TEST v. UNITED STATES

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Argument of Walter L. Gerash

Chief Justice Warren E. Burger: We'll hear arguments first this morning in 73-5993, Test against the United States.

Mr. Gerash.

Mr. Walter L. Gerash: Mr. Chief Justice and associate justices.

This case involves the plain meaning of the federal Jury Selection and Service Act of 1968, and more specifically with the Section 1867 (d) and (f), which deals with the challenging compliance with selection procedures.

In essence, the issue in this case is, did the federal trial court error when they denied a motion to inspect the master list and the -- rather master and qualified wheel under 28 U.S.C. 1867 (d) upon a timely motion accompanied with a sworn affidavit alleging noncompliance with the Act.

In that, there was a systematic exclusion of Spanish surname persons qualified for jury duty.

There's a subsidiary question which I don't feel it's necessary to reach, but it's implicit in the briefs and that is, is this form of requested relief, statutory relief, under the Act, separate from a constitutional or collateral attack.

And the answer to both questions is yes.

The facts in this case are undisputed prior to the trial of a drug case; counsel filed a motion to dismiss the indictment and a motion to inspect the jury wheels.

And pursuant to the statute, he filed an affidavit of an experience that he had in Boulder, Colorado which is a county, city and county about 20 miles from Denver.

And in that -- he had a case before the state court, and at that time the state law mimicked the federal Jury Selection and Service Act and that it utilized the voting registration list as a basic source list.

And the affidavit that I filed is contained in the appendix in the -- page 15, and in essence without going through the appendix, the conclusion was that this group, that the Spanish surnamed group were underrepresented by over 50%.

Justice Harry A. Blackmun: Mr. Gerash, let me ask for a little help.

In this case and in others where we always have references to people with Spanish surnames, suppose a woman named Perez marries a man named Jones, now their offspring is not a person with a Spanish surname if they follow our system --

Mr. Walter L. Gerash: Well, relying on human nature, it's self-corrective because the opposite sex does the same thing.

And so we -- statistically taking usually take care of that situation.

It cancels one another.

It's really not a problem statistically.

Justice Harry A. Blackmun: Question number two, you motion it seems to me is directed to persons with Spanish surnames and students and blacks using your phrase, and then later, persons under the age of 35.

And then in your affidavit, you speak to Spanish surnames and used under 30 and students and workers.

I wonder whether there's a little inconsistency between the supporting affidavit and the motion.

Mr. Walter L. Gerash: Well, what happened is of course this Court certified the issue to be Spanish surnames and did not certify a age grouping or in this case blacks.

Of course, in this specific case, being denied the list we couldn't make any statistical analysis in the federal District Court.

But the affidavit -- there was testimony by Professor Bargrow from the University of Denver to the effect that these groups were also underrepresented.

But that wasn't -- of course that is not the issue before the Court.

The Court only certified the Spanish surname cognizable group under Hernandez versus Texas.

Justice Harry A. Blackmun: Well I take it then you're saying the inconsistency which I believe is present between your supporting affidavit and the motion is irrelevant because we're only speaking of Spanish surnames here?

Mr. Walter L. Gerash: That's right, Your Honor.

Justice Harry A. Blackmun: And you feel that in response to my first question that the thing balances out?

Mr. Walter L. Gerash: Yes, it does.

Chief Justice Warren E. Burger: You lost me there a little bit Mr. Gerash.

What empirical data is available to show that it balances it out?

Mr. Walter L. Gerash: Well --

Chief Justice Warren E. Burger: Though you're saying that there are as many Spanish people -- people of Spanish origins or Mexican origins who marry non-Spanish names like Jones or Peterson --

Mr. Walter L. Gerash: Right.

Chief Justice Warren E. Burger: -- and vice versa.

Mr. Walter L. Gerash: Right.

Chief Justice Warren E. Burger: Now, how do we know that?

Mr. Walter L. Gerash: Well, there'd been some studies made and however the statisticians and mathematicians do have a error of correction and they take that into consideration.

Chief Justice Warren E. Burger: I don't see how you could do that except by an absolute headcount.

Mr. Walter L. Gerash: Well therefore, it would've been impossible in Hernandez versus Texas, I suppose, to come to the systematic exclusion of constitutional argument.

But I don't know the -- they do if they do, do that in the mathematicians sometimes in cross-examination explain.

Chief Justice Warren E. Burger: Mathematics does not have much of play in marriage problems, does it?

Mr. Walter L. Gerash: No.

Chief Justice Warren E. Burger: You don't marry on a mathematical basis.

Mr. Walter L. Gerash: That's correct.

The --

Chief Justice Warren E. Burger: It's mathematical of this extent that is as many men marry women as women marry men.

Mr. Walter L. Gerash: That's right.

Chief Justice Warren E. Burger: But what does that have to do with antecedents -- ethnic antecedents?

Mr. Walter L. Gerash: The U.S. census met with that problem also and I quote a U.S. census finding of the voting characteristics of persons in the 1968 elections.

And naturally, when they make their random sampling and they go into the homes and count heads, they actually inquire of national intermarriage, and their statistics are balanced accordingly in their census figures.

Chief Justice Warren E. Burger: But it is a sampling only, is it not?

Mr. Walter L. Gerash: Yes, but it projected over statistically hundreds and thousands of persons, it's a pretty good figure.

Of course the amicus brief indicates that Spanish-Americans have been underrepresented even in our census figures.

So theoretically --

Chief Justice Warren E. Burger: Many of them were missed.

Mr. Walter L. Gerash: That's correct.

Now --

Chief Justice Warren E. Burger: The same was true with Negroes and other ethnics groups, was that not true?

Mr. Walter L. Gerash: That's correct.

And, however since blacks, Negroes have Anglo names, it's sometimes very difficult for a poor person to look at 8000 names unless their names -- unless their race is designated in the registration procedure, which it is now under the new Act.

And I feel we have a very good Act and we have a very good self-executing Act and I'd like to deal with that.

Anyhow, the affidavit appears on its face to be okay.

In fact my brother Patton indicates that he's never seen a better affidavit and I have to emphasize that this was a threshold problem, in other words we never got a hearing.

We never had a determination as to whether or not there was a noncompliance with the Act.

We were denied the list outright, and Judge Arraj is an excellent judge, excellent trial judge who have tried many cases before him.

But he stated this on page 24 of the appendix “Well that’s later.

I want to look at the qualified jury list in order to have a hearing, in other words I want a hearing.

You're not going to have a hearing in this case.

If you want to look at the jury list some time, we will hire some extra help.

And if you come down, you can peek at it all you want to but it's not going to be had in this case.

I have told you, we concede that the percentage of jurors that are black or Spanish in surname are not a pro rata percentage that those groups bear to the total population, we concede that, alright?”

That's on the record.

Mr. Gerash “My position is though, if I can show it is so overwhelming, it is a violation of due process, and I can't do it.

I have nothing to go up to the Tenth Circuit if I lose this case to show that it is substantial.”

Justice Potter Stewart: What page are you reading from?

Mr. Walter L. Gerash: Page 24.

Justice Potter Stewart: Of the?

Mr. Walter L. Gerash: Of the appendix.

Justice Potter Stewart: Of the appendix.

Mr. Walter L. Gerash: And the court never ruled on the sufficiency of the affidavit and there was no record on review and we had no hearing.

And fortunately or unfortunately, the defendant was convicted of illegal drug dispensing, and we are here.

The plain meaning of the words, in other words, the words meaning what they say in the appendix of petitioner's brief has laid out the statute that has the declaration of policy.

Chief Justice Warren E. Burger: What page now?

Mr. Walter L. Gerash: Page 1 (a) which would be page 50 of petitioner's brief.

The declaration of policy of the United States is declared to have a random fair cross section of the community, and that there should not be any -- that all jurors should be able to serve regardless of race, color, religion, sex, national origin or economic status.

In fact prior to the Act, one year prior to the Act, the court Fifth Circuit, speaking through Rabinowitz put the key man in his coffin and this Act buried the coffin -- buried the key man in the coffin.

And it was very salutary, one cannot helped being very impressed with our legislators in drafting this Act, and it's a good Act and it has a self-correcting mechanism, and that is if the voter registration list in a specific geographic area do not substantially represent a cross section and it doesn't have to be a mirror, the court, the judicial counsel, the judicial conference of the United States in its rule-making powers and the Chief Judge himself can add new list that would broaden this mirror that is being polished up.

In other words, it's not necessary to have a constitutional attack.

The Act itself is self-purifying.

The common law lawyers in essence shine up the mirror.

They bevel the reflection, and if the reflection is bad, if the reflection doesn't reflect the cross section of the community, then the court may polish up its own mirror, so to say by selecting other lists.

It's a very viable Act, it's a very vital Act and I feel that democratization of the jury, this gift given to us by Magna Carta is very strong now and has a -- will have a very great history in the future.

Chief Justice Warren E. Burger: You're speaking now to the jury wheel, not to a specific jury?

Mr. Walter L. Gerash: I'm speaking about our Act, the federal Act.

Chief Justice Warren E. Burger: Well, you're addressing your remarks to what must be done with the total names going into the jury wheel, not the colored people --

Mr. Walter L. Gerash: Exactly.

Chief Justice Warren E. Burger: -- or who simply who'll go into the box?

Mr. Walter L. Gerash: Exactly.

We're not concerned with the jury, because the jury in fact in this case there were no Chicano's that tried John Test.

However, statistically it would be invalid to say because if the jury doesn't have to, it's invalid.

I was attempting to get at the 8000 names to make a statistically viable analysis and I was denied that right.

Counsel agrees there was error.

However, I'd like to address myself the fact that we feel that this Act has to be read as a whole, because the Act monitors statistics.

The Act enables lawyers both the Government and the defense attorneys in 1867 on page 9 (a) of the plaintiff's, or rather the petitioner's brief wherein it talks about challenging compliance with the selection procedures.

It clearly gives both sides to file motions seven days prior to trial, and it gives them the parties in a case shall be allowed to inspect, reproduce and copy such records of papers at all reasonable times during the preparation and pendency of such a motion.

The Act recognizes that this is an exclusive means by which a person accused of a federal crime, or the Attorney General of the United States or civil party may challenge any jury in that he was not selected in conformity with any of the provisions.

And there're many other provisions.

There are disqualifications.

There are excuses that may reflect perhaps a bias in some manner.

However, the Act specifically delineates that this shall not preclude any other remedies, especially constitutional attacks.

So we claim in this case that not only that we conform to the literally, to the statute, but we alleged the constitutional dimension that we felt that we would be able to prove if we were allowed into the hearing room and took a look at the statistics.

Justice Potter Stewart: The Government seems in large part to agree with you, do they?

Mr. Walter L. Gerash: That's correct.

Justice Potter Stewart: So this is hardly -- the controversy has been considerably reduced since the petition for certiorari was granted?

Mr. Walter L. Gerash: That's correct, that's correct.

And in fact, both parties asked that it be remanded with instructions to allow us to look the list to see if that we hope we’d be proved wrong.

However, there's a little corollary and that is that it seems that the Ninth Circuit and Second Circuit have been requiring the affidavit or the proof, the proof, to have a constitutional dimension which as I read the Act and the history of the Act is really not so.

Justice Potter Stewart: The Government agrees with you in that reading of the Act as I -- well, we'll wait for them.

Mr. Walter L. Gerash: That's right.

Justice Potter Stewart: But, certainly from the brief --

Justice William H. Rehnquist: You don't contend that you're entitled to a new trial if we agree with you, do we?

Mr. Walter L. Gerash: No.

Justice William H. Rehnquist: Or you're just entitled to an examination of the jury lists?

Mr. Walter L. Gerash: Exactly.

And if I prove that there is systematic exclusion, I have a right to new trial with a fresh -- with a panel that perhaps has a better statistical cross section.

We don't want a mirror, as Justice White indicated in the -- one of these cases.

We don't want a mirror.

We just want a -- we want a fair cross section just what the statute calls for, and these things differ -- will differ in every community.

They will differ in the south.

They will differ when people get politically apathetic.

And of course we're not even entertaining the question that could be serious later on, and that is, why should voting be the criteria of serving any jury.

30 million people don't engage in the political processes for whatever reason.

Justice Potter Stewart: This isn't voting.

This is registration voters.

Mr. Walter L. Gerash: Well, the Act says you could use voter registration list or at people voted in the last election.

Of course in Colorado, they are purged if they don't vote in an election.

They don't even -- they're just purged from the list.

Justice Potter Stewart: Does that to miss one election to be purged?

Mr. Walter L. Gerash: That's right.

That's basically -- I would add that the Colorado experience, when the Chief Justice supplemented the list sua sponte, I tested in Fort Morgan in another county and I found it not wanting at all.

It was self-correcting and there was no -- there was inadequate cross section given the defendants, and I was very satisfied.

So, I think this heralds a lot of security and a lot of good predictions with the functioning of our federal Act.

Finally, I'd just like to indicate that the Fifth Circuit seems to be particularly sensitive and particularly sophisticated in this area, and Judge Gwin in his article in 20 Mercer Law Review and in his opinion U.S. versus the De Alba Conrado indicated that there really two different remedies.

There's a constitutional remedy and a statutory remedy.

They're not exclusive, they may overlap.

And he also indicated that based upon his studies that the further democratization of the jury has maximized the jury's greatness and raised it to a new height of dignity.

And I feel that common law lawyers should be given the opportunity to improve the mirror without throwing it out in a constitutional attack, but working with the court personnel and the judges in order to perfect our jury -- federal jury system.

I'd like to save -- if there’s going to be any rebuttal, I'd like to save some time.

Chief Justice Warren E. Burger: Very well.

Mr. Walter L. Gerash: Thank you.

Chief Justice Warren E. Burger: Mr. Patton.

Argument of William L. Patton

Mr. William L. Patton: Mr. Chief Justice and may it please the Court.

The United States finds itself into somewhat unusual position of agreeing with the petitioner on the only issue which we consider to be ripe for review in this case.

That is, it is our position that there is an unqualified right under the Jury Selection Act to inspect the jury lists, and that the District Court denial of petitioner’s motion to inspect in this case was error.

And we do not believe that it can be properly characterized as harmless.

We think there’s an unqualified right to inspect the list because the statute accord such a right.

Section 1867 (f) explicitly states that the party shall be allowed to inspect and copy all records used in the jury selection process, and the jury list are of course such records.

In the legislative history confirms that the statute means exactly what it says.

Moreover, we believe inspection of the list is necessary to an effective utilization of the Act to challenge procedures.

I would like to correct something Mr. Gerash said in his argument.

I have seen better affidavits than Mr. Gerash’ affidavit, but I do say that it is unlikely that counsel to be able to come up with a better affidavit, unless he can see the jury list.

Now, there had been occasional cases which have indicated that the sworn statement, which is required by 1867 (a), is a precondition to inspection.

But we believe those decisions are plainly wrong because 1837 (f) says that you can inspect the list in preparation of a motion under 1867 (a).

Now, under right inspection does not impose an undue administrative burden, and District Court clerk need only maintain a copy of the list available for inspection, and we do not think for an inspection will be used for delay because the time periods imposed by the Act effectively preclude that.

And we do not think there is any substantial risk that inspection will be used for tampering because the sheer number of names on the master and qualified list would effectively preclude that.

We do not have a comprehensive survey of District Courts, but based on informal survey of United States attorneys who we deal with, we believe that most District Courts presently allow inspections.

Now, whether or not the error can be deemed harmless in this case depends on an analysis of the Act.

If the Act is read as being directed solely to prevention of systematic exclusion or purposeful discrimination, then we believe here was harmless because the petitioner sole claim was that the use of registered voter list in Colorado gives rise to a significant under-representation of certain groups, primarily Mexican-Americans or persons with Spanish surnames.

Now, as I will explain in a minute, we don't think the Act can be read in that way, but it does have brought our purposes that if we assume for the moment that it is directed at systematic exclusion, petitioner does not state such a claim.

The federal jury plan contemplates the use of registered voter list as the source for perspective jurors, and the random selection is the method.

And that system is in sharp contrast with the jury procedures that have been founded constitutes systematic exclusion in this Court's decisions.

Those systems, usually involved a source for jurors that was not racially neutral and they involved a subjective selection method, and they produced one of two results.

They either produce a total exclusion of a group such as in Norris against Alabama, where no Negro had served on a grand or petty jury in the memory of living witnesses.

Or they produced a progressive decimation of a class at each stage of the process, such as in Alexander against Louisiana.

That systematic exclusion denies a member of a group an opportunity to participate, and as this Court held in Peters against Kiff, it stigmatizes the class excluded.

Voter list do not exclude anyone.

Any person qualified to vote may simply by registering, obtain the opportunity be considered for jury service.

Now the federal selection system resembles fairly closely the jury selection procedure that was in issue in Brown against Allen, which is reported at 443 United States Reports, involving at Forsyth County North Carolina system.

And there, tax list were used as the source for perspective jurors, and the names were drawn by lot.

And this Court held there was no constitutional violation merely because Negroes were underrepresented in proportion to the numbers in the population, so long as the selection procedures were fair.

Congress could constitutionally had made voter list conclusive, but they did not do so.

And on 18 -- Section 1863 (b) of the Act, Congress provided that the voter list were to be supplemented whenever necessary to foster the policies of 1861, the fair cross section, and 1862, the prevention of discrimination.

Chief Justice Warren E. Burger: And that's what had to be done after the voting age was changed, was it not?

Mr. William L. Patton: Yes, Mr. Chief Justice.

Right after the voting age was changed, the Act was amended requiring two things, the emptying of the wheel and refilling the master list, and now provides that a person 18 years of age is qualified of jury service.

Now, we think a party challenging the voter list and contending that there's an obligation to supplement, there’s a heavy burden.

And while we believe Mr. Gerash should be entitled to inspect the list and make his claim, we don’t think it's likely that he's going to be able to prevail.

Justice Thurgood Marshall: Well is that before -- the only thing before us is to whether they have the right to see the list, is that right?

Mr. William L. Patton: That's right Mr. Justice Marshall.

Justice Thurgood Marshall: And you agreed that he does have a right to see the list?

Mr. William L. Patton: Yes sir, we do.

Justice Thurgood Marshall: So what are we going through now?

Mr. William L. Patton: Well, we believe the case ought to be remanded to the Court of Appeals with instructions --

Justice Thurgood Marshall: You want us to write an essay on this where both sides agree?

Mr. William L. Patton: No sir, I don't think it’s necessary.

I think it might be helpful if this Court made clear --

Justice Byron R. White: But you suggested that sometime ago when we took this case that we shouldn't take it that it should be remanded?

Mr. William L. Patton: That's right.

Justice Byron R. White: So you perhaps should be putting the questions.

Mr. William L. Patton: Well, I was somewhat puzzled and uncertainness to what the Court was interested in, I -- let me bring up one thing --

Justice Byron R. White: Well, I take it you say that the Act is to be construed to mean that anyone can inspect the jury list and what's on the wheel by saying “I may want to file a motion, and in order to find out if I do or not, I can go on this fishing expedition in the jury records.”

And you say that's exactly what Congress contemplated?

Mr. William L. Patton: That's right.

And it is not an administrative burden on the clerk.

He only has to maintain a copy of the list.

And unless you can look at the list, you can't make a challenge to the Act.

Justice Byron R. White: So does that include all the records of individual exemptions?

Mr. William L. Patton: The -- well, under the Federal Act, the process works basically this way.

You start with a voter list, choose a random selection from that you send out questionnaires, questionnaires come back and then excuses disqualifications and exemptions are noted on the questionnaires.

The practice has been on the District Courts to permit inspection of the questionnaires, and I think that’s appropriate because I would -- we would take the position that a party wishing to challenge the Act's procedures must show not only that there's a disparity.

But if he wants to go on and make a challenge based on the qualified list, then he would have to look at the questionnaires.

Justice Byron R. White: Do you say the error in this case was that although the affidavit was insufficient, he should have had an opportunity to present a better one if he could after inspecting the list?

Mr. William L. Patton: That's right.

That's the way the challenge procedures were designed to work, you looked at the list, based on what you find you then do an affidavit.

And if the affidavit doesn't state a claim then, then you're out of luck.

Justice William H. Rehnquist: But there's no need for any sort of prima facie showing before you have a right to inspect, in your view?

Mr. William L. Patton: In our view there is not.

Now --

Justice Potter Stewart: An unrestricted right in other words to --

Mr. William L. Patton: That's right Mr. Justice Stewart, we believe --

Justice Potter Stewart: (Voice Overlap) statute?

Justice Byron R. White: I suppose it has got to be a (Inaudible)?

Mr. William L. Patton: No he has to be a defendant or the Attorney General or either party in civil case.

Now, it's not based to the Act does not preclude constitutional challenges by other person, but it wouldn’t govern whether there's a right to inspect a list in those cases and --

Justice William H. Rehnquist: Well, they existed before the Act.

Mr. William L. Patton: They existed before the Act, that's right.

That is the only issue in the case and we think it should be remanded.

Justice Byron R. White: I take it that you have nothing in the legislative history on account of your argument, do you?

Mr. William L. Patton: Nothing Mr. Justice White, except in 1966 in House debates on a previous Bill that was never enacted.

A statement was made that inspection might be use for a delay or tampering, and as I have stated, we don't think that's a substantial risk.

It's most inefficient --

Chief Justice Warren E. Burger: There's a time limit now, isn't there?

Mr. William L. Patton: There is a time limit, and it's --

Chief Justice Warren E. Burger: Seven days, isn't it?

Mr. William L. Patton: Seven days in any event before the voir dire begins, and the lists are so large that it's best and inefficient way of tampering, so we're not concerned about that.

Now, we think it should be sent back to the Court of Appeals with instructions to remand with the District Court for action on petitioner’s motion to quash the rate after he's had an opportunity to see the list.

And we may then face the question whether there's an obligation to supplement, but we don't face it now.

Justice Byron R. White: And if he doesn't make out his case to reenter the judgment.

Mr. William L. Patton: That's right.

Now, as a matter of interest I -- pleasure to inform the Court of a couple of things that have happened since this case has been in this Court.

I understand that we don't have any hard information except the State of Colorado has under the Uniform Jury Selection Act which is substantially identical to the federal Act, or to the supplementation of voter lists.

Justice Potter Stewart: Is that new you're suggesting?

Mr. William L. Patton: It is -- no, they have done it, we don't know whether the Supreme Court of Colorado has ordered the voter list be supplemented for jury selection in state courts.

Justice Potter Stewart: Since --

Mr. William L. Patton: Since this case has come.

Justice Potter Stewart: -- this case and certiorari was granted in this case?

Mr. William L. Patton: That's right.

Now, I understand it took a year to develop the supplemental sources.

And one of the things that we're concerned about in this whole area is that if a plan is ever found to be deficient, it’s going to be very difficult because it's not easy to develop supplemental sources.

The judicial conference is working on that problem.

They are now running in selected districts and computer projects and that may solve the problem.

And in addition, the judicial conference has a reporting procedure in which District Courts around the country report periodically with the statistical sample from their master lists, and that is monitoring the way the system works.

But we don't face those difficult questions in this case.

Unless Court has any further questions --

Chief Justice Warren E. Burger: An example of this time occurred when the voting age was changed it took, as I recall it, substantially more than a year to bring that voter wheel up to date.

So that there's bound to be a lag when you're dealing with a large omitted group.

Mr. William L. Patton: There is bound to be a lag.

And Mr. Chief Justice, we haven't had a great year of experience under the Act.

Now one reason that we haven't had the experience is that until 1972, the questionnaire did not indicate race, at least the indication of race was optional so that if you wanted to make a challenge that there's under representation of racial groups, it's very difficult to do, and we make it more of those challenges.

Now during the hearings on the Bills, Professors Calvin and Seizle testified and they recommended that private parties not be allowed to enforce the supplementation requirement that that be handled by an audit procedure in the Act.

Their suggestion wasn't followed and experience may show that they were right, but at the present time, we're unable to come to that conclusion.

Chief Justice Warren E. Burger: Thank you Mr. Patton.

Do you have anything further Mr. Gerash?

Rebuttal of Walter L. Gerash

Mr. Walter L. Gerash: Just a comment on Justice White's mention of fishing expedition.

Number one, I think the sworn statement specifically states that the sworn statement must have facts if true would constitute a substantial failure to comply with the provisions of --

Justice Byron R. White: Mr. Gerash, do you have to file an affidavit?

Mr. Walter L. Gerash: Yes, you have to --

Justice Byron R. White: And you say you must make out in your sworn statement you must have allegations in there that would entitle your relief?

Mr. Walter L. Gerash: You have to -- I would liken it a probable cause affidavit because --

Justice Byron R. White: Justice Rehnquist asked your colleague if that was so, it is so.

Mr. Walter L. Gerash: Well, I suppose I should be on this side and he should be on my side.

Justice Byron R. White: But then, your affidavit was insufficient?

Mr. Walter L. Gerash: Well, I don't think it was, because my affidavit --

Justice Byron R. White: Your opponent says it was.

Mr. Walter L. Gerash: It wasn't, that's --

Justice Byron R. White: That's what he turned on then we do have an issue here.

You have to disagree between you and the Government on a sufficiency of your affidavit.

Mr. Walter L. Gerash: I'm just stating that --

Justice Byron R. White: Is that right?

Mr. Walter L. Gerash: Not really, no.

Justice Byron R. White: Well why isn't then?

Mr. Walter L. Gerash: Well he --

Justice Byron R. White: You said your affidavit is sufficient, he said it wasn't.

Mr. Walter L. Gerash: He stated that it was more sufficient than most affidavits he's ever seen, not the best.

I don't want to quibble but I want to point out that this --

Justice Byron R. White: Well you say there’s an issue here before the Court, before we can remand, we must pass on the sufficiency of the affidavit.

If it was insufficient, there's going to be no remand.

Mr. Walter L. Gerash: Well, --

Justice Byron R. White: That's the conclusions of what you've just said, aren't they?

Mr. Walter L. Gerash: I'll stand on the affidavit.

I think the affidavit is sufficient, but the lower court never passed on it.

Chief Justice Warren E. Burger: I understood Mr. Patton to say that it was -- your affidavit was as good as sufficient as it could be without an examination of the list?

Mr. Walter L. Gerash: Right.

Chief Justice Warren E. Burger: But --

Mr. Walter L. Gerash: And I had to go to another --

Justice Byron R. White: That isn't the point.

You've just said that you must make out a prima facie case in your affidavit before you're entitled with the list?

Mr. Walter L. Gerash: Yes, and I think that prevents the fishing expedition.

Justice William H. Rehnquist: So how many counties does the Denver District of the -- District of Colorado drawn for its jury selection?

Mr. Walter L. Gerash: About 20 counties.

Justice William H. Rehnquist: Well, I would think if you have to make a prima facie showing making it just in Boulder County, might not be sufficient?

Mr. Walter L. Gerash: It would be economically impossible.

Every criminal defendant would have to be a wealthy man.

Justice William H. Rehnquist: Well, I think that may be militates against the prima facie showing argument, rather than saying that you can make a prima facie showing by 1 out of 20?

Mr. Walter L. Gerash: Well, then I'll have to move and change my position --

Justice Byron R. White: (Inaudible)

Mr. Walter L. Gerash: Well, I'll have to agree --

Justice Byron R. White: (Inaudible)

Mr. Walter L. Gerash: I'll have to agree with him, but the point is if a lawyer swears under oath, facts that if true would be a substantial noncompliance and he has no way of really approving that other than an experience with the vote of registration list in a county that comprises one of the federal counties.

Justice Byron R. White: Well, I have to completely agree to that, and I have felt the nerve, his was and yours was that all you needed when you wanted to inspect was to tell the court officials that I'm going to file a motion.

Mr. Walter L. Gerash: The statute doesn't say that.

But I suppose that's his position.

Justice Byron R. White: Well, the Government's position is I thought yours was that 1867 (f) said that you can inspect to the purpose of preparing the motion?

Mr. Walter L. Gerash: Well, as I read (d), 1867 (d) the motion must accompany -- an affidavit must accompany the motion.

Justice Byron R. White: I agree certainly much.

But 1867 (f) says you can inspect in order to prepare the motion?

Mr. Walter L. Gerash: That's correct.

Justice Byron R. White: Oh!

All right.

Mr. Walter L. Gerash: Thank you.

Chief Justice Warren E. Burger: Thank you gentlemen.

The case is submitted.