420 U.S. 28

95 S.Ct. 749

42 L.Ed.2d 786

John E. TEST, Petitioner,v.

UNITED STATES.

No. 73—5993.

Argued Dec. 11, 1974.Decided Jan. 27, 1975.

Walter L. Gerash, Denver, Colo., for petitioner.

William L. Patton, Boston, Mass., for respondent.

PER CURIAM.

1 Petitioner was convicted under 21 U.S.C. § 841(a)(1) for distribution of ahallucinogenic drug commonly known as LSD. Prior to trial he filed a motion todismiss his indictment claiming that the master lists1 from which his grand juryhad been, and petit jury would be, selected systematically excludeddisproportionate numbers of people with Spanish surnames, students, andbalcks. These exclusions, petitioner alleged, violated both his SixthAmendment right to an impartial jury and the provisions of the Jury Selectionand Service Act of 1968, 28 U.S.C. § 1861 et seq. Attached to this motion wasan affidavit by petitioner's counsel stating facts that had been disclosed bytestimony at a jury challenge in another case, and which petitioner claimedsupported his challenge. Also accompanying the motion was another motionrequesting permission to inspect and copy the jury lists 'pertaining to the grandand petit juries in the instant indictment.' Petitioner asserted that inspection wasnecessary for discovering evidence to buttress his claims.

2 The District Court rejected the jury challenge and denied the motion to inspectthe lists. Petitioner renewed his claims before the Court of Appeals for theTenth Circuit but that court affirmed his conviction without discussing theseissues. We granted certiorari to decide whether the Jury Selection and ServiceAct required that petitioner be permitted to inspect the jury lists. 417 U.S. 967,

These lists were based on Colorado voter-registration records.

Petitioner further argues that the affidavit accompanying his motion to inspectestablished a prima facie case of jury exclusion thereby entitling him toinspection under 28 U.S.C. § 1867(d). Since we conclude that petitioner had anunqualified right to inspection under § 1867(f) we do not decide whether hiscounsel's affidavit was sufficient to establish a prima facie case.

95 S.Ct. 3170, 41 L.Ed.2d 1138.

3 In its brief and oral argument before this Court, the United States has agreedthat petitioner was erroneously denied access to the lists and urges us to remandthe case. We also agree with petitioner.2 Section 1867(f) of the Act, in relevantpart, provides:

4 'The contents of records or papers used by the jury commission or clerk inconnection with the jury selection process shall not be disclosed, except . . . asmay be necessary in the preparation or presentation of a motion (challengingcompliance with selection procedures) under . . . this section. . . . The parties ina case shall be allowed to inspect, reproduce, and copy such records or papersat all reasonable times during the preparation and pendency of such a motion. . ..' (Emphasis supplied.)

5 This provision makes clear that a litigant3 has essentially an unqualified right toinspect jury lists.4 It grants access in order to aid parties in the 'preparation' ofmotions challenging jury-selection procedures. Indeed, without inspection, aparty almost invariably would be unable to determine whether he has apotentially meritorious jury challenge. Thus, an unqualified right to inspectionis required not only by the plain text of the statute, but also by the statute'soverall purpose of insuring 'grand and petit juries selected at random from a faircross section of the community.' 28 U.S.C. § 1861.

6 Since petitioner was denied an opportunity to inspect the jury lists, we vacatethe judgment of the Court of Appeals and remand the case to that court withinstructions to remand to the District Court so that petitioner may attempt tosupport his challenge to the jury-selection procedures. We express no views onthe merits of that challenge.

7 It is so ordered.

1

2

The statute grants the rights to challenge selection procedures and inspect liststo the United States and the defendant in a criminal case, and to any party in acivil case.

The statute does limit inspection to 'reasonable times.' No issue of timelinesshas been raised in this Court.

3

4