. Webb (1981) 451 U.S. 493,

501.) The California court was never told that its decision

to reverse without an evidentiary remand implicated federal

rights. On this record the assumption must be that

petitioner's Duren/Fourteenth Amendment claim was not passed

on *'due to want of proper presentation in the state

courts.'" (Exxon Corp. v. Eagerton (1983) U.S. __.

76 L.Ed.2d 497, 504, fn. 3; Hanson v. Denckla (1958) 357 U.S.

235, 243, 2 L.£d.2d 12863.)

The Petition for a Writ of Certiorari should be

13. The Petition for Rehearing remand argument is

reproduced in the Petition for a Writ of Certiorari at

pages 139-149.

14. Since the federal rights were not raised below, there

has been a concomitant failure to comply with Rule 21.1(h)'s

requirement that the petition contain “such pertinent quota-

tion of specific portions of the record... as will show

that the federal question was timely and properly raised."

1l

denied because the federal rights asserted were never

"raised, preserved, or passed upon in the state courts

below.” (Cardinale v. Louisiana (1969) 394 U.S 437, 4386,

22 L.£d.2d 398.)

4. Conclusion

"The State offered no evidence at all either

attacking respondent's allegations of [constitutional

disparity] or demonstrating that his statistics were unre-

liable in any way... In light of the State's abdication of

its responsibility to introduce controverting evidence...

respondent was entitled to prevail.” (Casteneda v. Partida

(1977) 430 U.S. 4862, 468, 492, 51 L.£d.2d 498.)

Respondent respectfully prays that the Petition for

Writ of Certiorari be denied.

Dated this 14th day of September 1964, at

Los Angeles, California.

Respectfully submitted,

FRANK O. BELL, JR.

State Public Defender

or Dated Vt (C$

Deputy State Public Defender

Attorneys for Respondent

12

DEPARTMENT SOUTH C

LONG BEACH, CALIFORNIA, THURSDAY, APRIL 17, 1980; 10:10 A.M.

APPEARANCES:

The defendant with his counsel, DENNIS W. CARROLL,

Deputy Public Defender of Los Angeles County;

KURT S. SEIFERT, Deputy District Attorney of

Los Angeles County, representing the People of the

State of California.

"MR. SEIFERT: The People's position is

quite simple. We feel that the selection of

registered voters drawn at random by the

registrar from the registrar of voters rolls by

the jury commissioner satisfies the law as it

exists today and we are in a position to stipu-

late to any evidence counsel wishes to present

regarding demography, population, ethnic varian-

ces over the area of this judicial district or

anything of that, in that regard that he con-

siders forms a basis for the challenge.

"We will basically submit that once the evi-

dence that the juror rolls are drawn at random

from registered voters is before the Court, that

that will satisfy the requirements of Code of

Civil Procedure Sections 204, et seq. and will

satisfy the law as the People believe it exists

under certain cases that I will cite to the Court

at the appropriate time.

“We are willing to stipulate with counsel to

any evidence of demography, that is, population,

ethnic balances or numbers of various groups

within the judicial district if that is within

his evidence, he wishes to present. Our position

is that the method that is used now that will be

subject of stipulation is a fair one and does not

fly in the face of the defendant's right to a

fair trial and of a fair cross section of the

community represented upon the jury that he will

be afforded in this particular case.

"So I am willing to basically stipulate with

counsel] the contents of all the evidentiary mat-

ters in the former motion that was presented. It

is a considerable number of pages of testimony, I

believe several hundred, at least, and supple-

mented, I understand, by Mr. Butler's testimony

this afternoon as to the specifics of the

demography and populativun complexion, if you

will, of the Long Beach Judicial District.

13

HON. D. STERRY FAGAN, JUDGE

"All of those things I am willing to stipu-

late to and I believe that based on the cases of

Rubio vs. Superior Court, Adams vs. Superior

Court and People vs. Sirhan that the defendant in

the brief written notice he has given has laid

out at least the prima facie grounds upon which

he can challenge the jury, but I don't feel fac-

tually he will be able to carry forward his

challenge. I will be willing to stipulate to

most anything." (RT 306-307).

14

LONG BEACH, CALIFORNIA; TUESDAY, APRIL 22, 1980; 1:35 P.M.

DEPARTMENT SOUTH C HON. D. STERRY FAGAN, JUDGE

(Appearances as heretofore noted.)

"MR. SEIFERT: All right. I must take issue

with the basic foundation upon which the defense,

if you will, house of cards is built in that the

defendant would argue apparently that he and his

witnesses and evidence have made out a prima

facie case of discrimination, I suggest the evi-

dence is not conducive to that conclusion and

does not lead to that conclusion because the

nature of the evidence itself, as I attempted to

focus, at least in part on the cross-examination

of Dr. Butler, shows this Court, I think, clearly

that his figures and facts are as specuictive as

his conclusion that all Spanish-surnamed pe: sons

in California are citizens. Such a preposterous

statement and assumption by a demographer, whose

sworn obligation as a witness is to present

reliable information to this Court, flies in the

face of reason and shows that Dr. Butler is

closing his eyes to certain realities that

everyone in this community is confronting. And

that is the great deal of influx of illegal aliens

of Spanish descent into our community, which

is a large problem, not one that can be ignored

by the mere assumption that all Spanish-surnamed

persons are citizens for purposes of his statistics.

"His evidence that he presents is also spe-

culative in that it does not get to the heart of

the matter. The Supreme Court of the United

States has never indicated to this day that a jury

venire must mirror the ethnic balance, if you

will, in the community but merely has indicated

that it must reflect a fair cross section.

That's totally different than a mirror. And the

California Supreme Court and the appellate courts

in California have consistently held that a

review of the demographic makeup of the people of

the community cannot be taken from the people as a

whole but must reflect the eligible jurors in the

community and how they stack up against the jury

venire, And particularly in the case of Adams

vs. Superior Court, 27 Cal.App.3d 719, the Court

discusses the difference between a challenge of

discrimination versus statistics from the entire

community versus a more reliable challenge based

on the statistics reflecting the makeup of the

eligible jury or juror population. And the Court

concludes clearly that a much greater disparity

between the population as a whole and the jury

venire will be permitted because it is assumed

that there are many more people than are eligible

for jury service. And all of the questions on

15

cross-examination that I attempted to get answers

to from Dr, Butler focused on the very fundamen-

tal issue, does his survey or any survey he is

aware of focus on the eligible juror population

as the measure against which we compare the

jury venire? And the answer was a resounding no

in that Dr. Butler concluded that there was no

available source material to determine eligible

juror population, but he did concede that the

only possible source of statistical information

that would lead to likely eligible jurors was the

list of registered voters, which both statu-

torily is called for as the basis for the jury

venire in the Code of Civil Procedure, Section

214, and also that defines the qualifications for

jurors and, further, that has been approved as

the single source of jurors and is constitutional

under the following cases: People vs. Sirhan,

7 Cal.3d 710; People vs. Waw, W-a-w, 74

Cal.App.3d 633; People vs. Cabral, C-a-b-r-a-1l,

51 Cal.App.3d, page 707; People vs. Breckenridge,

52 Cal.App.3d 913; and People vs. Newton, N-e-w-

t-o-n, at & Cal.App.2d 359. All of those cases

have concluded that the statutory permission to

use the jury list as the single source of jurors

is constitutionally valid.

"I think the prime point by the defense is

it is premature in many aspects and speculative

in many. It is speculative in the updating of a

ten-year-old census, which is not reliable in the

first place as a factual basis upon which to

conclude the present population makeup, and

further it is speculative in that it doesn’t

divide its inquiry into looking at the eligible

juror population versus the many, many ineligible

aliens, the many, many people who do not speak

English, the many, many people who are infirm or

unqualified as jurors for other reasons, for

many, many people who have been convicted of

felonies and would not be eligible for jury ser-

vice, and all of the other persons who, for other

reasons, would not be eligible for jury service.

So in looking at the population as a whole, we

get an unfair and a distorted picture as to who

could be a juror, if they wanted to, and I

suggest that the evidence of the defense is

largely speculative because of that particular

area of their inquiry, looking at the population

as a whole.

"I don't think, and I think the Court will

be forced to agree, in reviewing the evidence

submitted by virtue of these various documents

that the defense has made out a prima facie case

of the type of invidious discrimination that is

required in the Supreme Court cases cited before

the system of selection of jurors, either grand

jurors or petit jurors, is thrown out as

//

unconstitutional and discriminating. I will

quote from Taylor vs. Louisiana, at 419 U.S. 522.

The law edition cite is 42 Law Edition 2d 690.

And the law says there at page 702 of the law

edition report, and I quote, ‘The fair cross sec-

tion principle must have much leeway in applica-

tion, The states remain free to prescribe

relevant qualifications for their jurors and to

provide reasonable exemptions, so long as it may

be fairly said that the jury lists or panels are

representative of the community.'

"we have the evidence of the defendant's own

expert, who, in his opinion, stated in answer to

three separate questions on cross-examination

that he assumes that the juror rolls, par-

ticularly those in Long Beach, are comprised of a

fair cross section of the registered voters in

the community. He cannot point to any discrimi-

nation by virtue of any invidious criteria such

as race, creed, color, sex, age, income or any

other criteria that indicates to him that jurors

are excluded because of any of those reasons.

He's told us, and the evidence submitted by sti-

pulation also substantiates, that jurors are cho-

sen completely at random, without regard to any

illegal critera and are only excused upon a

showing of good cause that they must bring for-

ward, not automatically excused, as was the case

in Duren vs, Missouri, cited in the various

papers presented to Your Honor.

"We have a situation here where the People

of the State of California and all public agen-

cies are making a conscientious effort to draw

more and more people into those rolls of

registered voters. It is quite clear that there

is an ongoing public relations campaign to get

everyone who is eligible to vote to get out and do

so, to make themselves a part of the system, if

you will, to get them involved in the processes

of government and particularly jury service and

voting. :

"It would appear then that the basic

challenge, if there is one, that counsel, through

his witnesses, is pointing to is that our law

discriminates against unregistered voters, if

anything, because those are the people or all of

those people who are unregistered voters are not

brought into the jury venire selection pool. And

in order to establish that that is of constitu-

tional dimension, it is required under the cases

of Castaneda vs. Partida, and all of the other

cases cited to the Court in the submitted docu-

ments that the discrimination must be against,

quote, a cognizable group, unquote.

17

|

}

"Adams vs. Superior Court, which is

controlling in this particular case, states, and

I will quote - I am sorry. It is People vs.

Sirhan, at 7 Cal.3d 710. The California Supreme

Court has stated that those who do not choose to

register to vote cannot be considered a cogni-

zable group within the meaning of those cases

cited. And that is at page 750 of the Court's

opinion, which begins at page 710. So if the

statistics, if the testimony of Dr. Butler has

any meaning at all, what he is telling us is we

are not including within the jury venire people

who are not registered voters. The California

Supreme Court tells us that is not a cognizable

group within the constitutional definition of

that phrase by the U.S. Supreme Court. Further,

the statistics are meaningless, since they don't

cover the eligible juror population, as compared

to all people physically located in the, quote,

community, end of quote. I think counsel's evi-

dence and all that submitted falls short of a

viable challenge to our system. And the fact of

the system changing, according to Dr. Butler, to

include DMV registrants in the pool does not

render this system today violative of the consti-

tutional protection of this defendant to a fair

trial by a jury that's a representative cross

section of the community. And the evidence would

be apparently, according to Dr. Butler, that the

jury does represent an eligible cross section of

the community in that the eligible jurors are

chosen from the registered voters who are all

required to be citizens and otherwise apparently

eligible for jury service under the definitions.

I submit it." (RT 433-438.)

* * * * * »

18

Code of Civil Procedure section 198:

“A person is competent to act as juror if he

or she is:

"1. A citizen of the United States of the

age of 18 years who meets the residency require-

ments of electors of this state;

"2. In possession of his or her natural

faculties and or ordinary intelligence, provided

that no person shall be deemed incompetent solely

because of the loss of sight or hearing in any

degree or other disability which substantially

impairs or interferes with the person's mobility;

and

"3. Possessed of sufficient knowledge of the

English language.

Code of Civil Procedure section 199:

"A person is not competent to act as a trial

juror if any of the following apply:

"(a) The person does not possess the quali-

fications prescribed by Section 198.

"(b) The person has been convicted of

malfeasance in office or any felony or other high

crime.

*(c) The person is serving as a grand juror

in any court of this state."

Code of Civil Procedure section 200:

"The court shall excuse a person from jury

service upon finding that the jury service would

entail undue hardship on the person or the public

served by the person."

* * * * * *

19

Code of Civil Procedure section 203:

“Zach court shall adopt rules supplementary

to such rules as may be adopted by the Judicial

Council, governing the selection of persons to be

listed as available for service as trial jurors.

The persons so listed shall be fairly represen-

tative of the population in the area served by

the court, and shall be selected upon a random

basis. Such rules shall govern the duties of the

court and its attaches in the production and use

of the juror lists. In counties with more than

one court location, the rules shall reasonably

minimize the distance traveled by jurors. In

addition, in the County of Los Angeles no jurcr

shall be required to serve at a distance grea’

than 20 miles from his or her residence."

Code of Civil Procedure section 204.7 (in part):

"(a) Source lists of jurors shall identify

persons who reside in the county, and who are 18

years of age or older, shall include those who

are registered voters, and to the extent that

systems for producing jury lists can be prac-

tically modified, without significant cost, shall

also include those who have been licensed or

issued an identification card pursuant to Article

3 (commencing with Section 12800) and Article 5

(commencing with section 13000) of Chapter 1 of

Division 6 of the Vehicle Code. Qualified jury

lists and master jury lists derived from the

source lists shall be prepared so as to reason-

ably minimize duplication of names.”

as * * * ® *

20

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1964

No. 84-265

STATE OF CALIFORNIA,

Petitioner,

Vv.

LEE EDWARD HARRIS,

Respondent.

On Petition for a Writ of Certiorari

to the Supreme Court of the

State of California

MOTION TO PROCEED IN FORMA PAUPERIS

Respondent, LEE EDWARD HARRIS, by his undersigned

counsel, asks leave to file the attached Brief in Opposition

without prepayment of costs and to proceed in forma pauperis

pursuant to rule 46. Counsel has not yet received an affi-

davit from respondent, who is presently incarcerated and

awaiting trial in Long Beach, California. Mr. Harris’ affi-

Gavit in support of this motion will be forwarded to this

Court immediately upon receipt.

perry |

D L.A. KERSON

Deputy State Public Defender

Attorney for Respondent

21

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1964

No. 84-265

STATE OF CALIFORNIA,

Petitioner,

~against- $ APPIDAVIT

LEE EDWARD HARRIS,

Respondent.

STATE OF CALIFORNIA )

COUNTY OF LOS ANGELES) s.6.:

DONALD L.A. KERSON, being duly sworn, states:

1. I am a Deputy State Public Defender and counsel

to LEE EDWARD HARRIS in California v. Harris, now pending in

this Court on petition for writ of certiorari. I make this

affidavit in support of Mr. Harris’ motion for leave to

proceed in forma pauperis.

2. Mr. Harris is presently in the custody of the

State of California and is not immediately available to sign

an in forma pauperis affidavit. Such an affidavit has been

sent to Mr. Harris by me and will be forwarded to this Court

immediately upon receipt. A copy of the affidavit to be

signed by Mr. Harris is attached hereto.

3. Counsel was appointed to represent Mr. Harris

at trial, on appeal, and on these post-appeal proceedings.

//

//

22

Se |

4. 1 am informed and believe that because of his

poverty, Mr. Harris is unable to pay the costs of this cause

UY —

DONALD L.A. KERSON

Deputy State Public Defender

or to give security for same.

Sworn to before me this

/3“ day of September 1984.

OMe ff # ~

NOTARY PUBLIC

My commission expires:

ana

GRPECIAL SEAL

ADRIAN K. PANTON

ROTARY PUBUC CAL Onna

PREP a, OFF om

108 AnGtiit COverTy

ity Comemanson Lagees Oct 30 198/

23

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 19864

No. 84-265

STATE OF CALIFORNIA, $

Petitioner,

-~against- $

LEE EDWARD HARRIS,

Respondent. $

I, LEE EDWARD HARRIS, being duly sworn, depose and say,

in support of my motion for leave to proceed without being required

to prepay costs or fees and to proceed in forma pauperis:

1. I am the respondent in the above-entitled case.

2. Because of my poverty I am unable to pay the costs of

said cause; I own no real or personal property; I am presently in-

carcerated, and have been for the past five years; I receive no

income from earnings, and have no cash or checking or savings account.

3. I am unable to give security for said cause.

4. Counsel was appointed to represent me at trial, on

my direct appeal, and on these post-appeal proceedings.

LEE EDWARD HARRIS

STATE OF CALIFORNIA )

COUNTY OF LOS ANGELES) s.s.:

The foregoing affidavit of LEE EDWARD HARRIS was

subscribed and sworn to before me this day of

NOTARY PUBLIC

My commission expires:

24

IN THE

SUPREME COURT OF THE UNITED STATES

No.

STATE OF CALIFORNIA, $

Petitioner, :

-against- $

LEE EDWARD HARRIS,

Respondent.

CERTIFICATE OF SERVICE

I hereby certify that I am a member of the Bar of

the United States Supreme Court and that I have on this date

served a copy of the Brief in Opposition and Motion to

Proceed in Porma Pauperis, by depositing said in the United

States Mail, postage prepaid and properly addressed to

John K. Van De Kamp, Attorney General, John R. Gorey, Esq.,

Deputy Attorney General, Room 800, 3580 Wilshire Boulevard,

Los Angeles, California 90010, and Clerk, California Supreme

Court, 4250 State Building, 455 Golden Gate Avenue,

San Prancisco, California 94102.

All parties required to be served have been served.

Dated this 14th day of September 1984, at Los Angeles,

ea 2

DONALD L.A. KERSON

Deputy State Public Defender

107 South Broadway, Suite 9111

Los Angeles, California 90012

California.

25