Filed: October 3, 2002

THE STATE OF OREGON,

Plaintiff-Adverse Party,

v.

DAYTON LEROY ROGERS,

Defendant-Relator.

En Banc

Original proceeding in mandamus.*

Argued and submitted July 30, 2002.

Laura Graser, Portland, argued the cause and filed the brief for defendant-relator.

Jennifer S. Lloyd, Assistant Attorney General, Salem, argued the cause for plaintiff-adverse party. With her on the brief were Hardy Myers, Attorney General, and Mary H. Williams, Solicitor General.

DE MUNIZ, J.

Peremptory writ to issue.

*On petition for writ of mandamus from a pretrial order of Clackamas County Circuit Court, Raymond R. Bagley, Jr.

DE MUNIZ, J.

In this original mandamus proceeding, relator challenges a trial court order denying his motions to examine certain master jury lists and other jury records. For the reasons that follow, a peremptory writ to issue.

The underlying proceedings concern the penalty phase of a capital murder case in which relator is the defendant. The court previously has recited the relevant procedural history:

"Over a period of time in 1987, police discovered the bodies of seven women in the Mollala Forest. The State Medical Examiner determined that each of the women had been stabbed or cut with a sharp object. When the bodies were discovered, defendant was in police custody as a suspect in the killing of another woman, Smith. Smith had died from multiple stab wounds. Smith and the seven women buried in the Mollala Forest were prostitutes. The facts surrounding the Mollala Forest killings shared other similarities with those surrounding the Smith killing. During the investigation of the Mollala Forest killings, defendant was convicted of aggravated murder for killing Smith, but he was not sentenced to death.

"In May 1989, defendant was found guilty of 13 counts of aggravated murder arising out of six of the Molalla Forest killings. In June 1989, the court sentenced defendant to death. On automatic review, this court vacated the death sentence and remanded the case to the trial court for a new penalty-phase proceeding that would include the so-called 'fourth question,' [i.e., whether the death penalty is appropriate for this defendant, considering all aspects of his life and crimes]."

State v. Rogers, 330 Or 282, 284, 4 P3d 1261 (2000) (Citations and footnote omitted). After a new penalty-phase proceeding before a jury, the trial court again sentenced relator to death. On automatic review, this court vacated the sentence of death and remanded the case, because the trial court had erred, inter alia, in refusing to permit the jury to consider the option of sentencing relator to life in prison without the possibility of parole. Id. at 285-92.

On remand, pending the penalty-phase hearing, relator moved to obtain the Clackamas County master jury lists and other jury records for the past five years. Shortly after he filed that motion, but before the trial court had ruled, the legislature amended ORS 10.215, ORS 10.275, and ORS 136.005, to provide procedures for criminal defendants to obtain jury lists. In response, relator filed a renewed "motion to produce the jury lists" (1) and a "motion challenging jury panel & to produce source lists, etc." Relator also tendered an affidavit in support of the motions.

In the motions, relator contended that the process for selecting the jury pool (2) violates the "fair cross-section" of the community requirement of both the state (3) and federal constitutions, asserting, inter alia, that

"* * *cognizable groups are underrepresented therein, contrary to said constitutional provisions as well as the Equal Protection Clause of the Fourteenth Amendment and Article I,