IN THE COURT OF APPEALS OF IOWA
No. 14-1112
Filed August 19, 2015
STATE OF IOWA,
Plaintiff-Appellee,
vs.
KENNETH OSBORNE ARY,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Polk County, Rebecca Goodgame
Ebinger (pretrial) and Lawrence P. McLellan (trial), Judges.
A defendant challenges his drug delivery convictions based on alleged
error in the jury selection process. REVERSED AND REMANDED.
Patrick W. O’Bryan of O’Bryan Law Firm, Des Moines, for appellant.
Thomas J. Miller, Attorney General, Kevin Cmelik and Kelli Huser,
Assistant Attorneys General, John P. Sarcone, County Attorney, and Dan Voogt,
Assistant County Attorney, for appellee.
Heard by Tabor, P.J., McDonald, J., and Mahan, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2015).
2
TABOR, P.J.
Voir dire “is the method to smoke out actual juror bias.”1 In this case,
smoking out bias turned into fanning the flames. Sparked by the prosecutor’s
repeated inquiries during voir dire, a potential juror’s extensive, expert-like
statements regarding the dishonesty of people accused of drug dealing tainted
the entire jury panel, requiring us to remand for a new trial.
I. Background Facts and Proceedings
The prosecution charged Kenneth Ary with three class “C” felonies for
delivery of a controlled substance, crack cocaine, in violation of Iowa Code
section 124.401(1)(c)(3) (2013). Each count related to a controlled drug buy
completed by a confidential informant on three different days in the fall of 2013.
After each completed buy, the informant turned over crack cocaine to the
surveilling police officers, confirming he purchased the drugs from Ary.
The State’s minutes of evidence attached to the trial information listed the
informant and several police officers as witnesses. Because the defense
discovery request was untimely and did not cite good cause, the district court
denied Ary’s opportunity to depose any of the State’s witness.
Ary’s trial began with jury selection on June 2, 2014—which turned out to
be a busy day at the Polk County courthouse. Several jury trials were starting
that morning with hundreds of potential jurors waiting to see whether they would
be selected to serve.
1
State v. Webster, ___ N.W.2d ___, ___, 2015 WL 3814823 at *11 (Iowa 2015).
3
In Ary’s case, the prosecutor started off questioning the prospective jurors
about their experiences in determining credibility, asking: “Have you ever been in
a position where someone has told you something and you had to decide
whether you believe them or not?” The prosecutor noticed panel member J.W.
raise his hand and called on him. J.W. immediately offered the following
information about himself:
I’m a pastor, and I’ve dealt with all kind of things with that. And you
know that they’ve done something and you—they’re pretty good at
spinning the truth, so to speak, you know. So I’ve dealt with a lot
with people who, you know—you get a lot of people that come to
your church and they’re hurting, you know, and they have issues,
whether it be with alcohol, drinking and getting in trouble driving or
drugs and are selling drugs. I’ve dealt with that. Had a lot of
people that I’ve dealt with that have gone to jail. I’ve got people
that have been accused of stealing even to an amount of felony
and somehow they spun their way out of it.
The pastor continued:
I told her [referring to fellow juror J.K.] before I came in here I didn’t
know what the case was but I said, if it’s involving drugs, I’d
probably think the person is guilty and that’s only because of my
personal experience because I realize that a person has a right to
defend themselves and go through the process, but I think I’m fairly
prejudiced on this, any kind of a drug case with all of my
experiences because even people that I know come from good
families, they try to pretend they’re innocent. I know the inside
story, and I know they’re not. So when it comes to this type of thing
with Des Moines Police who arrest the person on drug charges, it
appears there’s guilt.
Another potential juror, A.H., responded that she had “the exact opposite
prejudice” and believed most drugs should not be illegal. But the prosecutor
brought the conversation back to J.W., saying: “[W]hat I want to talk to you about
is, when you reach that conclusion in your own mind that this person has done
4
something or they haven’t, they’re telling you the truth or they’re not, how do you
do that?”
The pastor then shared an anecdote about a young person in his
congregation that he suspected of stealing money and soda pop, “so I had to set
him up.” The pastor explained:
[Y]ou’re supposed to drop a buck in the refrigerator can and take
the bottle. So this kid would come by and he would, you know,
come out with the pop, and, you know, we kind of watched and we
started noticing, we don’t think he's paying for this. In fact, we think
he’s taking money out of the can. So we marked the—We took the
serial numbers off of a $5 bill before that afternoon when he got out
of school, and this is right on his route home. So we dropped it in
the can. So when he went in there, we went in behind him and,
sure enough, the suspicion was true.
J.W. said the boy stole from families in the church “and denied it every time. He
always spun it. And then he got down to where he took $1300 and he admitted
it, went to court, got a little slap, nothing.”
The pastor used this experience to illustrate his own ability to read people:
[W]hen you work with people a lot, you can detect what’s going
on. . . . I’m prejudiced because I have never pastored a person that
was accused of any type of drug possession, usage or delivery or
selling that I didn’t know that they were guilty, and I found out and
knew they were guilty because I know the people that know them
and know that they went—they spun their story. They got out of
court. They didn’t go to prison. They came back another time,
spun out, didn’t go to prison, and then finally, they ended up in jail
and they served two terms or probably 20 some years, you know,
because it got worse and got worse and got worse.
The pastor continued, uninterrupted:
So I’m just telling you up front that I am—While I want to
believe a person is innocent until proven guilty, I on the other hand
don’t think that drugs should be legalized because it destroys
people. It’s so addictive and it ruins their lives, so—and I’ve worked
5
with too many people every day, day in, day out, so—I pastor over
5000 people, have a staff of ten pastors.
J.W. said while they were waiting for voir dire to begin, he told fellow juror
J.K. he hoped he would not be hearing a drug case because of his negative
attitude toward those accused of drug dealing. “But it’s not because I’m just a
jerk. But it’s because of my experiences. I’m sorry. It’s just—if there’s a
smoking gun, then there’s a problem there.”
The prosecutor assured J.W. “there’s nothing to be sorry about that.” And
the prosecutor again asked J.W. how he came to his decisions about credibility:
“[O]ne of the things that you told us was you may know the person or you may
know people who know that person, or in the situation with the pop money, there
were other facts that you believed that helped you confirm your suspicion. Is that
right?” J.W. responded: “Right.”
A.H. then expressed her concern that deciding this case would “go against
[her] conscience.” The prosecutor described her inclination to follow her
personal opinion as jury nullification. The prosecutor said: “Jury nullification
involves jurors who believe because they’re jurors they can disregard facts; they
can disregard what the law is and just do whatever you want because you’re a
juror. That’s not how we do it here.” The prosecutor then asked if anybody felt
they would handle the case that way?
It was again J.W. who responded:
I’m not sure I understand your question. . . . If you’re asking
the question whether or not I think that I could be impartial . . . I do
not think I can, I mean, honestly. And that’s to be fair to the
gentleman being accused in the sense that, you know, I’m going to
have a very difficult time with that.
6
The pastor shared his view with the rest of the panel, as follows: “I’m 61.
I’ve been in this thing for 40 years, and I’ve worked with lots and lots of people,
and I’ve never known a case where someone was falsely accused of possession
or using or delivery; never once when it wasn’t true. Never.”
J.W. continued without interruption:
I have 20 law officers in my congregation. And, you know,
Mark Wilson wore Badge 2 for years, my best friend. And I don’t—I
just have to say that I’m really going to have a hard time because I
know the evidence is going to be both sides, and I’m going to be
bent toward hearing the State. And that’s fine, I’ll do it, but I’m just
telling you.
. . . Everyone that ever got off of a drug charge was right
back out and doing it, and they never learned. And I don’t know
what the answer is because I’m not sure putting people in jail over
drug charges, at least doing—you know, actually using the drugs,
but when you’re delivering it or making it or selling it is a different
program.
The prosecutor reminded the jurors that they would have nothing to do
with the punishment, to which J.W. replied: “I don’t even know the law. I don’t
know what would happen; but one thing I’ve witnessed is an awful lot of guilty
people that get off.”
A.H. weighed in again, opining that “the legal ramifications” of a drug
conviction are “sometimes more troublesome than the actual symptoms of some
drugs that people do.”
J.W. gave the counterpoint:
Excuse me. But the other side of that is kids who are being given
stuff and influenced with stuff, good kids from good families that get
ruined by people who pedal this for their profit. That’s an issue,
and that’s why I think the law has to be stiff on this thing.
7
After the prosecutor had a brief discussion with other potential jurors on
the burden of proof, J.W. again chimed in concerning his view of “beyond a
reasonable doubt.” He said: “Reasonable. Reasonable doubt. Not absolute,
certain, totally positive, convinced 100 million percent, because nobody would
ever be found guilty. Because unless I was there and saw him, I couldn’t find
him guilty in this case.”
After the court sent the potential jurors out to a lunch break, defense
counsel made the following motion for a new jury panel:
Judge, [J.W.] said a lot of things that were very harmful, I think, for
this jury panel. He talked about his experience as a pastor, how he
has a 5,000-person congregation, how he deals with—that there’s
at least 20 officers in his congregation, that never, not once, ever
did anybody dealing with drugs have been not guilty of whatever
their charge was. I think, Judge, that [J.W.] went on for quite a
while in that area without being stopped at all, and I think that he
has damaged this jury panel and prejudiced them against my client.
I think that his position in the community, being a pastor of over
5,000 people with 20 officers, he comes from a position of authority
and knowing.
Defense counsel described the taint inflicted by the pastor’s comments:
He gave all these examples about the different types of people that
he’s pastored over, especially he talked about some boy that
committed one theft after another, how he keeps getting off. And
what was the quote that he used? He used spinning their way out
constantly. And I think that this panel now is of the impression that
my client is here to spin his way out of a guilty plea and a guilty
verdict.
Defense counsel described the prejudice to Ary and requested a
new set of potential jurors as a remedy.
I think that where [J.W.] bordered on, where he went was
dangerous for my client with regards to every single person that sat
and listened to this man talk about his experience as a pastor of
8
over 5,000 people. And I’m asking that this panel be disqualified in
its entirety at this point and that we get a new panel.
The prosecutor resisted the motion arguing “there’s no evidence that this
panel has been tainted in any way whatsoever or that they’re going to listen to
[J.W.] about how he feels about something.” The prosecutor contended if the
defense did not like [J.W.], “they can exercise a peremptory strike just like any
other juror. Clearly, [A.H.] does not agree with [J.W.]. We had some back and
forth between the jurors in that regard.” But the prosecution insisted the jury-
selection process had been “perfectly appropriate” and there was no basis for
discharging the potential jurors exposed to J.W. or otherwise declaring “any sort
of mistrial in that regard.”
The court denied the defense motion, ruling as follows: “[W]hile [J.W.] has
made a number of comments, I don’t believe those comments at this point have
tainted this jury to the point that it requires a mistrial.”
After returning from the lunch break, the court reconvened with the
attorneys to address the defense motion to strike potential juror J.W. for cause.
The court said defense counsel
must have been reading my mind over the noon hour because I
had some concerns with regard to [J.W.]’s comments. While I
denied the motion for mistrial, I am concerned that what he might
say this afternoon that that may go beyond where he is today in his
comments and may taint the jury pool with comments later this
afternoon.
After the court conducted individual voir dire with J.W., it granted the defense
motion to strike for him from the panel for cause.2
2
The court also granted the State’s for-cause challenge to potential juror A.H.
9
The court also spoke individually to panel member J.K. to see if her
conversation with J.W. while waiting for the group voir dire to begin affected her
ability to be a fair and impartial juror. She told the court it did not. The court did
not perform individual voir dire with any of the other potential jurors concerning
the impact of J.W.’s comments, and our record does not show that the court
issued any admonition to the jurors concerning the statements of their fellow
panel members.
After hearing two days of testimony, the jury found Ary guilty on all three
delivery counts. Ary filed a motion for new trial, alleging J.W.’s comments tainted
the entire jury pool and, therefore, he did not receive “a fair and impartial trial.”
The district court denied the motion for new trial, stating it did not believe the
other jurors were prejudiced by J.W.’s comments. The court then sentenced Ary
to serve three consecutive indeterminate sentences of twenty-one years, as
enhanced, for a total of sixty-three years in prison.3
In his appeal, Ary raises issues concerning discovery depositions and jury
selection. Because we find the jury selection issue dispositive, we do not
address his other claims.
II. Scope and Standards of Review
3
This sentence was to be served consecutively to a sentence imposed in another
criminal matter. Ary was sentenced to five years in prison for that offense, bringing the
total prison term to sixty-eight years.
10
Ary focuses his appeal on the denial of his motion for mistrial 4 based on
expert-like comments offered by a potential juror during voir dire. The district
court generally has broad discretion in the selection of juries, and reversal would
only be required if that discretion were manifestly abused. State v. Tubbs, 690
N.W.2d 911, 915 (Iowa 2005) (noting “control of jury voir dire is lodged in the
sound discretion of the trial court”).
But the right to a fair trial by impartial jurors has its underpinnings in our
state and federal constitutions. See Irvin v. Dowd, 366 U.S. 717, 721 (1961);
State v. Wedebrand, 602 N.W.2d 186, 188 (Iowa Ct. App. 1999). Accordingly, in
cases of jury exposure to pretrial publicity, we engage in a hybrid standard of
review, evaluating the record de novo for the purpose of determining whether the
district court abused its discretion in denying the requested change of venue.
See State v. Cuevas, 288 N.W.2d 525, 527 (Iowa 1980). We find the instant
claim to be analogous; Ary claims the jury pool was tainted by exposure to
inflammatory comments from a potential juror. In this situation, we will
independently review the evidence with an eye to whether the district court
abused its discretion in deciding the defendant failed to demonstrate a
4
We question whether the defense request can be accurately called a motion for
mistrial. During voir dire, defense counsel asked that the jury panel “be disqualified in its
entirety at this point and that we get a new panel.” But see Iowa R. Crim. P. 2.18(3)
(contemplating challenges to jury panel “founded only on a material departure from the
statutory requirements for drawing or returning the jury”). The State and district court
both referred to the defense request as a motion for mistrial, and Ary has adopted that
nomenclature on appeal. We note a trial does not begin until the jury has been
impaneled and sworn. Iowa R. Crim. P. 2.19(1)(a). A mistrial is defined as a trial that
the judge brings to an end without a determination on the merits because of a procedural
error or serious misconduct or where a jury cannot agree on a verdict. Black’s Law
Dictionary 1154 (10th ed. 2014). But because our appellate courts have previously
discussed motions lodged during voir dire as motions for mistrial, we also will do so in
this opinion.
11
reasonable likelihood he would not receive a fair trial with the potential jurors who
heard J.W.’s remarks.5 Cf. Lloyd v. Iowa Dist. Ct., 201 N.W.2d 720, 722 (Iowa
1972) (discussing standard for change of venue).
III. Analysis of Jury Selection
Like all criminal defendants, Ary was entitled to a fair trial by an impartial
jury. U.S. Const. amends. VI, XIV; Iowa Const. art. 1, §§ 9, 10; Webster, ___
N.W.2d at ___, 2015 WL 3814823, at *7; see also Reynolds v. United States, 98
U.S. 145, 154 (1878). Prospective jurors are presumed to be impartial. Irvin,
366 U.S. at 723. The burden is on Ary to overcome that presumption. Cf. State
v. Gavin, 360 N.W.2d 817, 819 (Iowa 1985) (examining juror exposure to pretrial
publicity).
Ary contends he did not receive a fair trial because the district court
denied his request to replace the entire jury panel after the panel was exposed to
J.W.’s “pontificating” about his professional experiences with drug offenders and
other law breakers. Ary compares his case to Mach v. Stewart, 137 F.3d 630,
631 (9th Cir. 1998), where the appellate court granted a new trial because the
jury pool was tainted by “expert-like statements” from a fellow venire member.
Ary contends the pastor’s “long dissertation” on the culpability of drug possessors
did irreparable damage to Ary’s chances for a fair trial with the remaining jurors.
The State argues that ordinarily, disqualification of an individual juror for
expressing opinions indicating bias during jury selection does not constitute a
sufficient ground to challenge the entire panel. See State v. Staker, 220 N.W.2d
5
Both Ary and the State advocate for a de novo standard of review on appeal.
12
613, 616 (Iowa 1974). In Staker, a venireman asked the prosecutor if there was
any truth to the rumor that the defendant’s license was suspended at the time of
the drunk-driving accident at issue. Id. at 615. The district court stopped voir
dire and immediately admonished the jury panel that the license was not
suspended, the license was not an essential element of the crime charged, and
the jury would be given instructions on the charge. Id. The supreme court
determined the juror’s question was not so prejudicial as to infect the entire panel
and deprive the defendant of a fair trial. Id. at 617. The court reached a similar
conclusion in State v. Dalgliesh, 223 N.W.2d 627, 628 (Iowa 1974), finding
insufficient grounds to challenge the entire jury panel based on a prospective
juror’s isolated remark that she would be partial because she had heard of the
defendant through her daughter.
The instant circumstances are a far cry from Staker and Dalgliesh. Here,
J.W.’s remarks were lengthy, uninterrupted, highly inflammatory, and presented
as a product of his professional experience as the long-time pastor of a large
congregation in the local community. From his initial remarks, J.W. set himself
up as an expert on dealing with people who are “selling drugs” and other felons
who somehow have “spun” their way out of going to jail.
Our courts give counsel latitude in their inquiries during voir dire so they
may obtain information to assist in deciding how to exercise challenges. See
State v. Windsor, 316 N.W.2d 684, 686 (Iowa 1982). We do not suggest the
prosecutor could have anticipated that his initial voir dire questions would prompt
J.W.’s discourse against those accused of dealing drugs. But the primary
13
purpose of voir dire in criminal cases is to assure the accused “his Sixth
Amendment right to an impartial jury will be honored.” Rosales-Lopez v. United
States, 451 U.S. 182, 188 (1981). In this vein, both the prosecutor and defense
counsel may ask questions to eliminate bias, but not to condition prospective
jurors to be receptive to the questioner’s position. “Voir dire is not designed for
educating jurors on the law or for persuading them on the merits of the case.”
See Windsor, 316 N.W.2d at 687. The voir dire process is to ensure a fair and
impartial jury, not a favorable one. Press-Enter. Co. v. Super. Ct. of California,
464 U.S. 501, 511 (1984).
The voir dire in Ary’s case did not achieve that primary purpose. Once
J.W. introduced himself as a pastor and expansively shared his opinion that if
someone is arrested for a drug crime they are likely to be guilty, the prosecutor
had a duty to protect the integrity of the jury pool. See State v. Tolson, 82
N.W.2d 105, 106 (Iowa 1957) (discussing prosecuting attorney’s duty to “see that
the accused has a fair trial”). But instead the prosecutor returned at least three
more times to solicit J.W.’s views on judging witness credibility. At one point the
prosecutor told J.W. he need not apologize for expressing his belief in the
preordained guilt of those accused of drug-related crimes. Before the defense
motion to disqualify the jury panel, neither the prosecutor nor the court took
measures to curtail the pastor’s comments or to advise the jury panel that his
statements were not to be considered when deciding whether Ary was guilty or
not guilty.
14
Given these circumstances, Ary’s comparison to Mach is apt. In that
case, Mach was charged in Arizona state court with sexually assaulting a young
girl. Mach, 137 F.3d at 631. During voir dire, the judge elicited from a
prospective juror that she had a certain amount of expertise regarding child
sexual assault because she had taken child psychology courses, worked with
psychologists and psychiatrists, and interacted with children while employed as a
state social worker for at least three years. Id. at 632-33. The prospective juror
made four separate statements that she had never been involved in a case
where a child who accused an adult of sexual abuse was lying. Id. at 633. The
Ninth Circuit reasoned the juror’s statements were expert-like because of “the
nature of [the] statements, the certainty with which they were delivered, the years
of experience that led to them, and the number of times they were repeated.” Id.
The Ninth Circuit found the statements were “highly inflammatory and directly
connected to Mach’s guilt.” Id. at 634; see also Paschal v. United States, 306
F.2d 398, 399-400 (5th Cir. 1962) (finding prospective juror’s comment that his
bank had received some the defendant’s counterfeit money inevitably influenced
the minds of the other jurors because the comment was directed at the
defendant’s guilt and based on special information or knowledge).
Just as the juror in Mach held herself out as being an expert in child
sexual assault, 137 F.3d at 632–33, J.W. portrayed himself as well-versed in
dealing with drug offenders, their efforts to “spin” a story, and that they were
inevitably guilty as charged. As authority for his expertise, J.W. cited his forty-
plus years of pastoral experience and his position as head of a five-thousand
15
person congregation and a staff of ten pastors. His declaration of his credentials
parallels the citation of the Mach juror to her education and work experience.
The State contends J.W.’s comments were not directly connected to Ary’s
guilt because the pastor spoke generically about drug offenders and not
specifically about Ary’s dealing or witnesses involved in the case at hand. J.W.
repeatedly said he had never pastored a person who was falsely accused of
being involved with drugs, just as the juror in Mach repeatedly said she had
never known a child to falsely accuse an adult of sexual assault. See id. at 633.
J.W.’s statements were directly connected to Ary’s guilt because the pastor
asserted that, in his experience, if the police accuse someone of being involved
with drugs, that person is guilty. See id. at 634 (holding juror’s comments were
directly connected to Mach’s guilt because juror asserted, “in her experience . . .
children never lied about sexual assault”).
The State acknowledges statements offered by potential jurors may rise to
the level that the entire pool is infected, but asserts Mach would only apply in the
rare case where a potential juror expresses “special information, expertise, or a
highly inflammatory opinion.” The State contends Ary’s jury selection is not that
rare case because J.W. was merely a “talkative” individual and his responses
were based on his personal, not professional experience. The State argues J.W.
was expressing a personal opinion and not speaking as an expert, because at
one point during voir dire he stated, “if it’s involving drugs, I’d probably think the
person is guilty and that’s only because of my personal experience.”
16
We are not persuaded that J.W.’s reference to his “personal experience”
clarified for his fellow panel members that he was not speaking as an
experienced professional. J.W. also said: “I’m prejudiced because I have never
pastored a person that was accused of any type of drug possession, usage or
delivery or selling that I didn’t know that they were guilty.” J.W. reiterated this
sentiment later by saying, “I’ve never known a case where someone was falsely
accused of possession or using or delivery; never once when it wasn’t true.
Never.” J.W. made a point of referencing his lengthy professional tenure and his
position of authority to give credibility to his statements. The comments’
generality does not dilute their prejudicial nature. See Mach, 137 F.3d at 634.
The State also contends J.W.’s comments were not like expert testimony
because he did not have the specialized knowledge that comes from education
like the Mach juror did. See 137 F.3d at 623-33. We are not persuaded by the
distinction. Special knowledge can be gained through means other than
education. In fact, our courts recognize a witness can be qualified as an expert
based on the witness’s “knowledge, skill, experience, training, or education.”
Iowa R. Evid. 5.702. The criteria for qualifying as an expert under this rule “are
too broad to allow distinctions based on whether or not a proposed expert
belongs to a particular profession or has a particular degree.” Hutchinson v. Am.
Family Mut. Ins. Co., 514 N.W.2d 882, 887-88 (Iowa 1994). Moreover, members
of the clergy are held to similar standards as other members of the counseling
profession, regardless of if they are licensed as counselors. See Iowa Code
§ 709.15(1)(a) (2013); State v. Edouard, 854 N.W.2d 421, 432 (Iowa 2014). If
17
the judicial system is willing to accept expertise based on knowledge and
experience outside of education, it is logical the laypeople of the venire would as
well.
The State correctly points out that Mach is “an extreme case” and has not
been applied to reverse convictions in other jurisdictions. See, e.g., United
States v. Lussier, 423 F.3d 838, 842 (8th Cir. 2005). In Lussier, a prospective
juror revealed he knew the only defense witness and considered him to be a
“neighborhood nuisance.” Id. at 840. The juror was cautioned against
elaborating and only answered “[y]eah” when asked if he would have a problem
with the witness’s credibility. Id. The court immediately excused the juror. Id.
When Lussier moved to strike the panel because of the juror’s comment, the
court inquired into the possibility of obtaining a new pool of jurors. Id. Upon
learning a new panel would not be available for some time, the court denied
Lussier’s motion and, instead, offered three options to address Lussier’s concern
that the panel was tainted. Id. (the options were individual voir dire, a specific
cautionary instruction to the group, or standard instructions). Lussier elected to
have the court give the jury a curative instruction. Id. at 841. “Accordingly, the
district court instructed the jury that ‘nothing I have said during the course of this
trial or anything that might have been said during the jury selection process is
evidence in this case.’” Id. The Eighth Circuit concluded the juror’s remark was
neither expert-like nor highly inflammatory. Id. at 842. The court distinguished
Mach and concluded the juror’s comment was not prejudicial enough to
overcome the presumption of juror impartiality. Id.
18
Like the Eighth Circuit in Lussier, courts from other jurisdictions have
rejected challenges under Mach when the prospective juror’s comments did not
pertain to the defendant’s guilt, were not expert-like or inflammatory, or were
addressed by curative actions. See, e.g., United States v. Guzman, 450 F.3d
627, 629–32 (6th Cir. 2006) (district court asked jurors who heard general
comments about others’ experiences with the criminal justice system if they could
be impartial and all answered affirmatively); State v. Sanders, 750 N.E.2d 90,
103-04 (Ohio 2001) (juror only expressed personal opinions, did not speak at
length, and was immediately excused for cause); State v. Doerr, 969 P.2d 1168,
1173-74 (Ariz. 1998) (juror’s comment was brief and isolated, merely an
acknowledgement of his own bias, not inflammatory, and did not pertain to the
defendant’s guilt or innocence).
Unlike the jurors in those cases, during voir dire J.W. confidently and
repeatedly expressed his bias against those accused of drug offenses, cloaked
as an expert opinion. J.W.’s comments were also troubling for an additional
reason. The pastor told a story about how he had used a sting-like operation to
catch a boy in his congregation suspected of stealing. As part of the operation,
J.W. took note of the serial numbers on dollar bills in the pop jar and later
checked them against bills in the boy’s possession. According to J.W., the
numbers matched. J.W.’s story inadvertently foreshadowed the State’s evidence
regarding the controlled buys conducted to prove Ary’s drug dealing. The
similarity between J.W.’s story and the State’s evidence reinforces the “expert-
like” status of J.W.’s statements by suggesting the pastor was credible in his
19
assertions that he had experience regarding how guilty people try to evade
responsibility for their actions.
Despite the district court’s concerns about J.W.’s comments, the record
does not indicate the court inquired into the possibility of obtaining a new pool of
jurors from those assembled at the courthouse that day. Our record also does
not reveal that the court gave a cautionary instruction to the jury pool to address
any potential prejudice. At a minimum, when Ary’s counsel moved for a mistrial,
the district court should have conducted individual voir dire to determine whether
the panel had in fact been infected by J.W.’s expert-like statements. See Mach,
137 F.3d at 633. The State points out the court did question one other juror, J.K.,
about J.W.’s comments to her while waiting for voir dire, and she denied that they
would affect her ability to be fair and impartial. While the questioning of J.K. was
a step in the right direction, it was not enough to detect whether J.W.’s comments
during voir dire tainted the remaining jury pool.
Given the nature of [J.W.’s] statements, the certainty with which
they were delivered, the years of experience that led to them, and
the number of times that they were repeated, we presume that at
least one juror was tainted and entered into jury deliberations with
the conviction that [those accused of drug dealing are always
guilty.] This bias violated [Ary’s] right to an impartial jury.
See Mach, 137 F.3d at 633. Under these circumstances, it would be “an
impossible burden” to require Ary or any similarly situated defendant to show
actual prejudice to reverse his conviction. Cf. State v. Mootz, 808 N.W.2d 207,
226 (Iowa 2012) (requiring automatic reversal for erroneous refusal to remove a
juror under Iowa Rule of Criminal Procedure 2.18(9)). Having determined J.W.’s
comments were so inflammatory and protracted as to taint the entire jury panel,
20
and in the absence of adequate curative measures, we reverse the denial of
Ary’s motion for mistrial and remand for a new trial with an impartial jury.
REVERSED AND REMANDED.
Mahan, S.J., concurs; McDonald, J., dissents.
21
MCDONALD, J. (dissenting)
I respectfully dissent. Several considerations cause me to part ways with
the majority. First, the district court had broad discretion in deciding the
questions presented, and the defendant has not established the district court
abused its discretion. Second, and related, it is presumed the impaneled jurors
followed the jury instructions, faithfully discharged their civic duty, and acted
impartially in the absence of evidence to the contrary, and there is no evidence to
the contrary. Third, Mach v. Stewart, 137 F.3d 630 (9th Cir. 1998), is only
persuasive authority, and it is not at all persuasive. Finally, and burying the lede,
controlling cases have addressed the question presented, and the controlling
cases establish the defendant is not entitled to a new trial because of juror
partiality.
“This case requires us to explore a delicate area of the law. It is a bedrock
component of our system of justice that an accused charged with a criminal
offense receives a fair trial before an unbiased decision-maker.” State v.
Webster, ___ N.W.2d ___, ____, 2015 WL 3814823, at *7 (Iowa 2015).
As with so many things, enforcement of th[is] norm[ ] is sometimes
easier said than done. The line between permissible and
impermissible is often difficult to discern. For instance, while we do
not want jurors to be biased, we do want them to draw upon their
common experience that may cause them to perceive evidence in a
distinctive way.
Id. “Further, here, a jury verdict has been rendered after a lengthy trial, and we
have no desire to start again for trifles. As has been often said, the accused is
not entitled to a perfect trial, but only a fair trial.” Id.
22
The district court is owed greater deference under the circumstances than
the majority affords. On appeal, the defendant asserts a violation of his federal
and state constitutional right to a fair trial. The defendant did not assert
constitutional claims in the district court, and his claims are thus waived. See
Webster, ___ N.W.2d at ____, 2015 WL 3814823, at *6 (holding the defendant
waived his constitutional claims to fair trial where the defendant failed to “cite a
statute, rule, or constitutional provision”). The arguments the defendant actually
presented to the district court were procedural: should the court excuse the entire
panel and should the court grant a new trial based on the failure to excuse the
entire panel. Both decisions are reviewed only for an abuse of discretion. See
Webster, ___ N.W.2d at ___, 2015 WL 3814823, at *5 (“We review a denial of a
motion for a new trial based upon juror misconduct or juror bias for an abuse of
discretion.”); State v. Tubbs, 690 N.W.2d 911, 915 (Iowa 2005) (stating control of
voir dire is vested in the sound discretion of the district court). An abuse of
discretion occurs when the trial court exercises its discretion on grounds or for
reasons clearly untenable or to an extent clearly unreasonable.” Webster, ___
N.W.2d at ___, 2015 WL 3814823, at *5 (citation omitted). “A ground or reason
is untenable when it is not supported by substantial evidence or when it is based
on an erroneous application of the law.” Id. at ___, 2015 WL 3814823, at *5.
The defendant has the burden of establishing the district court abused its
discretion. See State v. Henning, 545 N.W.2d 322, 324–25 (Iowa 1996).
The defendant has not established the district court abused its discretion
in denying his motion to disqualify the panel. There does not appear to be any
23
rule authorizing a motion to disqualify the panel after the panel was sworn. Iowa
Rule of Criminal Procedure 2.18(3) allows only for a limited challenge to the
panel before it is sworn arising out of any “material departure from the statutory
requirements for drawing or returning the jury.” Rule 2.18(5)(k) provides that a
party may challenge an individual juror for cause where the juror “formed or
expressed such an opinion as to the guilt or innocence of the defendant as would
prevent the juror from rendering a true verdict upon the evidence submitted on
the trial.” While that rule supports a for-cause challenge to an individual juror, it
does not support a for-cause challenge to the entire panel. Even if a for-cause
challenge could be made against the entire panel, there is nothing in this record
establishing the jurors who heard the pastor’s answers had “formed or expressed
. . . an opinion as to the guilt or innocence of the defendant [that] would prevent
the juror from rendering a true verdict upon the evidence.” See Iowa R. Crim. P.
2.18(5)(k). Further, as discussed in more detail below, a motion to disqualify the
panel due to the statements of a prospective juror made during voir dire appears
to be prohibited by controlling authority. See State v. Staker, 220 N.W.2d 613,
615 (Iowa 1974). I cannot conclude the district court clearly abused its discretion
in denying the defendant’s motion where there is no rule authorizing the
defendant’s challenge to the panel, where there is no record supporting a for-
cause challenge to the panel as a whole, and where the motion to disqualify the
panel is prohibited by controlling authority. See State v. Hardin, 498 N.W.2d 677,
681 (Iowa 1993) (stating that ruling on for cause challenge is “vulnerable only
upon proof that the court abused the broad discretion granted in such matters”);
24
State v. Jones, 464 N.W.2d 241, 242-43 (Iowa 1990) (stating the district court
has broad discretion in ruling on for cause challenges); State v. Dickson, 202
N.W. 225, 227 (Iowa 1925) (“A trial court necessarily must exercise a judicial
discretion in questions of this character. The fact of qualification of a juror is for
the trial court to decide in the first instance, and the matter must be determined,
not only from the answers given, but by the demeanor of the juror and the
attending circumstances. A clear abuse of discretion must be shown before an
appellate court will interfere.”)
The defendant has not established the district court abused its discretion
in denying his motion for new trial. Iowa Rule of Criminal Procedure 2.24(2)(b)(9)
provides the district court may grant a new trial when “the defendant has not
received a fair and impartial trial.” “[M]otions for new trial are not favored and
should be closely scrutinized and sparingly granted.” State v. Weaver, 554
N.W.2d 240, 245 (Iowa 1996). We thus “do not interfere with that discretion
unless there is a clear showing of abuse.” State v. Smith, 240 N.W.2d 693, 696
(Iowa 1976); see also State v. Harrington, 349 N.W.2d 758, 761 (Iowa 1984)
(“We do not find an abuse of discretion . . . unless the action of the trial court is
clearly unreasonable under the attendant circumstances.”), abrogated on other
grounds by Ryan v. Arneson, 422 N.W.2d 491, 495 (Iowa 1988). Voir dire in this
matter was extensive, lasting a complete day. After the district court removed
the pastor from the panel, the attorneys conducted individualized voir dire with
nine prospective jurors. The attorneys then conducted additional voir dire with
the entire panel for the remainder of the afternoon. The judge ruling on the
25
motion for new trial was the same judge who presided over jury selection and
was in the best position to assess whether the petit jurors were influenced by the
pastor’s remarks. See Webster, ___ N.W.2d at ___, 2015 WL 3814823, at *12
(deferring to the district court’s determination the juror was credible). There is no
evidence establishing any member of the petit jury was influenced by the pastor’s
remarks. I cannot conclude the district court abused its discretion in denying the
motion for new trial in the absence of evidence establishing juror partiality. See
United States v. Lussier, 423 F.3d 838, 841-42 (8th Cir. 2005) (“We defer to the
discretion of the trial court, particularly in the absence of any showing of actual
bias.”); State v. Kneeskern, 210 N.W. 465, 473-74 (Iowa 1926) (affirming denial
of motion for new trial raising issue of juror bias and concluding the issue “was
primarily for the district court”); State v. Becker, 140 N.W. 201, 203 (Iowa 1913)
(affirming denial of motion for new trial and concluding juror partiality issue “was
primarily for the district court, and with its conclusion we are not inclined to
interfere”).
I also part company with the majority’s conclusion these jurors necessarily
were partial or biased. Juror partiality or bias may be actual or implied. Actual
bias occurs when the evidence shows a juror is unable to lay aside prejudices
and judge a case fairly on the merits. See United States v. Wood, 299 U.S. 123,
133 (1936). Implied bias arises only in limited circumstances. For example,
when the relationship of a prospective juror to a case is so troublesome that the
law presumes a juror would not be impartial. See id.; see also McDonough
26
Power Equip., Inc. v. Greenwood, 464 U.S. 548, 558 (1984) (Brennan, J.,
concurring in judgment).
The defendant has not established actual bias or partiality. “Showing that
a juror is actually biased poses difficult problems of proof. Ordinarily . . .
questioning of prospective jurors in voir dire is the method to smoke out actual
juror bias.” Webster, ___ N.W.2d at ___, 2015 WL 3814823, at *11. Here, the
defendant was aware the pastor’s comments may have tainted the jury. The
defendant’s counsel conducted extensive voir dire with the jurors, including
individualized voir dire with nine prospective jurors, but he did not establish
actual bias or partiality. Ary’s failure to establish the pastor’s remarks actually
caused a member of the panel selected to serve on the petit jury to be impartial
defeats his claim. See id. at ___, 2015 WL 3814823, at *12 (holding the
defendant’s claim of juror partiality failed when “the door was open to further
explore these issues” during voir dire and the defendant failed to demonstrate
actual partiality); State v. Johnson, 445 N.W.2d 337, 340 (Iowa 1989) (noting that
party must pursue for cause challenge of individual juror when party has
adequate notice of possible prejudice toward defendant); see also State v. Ross,
849 A.2d 648, 679 (Conn. 2004) (rejecting claim the venire was tainted by
prospective juror’s comments where “defendant had the opportunity during voir
dire to explore those matters” and the defendant did not establish any juror “had
formed an opinion on the ultimate issue in the case”); Young v. State, 831 So. 2d
585, 589 (Miss. Ct. App. 2002) (stating the claim the jury panel was tainted was
“meritless” where the defendant had “not been able to provide any evidence of
27
prejudice or that the jury failed to apprehend the cautionary instruction offered by
the court”).
Finding no actual bias, the majority holds bias should be presumed
because of the nature of the pastor’s comments. I have several reservations to
extending the presumption of bias to the facts presented here. First, the
majority’s rule creates significant hurdles to the efficient administration of justice
in future cases. Unlike the implied bias cases based on a relationship between a
juror and another person, which can be definitively established, the majority’s
holding has no definitive limit. Jurors say the darndest things. Courts will be
forced to speculate when a prospective juror has said enough to irreparably
poison the minds of other prospective jurors. Performing such a task in any
principled and predictable way seems nigh impossible. See Irvin v. Dowd, 366
U.S. 717, 723 (1961) (“To hold that the mere existence of any preconceived
notion as to the guilt or innocence of an accused, without more, is sufficient to
rebut the presumption of . . . impartiality would be to establish an impossible
standard. It is sufficient if the juror can lay aside his impression or opinion and
render a verdict based on the evidence presented in court.”).
Second, the majority’s holding in this case will incent district courts to take
defensive measures and conduct in camera voir dire to avoid the risk of
contaminating the entire panel with stray remarks. This would seriously cripple
the trial process and unnecessarily elongate jury service without any
corresponding benefit. See United States v. Guzman, 450 F.3d 627, 632 (6th
Cir. 2006) (“Therefore, trial courts would need to conduct the entire process in
28
camera to prevent the risk of complete venire contamination from innocent,
extraneous remarks. . . . Entirely in camera voir dire would only lengthen the
process-without any corresponding benefit.”); see also Smith v. Phillips, 455 U.S.
209, 217 (1982) (noting “it is virtually impossible to shield jurors from every
contact or influence that might theoretically affect their vote”).
Third, and more fundamentally, I reject the premise that we presume the
impaneled jurors were not impartial solely because of their exposure to one
juror’s stray remarks during voir dire. Instead, our caselaw provides we presume
the impaneled jurors were serious-minded in taking their oath, they followed the
court’s instruction to render a verdict on the evidence, and they discharged their
civic duty with the seriousness and earnestness the occasion demanded. See
State v. Tillman, 514 N.W.2d 105, 107 (Iowa 1994) (noting that in the context of
preserved challenges for cause, the court does not presume prejudice); Dickson,
202 N.W. at 227 (“No prejudice is shown, and we will not presume prejudice.”);
see also Guzman, 450 F.3d at 629 (“We begin with the well-established
presumption of juror impartiality.”); United States v. Maxwell, 160 F.3d 1071,
1077 (6th Cir. 1998) (“Absent proof or documentation of prejudice, we do not
assume that prejudice occurred.”); United States v. McClinton, 135 F.3d 1178,
1188 (7th Cir. 1998) (“If we accepted the defense’s argument, then we would be
saying that this Court does not believe that jurors can set aside a statement they
have heard or an impression they have. We believe this notion underestimates a
vast number of potential jurors. The tool of voir dire has the power to ferret out
jurors who cannot render a verdict based on the evidence.”); United States v.
29
Hernandez, 84 F.3d 931, 936 (7th Cir. 1996) (finding speculation that a juror’s
comments may have prejudiced the jury is not enough to establish relief).
The law requires evidence of bias in other contexts, and there is no
reason to deviate from that requirement here. See, e.g., Tillman, 514 N.W.2d at
108 (requiring proof for cause challenge was incorrectly denied and proof the
challenged juror who served was biased); State v. Neuendorf, 509 N.W.2d 743,
747 (Iowa 1993) (“[I]n order to obtain relief under a legal theory that a juror is not
impartial it must be shown that that juror actually served in the case. When that
juror did not serve in the case, it must be shown that the jury that did serve was
not impartial.”); State v. Aldape, 307 N.W.2d 32, 45 (Iowa 1981) (“We will not
presume prejudice from the mere publication of a newspaper article.”); see also,
e.g., State v. Hernandez, No. 99-1338, 2000 WL 1433613, at *2 (Iowa Ct. App.
Sept. 27, 2000) (“We will not presume prejudice from the mere publication or
broadcast of news stories. The trial court need not act on mere speculation. The
defendant failed to establish that any juror read the headline. When a jury has
been admonished not to expose themselves to media publicity of the trial in
which they are serving as jurors, a presumption arises that they will not violate
that admonition.” (citations omitted)).
I also part ways with the majority due to its reliance on Mach v. Stewart,
137 F.3d 630 (9th Cir. 1998). It is readily distinguishable from this case. In
Mach, the court specifically asked the prospective jurors whether anyone
disagreed with the challenged juror’s expert-like statements, and none expressed
disagreement. See 137 F.3d at 633. In this case, there is no similar evidence
30
that any member of the panel agreed with J.W.’s statements. Second, the judge
in Mach, having notice that the panel may have been tainted, failed to conduct
any additional investigation into the potential taint. See id. In contrast, in this
case, the district court and the attorneys conducted individual voir dire with nine
jurors after J.W. was removed for cause. The district court and the attorneys
then conducted a full afternoon of voir dire with the panel. Voir dire was
reported. There is no evidence of bias. See Webster, ____ N.W.2d at ___, 2015
WL 3814823, at *12 (holding the defendant’s claim of juror partiality failed when
“the door was open to further explore these issues” during voir dire and the
defendant failed to demonstrate actual partiality);
The majority’s reliance on Mach is misplaced for another reason: Mach is
an outlier. See Wells v. Ricks, No. 07 Civ. 6982 (CM0 (ASP), 2008 WL 506294,
at *36 (S.D.N.Y. Feb. 26, 2008) (“Mach has never been followed, or even cited
approvingly, by the Second Circuit or district courts within the Circuit. Indeed,
Mach is sui generis.”). It appears that every court that has considered Mach has
distinguished it or rejected it outright. See, e.g., Smith v. Miller, No. 1:12-CV-
00790-LJO-JLT, 2014 WL 6924414, at *15 (E.D. Cal. Dec. 9. 2014) (rejecting
Mach in habeas proceeding on ground that California “does not indulge in a
presumption of jury taint or prejudice arising from a prospective juror’s remarks”);
Middlebrook v. Curtin, No. 2010 WL 3222519, No. 1:07-CV-1242, at *5 (W.D.
Mich. Aug. 16, 2010) (distinguishing Mach on ground the trial court judge
investigated potential taint); Wells, 2008 WL 506294, at *36 (collecting cases and
stating the court could not find “any case other than Mach supporting the
31
dismissal of an entire voir dire panel due to a potential juror’s remarks unrelated
to the defendant” and concluding “the case law holds that the disqualification of
an individual juror for the expression of an opinion, or for making remarks
indicating bias, does not constitute a sufficient ground for a challenge of the
entire panel”); People v. Martinez, 74 P.3d 748, 761 (Cal. 2003) (rejecting claim
of jury prejudice where manager of drug rehabilitation facility who treated
approximately 500 clients made statements regarding the ability of users to plan
action and users proclivity to make excuses for themselves); State v. Nikle, 708
N.W.2d 867, 869 (N.D. 2006) (concluding “great weight is given to a potential
juror’s claim that he or she will remain impartial” and holding the court did not err
in refusing to reject the panel where “most if not all of the members of the jury
panel were subsequently asked at some point whether they could remain fair and
impartial”); State v. Yarbrough, 767 N.E.2d 216, 234 (Ohio 2002) (“N]othing in
the record indicates that the statements at issue biased the other veniremen.
Absent some such indication, we decline to speculate that hearing these opinions
must somehow have irretrievably tainted the other prospective jurors.”); State v.
Clark, 283 P.3d 1116, ____ (Wash. Ct. App. Aug. 20, 2012) (distinguishing Mach
on grounds “both sides had an opportunity to extensively question the jurors, and
the defense was able to identify jurors who expressed an inability to keep an
open mind”).
The majority’s reliance on Mach is misplaced for a final reason: Iowa case
law requires a different outcome. The same issue presented in this case was
presented in State v. Staker, 220 N.W.2d 613, 615 (Iowa 1974):
32
Although never articulated in so many words, defendant’s
real argument must be all members of the panel were biased and
prejudiced by remarks of a prospective juror thereby making a fair
and impartial trial impossible. The question presented is whether
the trial court erred in denying a motion for mistrial; that motion,
however, in one respect was in effect a challenge to the entire
panel of jurors. This assignment will first be considered as a
challenge to the entire jury panel for reasons of bias and prejudice.
The court explained that there was no authority under Iowa law to strike the
entire panel due to a potential taint caused by the statements of a prospective
juror:
Even though bias or prejudice is established in regard to one
or more particular jurors out of the panel such is not ground for
challenge to the entire array. It appears to be well settled as a
general proposition of law that a challenge to the array of jurors
goes only to the form and manner of making up the jury panel
without regard to the objections to the individual jurors who
compose it and must, therefore, be based on some ground
affecting the validity of the whole panel or array of jurors.
Disqualification of an individual juror in a criminal case for any
cause set forth in section 779.5, The Code, is not ground for
challenge to the array but should be raised by challenging for cause
the prejudiced jurors individually. In support see Government of
Virgin Islands v. Williams, 476 F.2d 771, 772 (3d Cir. 1973), citing
Frazier v. United States, 335 U.S. 497, 510, 511, 69 S. Ct. 201, 93
L. Ed. 187; United States v. Gordon, 253 F.2d 177 (7th Cir. 1958);
State v. Lundgren, 124 Minn. 162, 144 N.W. 752; Smith v. State,
219 Miss. 741, 69 So. 2d 837; State v. Taylor, (Mo. 1959), 324
S.W.2d 643, 76 A.L.R.2d 671, and the subject of the annotation, 76
A.L.R.2d 678, 679; 47 Am. Jur. 2d, Jury, section 229; 50 C.J.S.
Juries § 262. Decisions of other jurisdictions recognizing this rule
are to be found in the A.L.R. Blue Book Service to this annotation.
Ordinarily, disqualification of individual jurors for expressions
of opinions or for making remarks during selection of the jury
indicating in some manner possible prejudice or bias against the
accused or the occurrence of circumstances during that procedure
from which such bias or prejudice might be implied does not
constitute a sufficient ground for a challenge of the entire panel.
State v. Taylor, (Mo. 1959), 324 S.W.2d at 648.
33
Staker, 22 N.W.2d at 616. The Staker court held the district court did not abuse
its discretion in denying the defendant’s motion for mistrial where the defendant
claimed the panel was tainted. See id. Staker was followed several years later
in State v. Dalgliesh, 223 N.W.2d 627, 628 (Iowa 1974), and State v. Sallis, 262
N.W.2d 240, 245-46 (Iowa 1978), and remains controlling authority.
The majority attempts to distinguish Staker and Dalgliesh on the ground
that the nature of the remarks in this case is more inflammatory than in those
cases. The distinction is not material. While the court in both Staker and
Dalgliesh discussed the issue of jury taint, both cases state that a challenge to
the entire panel must be in writing and is limited only to material departure from
the statutory requirements for drawing the jury. Both cases state there is no for-
cause challenge to the entire panel arising out of prospective juror’s remarks
made during voir dire. Instead, both cases conclude that the defendant has the
burden to conduct additional voir dire to establish for cause challenges to the
individual jurors. This court is without authority to ignore these controlling
decisions of our supreme court. I thus respectfully dissent from the majority’s
remand of this matter for new trial.
I address the remainder of Ary’s arguments. Ary’s argument that the
district court should have allowed him more time to conduct discovery
depositions is without merit. Ary has not established the district court abused its
discretion or that he suffered prejudice. See State v. Clark, 814 N.W.2d 551, 563
(Iowa 2012); State v. Grimme, 338 N.W.2d 142, 144 (Iowa 1983). In Ary’s
motion for new trial, he also asserted the verdicts were contrary to the weight of
34
the evidence. The State concedes the district court applied the wrong standard
in ruling on the motion. Accordingly, I would remand this matter to allow the
district court to apply the weight-of-the-evidence standard as articulated in State
v. Ellis, 578 N.W.2d 655, 659 (Iowa 1998).