State of Iowa v. Peter Leroy Veal

IN THE SUPREME COURT OF IOWA
No. 17–1453

Filed May 24, 2019

STATE OF IOWA,

Appellee,

vs.

PETER LEROY VEAL,

Appellant.

Appeal from the Iowa District Court for Cerro Gordo County,

Rustin T. Davenport Judge.

The defendant appeals his convictions for first-degree murder and

attempted murder, challenging the jury pool and raising several other

claims of error. AFFIRMED ON CONDITION AND REMANDED WITH

DIRECTIONS.

Dylan J. Thomas, Mason City, for appellant.

Thomas J. Miller, Attorney General, Louis S. Sloven and Scott D.

Brown, Assistant Attorneys General, and Carlyle T. Dalen, County

Attorney, for appellee.

Russell E. Lovell, II, Des Moines, and David S. Walker, Windsor

Heights, for amicus curiae NAACP.
 2

MANSFIELD, Justice.

I. Introduction.

This double homicide case presents important questions concerning

a defendant’s right to an impartial jury drawn from a fair cross section of

the community, as well as a number of other trial-related issues. The

defendant, an African-American, was charged with committing two

murders in Cerro Gordo County and attempting to commit a third.

Because of pretrial publicity he asked for a change of venue, and the trial

was moved to Webster County. Although the Webster County jury venire

contained five African-Americans, no African-American was seated on the

jury that actually heard the defendant’s case. The State exercised a

peremptory strike on the last remaining African-American on the panel

because the State’s lead prosecutor in this case had also prosecuted her

father successfully for murder. Following a jury trial, the defendant was

convicted.

On appeal, we affirm the district court’s ruling that there was no

Batson violation in the striking of the juror. 1 We also reject the defendant’s

claims of a speedy trial violation, prosecutorial error, evidentiary error,

lack of competence to stand trial, and insufficient evidence to sustain his
convictions. However, we believe further consideration of the defendant’s

fair-cross-section claim is warranted in light of the decision we are filing

today in State v. Lilly, ___ N.W.2d ___ (Iowa 2019). Therefore, we

conditionally affirm while remanding for further proceedings consistent

with Lilly and this opinion.

1See Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712 (1986).
 3

II. Background Facts and Proceedings.

At about 2:00 a.m. on November 17, 2016, Mason City police officer

Jennifer Barr was on patrol when she received a call from the dispatcher.

An individual named Ron Willis, calling from outside Caleb Christensen’s

house, reported that Peter Veal had shot Willis’s cousin and hit Willis on

the head with a pistol. While en route to the location identified by the

dispatcher, Officer Barr saw Veal walking in her direction. Veal was

wearing a “light green coat,” jeans, and a hat. Veal stopped when Officer

Barr began to pull her patrol vehicle over. As soon as Officer Barr directed

her spotlight toward Veal and made eye contact with him, he took off

running. Officer Barr tried to pursue Veal but was unable to locate him.

When Veal was subsequently apprehended, he was shirtless and

hatless, and it was apparent that his hands and jeans were very bloody.

Veal also had mist drops of blood on his face. Veal had a cut on his hand,

which he claimed to have received from jumping a fence, although the cut

was on the top—not the bottom—of his hand.

Meanwhile, at Christensen’s house, two people were dead. Melinda

Kavars, Willis’s cousin, was dead from a single gunshot wound.

Christensen had been stabbed to death as a result of multiple knife

wounds. The semiautomatic handgun used to kill Kavars was found at

the scene with a jammed cartridge inside.

The police spotted Willis outside Christensen’s house. He was

shaking, sobbing, and crying. He informed police that Veal had shot

Kavars and had tried to shoot him but the gun had malfunctioned. Willis

explained that he had run out of the house. He expressed concern for the

fate of Christensen. Willis had a cut on the top of his head where he said

Veal had struck him with the gun.
 4

There was a bloody trail beginning in the house that continued all

the way to the location where Veal was apprehended. Along the trail, police

found several items discarded by Veal—a hat, a cellphone, a green jacket,

a shirt, and a folding knife.

A footprint analysis confirmed that the bloody footprints in the

house matched the shoes Veal had been wearing. There was no trace or

trail of blood out the door where Willis had exited.

DNA analysis confirmed the presence of Christensen’s blood on

Veal’s discarded knife and shirt. Christensen’s blood was also found on

the jeans and shoes Veal was still wearing when apprehended. Veal’s

shirt, jeans, and shoes also contained evidence of his own blood.

An analysis of the gun determined that Willis’s skin tissue was on

the back of the slide. This was consistent with Willis’s claim that Veal had

struck Willis with the gun after it jammed when Veal tried to shoot Willis.

The gun also had DNA from an unknown contributor on the textured

portion of the pistol grip, but the sample was too weak to determine the

source of the DNA.

Willis knew both Veal and Christensen. Willis later testified that on

November 16, at around 7:00 p.m., Willis received a call from Veal, who

wanted to hang out. Willis picked up Veal and bought beer from a liquor

store before the two of them arrived at Christensen’s home at around 8:00

or 8:30 p.m. Willis introduced Veal to Christensen.

Later, Willis and Veal left and went over to Kavars’s home. As noted,

Kavars was Willis’s cousin. She had invited Willis over for an early

Thanksgiving dinner. Willis introduced Veal to Kavars. While at Kavars’s

house, Veal cut two lines of methamphetamine with a pocket knife. Kavars

and Veal inhaled methamphetamine through a straw, and Willis smoked
 5

marijuana. After about forty minutes, the three of them went over to

Christensen’s house. They likely arrived after midnight.

At Christensen’s house, the four of them socialized in the living

room. Willis and Veal drank beer, Kavars drank Vodka, and Christensen

drank whiskey. Veal indicated at some point that he was not feeling well.

Willis told him to go outside and get some fresh air. Veal left for about ten

or fifteen minutes. When he came back in, he sat down briefly, but then

he got back up and went to the bathroom.

Shortly thereafter, Veal returned from the bathroom and sat down.

Willis and Kavars were talking and laughing when suddenly Willis saw

Veal abruptly rise from his seat and shoot Kavars in the throat with a

pistol. Willis could not see the location from which Veal had obtained the

gun. Willis observed blood coming from Kavars’s throat, and he watched

her take her final breaths.

Veal then turned the pistol on Willis. Willis pled with him not to

shoot. “I got kids, Peter,” he told him. Veal attempted to fire but the gun

jammed. Veal hit Willis on the right side of the head with the pistol.

As this was happening, Christensen was frozen on the couch. Willis

saw Veal trying to get the jammed round out of the pistol, and Willis

started running, believing Christensen would be following him. By the

time Willis reached the side exterior door in the kitchen, the place was

dark because the only lamp being used in the house had gone out. Willis

managed to unlock the door in the dark and exit the house. The last thing

he heard Christensen say as he was departing was, “What the f___ are you

doing?”

Once out of the home, Willis ran across the street and called 911.

Willis later saw Veal leave the house and run south. Willis remained

across the street and called some friends who arrived and helped calm him
 6

down. When the police came, Willis remained at the scene. He gave the

police permission to search his vehicle, and he agreed to go to the police

station to make a statement.

On November 23, the State filed a trial information in the Iowa

District Court for Cerro Gordo County charging Veal with two counts of

first-degree murder for the deaths of Kavars and Christensen and one

count of attempted murder with respect to Willis. See Iowa Code §§ 707.1,

.2(1)(a), .11 (2017). Because of the publicity surrounding the case, Veal

sought a change of venue, and the trial was moved to Webster County.

The parties appeared for trial on Monday, July 10, 2017. Of the

Webster County jury pool of 100 people who had returned juror surveys,

eighty-seven of them checked in at the courthouse that morning.

Veal is African-American. However, of those in the jury pool who

reported their ethnicity, only one juror had self-identified as African-

American, and she did not appear on July 10. Webster County is

approximately 4.6% African-American. 2

Before voir dire began, Veal objected to the jury venire. He alleged

a violation of his Sixth Amendment right to a fair trial based on

underrepresentation and systematic exclusion of African-Americans from
the jury selection process.

The court initially gave the defense until later that day to investigate

its claim of underrepresentation and systematic exclusion. Further

discussions took place on the record during the course of the day, and the

2In the district court, defense counsel asserted that Webster County was 5.5%

African-American according to 2016 census data; the State asserted that it was 4.1%,
citing our Plain opinion. See State v. Plain, 898 N.W.2d 801, 825 (Iowa 2017) (referencing
a 4.1% figure for Webster County in 2013). In its amicus brief, the NAACP uses a 4.6%
number for the African-American population of Webster County drawn from 2017 census
data. The NAACP states that both the 5.5% and 4.1% figures are “clearly erroneous,” the
4.1% number from Plain being “too old.” We take judicial notice of the 4.6% figure, which
we believe to be more accurate as of the time of trial in this case.
 7

court ultimately agreed to conduct a hearing on July 11. Because July 10

was the ninetieth day for speedy trial purposes, the court found good cause

to extend the speedy trial deadline to July 11.

In an attempt to increase the number of African-Americans in the

venire, the court summoned an additional jury pool to appear on the 11th.

The court also instructed the sheriff to contact the jurors who had been

summoned but had not appeared on the 10th.

With the extra jury pool, there were 153 potential jurors available at

the courthouse on July 11. 3 Five were African-American. 4 Meanwhile,

defense counsel had completed a historical review of jury questionnaires

in Webster County for all of 2016. They reported to the court that the

overall African-American percentage of Webster County jury pools that

year was approximately 1.3%. Veal moved to strike the jury panel and

dismiss the case, arguing the State had systematically excluded and

underrepresented African-Americans in its jury pools in violation of the

Sixth Amendment and that it was too late to fix the problem given the

speedy trial deadline.

The district court denied the motions, noting that the additional pool

had redressed to some extent the lack of African-American jurors in the

original pool. As the court explained in its subsequent written ruling,

The Court denied Defendant’s motion [to strike the jury panel]
based on both the second and third part of the Duren [v.
Missouri, 439 U.S. 357, 99 S. Ct. 644 (1979)] test. The Court
found that with the addition of Pool 2 and the availability of
additional jurors who self-identified as African-American, at
least in part, that the representation of African-Americans was
fair and reasonable. As to the third part of the Duren test, the

3Thedistrict court found that 153 potential jurors reported, although the parties
use the number 157 in their briefs.
4Two of them had self-identified as both African-American and Caucasian. The
NAACP notes the 2017 census data reflect an additional 2.1% of the population as being
of “two or more races.”
 8
Court found that there was insufficient evidence that there
was systematic exclusion of African-Americans in the jury
selection process.

Jury selection then took place.

The initial voir dire panel of thirty-four potential jurors included

three African-Americans. One had a prior felony conviction in Iowa, was

still on parole, and had been prosecuted by the State’s lead prosecutor.

He was excused for cause. See Iowa R. Crim. P. 2.18(5)(a) (allowing a

challenge for cause based on “[a] previous conviction of the juror of a

felony”). A second potential juror also had a felony conviction, although

from another state. His civil rights had not been restored, and he was

excused for cause. See id.

The final African-American potential juror was S.H. The State’s lead

attorney had prosecuted S.H.’s father in a prior case resulting in three

class A felony convictions. During voir dire, S.H. acknowledged that she

had attended part of the trial. The State exercised a peremptory challenge

on her. Although the defense lodged a Batson challenge to the strike, the

district court overruled the challenge finding that the State had offered “a

sufficient nondiscriminatory reason for striking that juror.”

Following four days of presentation of evidence, a jury found Veal

guilty on all charges. On September 12, Veal was sentenced to consecutive

sentences of life without parole on the first-degree murder charges and

twenty-five years on the attempted murder charge. See Iowa Code § 901.5;
id. § 902.1, .3, .9. Veal appealed, and we retained the appeal.

III. Standard of Review.

We review constitutional questions de novo. State v. Plain, 898

N.W.2d 801, 810 (Iowa 2017). This includes claims of systematic exclusion

of a distinctive group from the jury pool in violation of the Sixth

Amendment. Id. at 810, 821–29. It also includes Batson challenges. See
 9

State v. Mootz, 808 N.W.2d 207, 214, 215–20 (Iowa 2012). Yet, we give “a

great deal of deference to the district court’s evaluation of credibility when

determining the true motives of the attorney when making strikes.” Id. at

214; see also State v. Griffin, 564 N.W.2d 370, 375–76 (Iowa 1997).

We likewise review de novo a district court’s decision whether a

defendant is competent to stand trial. See State v. Lyman, 776 N.W.2d

865, 873 (Iowa 2010), overruled on other grounds by Alcala v. Marriott Int’l

Inc., 880 N.W.2d 669, 708 & n.3 (Iowa 2016).

In the speedy trial area, “[w]e review a district court’s determination

whether the State carried its burden to show good cause for the delay for

abuse of discretion.” State v. McNeal, 897 N.W.2d 697, 703 (Iowa 2017).

Also, “[w]e review a district court’s decision on claims of prosecutorial

misconduct for abuse of discretion, which occurs when ‘a court acts on

grounds clearly untenable or to an extent clearly unreasonable.’ ” State v.

Coleman, 907 N.W.2d 124, 134 (Iowa 2018) (quoting State v. Krogmann,

804 N.W.2d 518, 523 (Iowa 2011)). We review rulings on demonstrative

evidence for an abuse of discretion. See McNeal, 897 N.W.2d at 703. We

also review evidentiary rulings regarding the admission or exclusion of

prior bad acts for abuse of discretion. State v. Putman, 848 N.W.2d 1, 7

(Iowa 2014).

We review challenges to the sufficiency of the evidence for correction

of errors at law. State v. Sanford, 814 N.W.2d 611, 615 (Iowa 2012). We

review a denial of new trial on the ground the verdict is contrary to the

weight of the evidence for abuse of discretion. State v. Ary, 877 N.W.2d

686, 706 (Iowa 2016).

IV. Fair-Cross-Section Claim.

Veal maintains that the jury selection process used in Webster

County violated the Sixth Amendment requirement that juries be drawn
 10

so as to represent a fair cross section of the community. 5 We addressed a

similar claim today in Lilly, ___ N.W.2d ___. In Lilly, the defendant raised

both the Sixth Amendment and article I, section 10. Id. at ___. We applied

the Duren/Plain framework to these issues. Id.; see also Duren, 439 U.S.

at 364, 99 S. Ct. at 668; Plain, 898 N.W.2d at 822. We held that under

article I, section 10, a defendant establishes the underrepresentation

prong of the Duren/Plain framework by showing that the representation of

a distinctive group in the jury pool falls below the representation in the

eligible juror population by more than one standard deviation. Lilly, ___

N.W.2d at ___. We held that the representation of the group in the eligible

juror population should be assessed using the most current census data,

adjusted for any reliable data that might affect eligibility, such as the

numbers of persons under the age of eighteen. Id. at ___. 6 Lilly also held

that aggregated data on multiple jury pools could be used, so long as the

data were not selective. Id. at ___. Additionally, Lilly held that a defendant

whose jury pool contains at least as high a percentage of the distinctive

group as the eligible population has not been aggrieved under the

Duren/Plain framework. Id. at ___.

Turning to the systematic-exclusion prong of Duren/Plain, we
reiterated in Lilly that the defendant must prove “causation,” that is, that

5On appeal, Veal also raises article I, section 10 of the Iowa Constitution, although
he does not offer a separate state constitutional analysis. However, in the proceedings
below, Veal cited only the Sixth Amendment, not article I, section 10. Likewise, the
district court mentioned only the Sixth Amendment in its ruling. By contrast, Veal did
mention the Iowa Constitution when asserting his Batson challenge and when moving for
change of venue. We have held that a defendant who specifically identifies only a federal
constitutional claim in the trial court has not preserved a state constitutional claim. See
State v. Coleman, 890 N.W.2d 284, 286 (Iowa 2017); State v. Prusha, 874 N.W.2d 627,
630 (Iowa 2016). Veal does not argue ineffective assistance on direct appeal based on
trial counsel’s failure to raise the Iowa Constitution below.
6At oral argument, the parties agreed that another valid adjustment would be to
exclude persons incarcerated in the state prison in Fort Dodge who obviously could not
serve as jurors.
 11

the underrepresentation actually resulted from a particular feature or

features of the jury selection system. Id. at ___. However, we held that

“run-of-the-mill jury management practices” can, under appropriate

circumstances, constitute systematic exclusion. Id. at ___.

We believe that Lilly’s holdings are equally valid when a case is

decided under the Sixth Amendment, with two exceptions. We are not

persuaded that one standard deviation would be enough to establish the

underrepresentation prong for federal constitutional purposes. In

Castaneda v. Partida, the United States Supreme Court seemingly

endorsed two to three standard deviations as an appropriate threshold

under the Fourteenth Amendment, and we are not persuaded the Supreme

Court would adopt a more lenient standard under the Sixth Amendment.

430 U.S. 482, 496 n.17, 97 S. Ct. 1272, 1281 n.17 (1977). We believe a

downward variance of two standard deviations must be shown under the

Sixth Amendment.

We also are not persuaded that run-of-the-mill jury management

practices can constitute systematic exclusion under the Sixth

Amendment. In Berghuis v. Smith, the Supreme Court noted,

Smith catalogs a laundry list of factors in addition to the
alleged “siphoning” that, he urges, rank as “systematic”
causes of underrepresentation of African–Americans in Kent
County’s jury pool. Smith’s list includes the County’s practice
of excusing people who merely alleged hardship or simply
failed to show up for jury service, its reliance on mail notices,
its failure to follow up on nonresponses, its use of residential
addresses at least 15 months old, and the refusal of Kent
County police to enforce court orders for the appearance of
prospective jurors.

559 U.S. 314, 332, 130 S. Ct. 1382, 1395 (2010) (citations omitted). The

Court then went on,

This Court . . . has never “clearly established” that jury-
selection-process features of the kind on Smith’s list can give
 12
rise to a fair-cross-section claim. . . . [I]n Duren, the Court
understood that hardship exemptions resembling those Smith
assails might well “survive a fair-cross-section challenge.”

Id. at 333, 130 S. Ct. at 1395 (citation omitted) (quoting Duren, 439 U.S.

at 370, 99 S. Ct. at 669).

However, Veal’s pool contained only five African-Americans out of

153 potential jurors. This 3.27% figure is below the percentage of African-

Americans in Webster County (4.6%) and also below the percentage of

eighteen-and-over African-Americans in Webster County (3.9%). 7 Turning

to the aggregate data, they show only thirty-five self-identifying African-

Americans out of 2637 persons who responded to the juror questionnaire

in Webster County in 2016. This is statistically significant even under the

higher Castaneda threshold. The odds of getting only thirty-five successes

out of 2637 trials with p of .046 are 4.05 X 10-21. As the State concedes

in its brief, “The odds of that occurring randomly . . . are very low.” This

remains true even if the overall percentage of African-Americans living in

Webster County is adjusted to account for the fact that a higher percentage

of African-Americans living in Iowa are under eighteen and cannot serve

on juries. See Lilly, ___ N.W.2d at ___. The odds of getting only thirty-five

successes out of 2637 trials with p of .039 in that case are 2.29 X 10-15.
Other adjustments, such as for the Fort Dodge prison population or for

individuals of mixed race, likely would not alter the bottom line revealed

by the aggregate data. 8

7The State proposes an age-related adjustment of .8559, because 77.7% of all
Iowans are eighteen and over (and thus eligible to serve on juries) but only 66.5% of Iowan
African-Americans are eighteen and over. Doing the math, 66.5 divided by 77.7 is .8559.
8However, it is possible that an adjustment for the Fort Dodge prison population
would bring the percentage of jury-eligible African-Americans in the overall jury-eligible
population below 3.27%, i.e., below the actual percentage of African-Americans in Veal’s
juror pool. If so, for reasons we discuss in Lilly, Veal would not be able to meet the
underrepresentation prong of the Duren/Plain framework, and there would be no need to
examine aggregate data. See Lilly, __ N.W.2d at __. This is a matter on which the parties
can present proof on remand. We do not have an adequate record before us.
 13

Yet we note that Veal’s counsel aggregated data from jury

questionnaires for 2016 only. Veal’s trial actually took place in July 2017.

The record does not indicate whether similar data were available for the

first half of 2017. We cautioned in Lilly that aggregate data cannot be

gathered selectively. See id. at __. Thus, if data were readily available for

the first half of 2017, it would be inappropriate to exclude them.

Veal did not attempt to meet the third prong of Duren/Plain other

than by arguing that systematic exclusion can be inferred from the 2016

aggregated data. As we explained in Lilly, that is not enough. Id. at ___.

The defendant must identify some practice or combination of practices

that led to the underrepresentation, and it must be something other than

the “laundry list” the Supreme Court declined to condemn in Berghuis.

See 559 U.S. at 332, 130 S. Ct. at 1395.

As in Plain and Lilly, we believe the appropriate course of action here

would be to remand the case. Neither the parties nor the district court

had the benefit of today’s decisions. A remand will offer Veal a further

opportunity to develop his arguments that his Sixth Amendment right to

an impartial jury was violated. If the district court concludes a violation

occurred, it shall grant Veal a new trial.

V. Speedy Trial Claim.

Veal next argues his rule 2.33 right to a speedy trial was violated.

See Iowa R. Crim. P. 2.33(2)(b). Veal’s argument centers on a one-day

delay that occurred from July 10, 2017, to July 11, 2017, while the parties

litigated the fair-cross-section claim.

We begin by reviewing the relevant dates. The trial information was

filed November 23, 2016. Trial was originally scheduled for January 24,

2017. Veal never waived speedy trial.
 14

On December 30, 2016, Veal applied for a psychiatric evaluation of

himself at state expense. On January 4, the court suspended proceedings

and ordered such an evaluation. The evaluation was filed on February 28.

The evaluator recommended that Veal be referred to the forensic

psychiatric hospital for restoration of competency. On March 3, the court

approved the referral and continued the suspension of proceedings. On

May 15, the reports of two professionals were filed concluding Veal was

now competent to stand trial. On May 23, the court found that Veal’s

competency had been restored and vacated the suspension of proceedings.

The court reset trial for June 26.

Veal’s counsel shortly thereafter moved to continue trial from June

26 to July 10 based on counsel’s unavailability. The State did not oppose

this request, and the court granted it. Everyone agreed that July 10 was

the last available date within the ninety-day speedy trial window, taking

into account the date the trial information was filed and excluding the time

spent addressing Veal’s competency.

On the morning of July 10, the court convened proceedings

intending to begin the trial. Veal’s counsel observed there were no

minorities and sought until the afternoon to explore racial disparity and

systematic exclusion in the jury venire. Further discussions occurred later

that morning and Veal’s counsel asked for additional time past the 10th

to investigate systematic exclusion. The State resisted the request. It

noted that Veal had been in possession of the list of potential jurors earlier

and could have raised the fair-cross-section claim before the day of trial.

The State also asked the court to find good cause for extending the ninety-

day deadline if it granted more time.
 15

The court decided to give Veal’s counsel until the following day, i.e.,

the 11th, to conduct research and discovery on the fair-cross-section

claim. On the question of speedy trial, the court ruled,

THE COURT: To grant the motion to -- to allow time to
do discovery and make a further record regarding whether an
under-representation is due to the systematic exclusion of a
group in the jury selection process necessarily requires trial
to begin after the 90 days. I think there has to be a conscious
choice of that or at least be aware of that.

So given those situations, that they’re really in conflict,
counsel for the defendant, I just want to, you know,
understand for the record, knowing that you’re at the 90th
day, you are asking for additional time to do further discovery
or present further arguments on this matter to extend -- and
that would extend this case past 90 days. Is that your
position? MR. KLOBERDANZ: Yes, Your Honor.

THE COURT: All right. And you’ve discussed that with
your client also? MR. KLOBERDANZ: Yes, Your Honor, we
have.

THE COURT: All right. Based upon that record, I will
agree to give defense counsel additional time. I find, however,
that there is good cause shown for extending the time to
present this case for trial:

As Mr. Brown has said about four times, the State is
ready to proceed here today. The jury panel was here. We
were ready to begin the case. The jury panel is coming back
at 1:00, so we could continue the case yet today;

That the circumstances where Defendant’s motion was
first raised on Friday of last week [July 7], frankly, without
any time for any of us to do anything about it, and then raised
today, makes the situation where it would have been
impossible to deal with this matter before the conclusion of
the 90 days;

That this is the defendant’s motion with full knowledge
that this would require trial to begin after 90 days.

And in light of that, the defendant has chosen to seek
the additional time to exercise his rights under the Plain case
to do some further discovery; and, therefore, I think that the
-- any delay in the case would -- would be attributable to the
defendant and there’d be good cause for -- for not getting this
case tried within 90 days.
 16

The next day, July 11, a second pool of potential jurors had been

summoned to add to the first pool. Veal, meanwhile, provided additional

data based on jury pools in Webster County for all of 2016 and formally

moved that his jury venire be stricken as not reflecting a fair cross section

of the community. In addition, Veal moved for dismissal of the case based

on violation of his speedy trial rights, reasoning that it was the State’s duty

to provide a jury panel representing a cross section of community within

the ninety-day deadline. The court denied both motions, reiterating on the

speedy trial issue that “there was good cause to go past the 90 days.” At

this point, the parties proceeded with jury selection.

Iowa Rule of Criminal Procedure 2.33(2)(b) provides,

If a defendant indicted for a public offense has not waived the
defendant’s right to a speedy trial the defendant must be
brought to trial within 90 days after indictment is found or the
court must order the indictment to be dismissed unless good
cause to the contrary be shown.

The good cause determination focuses on “the reason for the delay.”

McNeal, 897 N.W.2d at 704 (quoting State v. Winters, 690 N.W.2d 903, 908

(Iowa 2005)). Yet we also consider “surrounding circumstances such as

the length of the delay, whether the defendant asserted his right to a
speedy trial, and whether prejudice resulted from the delay.” Id. Here the

delay was only one day, it was precipitated by the defendant’s request for

more time to investigate and present evidence on the fair-cross-section

issue, and the defendant cites no prejudice that resulted from this single-

day postponement. In our view, the district court carefully balanced a

number of concerns. “[P]utting ourselves in the shoes of the district

judge,” we find no abuse of discretion. See id. at 708.

Veal denies there was good cause for any delay. Treating the judicial

branch and the county attorney’s office collectively as “the State,” Veal
 17

maintains it was the State’s obligation not just to be ready to try the case

on July 10, but also to have a jury pool meeting constitutional standards

available that day. Thus, Veal’s argument would effectively transform any

fair-cross-section violation not remedied before the ninety-day deadline

into a speedy trial violation.

Veal cites no authority for his effort to conflate substantive legal

claims with speedy trial violations. We are not persuaded. By Veal’s logic,

any time we find on appeal that a defendant is entitled to a new trial, we

should also find that “the State” violated the defendant’s speedy trial rights

by committing a legal error that resulted in a new trial beyond the ninety-

day deadline. This would go too far.

VI. Batson Challenge.

Veal contends the district court erred in overruling his Batson

challenge to the State’s exercise of a peremptory strike on an African-

American prospective juror. Batson holds that a defendant may establish

a prima facie case of racial discrimination by showing that the prosecutor

has exercised one or more peremptory challenges to remove from the

venire members of a racial minority and that these facts and other relevant

circumstances raise an inference of discrimination. See Batson v.

Kentucky, 476 U.S. 79, 96–98, 106 S. Ct. 1712, 1723–24 (1986). Such a

showing shifts the burden to the prosecution to come forward with a race-

neutral explanation for exercising the challenges. Id.

During voir dire of this juror, the lead prosecutor recognized her as

the daughter of a person he had prosecuted successfully for three class

“A” felonies. The juror had attended two days of her father’s trial. The

juror stated during voir dire that she believed her father was treated fairly.

She conceded he was “involved” in the crimes but said she did not “know

for sure if he was the only person.”
 18

The State exercised one of its peremptory strikes on this juror.

Veal’s counsel objected on the basis of Batson and the prosecutor provided

the following explanation:

So I’ll tell you why we struck Ms. [H.]. Ms. [H.] is the
daughter of [S. H.]. I prosecuted [S. H.] for three class A
felonies in this county; kidnapping, sexual abuse, and
murder, all in the first degree. It was a very high-profile case,
a very brutal killing . . . .

At the time of the -- the crime -- I can’t tell you the year
or the date. I do lose dates -- but Ms. [H.], I believe, was right
around the age of 17 years old. I vaguely remember her being
present at least at part of the -- if it wasn’t the trial, it would
have been part of the pretrial proceedings. She was with her
mother . . . .

....

I mean, I can’t keep a juror on whose father I prosecuted
for a class A felony. I mean, there -- there -- she may have
latent hostility towards me personally because of what I did.
Her expressions that she made on the -- on the record, she
said that his sentence was fair. She doesn’t appear to have a
whole lot of contact with him; but that’s not a risk I can take,
particularly under the circumstances of this case.

We have -- The allegation is that Mr. Veal killed two
people. At least based in part on what our expert has said, he
may be blaming a -- a second person, may be blaming Ron
Willis, claiming that he didn’t -- that Mr. Veal’s claiming that
he didn’t do the crime that he’s accused of.

And Ms. [H.] raised that issue with me concerning the
fairness and what she thought about the trial of her father,
[S. H.], whenever she said somebody else might have been
involved.

I can tell you right now, in the [S. H.] case, no one else
was involved. We had strong physical evidence against him
that he was the sole perpetrator of those three crimes. That’s
what concerns me about Ms. [H.]. I think those are race-
neutral reasons to strike her.

If she were white, I would make the exact same
objection to having her -- or make the same exact strike that
I would. And it -- this has nothing to do with her race; it has
everything to do with her background and who her father is
and the fact that I was directly involved in that case and that
 19
prosecution. So for those reasons, that’s why we exercised
our preemptory challenge.

One other thing I would tell you is we did wait to the
end to strike her with No. 10 because I thought the defense
might actually challenge her for the same reason; that she
had, you know, had this -- this connection to a previous high-
profile violent crime here in the county. I could see actually
how that they could maybe justify a preemptory strike on that
basis, as well. I thought that would alleviate this problem of
having to articulate why we’re doing it; but apparently that
didn’t happen, so that’s why we took her with No. 10.

Just don’t want you to read anything else into that.
That’s why we waited till the end. So those are our reasons,
and we would ask that our strike be upheld.

Defense counsel did not question the State’s motive for striking this

juror, but argued that her voir dire responses gave no indication of bias.

Because this juror was the last available African-American juror, defense

counsel “ask[ed] the Court to hold the State to a very high standard given

the circumstances here.”

The district court overruled Veal’s Batson challenge, stating,

Prosecution of a potential juror’s father in a -- in an apparently
class A case by the same attorney as is in this case, I think, is
a sufficient nondiscriminatory reason for striking that juror;
and that’s why I’m going to overrule your objection.

Here and below, Veal insists that a nondiscriminatory reason for
striking the last African-American juror is insufficient and that we should

adopt something like a cause requirement in those circumstances. This

is contrary to our precedent. In Griffin, we upheld a prosecutor’s use of

strikes on the only two African-American members of the panel. 564

N.W.2d at 375–76. We noted that the prosecutor’s explanation “need not

rise to the level justifying exercise of a challenge for cause” but must be

race-neutral and “related to the particular case to be tried.” Id. at 375

(quoting Batson, 476 U.S. at 97–98, 106 S. Ct. at 1723–24). We affirmed

the district court’s acceptance of the prosecutor’s explanation that both
 20

jurors had previously sat on a jury that convicted the defendant of lesser

included offenses in a willful injury case. Id. at 376. We stated that

“[t]hese qualify as racially-neutral reasons” and “[t]here is nothing to

suggest they were a mere pretext.” Id. The same observations can be made

here; indeed, to an outsider, the prosecutor’s reason for striking juror H.

here seems more substantial than the reasons given in Griffin.

More recently, in Mootz, we said that a Batson challenge should not

prevail “merely because the judge does not find the reason given to be

persuasive.” 808 N.W.2d at 218. Rather, “[t]he reason given must, in and

of itself, violate equal protection.” Id.

Veal argues that allowing prosecutors to use peremptory strikes on

prospective jurors who are relatives of individuals they previously

prosecuted “disproportionately implicates African-American potential

jurors.” We are aware of the disproportionate impact when jurors can be

removed based on prior interactions with law enforcement. But see id. at

219 (“Our cases have repeatedly noted that a juror’s interactions with law

enforcement and the legal system are a valid, race-neutral reason for a

peremptory challenge.”). But this case involved a special set of

circumstances—a prosecutor’s use of a peremptory strike on a juror

because the same prosecutor had sent her father to prison for the rest of

his life. We affirm the district court’s ruling that this was a valid, race-

neutral reason for rejecting the Batson challenge.

VII. Prosecutorial Error or Misconduct.

Veal contends that the prosecutor was guilty of misconduct in

several instances, requiring reversal of his convictions and a new trial. We

have drawn a distinction between prosecutorial misconduct and

prosecutorial error. State v. Schlitter, 881 N.W.2d 380, 392–94 (Iowa

2016). The former requires an intentional violation of a clear legal or
 21

professional standard; the latter involves a mistake or an exercise of “poor

judgment.” Id. at 394 (quoting Shawn E. Minihan, Measuring Prosecutorial

Actions: An Analysis of Misconduct Versus Error, Prosecutor, Dec. 2014, at

25). We will treat Veal’s claim as one of prosecutorial misconduct or error.

Veal first takes issue with the following exchange during voir dire:

MR. BROWN: . . . Ms. [M.], I’ll come back to you. I’ve
mentioned multiple times here that this is a murder case and
an attempted murder; right? Okay. And I think with Ms. [P.],
she talked about a case that she was on that dealt with a --
serving a minor; correct? Okay. So obviously when you
compare the two, that’s, you know, certainly minor compared
to -- to a murder. Would you agree? MS. [M.]: Yes.

MR. BROWN: Okay. So looking at comparing those two,
would you say that we would have to have more evidence in a
murder case than we would in someone who sells alcohol to a
minor? MS. [M.]: Yes.

MR. BROWN: Okay. I get that answer a lot too. Do you
realize that the burden in those two cases is exactly the same,
the definition would be the same? Do you follow me? MS.
[M.]: Uh-huh.

MR. BROWN: So it’d be beyond a reasonable doubt as
it’s defined by the judge here. The same instruction would be
given in the case like what Ms. [P.] had talked about. So the
burden is the same in the sense that it’s defined the same. Do
you follow me? MS. [M.]: Yes.

MR. BROWN: Okay. So would you hold us to the
burden as the Judge gives it to you -- MS. [M.]: Yes.

MR. BROWN: -- and not think that we have to have
something more than that? MS. [M.]: Correct.

Veal’s counsel shortly thereafter moved for a mistrial based on this

exchange. He said, “I don’t know if that went over the line but want to

bring it to the court’s attention. . . . It was a comparison of selling alcohol

to minors and -- and murder . . . .” He then added that when a prosecutor

compares two crimes it is “at least arguably a comment on potential

punishment; and certainly that’s not appropriate or proper.”
 22

The court denied the motion for mistrial. It recalled the reference as

an effort to equate the burden of proof for both crimes. It did say that the

comment could be viewed as one on possible punishment, and counsel

should “avoid that sort of discussion in the future.”

We find no abuse of discretion in the denial of a mistrial. Jurors

didn’t fall off the turnip truck and into the courtroom. Inevitably, a

prospective juror is going to regard murder as a more serious crime than

selling alcohol to minors and assume it has a more severe punishment.

The point of the prosecutor’s voir dire questioning was not to comment on

punishment but to make sure jurors would be willing to accept the

proposition that all criminal cases are subject to the same “beyond a

reasonable doubt” burden of proof. That was a legitimate purpose.

On appeal, Veal argues that the prosecutor’s contrast between

murder and selling alcohol to minors “[p]lanted in the jurors’ mind the

anchor of a minor punishment . . . .” This seems unlikely to us. No one

referred to the actual punishment for either crime.

Veal also complains that during trial, one of the prosecutors

incorrectly told the jury that the defense had seen a particular diagram

before. The defense immediately disputed that statement in front of the

jury. The diagram was not admitted at that time. During the next break,

outside the presence of the jury, it was established that both sides were

partly right: the diagram had been provided to defense counsel, but some

additions had been made. Over objection, the court received the diagram

into evidence and rejected any argument that the changes to the diagram

had prejudiced the defense.

Notably, defense counsel did not then assert prosecutorial

misconduct or error. Defense counsel did not seek any relief from the

prosecutor’s previous statement about the diagram, such as a curative
 23

instruction. And on appeal, defense counsel is not even appealing the

decision to admit the diagram. We find no reversible error.

Veal also complains about comments made by the lead prosecutor

during his rebuttal closing argument. Over objection, the prosecutor

engaged in some sharp criticism of defense counsel’s closing argument.

These included analogizing the defense argument to the times when the

prosecutor’s daughter would say, “Really, Dad? Really?” to her father

without having any “substance.” The prosecutor also argued as follows:

Mr. Kloberdanz characterized this as a horrible tragedy.
Well, I would disagree with this. You know what a horrible
tragedy is? When an infant dies in its crib for no reason.
When a father of three, driving home from work, his car slides
off the highway and is killed in a crash for no reason.

This is not a horrible tragedy, this is a cold-blooded
killing. It is a brutal, senseless murder and a near-miss on
Ron Willis. That’s the proper way to characterize what
occurred.

At the end of Mr. Kloberdanz’s statement -- at his
closing argument to you, he told quite a story. Wow. What
was all of that based on? Nothing. What -- You would have
thought Mr. Kloberdanz was there, the way he told that story.

That Ron Willis got hit in the head with the lamp, that
he switched clothes with Peter Veal, that he did all those
things. Holy cow. Wow.

The district court overruled defense counsel’s objections to this line

of argument but told the prosecutor he “may be pushing” the line of what

is proper. At that point, the prosecutor shifted into a detailed discussion

of the evidence.

We have indicated that a prosecutor may attack the defense’s

“theory of the case” so long as he or she does not make “denigrating or

inflammatory comments of a personal nature aimed at defense counsel.”

Coleman, 907 N.W.2d at 140. In Coleman, we found no violation of the

defendant’s right to a fair trial when the prosecutor commented that “the
 24

defense, they want to—to blow a lot of smoke around the law, make it as

fuzzy as possible” and “the defense will hide behind [a] cloud of

assumption.” Id. at 139–41 (alteration in original).

Here the prosecutor’s comments may have veered improperly into

personal attacks on defense counsel, e.g., “You would have thought

Mr. Kloberdanz was there, the way he told that story.” Having said that,

we do not find that the comments resulted in prejudice that denied Veal a

fair trial. See id. at 140. As the district court noted in denying the motion

for new trial, “[T]he evidence against [Veal] was strong.” Veal’s theory of

defense was implausible. 9

VIII. Firearm Demonstration.

During trial, the State’s firearms expert Victor Murillo used a .380

semiautomatic pistol from the Iowa Division of Criminal Investigation’s

(DCI) reference collection for demonstrative purposes. This was done

because the actual murder weapon had carcinogenic dye on it. The

demonstration weapon was the same make and model as the murder

weapon, although with some design changes.

Murillo testified that the murder weapon had jammed after it was

used to kill Kavars because a faulty cartridge became stuck inside of the
chamber. To help illustrate his testimony, the State asked Murillo to

9In closing argument, Veal’s counsel advanced the theory that Willis was actually

the murderer of both Kavars and Christensen. According to defense counsel, Willis sent
Veal outside Christensen’s house wearing Willis’s clothing and carrying the knife used to
murder Christensen so Veal could be a “fall guy.” According to this theory, Willis
managed to clean himself up to eliminate all traces of blood on his body and his
whereabouts before calling 911 to contact police.
In addition to its overall implausibility, this theory fails to explain why the bloody
footprints in the house matched Veal’s shoes, how Veal ended up with a cut on his hand,
why Veal ran away from the police whereas Willis cooperated, and how Willis’s skin tissue
ended up on the slide of the gun.
 25

display the operation of a semiautomatic .380 using the sample weapon

from DCI’s lab.

At trial and on appeal, Veal claims the demonstration should not

have been permitted because the demonstration weapon differed from the

murder weapon in certain respects. However, we find no abuse of

discretion. See State v. Liggins, 524 N.W.2d 181, 189 (Iowa 1994) (noting

the court’s “broad discretion in permitting demonstrative evidence to

explain or illustrate the testimony of witnesses”). The demonstration

weapon was not admitted into evidence and it was made clear that it was

not the original. See McNeal, 897 N.W.2d at 709 (“It was made clear to the

jury that the replica [sledgehammer] was not the original. The replica was

not admitted into evidence.”). Veal’s counsel was able to make any

differences clear when he cross-examined Murillo.

Veal urges that the demonstration had little relevance, because

“there was no dispute over how the gun operated” and “[t]he dispute was

over who fired the gun . . . .” To the extent that is true, though, it would

also mean that the demonstration had little potential for resulting in unfair

prejudice.

IX. The Defendant’s Competency Hearing.

On May 15, 2017, two examining professionals reported that Veal

was properly oriented as to time, place, and current events and could

perform mental tracking tasks and a memory test without difficulty.

According to the reports, Veal also was able to list the charges against him

and identify the range of potential sentences; he could confirm that he had

met with his defense attorney five or six times and that he was able to

work with him; he understood the roles of his defense attorney, the

prosecutor, the judge, and the jury; he understood what a plea bargain

would entail; and he realized that he should advise his defense attorney if
 26

a witness wasn’t telling the truth. Veal’s scores on tests of basic legal

concepts and skills to assist defense were described as “somewhat higher

than average compared to the general population.”

These evaluations concluded that Veal had a factual and a rational

understanding of the legal proceedings and could assist his defense

counsel. Thus, they opined he was competent to stand trial. See Iowa

Code § 812.3(2); id. § 812.5 (defining the issue as whether “the defendant

is suffering from a mental disorder which prevents the defendant from

appreciating the charge, understanding the proceedings, or assisting

effectively in the defense”).

Following the receipt of both evaluations, a competency hearing took

place on May 23. The evaluations were admitted into evidence. For the

defense, Veal’s mother testified that she had visited her son twice recently

for brief periods of time. The first time, Veal was rocking and looking

behind him. His mother got “the feeling he was paranoid.” The second

time, Veal did not behave like that. However, during this second visit, Veal

asked Veal’s mother about how his sister was doing just a few minutes

after Veal’s mother had already spoken to Veal about his sister.

Defense counsel also represented that in their encounters with their

client, Veal had not asked questions of his own and often had not

responded to their inquiries. Defense counsel urged that there was a

serious question whether Veal was listening to his attorneys—rather than

listening to voices—and that Veal was having a hard time paying attention.

After considering the evidence, the district court concluded that Veal

was competent to stand trial. On our de novo review, we agree. The two

expert evaluations on which the district court relied were detailed and

thorough. As the district court observed, the testimony of Veal’s mother

was based on only two fifteen-minute visits with her son. Even accepting
 27

the professional statement of Veal’s counsel that they were having trouble

interacting with their client, the examining psychiatrist and the examining

psychologist covered this same subject in considerable detail in their

evaluations. Based on their objective testing and personal observations,

they found Veal would be able to work with his counsel.

In sum, the State carried its burden of proving by a preponderance

of evidence that Veal’s competency had been restored. See id. § 812.8(5).

Notably, Veal cites nothing from the trial itself that might have suggested

he was not competent to stand trial. Cf. State v. Einfeldt, 914 N.W.2d 773,

776–77 (Iowa 2018) (discussing behavior and statements of the defendant

during trial). 10

X. Excluded Evidence.

Veal challenges the district court’s exclusion of evidence pertaining

to Willis. The limited evidence essentially fell into two categories:

(1) Willis’s criminal history and (2) information that a defense witness,

M.B., had concerning Willis.

A. Willis’s Criminal History. We begin with the admitted

evidence. The defense was allowed to impeach Willis with the fact that he

had been convicted in 2009 on a felony drug charge. The defense was also
allowed to argue that Willis had been found by the police to have a small

amount of marijuana in his car on November 17, 2016, and was not

10Veal frames the issue on appeal as whether a “new” competency evaluation
should have been ordered. In the trial court, Veal’s position was that additional
evaluation was needed to determine whether Veal was suffering from schizophrenia or
not. Regardless of how the issue is characterized, the role of the trial court as of May 23
was to determine Veal’s competency to stand trial in light of the expert evaluations and
other evidence before it. See Iowa Code §§ 812.5, .8(5).
 28

prosecuted. Similarly, the defense was able to argue that Willis had not

been prosecuted as a felon in possession of a firearm. 11

However, the defense was not allowed to bring out Willis’s drug

charges in Minnesota that were pending at the time of trial. Likewise,

evidence of Willis’s early June 2017 misdemeanor drug possession

conviction was excluded. Also excluded was the fact that Willis did not

serve the mandatory minimum two days in jail on the June 2017

conviction and the possibility that the charge could have been (but was

not) enhanced to a felony. The court reasoned that misdemeanors and

unproved charges are not normally admissible, and there was no basis for

concluding that Willis was the beneficiary of some kind of deal to receive

favorable treatment.

We see no abuse of discretion here. Allowing the defense to present

this additional evidence of Willis’s criminal history could have led to an

unneeded and time-consuming sideshow. Willis made a 911 call to police

voluntarily on November 17, 2016, to report that Veal had shot Kavars.

Willis’s version of events never changed. While defense counsel should

have broad leeway to question prosecution witnesses facing criminal

exposure, this record contains no suggestion that any sort of deal was

made with Willis. There would have been no need for a deal: Willis had

reported the criminal episode of his own volition. Moreover, Veal’s defense

theory was that Willis had shot Kavars and stabbed Christensen to death.

If that were true, Willis had plenty of motive to pin the crimes on Veal and

did not need a “deal” as motivation.

B. M.B.’s Testimony. Again, we begin with the admitted evidence.

M.B. was Christensen’s live-in girlfriend during the last few months before

11Willis
consented to a search of his vehicle, a point the prosecution used at trial
to show that Willis was not trying to hide anything from the police.
 29

his death. She testified that she witnessed Willis delivering drugs to

Christensen. She testified that Christensen was spending a lot of money

on drugs and his financial situation was deteriorating. She also testified

that about two weeks before November 17, 2016, Willis had date-raped her

and she reported this to Christensen. M.B. further testified that

Christensen was upset and mad at Willis upon hearing this. And M.B.

testified that Willis kept drugs and a handgun in his car.

M.B. was not allowed to testify that Christensen had “a significant

drug problem,” how much Christensen was spending on drugs, or that she

was “scared of” Willis.

Veal claims that these limits on M.B.’s testimony significantly

interfered with his ability to present his case. In particular, Veal contends

that the jury got to hear of a “rift” between Willis and Christensen but did

not get to hear “what the rift was about.” We disagree. Veal was able to

demonstrate that Willis had a motive to kill Kavars and Christensen. We

find no abuse of discretion.

XI. Sufficiency of the Evidence.
Veal argues the district court should have granted his motion for
judgment of acquittal on the ground there was insufficient evidence to
support his convictions for the first-degree murder of Christensen and
Kavars and for the attempted murder of Willis. Alternatively, Veal urges
that his motion for new trial should have been granted on the ground that
the verdicts were against the weight of the evidence. We disagree with
both contentions.
Willis testified that Veal shot Kavars in the throat before turning the
gun on Willis and attempting to shoot Willis. When the pistol jammed,
according to Willis, Veal struck Willis in the head and then attempted to
free the lodged round. The pistol recovered at the scene by police had a
 30

jammed round in the firing chamber. Willis’s skin tissue was also found
on the pistol’s slide consistent with his being struck on the head with it.
After Willis fled the scene, Veal was the only person remaining in the
house with Christensen. Christensen’s dead body was later found in a
pool of blood with twenty-five stab wounds. Christensen’s blood was all
over Veal’s jeans and shoes. The bloody footprints in the house matched
Veal’s shoes. A trail of Christensen’s blood followed Veal’s path out of the
house. Along the path were Veal’s discarded bloody shirt and bloody knife.
Again, Christensen’s blood was on these items.
Veal’s improbable defense theory was that Willis had both shot
Kavars and stabbed Christensen, then forced Veal to put on Willis’s bloody
clothes, then cleaned himself up so he would have no trace of
Christensen’s blood, and then left the house and called 911. The jury was
entitled to reject this theory which was not supported by the weight of the
evidence.
XII. Conclusion.
For the foregoing reasons, we conditionally affirm Veal’s conviction
and sentence, but remand this case for further consideration of Veal’s
claim that his jury was not drawn from a fair cross section of the
community in violation of the Sixth Amendment.
AFFIRMED ON CONDITION AND REMANDED WITH
DIRECTIONS.
Cady, C.J., concurs.
Wiggins and Appel, JJ., concur as to divisions IV, V, VII, VIII, IX, X,
and XI, and dissent as to division VI.
Waterman, Christensen, and McDonald, JJ., concur as to divisions
V, VI, VII, VIII, IX, X, and XI, and dissent as to division IV.
 31
#17–1453, State v. Veal
CADY, Chief Justice (concurring specially).

I join in each division of the majority opinion by Justice Mansfield.

In particular, I agree that the district court in this case properly applied

the Batson test to reject the challenge to the removal of the last African-

American juror from the panel. See Batson v. Kentucky, 476 U.S. 79, 96,

106 S. Ct. 1712, 1723 (1986). In other words, the district court properly

applied our current law.

Nevertheless, I acknowledge problems inherent in the exercise of

peremptory challenges and agree with the separate opinion by Justice

Wiggins that the solution in the future is to do away with the use of

peremptory challenges. Thus, I am not in favor of trying to modify our

governing rules to better detect bias in discretionary decision-making so

much as I am in eliminating discretionary practices altogether that allow

implicit bias to exist undetected. For that reason, I also concur in the

overall theme of the thoughtful analysis and criticism of peremptory

challenges discussed in the separate opinion by Justice Appel.
 32

#17–1453, State v. Veal

WIGGINS, Justice (concurring in part and dissenting in part).

I join Justice Appel’s opinion in this case. However, I think it is time

to abolish peremptory challenges in Iowa. The Code and our rules provide

for reasons why a court should not seat a juror. Iowa Code §§ 607A.4, .5,

.6 (2019); Iowa R. Crim. P. 2.18(5); accord Iowa R. Civ. P. 1.915(6). And,

if the rules are inadequate, we should amend our rules. If a person can

sit as a juror under the Code and rules, a party should not be able to strike

that otherwise qualified juror.

As Justice Marshall pointed out in his concurring opinion in Batson

v. Kentucky, “[m]isuse of the peremptory challenge to exclude black jurors

has become both common and flagrant.” 476 U.S. 79, 103, 106 S. Ct.

1712, 1726 (1986) (Marshall, J., concurring). Even after Batson, I see the

same problem in Iowa. In the majority of the cases, the reasons given by

prosecutors in response to a Batson challenge appear to be pretexual.

Washington General Rule 37, cited by Justice Appel in his opinion, helps

but does not solve the problem. The only way to stop the misuse of

peremptory challenges is to abolish them in Iowa and require judges to

enforce rigorously challenges for cause. If our judges would enforce our

rules on challenges for cause, the district court can be confident that it sat

an impartial jury.

The practice of allowing peremptory challenges started in England

in the 1300s. Raymond J. Broderick, Why the Peremptory Challenge

Should Be Abolished, 65 Temp. L. Rev. 369, 371–72 (1992). In 1988,

Parliament abolished peremptory challenges altogether. Id. at 373.

Parliament’s concern was “that defense lawyers were manipulating the

peremptory challenge to pack juries with biased individuals, thereby

defeating the ability of random draw techniques to ensure a representative
 33

petit jury.” Id. When prosecutors systematically remove minorities from

juries, we should do what Parliament did and abolish peremptory

challenges.

Peremptory challenges are a creature of our rules and are not

constitutionally required. All that is required under our Constitutions is

that a defendant receives a trial by an impartial jury. U.S. Const. amend.

VI; Iowa Const. art. I, sec. 10. Abolishing peremptory challenges will go a

long way toward fulfilling that constitutional obligation.

Therefore, I think we should begin a discussion to remove

peremptory challenges from our rules.
 34

#17–1453, State v. Veal

APPEL, Justice (concurring in part and dissenting in part).

In this case, I concur with the majority opinion except for division

VI (the Batson challenge).

Today, we consider three important cases related to this court’s

ongoing efforts to ensure that the notion of equality before the law applies

to African-Americans in our justice system and in our jury system. As

professional hair splitters, it is easy for us to dive directly into the

intricacies of the cases, disappear, and resurface with narrowly diced

results in each case.

Before doing so, however, I think we should put these cases in a

larger perspective in three ways. First, we should recognize the profound

and persistent problem of racial discrimination in our society. Second, we

should put each of the cases we decide today in their larger context within

our legal system. We should decide these cases only after we have

understood that context. Third, we should recognize the role of state

courts in working to develop a system of justice where fair and impartial

juries and freedom from discrimination are the norm and not the

exception.

I. Contextualizing Civil Rights in Jury Cases.

A. The Persistent, Stubborn, and Ongoing Struggle for Racial

Equality. Achieving the promise of equality before the law for African-

Americans, in Iowa and across the nation, has been a difficult, painful,

and ongoing challenge. The bitter reality of chattel slavery, accommodated

in the United States Constitution and protected in the federal courts, was

dismantled by the American Civil War, motivated at least in part and for

some by the founders’ stirring phase that “all Men are created equal.” The

Declaration of Independence para. 2 (U.S. 1776); Stephen L. Mikochik, A
 35

Celebration of Equality, 64 Temple L. Rev. 371, 371 (1991) (“The

Constitution endured slavery until the Civil War . . . .). The war was won

and the victors imposed amendments to the United States Constitution

abolishing slavery. See U.S. Const. amends. XIII, XIV, XV [hereinafter

Reconstruction Amendments].

But the struggle for equality before the law did not end at

Appomattox or after enactment of the postwar constitutional amendments.

It had only begun. After a brief period of hope and some accomplishment,

the reforms of reconstruction, fiercely and violently opposed in the South

and losing political support in the North, were tragically abandoned. See

David Lyons, Corrective Justice, Equal Opportunity, and the Legacy of

Slavery and Jim Crow, 84 B.U. L. Rev. 1375, 1376 (2004). The oppressive

slave regime was replaced by Jim Crow in the states of the former

confederacy and a pattern of less blatant but hurtful discrimination in

other areas of the country. Id. at 1376–77. Although slavery passed from

the scene, persistent and explicit discrimination against African-

Americans remained part of the American landscape for almost a hundred

years. Id.

Iowa has, in some ways, been a leader in efforts to ensure racial

equality. The trilogy of our early civil rights cases have been justly and

widely celebrated. The differences in tone and content between In re Ralph

and the proslavery Dred Scott decision are stark. Compare In re Ralph, 1

Morris 1, 7 (Iowa 1839), with Dred Scott v. Sandford, 60 U.S. 393, 403

(1857), superseded by U.S. Const. amends. XIII, XIV. Leading Iowa

politicians, constitutional convention members, lawyers, and eventually

judges condemned the proslavery declarations of federal courts

culminating in Dred Scott. See State v. Short, 851 N.W.2d 474, 484 (Iowa

2014). When the United States Supreme Court invalidated the Federal
 36

Civil Rights Act of 1866 in 1883, the Iowa legislature in its next session

enacted a state civil rights act outlawing, at least to a degree, racial

discrimination in a variety of settings. Russell E. Lovell, Shine on, You

Bright Radical Star: Clark v. Board of School Directors (of Muscatine)—The

Iowa Supreme Court’s Civil Rights Exceptionalism, 67 Drake L. Rev. 175,

195–96 & n.121 (2019) [hereinafter Lovell].

Yet, the early version of the Iowa civil rights legislation was not

routinely enforced by elected county attorneys. Id. at 196 n.121. And,

this court’s decisions were not always encouraging. For instance, in

Brown v. J.H. Bell Co., 146 Iowa 89, 96–97, 123 N.W. 231, 233–34 (1909),

the Iowa civil rights statute was applied very narrowly in the case of a

farmers market-type activity that included a food court. The Brown court

concluded that the food court was not “a place of amusement” under the

Act. Id. at 99, 123 N.W. at 234.

It would certainly be a mistake to conclude that our state was been

free of discriminatory animus in the years following reconstruction. For

example, the soda fountain at the Katz drug store in downtown Des

Moines, an iconic feature of the city’s postwar cultural landscape, declined

to serve African-American patrons in the years after World War II. See

State v. Katz, 241 Iowa 115, 116, 40 N.W.2d 41, 43 (1949). After a

combination of political protest, civil litigation, and criminal prosecution,

the blatant discrimination in the heart of Iowa’s capital city was

discontinued. See id. at 117, 40 N.W.2d at 43. The Katz episode occurred

more than eighty years after the last shot was fired in the Civil War.

Shortly after our decision upholding the criminal conviction in Katz,

the United States Supreme Court in Brown v. Board of Education, 347 U.S.

483, 493, 74 S. Ct. 686, 691 (1954), consistent with much earlier Iowa

judicial precedent, declared that racial segregation in public schools
 37

violated the nation’s commitment to equal protection. The reaction in

some quarters to Brown, of course, was bitter. Leading southern

politicians produced the Southern Manifesto, a declaration defiantly

blasting the courts as overstepping their authority. Reva B. Siegel,

Equality Talk: Antisubordination and Anticlassification Values in

Constitutional Struggles over Brown, 117 Harv. L. Rev. 1470, 1488–89 &

n.59 (2004). Yet, a decade later, after events including the murders of civil

rights workers and the terrorist bombing of a Birmingham church, Iowa

strengthened its Reconstruction Era statutory regime protecting civil

rights, while important and comprehensive federal legislation protecting

civil rights and voting rights was enacted. See Iowa Civil Rights Act of

1965, Iowa Code ch. 216 (2019); Kenneth W. Mack, Foreword: A Short

Biography of the Civil Rights Act of 1964, 67 SMU L. Rev. 229, 242 (2014);

Margaret M. Russell, Cleansing Moments and Retrospective Justice, 101

Mich. L. Rev. 1225, 1226 (2003).

No one, however, believes that the important judicial and legislative

developments of more than fifty years ago has ended racial discrimination

in America. For the most part, however, political and cultural

developments, supported by judicial, legislative, and executive actions,

have driven overt racial discrimination underground. Expressly

discriminatory political appeals of “segregation forever” have generally

disappeared from the public square. But the fact that most overt racism

is now under the radar does not mean it does not exist. See Rose v.

Mitchell, 443 U.S. 545, 558–59, 99 S. Ct. 2993, 3001 (1979) (noting that

more than a century after the Civil War, “racial and other forms of

discrimination still remain a fact of life, in the administration of justice as

in our society as a whole”).
 38

Further, social scientists have now thoroughly documented what

has been known for decades, namely, that all of us—judges, lawyers,

legislators, and jurors—have unconscious or implicit biases. Michael B.

Hyman, Implicit Bias in the Courts, 102 Ill. B.J. 40, 42 (2014) (“Implicit bias

weaves its way through the legal system in interactions between attorneys,

clients, jurors, and judges.”). Many of these unconscious biases may be

harmless, if not helpful, to daily living. But to the extent implicit bias

reflects unconscious racial bias, it can be a driver in perpetuating racial

inequality. Id. at 41–42. And there is reason to believe that many of us—

including intelligent and conscientious people of good will—have

unconscious racial bias shaped by our culture and experience. Id. at 43

(“[J]udges, like everyone else, harbor their own set of implicit biases,

shaped by their experiences and identity . . . .”).

The need to address racial bias continues in law enforcement and in

the courts. As noted by Justice Wiggins in State v. Plain, 898 N.W.2d 801,

830 (Iowa 2017) (Wiggins, J., concurring specially), “A recent report by The

Sentencing Project found 25.8% of Iowa’s prison population was black,

while blacks made up only 3.1% of Iowa’s population.” According to a

2016 study, African-Americans in Iowa are seven times more likely than

whites to be arrested for drug possession, even though all available studies

indicate that drug possession and use among African-Americans and

Caucasian Americans is roughly the same. Human Rights Watch & Am.

Civil Liberties Union, Every 25 Seconds: The Human Toll of Criminalizing

Drug Use in the United States 41, 46 (2016). Iowa’s racial disparity in drug

possession arrests was the second worst in the country. Id. at 46. Racial

discrimination persists.

The bottom line is that the struggle for equal justice before the law

is continuing. It can best be understood as a process, not an event. In
 39

seeking to advance the process of equal justice before the law, it is

essential that we understand the persistent character of racial

discrimination and its evolving nature. We must recognize that although

overt racial bias is, in most quarters, in retreat, the problem of implicit

bias poses a major challenge and must be addressed. Finally, because of

the intractable and evolving nature of racial bias, we must adopt a

pragmatic and flexible approach to sculpting appropriate judicial remedies

to meet the challenge.

B. Systematic Review of the Jury Process. Given the above

history of the persistent and evolving nature of the struggle for racial

equality, it is not surprising that the effort to promote equal justice under

the law in law enforcement and in our judicial system has been persistent

and evolving too. By way of example, although the United States Supreme

Court in Strauder v. West Virginia, 100 U.S. 303, 308–09 (1879), abrogated

on other grounds by Taylor v. Louisiana, 419 U.S. 522, 536–37, & n.19, 95

S. Ct. 692, 700–01 & n.19 (1975), declared that African-Americans could

not be disqualified as jurors, experience showed that Strauder was

unenforced if not unenforceable. Decades later, the United States

Supreme Court advanced beyond Strauder in Swain v. Alabama, 380 U.S.

202, 226, 85 S. Ct. 824, 839 (1965). Yet, Swain proved inadequate to the

task as well, and was overruled twenty years later in Batson v. Kentucky,

476 U.S. 79, 96, 106 S. Ct. 1712, 1723 (1986). And today, scholars believe

we need to move beyond Batson in advancing the notion of “equality before

the law” for African-Americans. See, e.g., Jeffrey Bellin & Junichi P.

Semitsu, Widening Batson’s Net to Ensnare More Than the Unapologetically

Bigoted or Painfully Unimaginative Attorney, 96 Cornell L. Rev. 1075, 1108

(2011) [hereinafter Bellin & Semitsu] (stating further measures must be

taken to guard against discrimination in the courts because “Batson
 40

cannot be expected to have anything but the most superficial success in

rooting out unconstitutional race- or gender-based peremptory

challenges”). If anything, our civil rights experience suggests that,

particularly when it comes to remedies, judicial approaches should not be

cast in stone but should be shaped and sculpted in light of experience

arising from their application.

When we approach a case with civil rights implications, it is

important to think systemically. Important issues involving the make-up

of the venire pool, the scope of voir dire of potential jurors, the use of

peremptory challenges, and the instructions given to the jury intersect and

act together to promote, or resist, our efforts to provide all defendants with

a fair trial. See Mark W. Bennett, Unraveling the Gordian Knot of Implicit

Bias in Jury Selection: The Problems of Judge-Dominated Voir Dire, the

Failed Promise of Batson, and Proposed Solutions, 4 Harv. L. & Pol’y Rev.

149, 168 (2010) [hereinafter Bennett] (discussing tandem remedies).

For instance, today we have announced a new approach designed to

ensure that the jury pools in our judicial system represent a fair cross

section of the community. These cases reflect a significant, and necessary,

step in vindicating the right of citizens to a fair and impartial jury. I

applaud the court for its approach to fair-cross-section requirements. My

view on this issue is further stated in State v. Lilly, ___ N.W.2d ___, ___

(Iowa 2019) (Appel, J., concurring specially).

But the advances reflected in our approach to fair-cross-section

requirements will be meaningless if a party is able to exercise peremptory

challenges in a fashion that eliminates the few African-Americans who are

on the pool or venire from the petit jury. See Swain, 380 U.S. at 241

(Goldberg, J., dissenting) (noting the interlocking relationship between an

inadequate venire selection system and the use of peremptory challenges).
 41

In Iowa, the minority population is sufficiently small that few African-

Americans are likely to be in the venire pool even with the more generous

approach to fair-cross-section challenges commendably embraced in our

cases decided today. See Plain, 898 N.W.2d at 830 (noting that black

people comprise a small percentage of Iowa’s population). It will do little

to advance the cause of impartial juries if the preliminary jury pool is more

representative of the community but all minority members are routinely

eliminated from the jury that actually sits.

Further, if our process is such that it yields few African-American

venire jurors and fewer still African-American petit jurors, we cannot rely

on fair-cross-section- or Batson-type concepts as the only tools to

eliminate racial bias in our jury system. Bennett, 4 Harv. L. & Pol’y Rev.

at 168. The importance of voir dire and jury instructions as tools to

eliminate or reduce the influence of racial bias in our system

proportionately increases as the proportion of African-American or other

minorities on the petit jury decreases. See id.

The degree to which voir dire is effective in rooting out racial

prejudice has been debated by scholars. Compare Jeffrey M. Gaba, Voir

Dire of Jurors: Constitutional Limits to the Right of Inquiry into Prejudice, 48

U. Colo. L. Rev. 525, 533–34 (1977) (“While voir dire may not be completely

effective in discovering prejudice, there are additional objectives, both

proper and improper, which it serves. Furthermore, it is still the primary

mechanism by which prejudicial attitudes are revealed and is thus an

essential—if imperfect—element of the challenge system.”(Footnotes

omitted.)), with Valerie P. Hans & Alayna Jehle, Avoid Bald Men and People

with Green Socks? Other Ways to Improve the Voir Dire Process in Jury

Selection, 78 Chi.-Kent L. Rev. 1179, 1179 (2003) (“[V]oir dire is often

ineffective in detecting juror bias . . . .”). I suspect the batting average may
 42

not be very high. But while many overtly or implicitly biased jurors may

not be identified in the voir dire process, some plainly are. The fact that

voir dire is not 100% effective, or even 50% effective, in identifying biased

jurors does not mean it should be abandoned, but only that we should

maximize its effectiveness and develop other tools to back it up. For

example, it is clear that voir dire’s effectiveness in rooting our racial

prejudice is maximized by eliminating reliance on judge-directed, closed-

end “yes” or “no” questions that almost universally produce compliant

answers. See Anne M. Payne & Christine Cohoe, Annotation, Jury

Selection and Voir Dire in Criminal Cases, 76 Am. Jur. Trials 127, § 56,

Westlaw (database updated May 2019.) (“It is wise for counsel to avoid

asking questions of prospective jurors during voir dire which can be

answered either yes or no.”). Instead, we should permit attorneys to engage

in individual, open-ended examination of jurors designed to allow the juror

to speak about his or her cultural attitudes. Id. § 23 (“An open-ended

question permits each juror to explain his answer in his own words

through his own thoughts.”). With this approach, voir dire is not remotely

perfected, but it is somewhat enhanced, as a tool to explore potential bias.

On the very back end of the jury process, the United States Supreme

Court, following the lead of many state courts, has opened the door to

exploration of jury deliberation where the process is tainted by egregious

and overt racial discrimination. See Peña-Rodriguez v. Colorado, 580 U.S.

___, ___, 137 S. Ct. 855, 869 (2017). This remedy, however, has been very

narrowly crafted. It amounts to a last ditch backstop for the worst of cases

that come to the attention of the court.

In short, because of the limited number of African-American jurors

who will make it to the jury pool, the possibility that Batson strikes will

eliminate them from the petit jury, and the helpful but limited effectiveness
 43

of voir dire as an antibias tool, the court’s instructions to the jury may be

the last, best line of defense against racial bias in our jury system. This is

particularly true with respect to implicit bias. Studies show that

identifying and discussing the possibility of unconscious racial bias can

be effective in minimizing or eliminating it. Cynthia Lee, A New Approach

to Voir Dire on Racial Bias, 5 U.C. Irvine L. Rev. 843, 872 (2015). An

implicit-bias instruction, therefore, should play a part in our effort to

ensure that equality before the law is a reality for African-Americans and

other minorities in our jury system. I further discuss these issues in State

v. Williams, ___ N.W.2d ___, ___ (Iowa 2019) (Appel, J., concurring in part

and dissenting in part).

C. Role for State Courts. Finally, I want to emphasize the

important role of state courts in addressing the continuing challenge of

bringing us closer to the goal of racial equality in our courts. Obviously,

the Iowa Constitution and our supervisory authority over Iowa courts

provides an independent basis for addressing fundamental issues such as

the rights to an impartial jury and to equality before the law. See Iowa

Const. art. I, §§ 1, 6, 9, 10.

But it is also important to note the vibrant constitutional dialogue

that arises when state courts engage in independent constitutional

analysis. Throughout our constitutional history, state court decisions

have been precursors to later developments in federal law. We all know

about how the Iowa Civil Rights cases provided an example for later federal

constitutional adjudication. See, e.g., Lovell, 67 Drake L. Rev. at 189.

There are other, more recent examples of state courts leading the way. For

instance, in 1948, the California Supreme Court in Perez v. Lippold, 198

P.2d 17, 29 (Cal. 1948) (en banc), struck down a state statute invalidating

interracial marriages. Perez laid the groundwork for the pivotal United
 44

States Supreme Court case, twenty years later, of Loving v. Virginia, 388

U.S. 1, 2, 87 S. Ct. 1817, 1818–19 (1967). Similarly, after Swain, state

courts rejected the high burdens imposed on those challenging racially

tinged peremptory challenges. For instance, in People v. Wheeler, 583 P.2d

748, 765–67 (Cal. 1978), overruled in part on other grounds by Johnson v.

California, 545 U.S. 162, 164, 173, 125 S. Ct. 2410, 2414, 2419 (2005),

the California Supreme Court, relying on state constitutional provisions

resembling Iowa’s, specifically rejected Swain and developed a far more

workable framework for dealing with racially discriminatory strikes. So

did Massachusetts. See Commonwealth v. Soares, 387 N.E.2d 499, 509–

16 (Mass. 1979). So did Florida. See State v. Neil, 457 So. 2d 481, 485–

87 (Fla. 1984), receded from in part by State v. Johans, 613 So. 2d 1319,

1321 (Fla. 1993). So did New Mexico. See State v. Crespin, 612 P.2d 716,

717–18 (N.M. Ct. App. 1980). These cases, all cited later by the United

States Supreme Court in Batson, blazed the way for the further

development of federal constitutional law. 476 U.S. at 82 n.1, 106 S. Ct.

at 1715 n.1. And, after Batson, a number of state supreme courts

extended the Batson rule to cover gender under their own state

constitutions. See, e.g., State v. Levinson, 795 P.2d 845, 849–50 (Haw.

1990); Commonwealth v. Hyatt, 568 N.E.2d 1148, 1150 (Mass. 1991);

State v. Gonzales, 808 P.2d 40, 49–50 (N.M. Ct. App. 1991). The United

States Supreme Court later followed suit. J.E.B. v. Ala. ex rel. T.B., 511

U.S. 127, 128–29, 114 S. Ct. 1419, 1421 (1994).

The recent Supreme Court case of Peña-Rodriguez demonstrates the

important role of state courts in developing legal doctrine on the federal

level. 580 U.S. at ___, 137 S. Ct. at 865. In its decision, the Supreme

Court in noted that sixteen states had developed exceptions to their no-
 45

impeachment-of-jury-verdict rules in cases involving explicit racial bias in

jury deliberations. Id.

The unmistakable point is that vibrant, independent state

constitutional law has enriched the development not only of the law in

each state, but has promoted the development of federal constitutional law

as well.

II. Challenge Based on Fair Cross Section.

For the reasons expressed in my concurring opinion in Lilly, I am

not convinced that the sole test for the second Duren and Plain prong

should always be one standard deviation. Lilly, ___ N.W.2d at ___; see

Duren v. Missouri, 439 U.S. 357, 364, 99 S. Ct. 664, 668 (1979); Plain, 898

N.W.2d at 826–27. Yet, as indicated there, I think that using a relatively

low statistical deviation threshold may be sufficient to avoid the pitfalls of

the application of the statistical method. The step forward on the fair-

cross-section issue, however, will be meaningless if prosecutors use

peremptory strikes to eliminate minority jurors and if we fail to take other

effective steps to combat racial bias in our court system.

III. Challenge to Peremptory Strike of the Last African-
American Member of a Venire Pool.

In addition to the fair-cross-section issue, this case involves another

important issue, namely, a challenge to the prosecution’s use of a

peremptory challenge to eliminate the last African-American from the jury

pool. In defending the strike, the prosecutor explained that he had

personally prosecuted the juror’s father for three class A felonies and

feared that the potential juror harbored “latent hostility” toward him as a

result. The potential juror, however, stated that she was not close to her

father, that the situation would have no effect on her ability to be an

impartial juror, that her father was treated fairly by the state, that she
 46

would not hold the prosecution of her father against the state, that she did

not recognize the prosecutor as someone involved in the prosecution until

the prosecutor brought it up, and that she had no relationship with her

father in any event. The district court found no Batson violation.

Veal argues that the voir dire of the juror negated any legitimate

concern that the prosecutor might have had about latent hostility towards

him, and as a result, he showed pretext under Batson. If we were to find

the State’s exercise of its peremptory challenge of the last African-

American on the jury panel under the circumstances satisfies Batson,

however, Veal urges us to reconsider the application of Batson in the

circumstances of this case where the last potential African-American juror

is stricken from the jury pool. According to Veal, the court should hold

the State to a “very high standard” in these circumstances.

Citing an unpublished court of appeals opinion, Veal asserts that

the prosecutor’s “reasoning seems to fit into that category of facially non-

discriminatory reasoning that disproportionately implicates African-

American potential jurors.” State v. Miller, No. 16-0331, 2017 WL

1088104, at *3 (Iowa Ct. App. Mar. 22, 2017). Veal incorporates at length

the court of appeals discussion, which I reproduce below, of a scholarly

article and a dissenting opinion by Justice Stevens:

“A significantly higher percentage of people of color have
arrest records due to the disproportionate number of stops,
searches, and arrests of people of color.” Vida B. Johnson,
Arresting Batson: How Striking Jurors Based on Arrest Records
Violates Batson, 34 Yale L. & Pol’y Rev. 387, 389 (Spring
2016). Additionally, “Black people are more likely to have
friends and family who are Black. As a result, Black jurors
are more likely than White jurors to have friends and family
who have been arrested.” Id. The logical next step is that
someone who has been arrested themselves or had someone
they care about be arrested is more likely to have negative
views of law enforcement. Id. at 407. While using potential
jurors’ response about law enforcement appears to be race-
neutral, it is likely to have a disparate impact on potential
 47
black jurors. See id. at 389 (“Judges and prosecutors then
use the existence of prior arrests of the jurors or the jurors’
friends or family to strike these prospective jurors, in effect
producing juries whose racial compositions are whiter than
that of the respective communities.”); see also Hernandez v.
New York, 500 U.S. 352, 376[, 111 S. Ct. 1859, 1875] (1991)
(Stevens, J., dissenting) (“An avowed justification that has a
significant disproportionate impact will rarely qualify as a
legitimate, race-neutral reason sufficient to rebut the prima
facie case because disparate impact is itself evidence of
discriminatory purpose.”).

Id. Based on the above reasons, Veal asserts that the trial court should

have sustained the Batson challenge and requests a new trial as a result
of the error.

The NAACP has filed an amicus brief in support of Veal challenging

the continued viability of Batson. The NAACP notes that in Foster v.

Chatman, 578 U.S. ___, ___, 136 S. Ct. 1737, 1754–55 (2016), the Supreme

Court required trial courts to engage in a searching inquiry of the

prosecutor’s demeanor and stated justifications for striking jurors of color,

including a comparative juror analysis to determine whether the stated

race-neutral reasons for striking black jurors were in fact even-handedly

applied to white jurors. Further, in Peña-Rodriguez, 580 U.S. at ___, 137

S. Ct. at 868–69, the NAACP points out that the Supreme Court noted that

racially biased comments in jury deliberations could require the trial court

to overturn a jury verdict.

In addition, the NAACP cites cases from Washington State as

providing a better approach. See City of Seattle v. Erickson, 398 P.3d 1124,

1127–31 (Wash. 2017); State v. Saintcalle, 309 P.3d 326, 333–39 (Wash.

2013) (en banc) (plurality opinion). In these cases, the Washington

Supreme Court extensively canvased the shortcomings of Batson

jurisprudence and proposed changes in the judicial approach to

eliminating racial discrimination in the selection of jurors. Erickson, 398
 48

P.3d at 1127–31; Saintcalle, 309 P.3d at 333–39. The NAACP suggests

that there is a growing national consensus that the procedural protections

in Batson simply do not work. The NAACP cites a symposium that

appeared in the Iowa Law Review in 2012 on Batson. See Symposium,

Batson at Twenty Five: Perspectives on the Landmark, Reflections on Its

Legacy, 97 Iowa L. Rev. 1393 (2012).

On appeal, the State opposes Veal’s Batson challenge. The State

asserts that the prosecutor in this case presented a nondiscriminatory

reason for the peremptory strike. While the State recognizes that

generalized reasons for striking African-Americans from juries might be

more problematic, the State points out that in this case, the prosecution

had a specific reason tied to the case at hand, namely, that the prosecutor

had tried the father of the prospective juror on a class A felony. Further,

the State rejects the notion that the juror was rehabilitated, noting that

“neutral answers can still conceal deep, unconscious bias.” The State

urges that we give “great deference” to the trial court’s finding crediting

the prosecution’s reason for striking the juror as race neutral.

A. The Road to Batson and Beyond.

1. Introduction. This case involves both state and federal

constitutional questions. In order to illuminate the choices presented in

this case, a survey of how the United States Supreme Court has grappled

with the issue provides context. In addition, exploration of dissents gives

texture to the issues and may recommend to us alternative approaches.

2. From Strauder to Swain. After the Civil War and the passage of

the Reconstruction Amendments, the United States Supreme Court, at

least in theory, sought to protect the right of African-Americans to serve

on juries. The first major case was Strauder, 100 U.S. 303. In Strauder,

the Supreme Court considered the validity of a West Virginia statute that
 49

excluded African-Americans from jury service. Id. at 304. The Strauder

Court held that the practice violated the Fourteenth Amendment. Id. at

310.

The Strauder Court recognized the importance of having

representation of the unpopular on the jury. According to the Strauder

Court, the rights associated with jury trials were designed “to make

impossible what Mr. Bentham called ‘packing juries.’ ” Id. at 309.

Further, the Strauder Court declared,

It is well known that prejudices often exist against particular
classes in the community, which sway the judgment of jurors,
and which, therefore, operate in some cases to deny to
persons of those classes the full enjoyment of that protection
which others enjoy.

Id.

Yet the Strauder Court emphasized that the question was not

whether a defendant had a right to “a petit jury composed in whole or in

part of persons of his own race.” Id. at 305. The question was whether all

members of a race may be excluded from the jury by law. Id.

Experience, however, showed Strauder was ineffective. Strauder

made clear, of course, that statutes expressly prohibiting African-
Americans from serving on juries would not pass constitutional muster.

Id. at 304. In at least two cases, the United States Supreme Court

ventured beyond the four corners of Strauder to invalidate convictions of

all white juries where the right of African-Americans to serve on the juries,

though not categorically denied by statute, was “denied in substance and

effect.” Norris v. Alabama, 294 U.S. 587, 590, 597–98, 55 S. Ct. 579, 580,

583–84 (1935) (noting that no witness could recall an African-American

ever serving on a jury); see also Hill v. Texas, 316 U.S. 400, 401–02, 404,

62 S. Ct. 1159, 1160–61 (1942) (observing that commissioners with
 50

discretion “consciously omitted to place” any African-Americans on jury

list).

But these prohibitions proved easy to avoid by erecting less

absolute, but nonetheless effective, informal obstacles to prevent African-

American jury service, including the use of peremptory challenges to

eliminate African-Americans from the jury box. By 1961, the United States

Commission on Civil Rights observed that “[t]he practice of racial exclusion

from juries persists today even though it has long stood indicted as a

serious violation of the 14th [A]mendment.” Swain, 380 U.S. at 231, 85

S. Ct. at 842 (first alteration in original) (quoting U.S. Comm’n on Civil

Rights, Justice 103 (1961)).

The informal obstacles to African-Americans serving on juries were

evident in Swain. In Swain, a 19 year-old African-American was convicted

of raping a seventeen-year-old white girl and sentenced to death. Id.

African-Americans had been on the venire, but none had sat on a petit

jury in the county for fifteen years. Id. at 205, 85 S. Ct. at 828 (majority

opinion). Swain claimed a violation of the Equal Protection Clause of the

Fourteenth Amendment. Id. at 203–04, 85 S. Ct. at 826.

The Swain majority rejected his challenge. The Swain majority

emphasized that an African-American is not entitled to a proportionate

number of his race on the jury. Id. at 208, 85 S. Ct. at 829. Although

Swain stated that systematic exclusion of African-Americans from the jury

might violate the Fourteenth Amendment, the Swain majority concluded

that such systematic exclusion was not shown in the case. See id. at 226–

27, 85 S. Ct. at 839. The Swain majority recognized that African-

Americans had not served on petit juries in fifteen years but concluded

that the record was insufficient to show that the exclusion of African-
 51

Americans from the petit juries was due to the prosecutor alone. Id. at

226–28, 85 S. Ct. at 839–40.

In support of its conclusion, the Swain Court cited parts of the

record showing that defense lawyers may have sometimes participated in

the striking of African-American jurors. Id. at 225 & n.31, 85 S. Ct. at 838

& n.31. Thus, although no African-American juror had ever served on a

petit jury in the county in fifteen years, the Swain majority reasoned that

that was not necessarily due to systematic use of peremptory challenges

by the prosecutions. Id. at 225–26, 85 S. Ct. at 838–39. The Swain

majority emphasized the requirement of “purposeful or deliberate denial”

of the right of African-Americans to participate as jurors. Id. at 203–04,

85 S. Ct. at 826. Anything short of systematic purposeful or deliberate

denial “in case after case” by the prosecution did not affront the Equal

Protection Clause. Id. at 223, 85 S. Ct. at 837.

Justice Goldberg, joined by Chief Justice Warren and Justice

Douglas, dissented. Id. at 228, 85 S. Ct. at 840 (Goldberg, J., dissenting).

Justice Goldberg wrote it was undisputed that no African-American had

sat on a petit jury in the county “within the memory of persons [then]

living.” Id. at 231–32, 85 S. Ct. at 842. He wrote that “[t]he very point” of

the court’s prior cases was to prevent deliberate and systematic exclusion

of African-Americans “not merely from being placed upon the panel, but

from serving on the jury.” Id. at 239, 85 S. Ct. at 846. Further, Justice

Goldberg wrote that the majority overlooks that the exclusion of African-

American jurors in the county “results from the interlocking of an

inadequate venire selection system . . . and the use of peremptory

challenges.” Id. at 241, 85 S. Ct. at 847.

3. Post-Swain independent state constitutional law development.

After Swain, a number of state courts rejected its limitations under their
 52

state constitutions. In Wheeler, the California Supreme Court considered

the question of peremptory challenges based on race under Article I,

section 16 of the California Constitution. 583 P.2d at 754. The Wheeler

court declared that if a defendant made a prima facie showing of

discrimination based on race, the burden of justification would then shift

to the prosecution that the strike was not based on group bias alone. Id.

at 764–65. If the prosecution’s justification is not sustained, the jury

would fail to comply with the fair-cross-section requirements of the

California Constitution. Id. at 765.

Notably, the Wheeler court recognized that Swain provided less

protection. Id. at 767. The Wheeler court concluded that under Swain it

was practically impossible for a defendant to show systematic exclusion of

a racial group across multiple juries as a result of cost and lack of

information. Id. 767–68. The court also noted that “each and every

defendant not merely the last in this artificial sequence is constitutionally

entitled to trial by a jury drawn from a representative cross-section of the

community.” Id. at 767. The Wheeler court cited an annotation and its

own experience for the proposition that since Swain, no defendant had

succeeded in applying the test. Id. at 768. Noting that “[i]t demeans the

Constitution to declare a fundamental personal right under that charter

and at the same time make it virtually impossible for an aggrieved citizen

to exercise that right,” the Wheeler court declared that the rule of Swain

was not to be followed in California courts. Id. State appellate courts in

several other jurisdictions came to essentially the same conclusions under

the jury trial rights established in their state constitutions. See, e.g., Neil,

457 So. 2d at 485; Soares, 387 N.E.2d at 509–16.

4. Taking the hint: Abandonment of Swain for Batson. Spurred by

state court constitutional precedent, the Supreme Court reconsidered
 53

Swain in Batson, 476 U.S. at 82, 106 S. Ct. at 1714–15. In Batson, the

African-American defendant had been indicted on charges of second-

degree burglary and receipt of stolen goods. Id. at 82, 106 S. Ct. at 1715.

The prosecutor used peremptory challenges to remove all four African-

Americans on the venire. Id. at 83, 106 S. Ct. at 1715. Writing for the

majority, Justice Powell stated that the case required reexamination of the

holding in Swain concerning the evidentiary burden placed on a criminal

defendant who claims an equal protection violation due to the state’s use

of peremptory challenges to exclude African-Americans from the petit jury.

Id. at 90, 106 S. Ct. at 1719.

Largely following contemporaneous state supreme court precedent,

the United States Supreme Court departed from the “crippling burden” of

Swain and adopted a three-step approach to claims of racial

discrimination in the exercise of peremptory challenges. Id. at 92–94, 106

S. Ct. at 1721. Under Batson, the defendant first must make a prima facie

case of purposeful discrimination. Id. at 93–94, 106 S. Ct. at 1721. If the

defendant presents a prima facie case, the burden then shifts to the state

to articulate a racially neutral basis for the strike. Id. at 94, 106 S. Ct. at

1721. If the state articulates a racially neutral reason, the court must

then decide whether the articulated reason is pretextual. Johnson, 545

U.S. at 168, 125 S. Ct. at 2416.

Justice Marshall applauded the ruling but feared it would prove

unworkable. Batson, 476 U.S. at 102–03, 106 S. Ct. at 1726 (Marshall,

J., concurring). In a prescient opinion, Justice Marshall noted that any

prosecutor could easily assert facially neutral reasons for striking a juror

and that courts would be hard-pressed to second guess the judgment. Id.

at 106, 106 S. Ct. at 1728. Justice Marshall noted apparently neutral

“ ‘seat-of-the-pants instincts’ may often be just another term for racial
 54

prejudice.” Id. Justice Marshall concluded that the only way to

accomplish the goal of eliminating racial discrimination in peremptory

challenges was to eliminate them completely. Id. at 107, 106 S. Ct. at

1728–29.

5. Post-Batson Supreme Court developments limiting (and

expanding?) Batson. After Batson, the Supreme Court decided a number

of cases that affected the importance of the decision. In Holland v. Illinois,

493 U.S. 474, 478, 110 S. Ct. 803, 806 (1990), in a divided 5–4 majority

opinion, Justice Scalia remarkably concluded that a prosecutor’s use of

peremptory challenges to eliminate a distinctive group in the community

does not deprive a defendant of a Sixth Amendment right. Further, in

Hernandez, 500 U.S. at 360, 111 S. Ct. at 1867 (plurality opinion), in

another divided opinion, Justice Kennedy wrote for a plurality that

peremptory strikes against Hispanic jurors—made on the asserted ground

that they might not accept the court’s translator as the official record of

the proceedings—was not invalid notwithstanding the disproportionate

impact of the strikes on the jury.

A remarkable opinion, Purkett v. Elem, 514 U.S. 765, 769, 115 S. Ct.

1769, 1771 (1995) (per curiam), gave no encouragement to those who

wanted Batson to have “teeth.” In this case, the prosecutor explained that

he struck two African-American juror because of their facial hair. Id. The

per curiam opinion emphasized that the facial hair issue was race neutral

and satisfied step two of the Batson formula. Id. The Court emphasized

that the asserted race-neutral reason did not need to be even minimally

persuasive or plausible. Id. at 768–69, 115 S. Ct. at 1771. The per curiam

opinion stressed that a trial court judge must first make the determination

as to whether the asserted reason was pretext, and that such a

determination would be presumed correct and reversed only if not fairly
 55

supported by the record. Id. at 769, 115 S. Ct. at 1771. In dissent, Justice

Stevens, joined by Justice Breyer, stated that it was not too much to

require that the prosecutor’s purported neutral reason be trial related. Id.

at 775, 115 S. Ct. at 1774 (Stevens, J., dissenting).

Yet the ability to prove a Batson violation was not impossible. In

Miller-El v. Dretke, 545 U.S. 231, 235–36, 125 S. Ct. 2317, 2322 (2005), in

another divided decision so characteristic of Batson progeny, Justice

Souter for a six-member majority reversed a state court determination that

the striking of ten out of eleven black venire persons by a prosecutor from

the notorious Dallas County District Attorney’s office was not racially

motivated.

Justice Souter began by noting that the test developed in Swain

requiring an extended pattern of discrimination left a prosecutor’s use of

peremptory challenges “largely immune from constitutional scrutiny.” Id.

at 239, 125 S. Ct. at 2324 (quoting Batson, 476 U.S. at 92–93, 106 S. Ct.

at 1721). But Batson, Justice Souter wrote, had a weakness of its own,

namely, that although focus on the strikes in an individual trial might be

theoretically sufficient, a Batson violation might nonetheless be hard to

prove to the satisfaction of a wavering court without systemic

discrimination. See id. at 239–40, 125 S. Ct. at 2325.

Justice Souter chopped and diced the evidence. He generally noted

that the prosecution used its peremptory strikes to exclude 91% of the

eligible African-American venire members from the jury pool. Id. at 240–

41, 125 S. Ct. at 2325. But mostly, Justice Souter examined the side-by-

side comparisons of some black panelists who were struck and white

panelists allowed to serve. Id. at 241–51, 125 S. Ct. at 2325–31. For

example, Justice Souter noted that one African-American potential juror

was struck because the prosecutor inaccurately characterized his views
 56

on the death penalty and religion, even as white potential jurors who

expressed reservations about imposing the death penalty were not struck.

Id. at 243–45, 125 S. Ct. at 2327–28. With respect to another potential

juror, Justice Souter also noted shifting explanations by the state to

defend one of its peremptory strikes which, according to Justice Souter,

“reeks of afterthought.” Id. at 246, 125 S. Ct. at 2328. With respect to a

third juror, Justice Souter found that while the purported reason for

striking the African-American juror for her views on the death penalty

seemed reasonable on its face, the purported reason was severely undercut

by the prosecution’s failure to object to other jurors who gave similar

answers. Id. at 248, 125 S. Ct. at 2329–30.

In addition, Justice Souter noted that the prosecution engaged in a

jury shuffle—literally a shuffling of cards representing jurors—whenever

African-American jurors tended to be in the front rows of the venire panel

and thus more likely to be picked for the jury than those seated at back.

Id. at 253–54, 125 S. Ct. at 2332–33. Further, Justice Souter noted that

graphic scripts related to the death penalty were read to African-American

venire members, while bland descriptions were read to white prospective

jurors. Id. at 255–56, 125 S. Ct. at 2333–34.

Finally, Justice Souter cited the history of the Dallas County District

Attorney’s office. Id. at 263–64, 125 S. Ct. at 2338–39. That history

showed prosecutors marked the race of each potential juror on their juror

cards and a manual, written in 1968 yet available to one of the prosecutors

in Miller-El, outlined the reasons for striking African-American jurors. Id.

at 264, 125 S. Ct. at 2339.

Even with all the evidence, Justice Thomas, joined by Chief Justice

Rehnquist and Justice Scalia, dissented. Id. at 274, 125 S. Ct. at 2344

(Thomas, J., dissenting). Among other things, the dissent emphasized that
 57

Justice Souter relied on evidence such as juror questionnaires and juror

cards that were not provided to the Texas courts. Id. at 279, 125 S. Ct. at

2347. Justice Thomas further found, among other things, that the

majority misread the voir dire transcripts, utilized claims of disparate

questioning that did not fit the facts, and engaged in pure speculation

about the jury shuffles. Id. at 286, 296, 304, 125 S. Ct. at 2351, 2357,

2361–62.

Justice Breyer concurred. Id. at 266, 125 S. Ct. at 2340 (Breyer, J.,

concurring). But he took up the mantle of Justice Marshall in his Batson

dissent. Id. at 266–67, 125 S. Ct. at 2340. Justice Breyer noted that in

this case, twenty-three judges reviewed the matter, with six finding a

violation of Batson and sixteen to the contrary. Id. at 267, 125 S. Ct. at

2340. He noted that judges are put in the awkward, and sometimes

hopeless, task of second guessing a prosecutor’s judgments. Id. at 267,

125 S. Ct. at 2341. According to Justice Breyer, it becomes impossible for

a judge to distinguish between a “ ‘seat-of-the-pants’ peremptory

challenge” and “ ‘seat-of-the-pants’ racial stereotype.” Id. at 268, 125

S. Ct. at 2341. Justice Breyer extensively cited studies tending to show

that Batson had not been successful in rooting out racial stereotyping in

the use of peremptory challenges. Id. at 268–69, 125 S. Ct. at 2341–42.

Justice Breyer also observed that “the law’s antidiscrimination command

and a peremptory jury-selection system that permits or encourages the

use of stereotypes work at cross-purposes.” Id. at 271–72, 125 S. Ct. at

2343. Justice Breyer concluded that the case demonstrated the need to

reconsider Batson’s test and the peremptory challenge system as a whole.

Id. at 272–73, 125 S. Ct. at 2343–44.

Yet another Batson case, Felkner v. Jackson, 562 U.S. 594, 131

S. Ct. 1305 (2011) (per curiam), gives one pause. One potential juror in
 58

this case was an African-American who stated that he had been stopped

by police numerous times. Id. at 595, 131 S. Ct. at 1306. The prosecutor

exercised a peremptory challenge, fearing the potential juror would not be

favorable to law enforcement. Id. Of course, the experience of “Driving

While Black” is common among African-Americans. See David A. Harris,

The Stories, The Statistics, and the Law: Why “Driving While Black” Matters,

84 Minn. L. Rev. 265, 266 (1999). Yet the Supreme Court upheld the

challenge in a per curiam opinion. Felkner, 562 U.S. at 598, 131 S. Ct. at

1307. The Felkner result suggests that any young African-American male

who has been stopped by police is subject to exclusion from the jury.

Finally, I consider the recent Supreme Court case of Foster, 578 U.S.

___, 136 S. Ct. 1737. In Foster, the defendant had been convicted of

murder and sentenced to death thirty years before the appeal. Id. at ___,

136 S. Ct. at 1742–43. He claimed that the prosecution violated Batson

in the exercise of peremptory strikes at trial. Id. at ___, 136 S. Ct. at 1742.

After the Georgia courts denied relief, the Supreme Court granted

certiorari. Id. at ___, 136 S. Ct. at 1742–43.

Interestingly, after his conviction, Foster was able to obtain 103

pages of the prosecution’s file under the Georgia Open Records Act. Id. at

___, ___, 136 S. Ct. at 1743–44, 1747. Documents in the file, not available

to the defense at time of trial, revealed numerous racial references. Id. An

“N” appeared before the name of each African-American juror, and a list of

jurors to be stricken listed all five African-Americans at the top. Id.

In an opinion by Chief Justice Roberts, the Foster Court found the

strikes of two African-American jurors were pretextual. Id. at ___, 136

S. Ct. at 1754–55. The Foster Court engaged in extensive comparative

analysis of the questions and responses of white and African-American

jurors. Id. at ___, 136 S. Ct. at 1748–55. The Foster Court concluded that
 59

the asserted neutral reasons were contradicted by the record or difficult to

accept because white jurors with the same traits or answers were accepted

by the prosecution. Id. at ___, 136 S. Ct. at 1754. The Foster Court further

relied on the “definite NO” list, the first five names of which were African-

American and all of whom were struck but one who was excused for cause.

Id. at ___, 136 S. Ct. at 1755.

Justice Thomas dissented. Id. at ___, 136 S. Ct. at 1761 (Thomas,

J., dissenting). Aside from a jurisdictional issue, Justice Thomas

questioned the use of information on the voir dire process obtained by

Foster years after his conviction. Id. According to Justice Thomas, the

uncovering of new evidence does not justify upending the deferential

Batson framework. Id. at ___, 136 S. Ct. at 1766. Aside from the use of

new evidence, Justice Thomas believed the Court should defer to the

courts in Georgia who had the opportunity to conduct their own

comparative analysis and make their own credibility determinations. Id.

at ___, 136 S. Ct. at 1767–69.

B. State Court Responses to Batson.

1. Revising Batson: Eliminating step one. What constitutes a prima

facie case under step one of Batson has confused the courts and

commentators. Several states have decided to eliminate step one

altogether. For instance, in Johans, 613 So. 2d at 1321–22, the Florida

Supreme Court eliminated the first prong of the Batson inquiry under

Florida law. All that was required was that the person eliminated from the

jury be a member of a minority group. See id. The Connecticut Supreme

Court took a similar step in State v. King, 735 A.2d 267, 279 & n.18 (Conn.

1999). In State v. Daniels, 122 P.3d 796, 800 (Haw. 2005), the Hawaii

Supreme Court held that a prima facie case of discriminatory purpose is

automatically established “if the effect of the prosecution’s exercise of its
 60

peremptory challenges is to exclude from the jury all members of the same

protected group as the defendant, and the defense raises a Batson

challenge.” Id. The departure from the Batson framework in these cases

is not revolutionary but demonstrates the ability of state supreme courts

to exercise their own pragmatic judgment under state law when dealing

with the question of peremptory strikes.

2. Strengthening Batson (Batson with teeth). Another state court

reformist approach to Batson is reflected in cases that employ what might

be referred to colloquially as “Batson with teeth.” These cases tend to focus

on the second prong of Batson and seek to be at least somewhat more

demanding on what the state must show to demonstrate a racially neutral

basis for a strike.

For instance, in Ex Parte Bruner, 681 So. 2d 173, 176 (Ala. 1996),

the Alabama Supreme Court followed a “quasi-Batson” approach. When a

movant meets the first prong of Batson, the state must “articulat[e] a clear,

specific, and legitimate reason for the challenge which relates to the

particular case to be tried, and which is nondiscriminatory.” Id. at 178–79

(alteration in original) (quoting Ex parte Branch, 526 So. 2d 609, 623 (Ala.

1987)).

Similarly, the Florida Supreme Court has emphasized that, under

the second prong of its approach to Batson, the prosecution must identify

a “clear and reasonably specific” race-neutral explanation that is related

to the trial at hand. Spencer v. State, 238 So. 3d 708, 712 (Fla. 2018)

(quoting State v. Slappy, 522 So. 2d 18, 22 (Fla. 1988), receded from in

part by Melbourne v. State, 679 So. 2d 759, 764–65 (Fla. 1996)).

A substantial number of commentators seek to work within the

Batson framework but provide greater potential for effective enforcement.

See Bellin & Semitsu, 96 Cornell L. Rev. at 1121–25 (suggesting higher
 61

standard of proof to rebut discriminatory motive without requiring finding

of pretext); Camille A. Nelson, Batson, O.J., and Snyder: Lessons from an

Intersecting Trilogy, 93 Iowa L. Rev. 1687, 1703 (2008) (arguing Batson

challenge should be sustained where evidence “fits” racial motivation more

easily than race-neutral reason).

3. Reconsidering Batson: State of Washington. The Supreme Court

of Washington has addressed Batson jurisprudence recently in three

important cases. These cases thoroughly highlight the pressure points in

current Batson jurisprudence. In addition, the Washington court has now

promulgated a rule revamping how Batson-type challenges will be treated

in state court. The Washington experience suggests that Batson

jurisprudence may be on the verge of reformulation in state courts.

The first case, Saintcalle, 309 P.3d at 329, involved a challenge to a

conviction of first-degree felony murder because the prosecution struck

the only black venire person from the jury pool. The potential juror in

Saintcalle knew someone who had recently been murdered. Id. at 331.

When asked how she would feel about sitting on a murder trial, the juror

told the lawyers, “I don’t know how I’m going to react.” Id. The prosecution

exercised a peremptory strike on the ground that there was a realistic

possibility that the juror might be “lost” at the end of the trial. See id. at

340. The district court observed the juror and agreed that she was having

difficulties and that the prosecution’s strike was legitimate and race

neutral. Id.

Over a dissent, the Saintcalle plurality, applying Batson, upheld the

trial court and affirmed the conviction under the court’s prevailing

precedent. Id. At the same time, however, the Saintcalle plurality explored

its approach to Batson to determine whether its approach was “robust
 62

enough to effectively combat race discrimination in the selection of juries.”

Id. at 329, 333–39.

The Saintcalle plurality noted that race discrimination in courtrooms

raises a serious problem but that Batson, though designed to escape the

crippling burden of proof in prior cases involving racial discrimination

concerning juries, created its own crippling burden. Id. at 333–35. The

Saintcalle plurality noted that the requirement of conscious discrimination

was especially disconcerting because “it seemingly requires judges to

accuse attorneys of deceit and racism in order to sustain a Batson

challenge.” Id. at 338.

The Saintcalle plurality further noted while Batson dealt with

purposeful discrimination, discrimination today “is frequently

unconscious” but not “any less pernicious.” Id. at 336. The Saintcalle

plurality noted that research showed that “people will act on unconscious

bias far more often if reasons exist giving plausible deniability.” Id. The

Saintcalle plurality observed that “[a] strict ‘purposeful discrimination’

requirement thus blunts Batson’s effectiveness and blinds its analysis to

unconscious racism.” Id. at 338.

As a first step, the Saintcalle plurality stated that the purposeful

discrimination requirement of Batson should be replaced with a

requirement which “accounts for and alerts trial courts to the problem of

unconscious bias.” Id. at 339. The Saintcalle plurality suggested that

it might make sense to require a Batson challenge to be
sustained if there is a reasonable probability that race was a
factor in the exercise of the peremptory or where the judge
finds it is more likely than not that, but for the defendant’s
race, the peremptory would not have been exercised.

Id. In the alternative, however, the Saintcalle plurality recognized that it

may be that the problem of racial discrimination in jury selection is so dire
 63

that the only solution is elimination of peremptory challenges altogether.

Id.

The Saintcalle plurality reasoned that allowing systematic removal

of minority jurors will “create a badge of inferiority, cheapening the value

of the jury verdict.” Id. at 337. The Saintcalle plurality cited research that

indicates that “compared to diverse juries, all-white juries tend to spend

less time deliberating, make more errors, and consider fewer perspectives.”

Id.

A concurring opinion by Justice González provided an even more

extended analysis of Batson than the Saintcalle plurality. Id. at 350–68

(González, J., concurring). Justice González began his analysis with a

review of the voir dire process. Id. at 351. Justice González observed that

“[w]ith limited information and time, and a lack of any reliable way to

determine the subtle biases of each prospective juror, attorneys tend to

rely heavily on stereotypes and generalizations in deciding how to exercise

peremptory challenges.” Id. at 353. Jurors are excused based on “rough

and rapid” and “superficial judgments.” Id. at 355.

After stressing the limitations of the voir dire process, Justice

González explored the contours of racial bias in jury selection. Id. He

reviewed studies from Washington State and other jurisdictions, coming

to the conclusion that “racial discrimination in the use of peremptory

challenges is widespread.” Id. at 356–58.

Justice González asserted that for several reasons, “[c]ase-by-case

adjudication and appellate review under Batson cannot effectively combat

the widespread racial discrimination that underlies the use of peremptory

challenges.” Id. at 358. First, Justice González observed that the presence

of racial discrimination remains entirely imperceptible to the opposing

party and the trial judge. Id. Second, Justice González wrote that “even
 64

if an objection is made, plausible race-neutral reasons are quite easy to

conjure up in any given case.” Id. at 359. Third, Justice González

observed that there is usually no way for a trial court to accurately and

reliably determine whether a given peremptory challenge is racially

discriminatory, noting, among other things, that trial judges may be

hesitant to question the integrity or self-awareness of counsel. Id. Fourth,

Justice González declared “there is no way for appellate courts to provide

sufficiently meaningful review” of trial court decisions where

inconsistencies might be ambiguous and the record of the rapid voir dire

may not have explored the comparative characteristics of other jurors. Id.

at 360. Finally, Justice González stated that too many unanswered

questions remain under Batson, including which groups are protected,

how a prima facie case is established and reviewed on appeal, how dual

motive cases should be considered, and how to deal with questions of

unconscious bias. Id. at 360–61. Justice González concluded that

application of Batson “will continue to engender confusion and needless

administrative and litigation costs, while racial discrimination in the use

of peremptory challenges—both conscious and unconscious—continues

unabated.” Id. at 361.

Justice González next made the case for elimination of peremptory

challenges. Id. at 362. Justice González noted that peremptory challenges

contribute to the underrepresentation of minority groups on juries even in

the absence of purposeful discrimination, impose substantial

administrative and litigation costs, result in juries that are less effective

and less productive, and amplify the underlying resource disparity among

litigants. Id. at 362–63.

On the other hand, Justice González asserted that the benefits of

peremptory challenges were minimal. Id. at 363. Justice González
 65

marshalled studies to support his view that peremptory challenges were

generally ineffective in excluding unfavorable jurors and concluded that

the notion that impartiality is furthered by allowing litigants to exercise

arbitrary and unsupported juror challenges is a farce. Id. at 364–65.

Yet, on the facts presented, Justice González concluded that the

defendant was not entitled to relief because the erroneous allowance of a

peremptory challenge does not warrant reversal in every case. Id. at 369.

Justice Chambers, however, came to a different conclusion. Id. at 371

(Chambers, J., dissenting).

According to Justice Chambers, Batson “was a great, symbolic step

forward” but “was doomed from the beginning because it requires one

elected person to find that another elected person (or one representing an

elected person) acted with a discriminatory purpose.” Id. Justice

Chambers urged that the court, in the exercise of its supervisory power,

“hold that a prima facie case of discrimination is established when the sole

remaining venire member of a constitutional cognizable racial group is

peremptorily challenged.” Id.

The Washington Supreme Court returned to the Batson issue in

Erickson, 398 P.3d at 1126. In this case, a black man was charged with

unlawful use of a weapon and resisting arrest. Id. In voir dire, the

prosecutor exercised a peremptory challenge against the only African-

American on the jury panel. Id. Unlike in Saintcalle, the court was

explicitly asked to alter the standard framework of the Batson analysis.

Id. The Washington Supreme court proceeded to do so. Id.

The Erickson court adopted a “bright-line rule” and concluded that

a peremptory strike of the only African-American on a jury panel gives rise

to a prima facie case under Batson. Id. Because the passage of time

prevented the district court from conducting a reasonable evaluation of
 66

the underlying basis for the strike, the Erickson court concluded that a

remand for a new trial was the appropriate remedy. Id. at 1131.

Justice Stephens concurred in the result, but emphasized that the

Washington Supreme Court had a pending rulemaking to reconfigure

Batson so that intentional discrimination must no longer be proved. Id. at

1133 (Stephens, J., concurring). Justice Stephens characterized the

debate surrounding the proposed rule as “robust and informative.” Id. He

noted that the court in its decision had not “fixed the problem” and

stressed that the court was “unanimous in its commitment to eradicate

racial bias from our jury system, and that [the court would] work with all

partners in the justice system to see this through.” Id.

Finally, the Washington Supreme Court considered a Batson-type

issue in State v. Jefferson, 429 P.3d 467, 470 (Wash. 2018). In Jefferson,

the prosecution exercised a peremptory challenge to remove the last

African-American from the jury pool. Id. The stated reasons were that the

juror thought voir dire was “a waste of time”, the juror had specific

knowledge of the movie 12 Angry Men, and the juror in a prior trial had

brought into jury deliberations outside discussions. Id. at 472.

The Jefferson court first concluded that, under Batson, there would

be no violation. Id. The Jefferson court also concluded that Washington’s

new rule related to jury selection would not apply to the proceeding. Id.

at 477. But the Jefferson court proceeded to apply a “new” Batson test to

decide the issue. Id. at 480.

The Jefferson court departed from step three in Batson. Id. Under

the new formulation, the Jefferson court stated the question on step three

of the analysis “is whether ‘an objective observer could view race or

ethnicity as a factor in the use of the peremptory challenge.’ ” Id. The test

was not based on purposeful discrimination, but instead focused on
 67

objective analysis. Id. The Jefferson court emphasized that review of this

determination would be de novo. Id.

Applying the test de novo, the Jefferson court determined that the

strike was invalid. Id. at 480–81. The Jefferson court carefully examined

the record and determined that the information the juror brought into a

prior trial was not germane to the issues at hand. Id. at 480.

Promulgated before the Jefferson case but only applying

prospectively, jury selection in Washington is now subject to Washington

General Rule 37. See Wash. Gen. R. 37 (2018). The new rule regulates

peremptory challenges. See id. According to the new rule, “If the court

determines that an objective observer could view race or ethnicity as a

factor,” then the peremptory strike is invalid. Id. R. 37(e). Further, the

new rule emphasizes that “an objective observer is aware that implicit,

institutional, and unconscious biases, in addition to purposeful

discrimination, have resulted in the unfair exclusion of potential jurors in

Washington State.” Id. R. 37(f). The new rule provides a number of factors

to be considered in making the objective determination, including the

number and type of voir dire questions, a comparison of the number and

nature of questions posed to other jurors, whether jurors with similar

answers were stricken, whether the asserted reason asserted might be

disproportionately associated with race or ethnicity, and whether the party

disproportionately used peremptory challenges in the present case or in

past cases. Id. R. 37(g). The new rule provides a list of reasons that are

presumed to be invalid, including having prior contact with law

enforcement, expressing distrust in law enforcement or a belief that law

enforcement engages in racial profiling, having a close relationship with

people who have been stopped for a crime, living in high crime

neighborhoods, having children outside marriage, receiving state benefits,
 68

and not being a native English speaker. Id. R. 37(h). Finally, the rule

provides a list of conduct-oriented reasons that have “historically been

associated with improper discrimination,” including sleeping, failure to

make eye contact, body language, and other demeanor-type evidence. Id.

R. 37(i). The new rule further provides that if a party intends to rely on

such conduct as a basis for the exercise of a peremptory challenge, notice

has to be served on the other party. Id. Further, if the demeanor rationale

is not corroborated by the judge or opposing party, that lack of

corroboration could be a basis for invalidating the attempted strike. Id.

The rule, as available at Washington Courts, General Rule 37: Jury

Selection, https://

www.courts.wa.gov/court_rules/?fa=court_rules.rulesPDF&ruleId=gagr3

7&pdf=1 (last visited May 21, 2019), is reproduced herein in Appendix A.

C. Discussion. It seems to me beyond clear that our system’s

approach to achieving a fair cross section of the community in the jury

pool and in ensuring African-Americans receive a fair trial is in need of an

overhaul. We have made a good first step in our revisions of the fair-cross-

section jurisprudence. See Lilly, ___ N.W.2d at ___ (Appel, J., concurring

specially). But it is critically important that the gains made today are not

eliminated by a Batson framework that permits the elimination of African-

American petit jurors through the back door of peremptory challenges.

It seems to me the experience of over thirty years demonstrates not

that Batson is worthless, but rather that it is very ineffective. The reasons

are well known.

First, just like in the fair-cross-section question, Iowa constitutional

law must recognize that African-Americans and other minorities make up

a relatively small proportion of the state’s population. See Plain, 898

N.W.2d at 830 (noting that black people comprise a small percentage of
 69

Iowa’s population). Because of this salient fact, the absolute disparity

approach to fair cross section required revision. Likewise, the relatively

small proportion of minorities in Iowa means that it will be relatively easy

for all minority jurors to be eliminated through the exercise of peremptory

challenges. Leonard L. Cavise, The Batson Doctrine: The Supreme Court’s

Utter Failure to Meet the Challenge of Discrimination in Jury Selection, 1999

Wis. L. Rev. 501, 527 (noting that minorities in low population

jurisdictions can be completely eliminated from jury pool through

peremptory challenges). A toothless Batson review in Iowa courts could

eliminate the fair-cross-section gains achieved in today’s cases.

Second, the state’s justification offered in Batson’s step two need not

be persuasive and can even be frivolous or utterly nonsensical. See, e.g.,

Purkett, 514 U.S. at 768–69, 115 S. Ct. at 1771 (majority opinion). It has

been charitably described as an “extremely low” threshold. Alafair S.

Burke, Prosecutors and Peremptories, 97 Iowa L. Rev. 1467, 1470 (2012).

Any reasonably imaginative prosecutor can come up with a facially neutral

justification. See Bellin & Semitsu, 96 Cornell L. Rev. at 1090–99

(providing list of cases upholding peremptory strikes for racially neutral

but apparently insubstantial reasons).

Third, once the low threshold of articulating a facially neutral

justification has been crossed, the burden shifts to the defendant to show

pretext and what amounts to purposeful discrimination. Purposeful

discrimination is very difficult to prove. If a prosecutor asserts vague but

racially neutral demeanor observations of a potential juror such as lack of

eye contract, tone of voice, or body language, how does a district court

evaluate such claims? And even in very compelling cases like Miller-El and

Foster, the fractured decisions of the United States Supreme Court on the

factual issue of purposeful discrimination illustrate the problem.
 70

Fourth, requiring a district court judge to, in effect, charge the local

prosecutor with lying and racial motivation from the bench in the course

of voir dire is unrealistic. See Coombs v. Diguglielmo, 616 F.3d 255, 264

(3d Cir. 2010) (“No judge wants to be in the position of suggesting that a

fellow professional—whom the judge may have known for years—is

exercising peremptory challenges based on forbidden racial

considerations.”); Saintcalle, 309 P.3d at 338 (plurality opinion) (“A

requirement of conscious discrimination is especially disconcerting

because it seemingly requires judges to accuse attorneys of deceit and

racism in order to sustain a Batson challenge.”); José Felipé Anderson,

Catch Me If You Can! Resolving the Ethical Tragedies in the Brave New

World of Jury Selection, 32 New Eng. L. Rev. 343, 374, 377 (1998) (noting

that judges “have little incentive to use [the power granted by Batson]

against lawyers who regularly practice before them.”).

Fifth, the trial judge will not have a transcript from which to conduct

the kind of meticulous but ultimately highly persuasive comparative

analysis engaged in by Justice Souter in Miller-El, 545 U.S. at 240–51, 125

S. Ct. at 2325–31 (majority opinion). Although it is possible for an

appellate court to later engage in the review, the reliance on the prospect

of reversal many years after a tainted conviction is not very comforting.

Sixth, Batson does not purport to address at all the problem of

implicit bias. Jean Montoya, The Future of the Post-Batson Peremptory

Challenge: Voir Dire by Questionnaire and the “Blind” Peremptory, 29 U.

Mich. J.L. Reform 981, 1024 (1996). But as noted by Justice O’Connor,

“It is by now clear that conscious and unconscious racism can affect the

way white jurors perceive minority defendants and the facts presented at

their trials, perhaps determining the verdict of guilt or innocence.” Georgia
 71

v. McCollum, 505 U.S. 42, 68, 112 S. Ct. 2348, 2364 (1992) (O’Connor, J.,

dissenting).

Seventh, Batson’s relatively free reign on peremptory challenges cuts

rough against the grain of the constitutional value of achieving juries with

fair cross sections of the community. By opening the valve on peremptory

challenges, you close the fair-cross-section pipe and lose the benefits of

diversity, which are substantial. See id. at 61, 112 S. Ct. at 2360 (Thomas,

J., concurring) (“[S]ecuring representation of the defendant’s race on the

jury may help to overcome racial bias and provide the defendant with a

better chance of having a fair trial.); Peters v. Kiff, 407 U.S. 493, 503–04,

92 S. Ct. 2163, 2169 (1972) (“When any large and identifiable segment of

the community is excluded from jury service, the effect is to remove from

the jury room qualities of human nature and varieties of human experience

. . . . [I[ts exclusion deprives the jury of a perspective on human events

that may have unsuspected importance in any case that may be

presented.”); State v. LaMere, 2 P.3d 204, 212 (Mont. 2000) (“[D]iversity

begets impartiality.”); Samuel R. Sommers, On Racial Diversity and Group

Decision Making: Identifying Multiple Effects of Racial Composition on Jury

Deliberations, 90 J. Personality & Soc. Psychology 597, 597 (2006)

(explaining that racially diverse juries were more amenable to discussion

of racism, discussed more trial evidence, and made fewer errors).

To some extent, the Supreme Court in Miller-El may have wished to

inject some life into Batson by carefully canvassing the evidence and

modelling how comparative analysis of juror questioning can be used to

establish pretext. But in Miller-El, there were ten African-Americans in the

jury panel. Thus, the voir dire of these ten African-Americans, along with

voir dire of other jurors, provided a mountain of comparative evidence.

Voir dire in Miller-El’s trial comprises eleven volumes and 4662 pages.
 72

Miller-El, 545 U.S. at 283, 125 S. Ct. at 2350 (Thomas, J., dissenting). In

Iowa, however, there will likely never be a jury pool with ten African-

Americans in the juror panel and an eleven volume voir dire transcript.

Even with the proposed reforms embraced today, only a few African-

Americans are likely to be in most Iowa jury pools. In these cases, there

will be no body of comparative evidence similar to that developed by

Justice Souter in Miller-El. In Iowa, Miller-El is likely a mirage.

It remains to be seen whether any Batson reform can be successful

in Iowa. It is certainly true that without engaging in a robust review of a

prosecutor’s stated reasons for exclusion, Batson will likely be largely

ineffective in eliminating racial discrimination in jury selection. See Anna

Roberts, Disparately Seeking Jurors: Disparate Impact and the (Mis)use of

Batson, 45 U.C. Davis L. Rev. 1359, 1388 (2012) (advocating “proactive,

creative, and assertive” scrutiny of race-neutral justifications).

Given all the problems of Batson, it may well be that an adjustment

here and there may not be enough. I certainly recognize the power of

Justice Marshall’s dissent in Batson, the views of experienced judges, and

the large body of academic commentary that has followed, all of which

suggest that the only solution is the elimination of peremptory challenges

from our jury system. See Morgan v. Commonwealth, 189 S.W.3d 99, 115–

16 (Ky. 2006) (Graves, J., concurring) (expressing the hope that the case

put the state “one step closer to the inevitable implosion of the current

peremptory challenge system”), majority opinion overruled on other grounds

by Shane v. Commonwealth, 243 S.W.3d 336, 341 (Ky. 2007); People v.

Brown, 769 N.E.2d 1266, 1272 (N.Y. 2002) (Kaye, C.J., concurring) (“My

own years . . . dealing with countless Batson challenges, have brought me

far closer to the perception of Justice Thurgood Marshall . . . .”); Tania
 73

Tetlow, Why Batson Misses the Point, 97 Iowa L. Rev. 1713, 1735–1736

(2012) (asserting Batson’s problems cannot be solved by mere tinkering).

The elimination of peremptory challenges, of course, is a substantial

proposition and no one has asked for it in this case. What Veal does ask

for, however, is a revision of our approach when the last African-American

is removed from the jury with a peremptory strike.

I agree. When the last African-American member of the jury is

subject to a peremptory challenge, the interest in achieving a fair cross

section of the community on the jury is at its highest point. I think we

should be giving the elimination of the last minority juror through a

peremptory challenge greater scrutiny than other Batson challenges

ordinarily require. For last minority jurors, I think we should require at

this stage that the prosecutor provide a specific challenge related to the

facts of the case. That amounts to Batson with teeth on step two of the

traditional analysis. Then, in step three, as under the Washington

approach, the district court should objectively determine whether the

asserted reason was in fact race neutral or whether race may have played

a role in the strike. See Wash. Gen. R. 37(e); Jefferson, 429 P.3d at 480.

If the district court objectively determines that the reason asserted for the

strike is race neutral, the district court should then objectively weigh the

prosecution’s racially neutral interest in eliminating the juror against the

defendant’s interest in a jury composed of a fair cross section of the

community. See Tania Tetlow, Solving Batson, 56 Wm. & Mary L. Rev.

1859, 1894–1900 (2015) (proposing a balancing of prosecution’s neutral

interest against defendant’s fair-cross-section interest).

Applying this test, I would hold that the strike of the last African-

American juror was invalid. Based on my review of the record, I would

credit the prosecution’s reason for the strike as race neutral based on
 74

objective analysis of the facts. I would then proceed to the balancing test.

While the prosecution may have had an interest in exclusion of the juror,

the juror appeared to have very little contact with her father and little if

any bitterness arising out of his past prosecution. More importantly, she

was the last African-American member of the venire pool. On balance, I

would conclude that Veal’s interest in a fair cross section outweighed the

prosecution’s interest in disqualifying the juror. Because an error in jury

selection persists through the entire course of proceeding, I would reverse

Veal’s conviction and remand for a new trial. See Tankleff v. Senkowski,

135 F.3d 235, 248 (2d Cir. 1998).

Wiggins, J., joins this concurrence in part and dissent in part.
 75
APPENDIX A
General Rules
GR 37
JURY SELECTION

(a) Policy and Purpose. The purpose of this rule is to eliminate the
unfair exclusion of potential jurors based on race or ethnicity.
(b) Scope. This rule applies in all jury trials.
(c) Objection. A party may object to the use of a peremptory
challenge to raise the issue of improper bias. The court may also raise this
objection on its own. The objection shall be made by simple citation to this
rule, and any further discussion shall be conducted outside the presence
of the panel. The objection must be made before the potential juror is
excused, unless new information is discovered.
(d) Response. Upon objection to the exercise of a peremptory
challenge pursuant to this rule, the party exercising the peremptory
challenge shall articulate the reasons the peremptory challenge has been
exercised.
(e) Determination. The court shall then evaluate the reasons given
to justify the peremptory challenge in light of the totality of circumstances.
If the court determines that an objective observer could view race or
ethnicity as a factor in the use of the peremptory challenge, then the
peremptory challenge shall be denied. The court need not find purposeful
discrimination to deny the peremptory challenge. The court should explain
its ruling on the record.
(f) Nature of Observer. For purposes of this rule, an objective
observer is aware that implicit, institutional, and unconscious biases, in
addition to purposeful discrimination, have resulted in the unfair
exclusion of potential jurors in Washington State.
(g) Circumstances Considered. In making its determination, the
circumstances the court should consider include, but are not limited to,
the following:
(i) the number and types of questions posed to the prospective juror,
which may include consideration of whether the party exercising the
peremptory challenge failed to question the prospective juror about the
alleged concern or the types of questions asked about it;
(ii) whether the party exercising the peremptory challenge asked
significantly more questions or different questions of the potential juror
against whom the peremptory challenge was used in contrast to other
jurors;
(iii) whether other prospective jurors provided similar answers but
were not the subject of a peremptory challenge by that party;
(iv) whether a reason might be disproportionately associated with a
race or ethnicity; and
(v) whether the party has used peremptory challenges
disproportionately against a given race or ethnicity, in the present case or
in past cases.
(h) Reasons Presumptively Invalid. Because historically the
following reasons for peremptory challenges have been associated with
 76
improper discrimination in jury selection in Washington State, the
following are presumptively invalid reasons for a peremptory challenge:
(i) having prior contact with law enforcement officers;
(ii) expressing a distrust of law enforcement or a belief that law
enforcement officers engage in racial profiling;
(iii) having a close relationship with people who have been stopped,
arrested, or convicted of a crime;
(iv) living in a high-crime neighborhood;
(v) having a child outside of marriage;
(vi) receiving state benefits; and
(vii) not being a native English speaker.
(i) Reliance on Conduct. The following reasons for peremptory
challenges also have historically been associated with improper
discrimination in jury selection in Washington State: allegations that the
prospective juror was sleeping, inattentive, or staring or failing to make
eye contact; exhibited a problematic attitude, body language, or demeanor;
or provided unintelligent or confused answers. If any party intends to offer
one of these reasons or a similar reason as the justification for a
peremptory challenge, that party must provide reasonable notice to the
court and the other parties so the behavior can be verified and addressed
in a timely manner. A lack of corroboration by the judge or opposing
counsel verifying the behavior shall invalidate the given reason for the
peremptory challenge.

[Adopted effective April 24, 2018.]
 77

#17–1453, State v. Veal

McDONALD, Justice (concurring in part, dissenting in part).

I concur in the following divisions of Justice Mansfield’s opinion:

divisions V (speedy trial), VI (Batson challenge), VII (prosecutorial error),

VIII (firearm demonstration), IX (competency hearing), X (excluded

evidence), and XI (sufficiency of the evidence). I dissent from division IV

(fair cross section) of the opinion. On that claim, I would affirm the ruling

of the district court and affirm the conviction without remand. I thus

respectfully concur in part and dissent in part.

I.

On appeal, defendant Peter Veal asserts a fair-cross-section claim

arising under article I, section 10 of the Iowa Constitution. To the extent

Justice Mansfield’s opinion could be interpreted to mean Veal can assert

a state constitutional claim on remand, I respectfully disagree. Veal failed

to present a state constitutional claim in the district court, and the claim

is not preserved for appellate review. It is improper to remand this matter

to allow Veal to assert a claim arising under the state constitution when

he failed to first present the issue to the district court prior to trial or in

his posttrial motion. See State v. Coleman, 890 N.W.2d 284, 286 (Iowa

2017) (stating where a defendant “only identifies [a federal] claim, the state

constitutional claim has not been preserved at the district court”); Van

Gorden v. Schuller, 192 Iowa 853, 859, 185 N.W. 604, 607 (1921) (“Neither

is it within the scope of our appellate jurisdiction to remand this

proceeding to the district court for the making and trial of new issues at

law.”).

II.

Veal also asserts a federal claim arising under the Sixth and

Fourteenth Amendments to the United States Constitution. As pertinent
 78

here, the Sixth Amendment provides, “In all criminal prosecutions, the

accused shall enjoy the right to a speedy and public trial[] by an impartial

jury of the State and district wherein the crime shall have been committed

. . . .”

A.

In Taylor v. Louisiana, the Supreme Court held, “[T]he selection of a

petit jury from a representative cross section of the community is an

essential component of the Sixth Amendment right to a jury trial.” 419

U.S. 522, 528, 95 S. Ct. 692, 697 (1975).

This Sixth Amendment right is not grounded in text or history. See

Holland v. Illinois, 493 U.S. 474, 480, 110 S. Ct. 803, 807 (1990) (“The fair-

cross-section venire requirement is obviously not explicit in this text . . .

.”); see also Berghuis v. Smith, 559 U.S. 314, 334, 130 S. Ct. 1382, 1396

(2010) (Thomas, J., concurring) (“[The right] seems difficult to square with

the Sixth Amendment’s text and history.”); Duren v. Missouri, 439 U.S.

357, 371, 99 S. Ct. 664, 672 (1979) (Rehnquist, J., dissenting) (“The

Constitution does not require, and our jurisprudence is ill served, by a

hybrid doctrine such as that developed in Taylor, and in this case.”);

Taylor, 419 U.S. at 539, 95 S. Ct. at 702 (Rehnquist, J., dissenting)

(“Relying on carefully chosen quotations, [the majority] concludes that the

‘unmistakable import’ of our cases is that the fair-cross-section

requirement ‘is an essential component of the Sixth Amendment right to a

jury trial.’ I disagree. Fairly read, the only ‘unmistakable import’ of those

cases is that due process and equal protection prohibit jury-selection

systems which are likely to result in biased or partial juries.”).

Despite the lack of textual or historical support for a constitutional

right to a jury venire composed of a fair cross section of the community,

the Supreme Court continued to develop the right post-Taylor. In Holland,
 79

the Supreme Court explained the right “is derived from the traditional

understanding of how an ‘impartial jury’ is assembled.” 493 U.S. at 480,

110 S. Ct. at 807. The Supreme Court explained the right does not entitle

the accused to a representative jury, but only an impartial one:

The Sixth Amendment requirement of a fair cross
section on the venire is a means of assuring, not a
representative jury (which the Constitution does not demand),
but an impartial one (which it does). Without that
requirement, the State could draw up jury lists in such
manner as to produce a pool of prospective jurors
disproportionately ill disposed towards one or all classes of
defendants, and thus more likely to yield petit juries with
similar disposition. The State would have, in effect, unlimited
peremptory challenges to compose the pool in its favor. The
fair-cross-section venire requirement assures, in other words,
that in the process of selecting the petit jury the prosecution
and defense will compete on an equal basis.

Id. at 480–81, 110 S. Ct. at 807; see Duren, 439 U.S. at 364 n.20, 99 S.

Ct. at 668 n.20 (majority opinion) (“We further explained that this

requirement does not mean ‘that petit juries actually chosen must mirror

the community.’ ” (quoting Taylor, 419 U.S. at 538, 95 S. Ct. at 702)

(majority opinion)).
In Duren, the Supreme Court set forth the elements necessary to

establish a prima facie violation of the right:

In order to establish a prima facie violation of the fair-
cross-section requirement, the defendant must show (1) that
the group alleged to be excluded is a “distinctive” group in the
community; (2) that the representation of this group in venires
from which juries are selected is not fair and reasonable in
relation to the number of such persons in the community; and
(3) that this underrepresentation is due to systematic
exclusion of the group in the jury-selection process.

439 U.S. at 364, 99 S. Ct. at 668. With respect to the third element, the

Supreme Court concluded systematic exclusion requires proof the

underrepresentation is persistent and caused by some particular

mechanism in the jury-selection process. See id. at 366, 99 S. Ct. at 669;
 80

Berghuis, 559 U.S. at 328, 130 S. Ct. at 1392–93 (majority opinion)

(explaining the defendant in Duren established a prima facie case when he

showed with “particularity” the “underrepresentation was persistent” and

caused by “two [particular] stages of the jury-selection process”).

B.

Veal failed to establish that the jury pool was not a fair and

reasonable representation of the jury-eligible population. I disagree with

the majority’s decision to nonetheless remand this matter to allow Veal to

try and marshal additional evidence in support of a claim he already lost.

First, as noted in my separate opinion in State v. Lilly, ___ N.W.2d

___, ___ (Iowa 2019) (McDonald, J., concurring in part and dissenting in

part), there is no reliable county-level data regarding the number of eligible

jurors. There is also no reliable county-level data regarding the race or

ethnicity of eligible jurors. It was Veal’s burden to establish a prima facie

case, and the failure to present reliable evidence to support his claim

defeats the claim.

Second, even assuming the data was reliable, the data shows this

jury pool was actually overrepresentative. During the relevant time period,

the population of Webster County was approximately 36,000. Of those,

4.6%, or 1656, were African-American, and 34,344 persons were not

African-American. As I noted in Lilly, there is no reliable information

regarding how many persons in the county were jury-eligible. Setting

aside that particular criticism, using the majority’s assumptions, the

number of eligible African-Americans jurors was approximately 1100 while

the number of jury-eligible others was 26,685. Approximately 700 white

persons and 400 African-Americans were incarcerated at the Fort Dodge

Correctional Facility located in Webster County. This is consistent with

historical census information. See Rose Heyer & Peter Wagner, Prison
 81

Policy Initiative, Too Big to Ignore: How Counting People in Prisons Distorted

Census 2000 (2004) [hereinafter Heyer & Wagner],

https://www.prisonersofthecensus.org/toobig/datasearch.php?field=GE

O_NAME&operator=LIKE&q=webster&Submit=Search&field1=&operator1

=&q1=&sortby=&sortorder= [https://perma.cc/7DGC-CT3Y] (containing

data set showing 26.47% of the African-American population in Webster

County in 2000 was incarcerated). The majority agrees that the census

counts prisoners in its census data and that prisoners should be excluded

from determining the jury-eligible population. See Heyer & Wagner,

https://www.prisonersofthecensus.org/toobig/exec_sum.html

[https://perma.cc/CUJ4-SEF7] (“The Census Bureau counts people

incarcerated in state and federal correctional facilities as if they were

residents of the prison town. Although incarcerated people are not a part

of the prison town, they are a part of the community’s statistics.”). If one

removes incarcerated persons from the calculation (assuming all or almost

all are 18 or older), there were 26,285 non-African-American eligible jurors

and only 700 African-American eligible jurors, or 2.6% of all eligible jurors.

The majority concludes the percentage of African-Americans in the jury

pool was 3.27%. Thus, when adjusted for the unique demographics of this

county, the jury pool here was actually overrepresentative of the African-

American community.

In Lilly, the majority concluded that “[a] defendant whose jury pool

has a percentage of the distinctive group at least as large as the percentage

of that group in the jury-eligible population has not had his or her right to

a fair cross section infringed.” ___ N.W.2d at ___. I agree. The defendant’s

fair-cross-section claim fails as a matter of law. This court should affirm

the defendant’s conviction rather than remand.

C.
 82

Remand is also improper because Veal failed to establish systematic

exclusion within the meaning of Duren.

Veal’s only allegation of systematic exclusion was that “these jury

pools were only pulled from Driver’s license/ID information and voter

registration.” This court has repeatedly rejected this challenge. See State

v. Huffaker, 493 N.W.2d 832, 834 (Iowa 1992) (approving the use of voter

registration list and motor vehicle operator’s list); State v. Jones, 490

N.W.2d 787, 794 (Iowa 1992) (holding defendant failed to establish a

violation of the fair-cross-section right where the jury manager used voter

registration and motorist/identification lists), overruled on other grounds

by State v. Plain, 898 N.W.2d 801, 822 (Iowa 2017); State v. Johnson, 476

N.W.2d 330, 333 n.1 (Iowa 1991) (“Although we do not reach the merits of

defendant’s contentions, we believe county officials should implement the

directives of Iowa Code chapter 607A. Jury commissions and jury

managers should use the source lists described in sections 607A.3(9) and

607A.22 to fulfill their statutory duties under sections 607A.1 and 607A.2

to provide for jury service a fair cross-section of the population of the area

served by the court.”). These cases are controlling, but the majority

opinion does not address them. It is unclear to me why these long-

standing, controlling precedents do not resolve Veal’s claim.

In addition to the controlling authority, the persuasive authorities

have approved the use of these lists. The Iowa Court of Appeals has

repeatedly upheld the use of voter registration lists and driver’s

license/identification lists. See State v. Washington, No. 15–1829, 2016

WL 6270269, at *11 (Iowa Ct. App. Oct. 26, 2016) (“While we agree that

the best practice would involve increasing the number of lists used in order

to reach more of the population, Washington cannot establish that the use

of the lists of registered voters and current motor vehicle operat[ors] is a
 83

systematic exclusion.”); State v. Jackson, No. 09–0462, 2010 WL 624906,

at *7 (Iowa Ct. App. Feb. 24, 2010) (holding defendant failed “to prove a

systematic exclusion, as the testimony of the Black Hawk County jury

manager evidences that section 607A.22 was properly followed”); State v.

Salinas, No. 05–0772, 2006 WL 1910207, at *4 (Iowa Ct. App. July 12,

2006) (holding the defendant failed to show systematic exclusion where

jury manager used statutorily-required lists).

It appears that almost every federal circuit court has concluded that

the use of voter registration lists to select a jury pool—less than what was

done in this case—is constitutionally permissible. See United States v.

Willis, 868 F.3d 549, 555 (7th Cir. 2017) (“In this case, the defendants

cannot show that the underrepresentation of blacks in the jury pool was

due to a systematic exclusion of this group. Rather, the jury venire was

pulled from individuals registered to vote and this court has previously

upheld this methodology . . . .”); United States v. Garcia, 674 F. App’x 585,

587 (8th Cir. 2016) (“[E]thnic and racial disparities between the general

population and jury pools do not by themselves invalidate the use of voter

registration lists and cannot establish the systematic exclusion of allegedly

under-represented groups.” (quoting United States v. Greatwalker, 356

F.3d 908, 911 (8th Cir. 2004))); United States v. Hernandez-Estrada, 749

F.3d 1154, 1166 (9th Cir. 2014) (en banc) (“Hernandez has not provided

sufficient evidence ‘linking sole reliance on voter registration lists for jury

selection to current systematic exclusion of [distinctive groups] in the

[Southern District].’ ” (alterations in original) (quoting United States v.

Rodriguez-Lara, 421 F.3d 932, 945 (9th Cir. 2005), overruled on other

grounds by Hernandez-Estrada, 749 F.3d at 1157)); United States v.

Watkins, 691 F.3d 841, 850–51 (6th Cir. 2012) (“Specifically, he argues

that the practice of summoning jurors using voter registration lists
 84

exclusively, rather than also drawing from driver’s-license and state-

identification lists, disfavors minorities, who tend to vote in lower

proportions than other groups. But we specifically rejected this argument

in [United States v.] Odeneal[, 517 F.3d 406 (6th Cir. 2008)].”); United

States v. Smith, 247 F. App’x 321, 323 n.2 (3d Cir. 2007) (“We have

affirmed the validity of jury selection procedures using voter registration

and motor vehicle records as procedures ‘constituted using facially neutral

criteria [that] allow no opportunity for subjective or racially motivated

judgments.’ ” (alteration in original) (quoting Ramseur v. Beyer, 983 F.2d

1215, 1233 (3d Cir. 1992))); United States v. Orange, 447 F.3d 792, 800

(10th Cir. 2006) (“The circuits are ‘in complete agreement that neither the

Act nor the Constitution require that a supplemental source of names be

added to voter lists simply because an identifiable group votes in a

proportion lower than the rest of the population.’ ” (quoting United States

v. Test, 550 F.2d 577, 586 n.8 (10th Cir. 1976))); United States v. Joost,

No. 95–2031, 1996 WL 480215, at *8 (1st Cir. Aug. 7, 1996) (“As for

Duren’s third prong, the requirement that systematic exclusion be shown,

we have already ruled out reliance simpliciter on voter registration lists.”);

Schanbarger v. Macy, 77 F.3d 1424, 1424 (2d Cir. 1996) (per curiam) (“[A]

jury venire drawn from voter registration lists violates neither the Sixth

Amendment’s fair cross-section requirement nor the Fifth Amendment’s

guarantee of Equal Protection.”); United States v. Cecil, 836 F.2d 1431,

1454 (4th Cir. 1988) (“We are reasonably confident that every jury plan in

this Circuit, as well as those in most of the other Circuits, provides for the

use of voter registration lists in the jury selection process . . . [which] have

been approved, as satisfying the fair cross-section requirement of the

statute and the Constitution.”).
 85

On this record, it is unclear to me why remand is necessary or

proper. In Plain, we remanded the case to develop the record where the

defendant “lacked the opportunity to do so because he was not provided

access to the records to which he was entitled.” 898 N.W.2d at 829. There

is no such claim here.

Nothing in Lilly or the majority opinion in this case purports to

change the showing required to establish “systematic exclusion” under the

Sixth Amendment. Indeed, the majority agrees Veal’s claim fails as a

matter of law:

Veal did not attempt to meet the third prong of
Duren/Plain other than by arguing that systematic exclusion
can be inferred from the 2016 aggregated data. As we
explained in Lilly, that is not enough. The defendant must
identify some practice or combination of practices that led to
the underrepresentation, and it must be something other than
the “laundry list” the Supreme Court declined to condemn in
Berghuis.”

(Citation omitted.)

I can find no authority to remand a case to allow the defendant an

opportunity to relitigate a claim that everyone agrees he lost as a matter

of law.

III.
For these reasons, and for the reasons set forth in my separate

opinion in Lilly, I concur in part and dissent in part.

Waterman and Christensen, JJ., join this concurrence in part and

dissent in part.