State of Iowa v. Kenneth L. Lilly

IN THE SUPREME COURT OF IOWA
No. 17–1901

Filed May 24, 2019

STATE OF IOWA,

Appellee,

vs.

KENNETH L. LILLY,

Appellant.

Appeal from the Iowa District Court for Lee County, Mary Ann

Brown, Judge.

The defendant appeals his conviction for first-degree robbery,

challenging the jury pool and the sufficiency of the evidence to convict him.

AFFIRMED ON CONDITION AND REMANDED WITH DIRECTIONS.

Mark C. Smith, State Appellate Defender, and Shellie L. Knipfer,
Assistant Appellate Defender, for appellant.

Thomas J. Miller, Attorney General, Louis S. Sloven and Andrew

Prosser, Assistant Attorneys General, and Clinton Boddicker, County

Attorney, for appellee.
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MANSFIELD, Justice.

I. Introduction.

This appeal of a conviction for aiding and abetting a bank robbery

requires us to consider the defendant’s rights to an impartial jury under

the Sixth Amendment to the United States Constitution and article I,

section 10 under the Iowa Constitution, as well as the sufficiency of the

evidence to sustain the defendant’s conviction. The defendant, an African-

American, was convicted following a jury trial in North Lee County. His

jury contained no African-Americans. Nor were there any African-

Americans in the jury venire that reported that day. The defendant, relying

on our recent decision in State v. Plain, 898 N.W.2d 801 (Iowa 2017),

attempted to establish a violation of his constitutional rights by presenting

documentary evidence and testimony regarding jury pools in North Lee

County and jury management practices followed in North Lee County and

the Iowa Judicial Branch as a whole. The district court concluded that his

effort fell short.

On our review, we reject the defendant’s challenges to the sufficiency

of the evidence. However, because we have made further elaboration and

refinement of our analysis in Plain, we conditionally affirm and remand for

further proceedings consistent with this opinion.

II. Facts and Procedural Background.

At approximately 10:11 a.m. on June 29, 2016, the Fort Madison

Police Department received a 911 call reporting an apparent robbery in

progress at the Fort Madison Bank and Trust. The caller, Joseph Hardin,

had been waiting to cash a check at the bank’s drive-through window. A

man exited from the car in front of him and entered the bank with a mask

pulled over his face. Hardin then heard what sounded like a gunshot, and

a bank employee waved at Hardin to drive away. While on the phone with
 3

the police, Hardin recounted details about the passenger who had stepped

out of the car and entered the bank, but he could neither identify the car’s

driver nor remember any specifics about the car.

Within minutes, police arrived at the bank. The robber, later

identified as Lafayette Antonio Evans, spotted one of the police cars. He

ran out of the bank through the back exit with a haul of cash in a zip-tie

bag. Following a police chase and an exchange of gunfire, Evans was

fatally shot. Investigators found a mask, a semiautomatic handgun, and

a hand-held radio on Evans’s person.

The defendant, Lilly, was the uncle of Evans’s wife. Before the

robbery, Lilly’s wife had received a money order from Evans’s mother.

According to a witness present at the bank, a Suburban-type vehicle had

dropped off Evans at the bank. This witness noticed a black fan had been

clipped to the rear-view mirror of the Suburban. She also observed that

the driver was a large African-American man, a general description that fit

Lilly.

After seeing a Suburban parked outside of Lilly’s home, the police

executed a search warrant on the vehicle on July 7. A black fan was found

in Lilly’s Suburban along with a citizens band (CB) radio capable of

communicating with the hand-held radio recovered from Evans.

When investigators interviewed Lilly, he stated that Evans had been

staying with him until leaving his residence the night before the robbery.

Lilly also claimed to have slept until about 10:30 a.m. or 11:00 a.m. the

morning of the robbery on June 29, and then run some errands by himself

and driven to Rockford, Illinois. Lilly added that Evans had free use of

Lilly’s vehicle while staying with Lilly.

Video surveillance from local businesses disproved Lilly’s account of

his whereabouts on June 29. It established that Lilly had been at a
 4

convenience store in town at 8:39 a.m., at a hardware store in town at

9:23 a.m., and at a McDonald’s near the bank at 10:14 a.m., just minutes

after the 911 call reporting the robbery. Lilly also had on his person a

receipt for buying a drink at the McDonald’s with a 10:15 a.m. imprint. In

addition, the convenience store video showed a passenger in the Suburban

who was wearing a white shirt, the same color as the shirt that Evans wore

when he committed the robbery later that morning.

Lilly was arrested on October 26 and charged in the North Lee

County District Court with aiding and abetting first-degree robbery under

Iowa Code sections 703.1, 711.1, and 711.2. He entered a plea of not

guilty on November 18. On September 14, 2017, Lilly, an African-

American, filed a motion challenging the jury pool as not a fair cross

section of the community. He pointed out that no one who answered a

jury questionnaire for that pool identified himself or herself as African-

American. All but three who disclosed their race responded that they were

“White” or “Caucasian,” and of those three, one self-identified as “Asian,”

one as “Other,” and the third as “White/Black.” Lilly also noted that

according to the 2013 United States census, 3.2% of the Lee County

population was African-American. The court conducted an evidentiary

hearing on Lilly’s challenge, receiving testimony from Dawn Willson, a

judicial specialist responsible for picking the names for jury service in

North Lee County, and Mark Headlee, the information technology director

for the Iowa Judicial Branch. The court also received exhibits, including

the last five years of “race reports” from North Lee County jury pools.

On September 25, the court denied Lilly’s motion. It concluded that

“the defendant has failed to establish . . . that any underrepresentation of

African-Americans on the list is due to a systematic exclusion of the group

in the jury selection process.” Jury selection began the following day, and
 5

no African-American jurors were seated in the jury of six men and six

women.

In its initial jury instructions before opening statements, the district

court gave the following instruction on implicit bias:

Reach your verdict without discrimination. In reaching
your verdict, you must not consider the defendant’s race,
color, religious beliefs, national origin or sex. You are not to
return a verdict for or against the defendant unless you would
return the same verdict without regard to his race, color,
religious beliefs, national origin or sex. 1

After the State finished its case-in-chief, Lilly moved for a judgment

of acquittal. The court denied the motion. Lilly renewed his motion for

acquittal at the close of evidence, which the court again denied. The court
gave the same implicit-bias instruction in its final instructions.

On September 29, the jury found Lilly guilty of robbery in the first-

degree. On November 22, the court denied Lilly’s motion for new trial and

sentenced him to twenty-five years in prison subject to a 70% mandatory

minimum. See Iowa Code §§ 902.9(1)(b), .12(1)(e) (2016). Lilly appealed,

and we retained the appeal.

On appeal, Lilly contends the racial composition of the jury pool

violated his rights to an impartial jury under the Sixth Amendment to the
United States Constitution and article I, section 10 of the Iowa

Constitution. He contends the evidence was insufficient that he aided and

abetted Evans in the robbery of the bank. He also contends he received

ineffective assistance of counsel when his counsel failed to move for a

judgment of acquittal as to first-degree robbery based on the lack of

evidence that he knew a firearm would be used in the robbery.

1This was the precise instruction that had been requested in Plain. 898 N.W.2d

at 816. Although we held the district court did not abuse its discretion in failing to give
that instruction, we stated that “[w]e strongly encourage district courts to be proactive
about addressing implicit bias . . . .” Id. at 817.
 6

III. Standard of Review.

“We review constitutional issues de novo.” Plain, 898 N.W.2d at 810.

We also review ineffective-assistance-of-counsel claims de novo. State v.

Harris, 891 N.W.2d 182, 185 (Iowa 2017). “However, when the claim is

that counsel was ineffective in failing to move for judgment of acquittal,

this implicates the question whether such a motion would have been

meritorious, which turns on the sufficiency of evidence.” State v.

Henderson, 908 N.W.2d 868, 874–75 (Iowa 2018).

Sufficiency of the evidence claims are reviewed for corrections of

errors at law. See Iowa R. App. P. 6.907; see also Harris, 891 N.W.2d at

186. In making determinations regarding the sufficiency of the evidence,

we “view the evidence in the light most favorable to the state, regardless of

whether it is contradicted, and every reasonable inference that may be

deduced therefrom must be considered to supplement that evidence.”

Harris, 891 N.W.2d at 186 (quoting State v. Jones, 281 N.W.2d 13, 18 (Iowa

1979)). If the record contains substantial evidence to support the

defendant’s conviction, we will uphold a trial court’s denial of a motion of

acquittal. Id. “Evidence is substantial if it would convince a rational trier

of fact the defendant is guilty beyond a reasonable doubt.” Id. (quoting

State v. Jorgensen, 758 N.W.2d 830, 834 (Iowa 2008)). Evidence can be

either circumstantial or direct, or both. Id. Evidence is substantial if a

reasonable trier of fact would be convinced that the defendant is guilty

beyond a reasonable doubt. Henderson, 908 N.W.2d at 875.

IV. Analysis.

A. Composition of the Jury Pool. Lilly, an African-American,

challenges the composition of the jury pool in North Lee County from
 7

which his jury was selected. 2 None of the jurors who heard his case was

African-American. Of the pool from which his jury was selected, one

person marked “Other” on the questionnaire, one marked “Asian,” and one

marked “White/Black.” None of them, however, were part of the venire

from which Lilly’s jury was chosen. 3

Before trial, a hearing was held in which Lilly was given the

opportunity to show that African-Americans were being systematically

underrepresented in North Lee County jury pools. Lilly presented “race

reports” for the last five years of jury pools from late 2012 to late 2017 in

North Lee County. The reports showed that on the approximately 2789

questionnaires returned during the last five years, only fourteen potential

jurors self-reported as being African-American. Approximately 30% of

respondents did not disclose their race.

In 2013, Lee County had a 3.2% African-American population; in

2016, that figure was 3%. No statistics were presented regarding North

Lee County. The State noted below, and reiterates here, that the African-

American population in Iowa is, on average, younger than the overall

population. It estimates that 75.83% of Iowans are eighteen years or older,

and thus eligible to be jurors, whereas only 65.4% of African-American

Iowans are eighteen or older.

1. The Duren/Plain framework. In State v. Plain, we considered a

challenge under the Sixth Amendment to the racial composition of a jury

2In this opinion, we are attempting to be consistent with the definitions used in
chapter 607A of the Iowa Code. See Iowa Code § 607A.3. Thus, “pool” refers to the jurors
summoned to the courthouse for a particular time period; “panel” refers to the jurors
summoned to a particular courtroom to serve, potentially, on a jury for a specific trial.
See id. § 607A.3(7), (9).
3The record does not indicate how many jurors were in that jury pool. Wilson

testified she sends out questionnaires to 125 randomly selected names for each pool but
it is not clear how many responses were received. The typical number of responses
appears to have ranged from 75 to 115.
 8

pool. 898 N.W.2d at 821. We noted that the Sixth Amendment “right to

an impartial jury entitles the criminally accused to a jury drawn from a

fair cross-section of the community.” Id. We explained that under Duren

v. Missouri, 439 U.S. 357, 99 S. Ct. 664 (1979), a defendant can establish

a prima facie violation of the fair-cross-section requirement by showing:

(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.

Id. at 822 (quoting Duren, 439 U.S. at 364, 99 S. Ct. at 668).

We noted that to establish the second Duren prong “jurisdictions

generally apply one or more of the following statistical tests: (1) absolute

disparity, (2) comparative disparity, and/or (3) standard deviation.” Id.

Absolute disparity is calculated by subtracting the percentage of the

minority group in the jury pool from the percentage in the community. Id.

We faulted the absolute disparity test for failing to “account for the relative

size of the minority group in the general population.” Id. at 823. For

example, if absolute disparity is set at 10% and the minority group is less

than 10% of the relevant population, the defendant would never be able to

meet the absolute disparity test, even if the system for selection of jury

pools were biased against that minority group. See id.

“Comparative disparity is calculated by dividing the absolute

disparity by the percentage of the population represented by the group in

question.” Id. We criticized that test because “it can overstate

underrepresentation for groups with a small population percentage.” Id.

For example, if a pool of 100 jurors contains two members of a minority

group but the percentage of members of that minority group in the relevant
 9

community is 3%, this translates into a comparative disparity of 33 1/3%,

even though this result would be a relatively common outcome of a random

process.

The final test, standard deviation, uses accepted statistical methods

to determine the likelihood that a disparity between the minority

percentage in the pool and in the population is the result of something

other than chance. See id. These statistical methods are commonly used

in employment discrimination cases. See, e.g., Pippen v. State, 854 N.W.2d

1, 20 (Iowa 2014) (noting that the plaintiffs “point out that the racial

disparity in the hiring of applicants deemed qualified for the job by DAS

was statistically significant.”). In Plain, we said that standard deviation

was also “imperfect” because

[m]easures of the standard deviation presume randomness;
however, the chances of drawing a particular jury composition
are not random, in part because “the characteristics of the
general population differ from a pool of qualified jurors.”

Plain, 898 N.W.2d at 823 (quoting United States v. Hernandez-Estrada, 749

F.3d 1154, 1163 (9th Cir. 2014) (en banc)).

We decided in Plain to overrule State v. Jones, 490 N.W.2d 787, 792–

93 (Iowa 1992), to the extent it held that absolute disparity was the

appropriate test to use. See id. at 826. We concluded that “[p]arties

challenging jury pools on the ground that they are unrepresentative may

base their challenges on multiple analytical models.” Id. at 827. We

added, “Because what constitutes a fair cross-section of the community is

a fluid concept, a flexible approach for determining when a racial disparity

rises to the level of a constitutional violation is warranted.” Id.

Further, we held that defendants are entitled to “access to the

information necessary to prove a prima facie case.” Id. at 828. We

conditionally affirmed Plain’s conviction and remanded to the district court
 10

“for development of the record on the Sixth Amendment challenge.” Id.

829.

In this case, Lilly attempted to prove up a challenge using the

Duren/Plain framework. He brought his challenge under both the Sixth

Amendment and article I, section 10 of the Iowa Constitution, which like

the Sixth Amendment provides a right to trial before “an impartial jury.”

The district court concluded that it was unable to decide whether

the second Duren/Plain prong had been met, and therefore focused on the

third prong. There, it reasoned:

Even if the jury panels are not representative of the
African-American population in the community, in order for
the defendant to challenge the panel he must still prove that
the underrepresentation is due to a systematic exclusion of
the group in the jury selection process. The evidence at the
hearing disclosed that jury managers for all jury panels
chosen in the state of Iowa use a system created by the judicial
branch under the direction of the State Court Administrator.
The decision has been made by the State Court Administrator
that those jury managers are only able to access lists created
from voter registration lists supplied by the Iowa Secretary of
State and driver’s license and DOT identification lists supplied
by the Iowa Department of Transportation. This court and the
North Lee County jury manager have no choice in which lists
are utilized. Consequently, the court sees no purpose will be
served by granting the defendant’s prayer for relief to strike
this jury panel and have the jury manager call in another
panel using the same lists. Based upon the past five-year
history, there’s very little likelihood that a newly-drawn jury
panel would include individuals who on their questionnaires
identify themselves to be African-Americans. It’s more likely
than not that a new panel would contain just the same
representation of African-Americans as the current panel.

Redrawing the panel would not be expected to change
the outcome. If the system is flawed, the system for drawing
panels in the entire state is flawed.

....

No evidence has been presented to this court that there
is any other list available that could be used in a systematic
random selection process that would increase the
representation of African-Americans on the jury list. What
other readily available and discernable list of names is
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available? What more could those creating the list do to
increase the number of African-Americans on the list?
Without that information even being discussed, there is no
evidence that the underrepresentation of African-Americans
is due to a systematic exclusion of the group in the jury
selection process.

On appeal, Lilly reasserts his challenges to the jury pool under the

Duren/Plain framework. Although Lilly raises both Federal and State

Constitutions in his briefing, he does not advance a separate Iowa

constitutional analysis. As we have said,

When a party does not suggest a framework for analyzing the
Iowa Constitution that is different from the framework utilized
under the United States Constitution, we apply the general
federal framework. However, we reserve the right to apply the
federal framework in a different manner.

In re Det. of Anderson, 895 N.W.2d 131, 139 (Iowa 2017). Accordingly, we

will apply the Duren/Plain three-part test under the Iowa Constitution,

reserving the right to apply it differently.

2. Fair and reasonable representation. Both Lilly and the State ask

us to provide more clarity on the second prong. Lilly observes that Plain

“does not answer the question of how to utilize the three statistical tests—
particularly in minority populations that are extremely small in the

community.” The State likewise points out that Plain “offered no further
guidance” beyond telling district courts they could rely on all three tests.

This, according to the State, has “created considerable uncertainty,” and

the State urges us “to provide guidance on how to analyze the resultant

statistics.” In other words, both parties ask us to go beyond what we said

in Plain. 4

4The parties seem to be channeling the views of a judge who concurred in the
judgment when the United States Court of Appeals for the Ninth Circuit, like our court,
overruled precedent holding that the absolute disparity test should be the only analytical
measure used in fair-cross-section challenges:
We owe the district courts more direction than a survey of
statistical measures to solve this problem. While the discussion of
available tests may aid the district courts in choosing a fitting measure for
 12

On further reflection, we believe that the determination of whether

minority representation is “fair and reasonable in relation to the number

of such persons in the community” ought to be performed by accepted

statistical methods. See Plain, 898 N.W.2d at 822 (quoting Duren, 439

U.S. at 364, 99 S. Ct. at 668). Neither absolute disparity nor comparative

disparity is such a method. As Lilly puts it, absolute disparity

“understates the disparity” and comparative disparity “overstates the

results.” See People v. Luong, 378 P.3d 843, 850 (Colo. App. 2016)

(“Absolute disparity tends to understate a small group’s

underrepresentation on jury panels, while comparative disparity tends to

overstate it.”). By contrast, standard deviation analysis appears to get at

the heart of the matter—i.e., “the probability that the disparity between a

group’s jury-eligible population and the group’s percentage in the qualified

jury pool is attributable to random chance.” Berghuis v. Smith, 559 U.S.

314, 324 n.1, 130 S. Ct. 1382, 1390 n.1 (2010).

Moreover, we are not sure the criticism of standard deviation we

voiced in Plain is entirely correct. It is true that this statistical method

“presume[s] randomness.” Plain, 898 N.W.2d at 823. Rather than being

a flaw of the method, though, we see that as the method’s strength. It

enables judges to determine whether there has been a deviation from

randomness that would indicate a problem. It is also potentially true that

“the characteristics of the general population differ from a pool of qualified

a given fair cross-section challenge, the majority still provides no standard
to evaluate minority exclusion. With only discussion, the district courts
are left with at least these questions: In what circumstances would the
district court consider statistics from a particular test? Should it apply
more than one test? If so, which ones? If it were to evaluate multiple tests,
which would be controlling? What outcomes under any test or tests would
constitute a legally intolerable exclusion?
Hernandez-Estrada, 749 F.3d at 1174–75 (N.R. Smith, J., concurring in the judgment).
 13

jurors.” Id. (quoting Hernandez-Estrada, 749 F.3d at 1163). However, as

the State observes, the one established difference is that the African-

American population tends to be younger and therefore may contain fewer

qualified jurors. It is possible to adjust for this difference, as the State

proposes, or alternatively not to adjust for it, which would actually make

it easier for an African-American defendant to meet the second prong. This

does not make the standard deviation method invalid.

In Berghuis, the Supreme Court likewise characterized the standard

deviation test as “imperfect.” 559 U.S. at 329, 130 S. Ct. at 1393. Yet the

only reason it deemed the test imperfect was not a substantive one, but

simply the fact no court “has accepted [a standard deviation analysis]

alone as determinative in Sixth Amendment challenges to jury selection

systems.” Id. (alteration in original) (quoting United States v. Rioux, 97

F.3d 648, 655 (2d Cir. 1996)). Again, this is not really a flaw in the

method. 5

The State asks us to adopt an initial screen of a 3% absolute

disparity before resorting to accepted statistical methods. The State says

this will screen out cases that do not involve “substantial

underrepresentation” and “allow judges to dispose of meritless cross-
section challenges more efficiently, with minimal math.” 6 We decline to do

5By contrast, the Berghuis Court gave a substantive reason why the absolute and
comparative disparity tests were also “imperfect,” namely, that they can be “misleading”
when members of the distinctive group comprise only a small percentage of those eligible
for jury service. Berghuis, 559 U.S. at 329, 130 S. Ct. at 1393. And of course, the reason
why those tests can be misleading when applied to groups making up a small percentage
of eligible jurors is the greater likelihood that the sample won’t be statistically significant.
In other words, the need for statistics that have real meaning underlies the Supreme
Court’s criticisms of both the absolute and the comparative disparity tests.
6The State argues that the second Duren/Plain prong requires proof of
“substantial underrepresentation,” not merely some underrepresentation. To be clear,
prong two of Duren actually requires the defendant to prove the representation in the
juror pool was not “fair and reasonable in relation to the number of persons in the
community.” 439 U.S. at 364, 99 S. Ct. at 668. The term “substantial” comes from a
 14

so. Any absolute disparity test has the same defect we noted in Plain,

namely, that it gives a free pass to systematic underrepresentation so long

as the absolute underrepresentation that the system produces falls below

a certain threshold. We have an academic discipline that separates

random occurrence from systematic underrepresentation; that discipline

is statistics. Accordingly, under article I, section 10, we believe the second

Duren/Plain factor should instead focus on whether there has been a

statistically significant underrepresentation of the minority in a jury pool

or pools.

As the United States Court of Appeals for the Sixth Circuit has said,

“[C]omparing . . . racial percentages is of little value to this court.”

Jefferson v. Morgan, 962 F.2d 1185, 1189 (6th Cir. 1992). Jefferson quoted

from an earlier Fourth Circuit case, which put the matter well:

When a litigant seeks to prove his point exclusively through
the use of statistics, he is borrowing from another discipline,
mathematics, and applying these principles to the law. In
borrowing from another discipline, a litigant cannot be
selective in which principles are applied. He must employ a
standard mathematical analysis. Any other requirement
defies logic to the point of being unjust. Statisticians do not
simply look at two statistics, such as the actual and expected
percentage of blacks on a grand jury, and make a subjective
conclusion that the statistics are significantly different.

Id. (quoting Moultrie v. Martin, 690 F.2d 1078, 1082 (4th Cir. 1982)).

In Castaneda v. Partida, the Supreme Court held that a habeas

corpus petitioner had proved a prima facie case of Fourteenth Amendment

pre-Duren Fourteenth Amendment equal protection case. Castaneda v. Partida, 430 U.S.
482, 494–95, 97 S. Ct. 1272, 1280 (1977). In Jones, though, we indicated that
“substantial underrepresentation” is part of the prima facie case under the Sixth
Amendment and article I, section 10. Jones, 490 N.W.2d at 793. In Plain, we used the
Duren term “fair and reasonable” to describe the second prong. Plain, 898 N.W.2d at
826–27. We will continue that practice here. Our purpose in this part of the opinion is
to describe what the defendant must prove to establish that representation of the group
in the jury pool was not “fair and reasonable.”
 15

discrimination in grand jury selection that was not rebutted by any

evidence in the record. 430 U.S. 482, 501, 97 S. Ct. 1272, 1283 (1977).

The record showed that 79.1% of the population was Mexican-American,

but the average number of Mexican-American grand jurors over a period

of years was only 39%. Id. at 495, 97 S. Ct. at 1280.

If the jurors were drawn randomly from the general
population, then the number of Mexican-Americans in the
sample could be modeled by a binomial distribution. Given
that 79.1% of the population is Mexican-American, the
expected number of Mexican-Americans among the 870
persons summoned to serve as grand jurors over the 11-year
period is approximately 688. The observed number is 339. Of
course, in any given drawing some fluctuation from the
expected number is predicted. The important point, however,
is that the statistical model shows that the results of a random
drawing are likely to fall in the vicinity of the expected value.
The measure of the predicted fluctuations from the expected
value is the standard deviation, defined for the binomial
distribution as the square root of the product of the total
number in the sample (here 870) times the probability of
selecting a Mexican-American (0.791) times the probability of
selecting a non-Mexican-American (0.209). Thus, in this case
the standard deviation is approximately 12. As a general rule
for such large samples, if the difference between the expected
value and the observed number is greater than two or three
standard deviations, then the hypothesis that the jury
drawing was random would be suspect to a social scientist.
The 11-year data here reflect a difference between the
expected and observed number of Mexican-Americans of
approximately 29 standard deviations. A detailed calculation
reveals that the likelihood that such a substantial departure
from the expected value would occur by chance is less than 1
in 10140.

Id. at 496 n.17, 97 S. Ct. at 1281 n.17.

The State picks up on Castaneda’s reference to “two or three

standard deviations” and proposes a threshold of 1.64 standard

deviations, which is less. According to the State, when applied in only one

direction, i.e., to deviations that are below the expected mean, this would

lead to a 95% confidence level that the underrepresentation cannot be a

matter of chance. Social scientists typically consider two standard
 16

deviations in either direction to be statistically significant, a level at which

there is a 95% probability the discrepancy cannot be due to chance. See

Jones v. City of Boston, 752 F.3d 38, 46–47 & n.9 (1st Cir. 2014).

The NAACP, as amicus curiae, contends that these levels are too

high; however, the NAACP does not suggest an alternative. On our review,

we conclude the threshold should be one standard deviation—in other

words, the percentage of the group in the jury pool must be one standard

deviation or more below its percentage in the overall population of eligible

jurors. As we understand it, when the variance is one standard deviation,

there remains a 32% probability that we are seeing a random event. But

if we are looking in only one direction, as we are in these cases, the

probability would be 16% that the departure is a random event and 84%

that it is not.

Although one standard deviation is less than the two standard

deviations customarily employed to measure statistical significance, we

think this lower threshold can be justified. As we discuss below, the

defendant still must trace the disparity to some practice or practices.

A related question is how to calculate the percentage of the minority

group in the population for baseline purposes. The State contends that

the most current census data available at the time of the trial should be

used. The NAACP agrees. So do we.

In addition, the State maintains that the data should be adjusted to

reflect the population that would actually be eligible for jury service. It

therefore argues that the relevant percentage should be that of the

minority group in the eighteen-or-older population. See United States v.

Carmichael, 560 F.3d 1270, 1280 (11th Cir. 2009) (“To analyze whether

African Americans were fairly and reasonably represented in the jury pool,

we compare the difference between the percentage of African Americans in
 17

the population eligible for jury service and the percentage of African

Americans in the pool.”); United States v. Torres-Hernandez, 447 F.3d 699,

703–04 (9th Cir. 2006) (“Our precedents agree that to prove Hispanics are

underrepresented in a given district’s jury pools, the ultimate basis for

comparison is the district’s actual percentage of jury eligible Hispanics.”);

see also Jones, 490 N.W.2d at 793 (“When considering group or total

population figures, eligible juror statistics would provide the more relevant

figures.”). The NAACP agrees with this concept. For example, it

acknowledges that in a county where the inmates of a state prison make

up a significant portion of the population, those inmates should be

removed from the calculation, because state prisoners are not eligible for

jury service. We agree with this concept as well, while sharing the NAACP’s

view that this “is not a matter for hasty determination” but for “carefully

developed” proof.

This proof can be developed on remand. For example, although we

know that the Iowa State Penitentiary is located in Fort Madison, we do

not know how the presence of the prison affects the baseline percentage of

African-Americans in the eligible juror population. Rather than engage in

our own research, we should allow the parties to present evidence. When

presented with different data, the district court should rely on “the

statistical data that best approximates the percentage of jury-eligible”

persons in the distinctive group. Torres-Hernandez, 447 F.3d at 704.

The State also argues against using “aggregated data.” That is, the

State insists our review should be limited to the pool from which the trial

jurors were drawn, without considering other, earlier pools. We are not

persuaded. It is unfair to restrict the defendant to the current jury pool

that may have as few as seventy-five persons, and then at the same time

require the defendant to furnish results that have a certain degree of
 18

statistical significance. See Commonwealth v. Arriaga, 781 N.E.2d 1253,

1263 (Mass. 2003) (“A defendant must present evidence of a statistically

significant sample, usually requiring analysis of the composition of past

venires.”). What the parties cannot do, of course, is tip the scales in an

aggregate analysis by including some earlier jury pools but not other, more

recent jury pools.

Finally, we agree with the State that the defendant must show that

he or she has suffered a constitutional wrong, although we may define that

wrong somewhat differently. 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, and there would be no reason to aggregate

data in that event.

3. Systematic exclusion. Turning to the third Duren/Plain prong,

the undisputed evidence is that the Iowa Judicial Branch currently uses

two lists to develop its juror pools—driver’s licenses and nonoperator

identifications from the department of transportation, and voter

registrations from the secretary of state. Lilly argues that other lists could

be used—such as income tax filers, persons receiving unemployment, and

persons on housing authority and child support recovery lists. Lilly

contends that even when these do not have additional names, they may

have more up-to-date addresses. However, Lilly does not explain how

failure to use such lists in itself amounts to “systematic exclusion” within

the meaning of Duren/Plain.

The NAACP takes a different approach. It argues that when the

underrepresentation is severe enough, the court should relieve the

defendant from proving the third Duren/Plain factor and instead shift the

burden “to the State to establish that its jury management practices have
 19

been reasonably calculated, in light of known best practices and available

technology, to secure an impartial jury.”

Although the NAACP argues that Plain approved this type of burden-

shifting, we are not convinced. We said in Plain, “[T]he defendant must

show evidence of a statistical disparity over time that is attributable to the

system for compiling jury pools.” 898 N.W.2d at 824 (emphasis added). 7

Clearly, federal law requires the defendant to show causation, that

is, that the underrepresentation is produced by some aspect of the system.

In Berghuis, the Court noted that

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. at 332, 130 S. Ct. at 1395. Still, in a unanimous opinion, the

Court emphasized that it was not enough to “point[] to a host of factors

that, individually or in combination, might contribute to a group’s

underrepresentation.” Id. In a recent decision, the United States Court of

Appeals for the Ninth Circuit used like-minded reasoning in rejecting a

reasonable cross-section claim:

Llerenas’s expert testified generally that “there’s something
systematic going on that’s . . . causing underrepresentation of
Hispanics or Latinos,” but he was unable to identify what that
“something” was and relied only on statistical evidence.
Where a defendant offers “nothing more than a simple

7We also quoted a law student note in Plain for the following point: “If there is a
pattern of underrepresentation of certain groups on jury venires, it stands to reason that
some aspect of the jury-selection procedure is causing that underrepresentation.” 898
N.W.2d at 824 (quoting David M. Coriell, Note, An (Un)fair Cross Section: How the
Application of Duren Undermines the Jury, 100 Cornell L. Rev. 463, 481 (2015)). However,
his quotation about what “stands to reason” should not be taken as a suggestion that we
were eliminating the third prong of the prima facie case. To the contrary, we repeatedly
noted that the defendant had the burden to establish systematic exclusion, not merely
underrepresentation. See id. at 822–24.
 20
disparity between the percentage of Hispanics in the venire
and in the County,” he has not met his burden to show that
the disparity was systematic.

United States v. Llerenas, 743 F. App’x 86, 89 (9th Cir. 2018) (second quote

Randolph v. People, 380 F.3d 1133, 1142 (9th Cir. 2004)).

Similarly, the California Supreme Court has declined to find

systematic exclusion based on a county’s decision not to adopt a list of

practices alleged to improve minority juror representation, absent proof

that they actually would improve minority juror representation. See People

v. Henriquez, 406 P.3d 748, 763–64 (Cal. 2017). In Henriquez, the

defendant faulted the county’s exclusive reliance on department of motor

vehicles and voter registration lists, rather than weaving in other sources

such as utility service lists. Id. at 763. The defendant also faulted the

county’s past failure to conduct aggressive follow-up on jurors who did not

appear. Id. at 764. The California Supreme Court was not persuaded,

noting,

[D]efendant has made no showing that the county’s use of the
DMV and voter registration lists was the probable cause of the
disparity he challenges, nor has he shown that any other
available list would have produced a jury venire that was more
representative of the population.

and,

[D]efendant has not shown that the county’s failure to engage
in more aggressive follow-up is a cause of underrepresentation
of African-Americans in the jury pool . . . .

Id. at 763–64. The court thus unanimously affirmed the defendant’s

convictions and death penalty. Id. at 782.

An analogy can usefully be drawn between the proof required in

employment discrimination cases and the proof required to establish

systematic exclusion under Duren/Plain. The analogy is not perfect but it

sheds some light. In both instances, the challenger does not need to show
 21

purpose or intent to discriminate. Nonetheless, statistically significant

disparities alone are not enough. Rather, the challenger must tie the

disparity to a particular practice. Pippen, mentioned above, was a

disparate impact employment discrimination case. 854 N.W.2d at 4.

There, we affirmed a class action judgment in favor of the State. Id. The

plaintiffs—although undeniably able to show statistically significant

disparities in rates of hiring—failed to connect those hiring disparities to

one or more employment practices or, alternatively, to show that the

elements of the hiring process were “not capable of separation for

analysis.” Id. at 19–23.

Hence, at this time, we are not prepared to embrace the NAACP’s

proposal. We are reluctant to impose an open-ended obligation on lower

courts to follow unspecified “known best practices,” whatever those best

practices may turn out to be. We may be willing to impose such an

obligation in the future when we have more data about what those

practices are and their effectiveness.

Yet, we do hold today that jury management practices can amount

to systematic exclusion for purposes of article I, section 10. Berghuis

appears to reject this proposition under the Sixth Amendment, suggesting

that “hardship exemptions” and other items on Smith’s list might fall

within a State’s permissible “discretion.” Berghuis, 559 U.S. at 333, 130

S. Ct. at 1395. For article I, section 10 purposes, we disagree. We adopt

instead the approach put forward by Paula Hannaford-Agor:

Although the socioeconomic factors that contribute to
minority underrepresentation in the jury pool do not
systematically exclude distinctive groups, the failure of courts
to mitigate the underrepresentation through effective jury
system practices is itself a form of systematic exclusion.

Litigants alleging a violation of the fair cross section
requirement would still have to demonstrate that the
 22
underrepresentation was the result of the court’s failure to
practice effective jury system management. This would
almost always require expert testimony concerning the precise
point of the juror summoning and qualification process in
which members of distinctive groups were excluded from the
jury pool and a plausible explanation of how the operation of
the jury system resulted in their exclusion. Mere speculation
about the possible causes of underrepresentation will not
substitute for a credible showing of evidence supporting those
allegations.

Paula Hannaford-Agor, Systematic Negligence in Jury Operations: Why the

Definition of Systematic Exclusion in Fair Cross Section Claims Must Be

Expanded, 59 Drake L. Rev., 761, 790–91 (2011). If a practice that leads

to systematic underrepresentation of a distinctive group in jury pools can

be identified and corrected, there is no reason to shield that practice from

scrutiny just because it is relatively commonplace. At the same time, the

defendant must prove that the practice has caused systematic

underrepresentation.

In sum, we hold today that run-of-the-mill jury management

practices such as the updating of address lists, the granting of excuses,

and the enforcement of jury summonses can support a systematic

exclusion claim where the evidence shows one or more of those practices

have produced underrepresentation of a minority group.

Because the parties did not have the benefit of these refinements to

the Duren/Plain standards, we have decided today to follow the same

course of action as in Plain. See 898 N.W.2d at 829. That is, we will

remand this case to give Lilly a further opportunity to develop his

arguments that his Sixth Amendment and article I, section 10 rights to an

impartial jury were violated. If the district court concludes a violation

occurred, it shall grant Lilly a new trial.

B. Sufficiency of the Evidence. Lilly also challenges the

sufficiency of the evidence supporting his conviction for aiding and
 23

abetting Evans in the bank robbery. Lilly argues the evidence does not

demonstrate he drove Evans to the bank and, even if it did, the evidence

does not show he was aware of Evans’s intent to rob the bank.

We will sustain an aiding-and-abetting conviction if the record

contains “substantial evidence the accused assented to or lent

countenance and approval to the criminal act either by active participation

or by some manner encouraging it prior to or at the time of its

commission.” State v. Tyler, 873 N.W.2d 741, 750 (Iowa 2016) (quoting

State v. Spates, 777 N.W.2d 770, 780 (Iowa 2010)). “Aiding and abetting

may be proven by direct or circumstantial evidence. Direct and

circumstantial evidence are equally probative.” State v. Huser, 894 N.W.2d

472, 491 (Iowa 2017) (citations omitted).

1. Substantial evidence that Lilly drove Evans to the bank. We

believe there was substantial evidence that Lilly drove Evans to the bank.

Evans had been staying with Lilly. An eyewitness at the bank said the

driver was “a larger black man who kind of filled the seat.” Lilly is six feet,

six inches tall and weighs 285 pounds. The car was identified as a

Suburban-type vehicle, the same type of car as Lilly’s, and it had a black

fan, as did Lilly’s. It is true that the color of Lilly’s vehicle did not match

that in either of the eyewitness descriptions (which in turn differed from

each other in their recollection of the vehicle’s color). Yet video shows Lilly

in his vehicle purchasing a soda at a nearby McDonald’s shortly after the

robbery. Furthermore, Lilly initially told investigators that he had been

asleep at home when the robbery occurred. This was false. Video later

showed that he had been driving in his vehicle to a convenience store and

a hardware store prior to the robbery and that he had a passenger with

him. Lilly also had a CB radio in his Suburban capable of communicating

with Evans’s hand-held radio.
 24

2. Substantial evidence that Lilly knew Evans intended to rob the

bank. We also believe there is substantial evidence that Lilly was aware

Evans intended to rob the bank. Evans had a mask around his neck before

entering the bank. Hardin’s wife, who was in the car with him, remarked

that Evans was “probably going to rob the bank.” Evans pulled the mask

over his face upon entering the bank. Evans was also wearing gloves and

tape on his hands to cover distinguishing tattoos. There is no evidence

showing Evans putting on the gloves or applying the tape inside or outside

the bank. Thus, a jury could infer he was wearing them while still in the

vehicle, even though it was late June. Moreover, Evans used a zip-tie bag

to carry the stolen money from the robbery. Witnesses testified to seeing

Evans carrying a cinch-bag when he exited the vehicle.

C. Ineffective Assistance of Counsel. Lilly argues his trial

counsel was ineffective in failing to move for acquittal specifically on first-

degree robbery because there was insufficient evidence Lilly knew Evans

was going to use a dangerous weapon during the robbery. We have said

that “no reasonable trial strategy could permit a jury to consider a crime

not supported by substantial evidence.” State v. Schlitter, 881 N.W.2d 380,

390 (Iowa 2016). Thus, the ultimate issue is the sufficiency of the evidence

supporting the first-degree robbery conviction. Henderson, 908 N.W.2d at

874–75. If evidence was sufficient to support the conviction, the motion

would have been meritless, and Lilly cannot demonstrate that his counsel

was ineffective.

Under the dangerous weapon alternative for first-degree robbery,

“the state must prove the alleged aider and abettor had knowledge that a

dangerous weapon would be or was being used.” Id. at 876. The evidence

was sufficient here. Evans left the vehicle and walked into the bank in

possession of the .40 handgun which he used to rob the bank. Assuming
 25

the jury found Lilly had driven Evans to the scene of the robbery, it was

entitled to conclude he knew about the handgun.

This case differs from Henderson, on which Lilly relies. In

Henderson, the defendant had been assigned to serve as the getaway driver

for a robbery from a pharmacy. Id. at 870. In the planning leading up to

the robbery, it had been discussed that the two robbers would use a

threatening note but not a firearm. Id. at 870–71, 875. After the defendant

separated from the group, the robbers received the gun that was actually

used in the robbery. Id. at 875. Here, by contrast, Lilly was the drop-off

driver and it is rational to conclude he would have seen the gun in the car,

just as he would have seen the mask around Evans’s neck, the gloves, the

tape covering his tattoos, and the cinch-bag he was carrying. 8

V. Conclusion.

For the foregoing reasons, we conditionally affirm Lilly’s conviction

and sentence, but remand this case for further consideration of Lilly’s

claim that his jury was not drawn from a fair cross section of the

community in violation of the Sixth Amendment and article I, section 10.9

8Lilly also argues that his trial counsel was ineffective in failing to call a witness
from the Rivers Inn who could have testified regarding the hotel’s check-in log. Counsel
ran into a hearsay objection when he attempted to question one of the investigators at
trial about this log. Counsel’s theory was that three guests from Alabama, where Evans
had previously been living, had checked in around the time of the robbery and one of
them could have served as Evans’s driver. We agree with the State that there is
insufficient information to address this claim on direct appeal.
9Lilly also filed a pro se brief raising three issues. Two of them, the
constitutionality of the jury pool and the sufficiency of the evidence, have already been
addressed in the body of this opinion.
Lilly’s third pro se claim is that he should have been granted a new trial because
the verdict was contrary to the weight of the evidence. This issue has not been preserved
for our review. Lilly’s motion for new trial did not assert that the verdict was contrary to
the weight of the evidence. Accordingly, the district court’s order denying that motion
did not make a determination on this issue, and we will not consider the matter for the
first time on appeal. See State v. Thompson, 836 N.W.2d 470, 491 (Iowa 2013) (finding a
weight-of-the-evidence claim that was not raised in a motion for a new trial was not
preserved for review).
 26

AFFIRMED ON CONDITION AND REMANDED WITH

DIRECTIONS.

Cady, C.J., and Wiggins and Appel, JJ., concur.

Waterman, Christensen and McDonald, JJ., concur as to divisions

IV.B and IV.C and dissent as to division IV.A.
 27

#17–1901, State v. Lilly

APPEL, Justice (concurring specially).

I concur with the majority opinion but write separately to illuminate

my views on some of the issues raised in this case.

The right to a fair and impartial jury trial is critical to our criminal

justice system.

In my view, in order for this promise to become a reality for African-

Americans charged with crime in Iowa, our jury system must embrace at

least four building blocks. Although only one of the building block issues

is presented in this case, the question presented here can only be

understood in the larger context.

First, our jury pools must represent a fair cross section of the

community. Iowa Const. art. I, §§ 9, 10; State v. Huffaker, 493 N.W.2d

832, 833 (Iowa 1992); State v. Brewer, 247 N.W.2d 205, 209 (Iowa 1976).

In order to achieve this goal, the pool of potential jurors must reasonably

represent the make-up of the community.

As pointed out in State v. Plain, 898 N.W.2d 801, 825–27 (Iowa

2017), our prior precedent has not advanced the fair-cross-section

requirement. By adopting an absolute disparity test in our earlier

opinions, we made it virtually impossible for African-Americans and other

minorities to raise fair-cross-sections claims. Id. In Plain, we abandoned

the absolute disparity test and began the process of revising our approach.

Id. at 826–27. The cases decided today constructively build on Plain.

Second, the manner of selecting jurors that ultimately serve from

the jury pool must promote achievement of a fair cross section. We will

accomplish nothing if we ensure the jury pool more fairly represents the

community and then permit the jury selection process to reverse the

progress. This case does not raise a question of determining how juries
 28

are selected from the jury pool. The issue, however, is raised in the

companion case of State v. Veal, ___ N.W.2d ___, ___ (Iowa 2019). The

desirable impacts of this case in ensuring a fair cross section in the pool

of jurors will be a magician’s illusion if the advances made here today in

ensuring a fair cross section in the jury pool are eviscerated by the process

of jury selection. We want the juries that actually sit to represent a fair

cross section. In order to meet that goal, we must permit effective voir dire

on express and implicit bias. Further, we must revise our reliance on

Batson v. Kentucky, 476 U.S. 79, 93–98, 106 S. Ct. 1712, 1721–24 (1986),

in order to ensure that our fair-cross-section goals have been met. My

views on Batson are explored in detail in my opinion in Veal, ___ N.W.2d

at ___ (Appel, J., dissenting).

Third, Iowa lawyers must be permitted to utilize the voir dire process

to explore overt and implicit racial bias. No one claims that such a process

is foolproof, but an appropriately designed approach to voir dire may assist

in identifying bias and in mitigating its effects. The voir dire issue is

explored in my opinion in State v. Williams, ___ N.W.2d ___, ___ (2019)

(Appel, J., concurring in part and dissenting in part).

Fourth, Iowa juries should be instructed, preferably at the beginning

of the case, on implicit bias. In my view, such an instruction fairly reflects

the law and provides an important protection to ensure that juries decide

cases based on the facts and law and not on preconceived, anchored

notions of human behavior. This issue is raised in Williams, ___ N.W.2d

at ___, where I argue that the district court erred in failing to give the

implicit-bias instruction.

I now turn to the building block issue raised in this case. An

essential part of the right to a jury trial is that selection of the jury comes

from a representative cross section of the community. Taylor v. Louisiana,
 29

419 U.S. 522, 528, 95 S. Ct. 692, 697 (1975). As noted by the

Massachusetts Supreme Judicial Court, the right to a trial by a jury drawn

from a fair cross section of the community serves the critical purposes of

guarding against the exercise of arbitrary power and making available the

commonsense judgment of the community. Commonwealth v. Soares, 387

N.E.2d 499, 511 (Mass. 1979), abrogated in part on other grounds as stated

in Commonwealth v. Robertson, 105 N.E.3d 253, 265 n.10 (Mass. 2018).

When an identifiable segment of the community is excluded from a jury,

the effect is to remove from the jury the range of human experience and

its unique perspective on human events. See Peters v. Kiff, 407 U.S. 493,

503–04, 92 S. Ct. 2163, 2169 (1972).

The court’s opinion represents a significant step toward addressing

the fair-cross-section issue that is of critical importance in our criminal

justice system. In State v. Jones, 490 N.W.2d 787, 793–94 (Iowa 1992),

we uncritically relied upon snippets in two United States Supreme Court

cases, Swain v. Alabama, 380 U.S. 202, 208–09, 85 S. Ct. 824, 829 (1965),

overruled in part by Batson, 476 U.S. at 92–93, 106 S. Ct. at 1720–21, and

Castaneda v. Partida, 430 U.S. 482, 495–96, 97 S. Ct. 1272, 1280–81

(1977). We concluded, erroneously, that the passages stood for the

proposition that under the United States Constitution the proper approach

to fair-cross-section claims required application of a ten percent absolute

disparity test. Id.

The Jones court then, without analysis, simply pasted the analysis

of federal caselaw onto analysis of fair-cross-section claims under article I,

section 10 of the Iowa Constitution. See id. But because Iowa has

relatively low minority populations, the practical effect of the ruling in

Jones was to eliminate any fair-cross-section protection for African-

Americans under the Iowa Constitution. The fair-cross-section approach
 30

to article I, section 10 in Jones was easy to administer, quite efficient,

achieved apparent uniformity with what the Jones court erroneously

understood to be required by federal law, and used the erroneous

interpretation to slam the door on fair-cross-section claims for African-

Americans under the Iowa Constitution in nearly all circumstances. Plain,

898 N.W.2d at 822.

It took us twenty-five long years to correct the Jones mistake. But

correct it we have. In Plain, we recognized that Jones “mistakenly” relied

upon United States Supreme Court precedent in endorsing the absolute

disparity test. Id. We further recognized the importance of fair-cross-

section claims in ensuring that certain minorities have at least a fair

chance at representation on juries in Iowa. Id. at 825–26.

In this case, and in Veal, ___ N.W.2d at ___, we are called upon to

build on the Plain precedent. By suggesting a one standard deviation test

for prong two of the Duren formulation, see Duren v. Missouri, 439 U.S.

357, 364, 99 S. Ct. 664, 668 (1979), the court intends to establish a fair-

cross-section threshold test that is appropriately designed for Iowa and its

comparatively small but distinctive populations. The test is intended to

be demanding enough to net out highly attenuated claims but not so

demanding that the doors of Iowa courthouses slam shut to fair-cross-

section claims.

Our opinion engages in this important change under article I,

section 10 of the Iowa Constitution. This is entirely appropriate. Indeed,

state court decisions generally have been leaders, and not followers, in

efforts to ensure the right to a fair and impartial jury. For instance, in

Aldridge v. United States, Chief Justice Hughes relied on leading state

court precedents from Florida, Mississippi, North Carolina, Texas, and

California in upholding the use of voir dire to explore the possibility of
 31

racial prejudice in a murder case in which the petitioner was African-

American and the deceased was white. 283 U.S. 308, 311–13, 51 S. Ct.

470, 472 (1931). In Jones, we unwisely tied the Iowa Constitution to shaky

Sixth Amendment precedent with no more than a conclusory phrase. 490

N.W.2d at 794. We paid the price for that and have not made the same

mistake today.

But we should be careful in this case not to make the same mistake

we did in Jones, namely, adopt a bright-line test that is easy to administer

but which does not consistently serve to promote the purposes the fair-

cross-section theory is designed to promote. See id. at 793.

There seems to be a raging debate among courts as to the best

approach to determining whether the second prong of the Duren test has

been met. Some courts still hold on to the absolute disparity method,

which we have jettisoned. See, e.g., United States v. Royal, 174 F.3d 1, 10

(1st Cir. 1999). Other courts seem to prefer the comparative disparity

method when minorities are a small component of the population. See,

e.g., Mosley v. Dretke, 370 F.3d 467, 479 n.5 (5th Cir. 2004). Finally, some

courts have utilized the standard deviation approach. See, e.g., Ramseur

v. Beyer, 983 F.2d 1215, 1231 (3d Cir. 1992).

Most recently, in Berghuis v. Smith, 559 U.S. 314, 329–30 & n.4,

130 S. Ct. 1382, 1393–94 & n.4 (2010), the United States Supreme Court

declined to “take sides . . . on the method or methods by which

underrepresentation is appropriately measured.” Other courts have

expressly eschewed choosing one method exclusively. For example, the

United States Court of Appeals for the Ninth Circuit recently stated that it

would not “prescribe an alternative exclusive analysis to be applied in

every case.” United States v. Hernandez-Estrada, 749 F.3d 1154, 1164

(9th Cir. 2014) (en banc). A similar approach has been followed by the
 32

Third Circuit, which considers “evidence of absolute disparity,

comparative disparity, and deviation from expected random selection.”

Ramseur, 983 F.2d at 1231. The Michigan Supreme Court also endorses

the use of multiple methods. People v. Bryant, 822 N.W.2d 124, 136 (Mich.

2012). In Plain, we suggested that the district court had discretion to

consider which test was most appropriate under the circumstances of each

case. 898 N.W.2d at 826–27.

The court impliedly anticipates some of the criticism by embracing

a relatively low standard of one statistical deviation to meet step two of

Duren. The relatively low threshold recognizes that a more stringent

statistical derivation test might net out too many claims because of its

flaws in the fair-cross-section context. I am prepared to go along with this

approach as a guideline, and even a presumptive guideline, but a guideline

nonetheless. As has been demonstrated in Jones, and in the cases

involving challenges to peremptory disqualification of minority jurors

resulting in the progression from Strauder v. West Virginia, 100 U.S. 303,

309 (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), to Swain and

Batson and, perhaps, beyond, judicial clairvoyance in the area of providing

fair jury trials is limited. Our endorsement of the one standard deviation

approach should not categorically rule out the possibility that other

methodologies may be developed or that a party may make a persuasive

case that the one standard deviation is insufficiently protective of fair-

cross-section claims under the specific facts of the case. See Garcia-

Dorantes v. Warren, 801 F.3d 584, 604 (6th Cir. 2015).

I also want to note that the court correctly adopts a flexible attitude

toward implementation of the fair-cross-section doctrine. The court at

present does not adopt the burden-shifting formula advanced by the
 33

NAACP. But the court reserves revisiting the issue as our new approach

to fair cross section plays out. If our approach proves to be a “crippling

burden,” we may need to revisit the issue. Cf. Batson, 476 U.S. at 92–93,

106 S. Ct. at 1721 (characterizing the burden imposed by Swain regarding

challenges to peremptory strikes and adopting a burden shifting

approach).

In addition, I want to emphasize the distinction between the fair-

cross-section requirement and equal protection doctrine. Under federal

law, at least, recent cases suggest that a violation of equal protection

generally requires purposeful discrimination. But purposeful

discrimination is not required to make a fair-cross-section claim. See

Plain, 898 N.W.2d at 824 n.9; Nina W. Chernoff, Wrong About the Right:

How Courts Undermine the Fair Cross-Section Guarantee by Confusing It

with Equal Protection, 64 Hastings L.J. 141, 151 (2012). As we seek to

develop our Iowa law on fair cross section, we should make sure we do not

conflate fair cross section and equal protection concepts.

Finally, I note that this case does not present, and we do not decide,

a host of additional questions associated with step three of Duren and

Plain. Our laudable loosening of the absolute disparity requirement in

step two will have very little impact if we erect insurmountable barriers in

step three under Duren and Plain. Questions under step three include

how multiple causation should be treated, whether self-exclusion of

minority members impacts the analysis, and whether there should be a

presumption of causation in fair-cross-section cases under some

circumstances. See David M. Coriell, Note, An (Un)fair Cross Section: How

the Application of Duren Undermines the Jury, 100 Cornell L. Rev. 463, 475

(2015). These questions await another day, but I do make the general

point that erection of undue barriers to a fair-cross-section claim under
 34

step three of the Duren and Plain tests has the potential of undermining

our holdings today with respect to the second step of those tests.

In closing, for our criminal justice system to be fair to all of our

citizens, we must engage in across-the-board efforts to ensure that our

system of jury trials ensures fundamental fairness. The approach

announced to selection of jury pools to ensure that they represent a fair

cross section of the community embraced in this case is an important first

step.

But it is only a first step. In my view, we must reinforce the progress

made in these cases by developing a proper approach to step three of Duren

and Plain, reconsidering our approach to Batson, see Veal, ___ N.W.2d at

___, ensuring a robust opportunity to voir dire potential jurors on potential

bias, see Williams, ___ N.W.2d at ___, and providing the jury, at the

commencement of trial and after the close of evidence, with an appropriate

instruction on implied bias if requested by the defendant, id. If we were to

address the serious issue of ensuring a fair cross section in the jury pool,

but not the other important aspects of a jury trial, the progress made today

may be illusory.

Wiggins, J., joins this special concurrence.
 35

#17–1901, State v. Lilly

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

I concur in divisions IV.B (sufficiency of the evidence) and IV.C

(ineffective assistance of counsel) of Justice Mansfield’s opinion. I dissent

from division IV.A of his opinion, which addresses Kenneth Lilly’s fair-

cross-section claim arising under the state constitution. For the reasons

set forth below, I would affirm Lilly’s conviction without remand. I thus

respectfully concur in part and dissent in part.

I.

At issue is the right to an “impartial jury.” Article I, section 10 of

the Iowa Constitution provides, “In all criminal prosecutions, and in cases

involving the life, or liberty of an individual the accused shall have a right

to a speedy and public trial by an impartial jury . . . .” Iowa Const. art. I,

§ 10. The majority concludes the state constitutional right to an impartial

jury includes the right to a jury pool in which any “distinctive group” is

not underrepresented by more than one standard deviation from the

distinctive group’s percentage of the jury-eligible population if the

underrepresentation is due to systematic exclusion. I disagree.

A.

The constitutional right as constructed in the majority opinion is not

on sound legal footing.

There is no textual or historical support for the proposition that the

state constitutional right to an impartial jury includes the right to a jury

pool drawn from a fair cross section of the community let alone the right

to select a jury from a pool mathematically proportional to the jury-eligible

population. Rather than conducting an independent inquiry into the

meaning of our constitution, our cases have merely adopted the federal

framework. But the federal framework is not supported by text or history.
 36

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 th[e] text

[of the Sixth Amendment] . . . .”); 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 v. Louisiana, 419 U.S. 522, 539, 95 S. Ct. 692, 702

(1975) (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.”).

Not only is the majority’s interpretation atextual and ahistorical, it

is also acontextual. The older Supreme Court cases upon which our

precedents rely addressed widespread and state-sponsored or state-

approved sexism and racism. In those cases, the systematic exclusion of

large percentages of the population from civic life was stark, palpable, and

easily observed. See, e.g., Duren, 439 U.S. at 362–63, 99 S. Ct. at 667–68

(finding underrepresentation where 54% of the relevant community was

women but only 15.5% served on weekly venires); Taylor, 419 U.S. at 524,

95 S. Ct. at 695 (“The appellee has stipulated that 53% of the persons

eligible for jury service in these parishes were female, and that no more

than 10% of the persons on the jury wheel in St. Tammany Parish were

women.”). That is not the case here. The older cases are different in kind,
 37

not in degree. The extraction of a mathematical proportionality principle

from the older cases misses the larger context in which the cases were

decided and elevates logic over experience. As former Supreme Court

Justice Robert Jackson wrote,

The legal profession, like many another, tends to become over-
professionalized. We forget that law is the rule for simple and
untaught people to live by. We complicate and over-refine it
as a weapon in legal combat until we take it off the ground
where people live and into the thin atmosphere of sheer
fiction.

Robert H. Jackson, The Struggle for Judicial Supremacy: A Study of a Crisis

in American Power Politics 292 (1949).

Justice Jackson’s constitutional fiction is demonstrated on the facts

of this case. Here, the majority notes the African-American population for

Lee County was 3% at the relevant time. Assume there was a jury pool of

one hundred persons and three African-Americans were in the jury pool.

In that case, the majority concedes 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.” In other words, the claim fails as a matter of

law. However, if only two African-Americans were in the same jury pool,

under the majority’s rule, the defendant would be entitled to significant

discovery regarding the history of jury pools in the county. It seems wholly

arbitrary to conclude the constitutional right to an impartial jury turns on

whether a single additional member of a distinctive group out of one

hundred potential jurors appears for jury service.

The constitutional text, the relevant history, and the context in

which the relevant precedents were decided all militate against the

majority’s rule. In my view, to the extent we are going to go down this

constitutional road, an appreciation of the prior evils our precedents
 38

sought to address counsels in favor of maintaining the absolute disparity

test as a threshold test to differentiate cases presenting stark, palpable,

and easily observed exclusion from cases that raise only questions about

the limits of our analysis and the limits of our data.

B.

The defendant’s proposed constitutional calculus suffers from

another complication. While mathematical precision sounds promising in

theory, it is problematic in practice. The constitutional calculus assumes

the existence of reliable data that can be plugged into the legal equation.

However, there is no such data. The lack of reliable data makes this

constitutional endeavor largely guesswork.

The record in this case demonstrates the unworkability of the rule

in application. The majority cites no census data regarding the jury-

eligible population in Lee County. The majority cites no census data

regarding the African-American jury-eligible population in Lee County.

Instead of relying on census data, the majority relies on the State’s

estimate that 75.83% of Iowans are eighteen years or older and the State’s

estimate that 65.4% of African-American Iowans are eighteen or older. The

State’s estimate is based on a dubious assumption regarding the flat

distribution of the population across the relevant age ranges. The State’s

estimate is based on a further dubious assumption that state-level data

regarding the age distribution for the population of Iowa as a whole is

uniform from county to county. It is patently obvious the assumptions do

not hold. In this particular case, the data is especially suspect. As the

majority acknowledges, it is working with county-level data for Lee County.

Unfortunately, Lee County is divided into two districts—North Lee County

and South Lee County. There is no census information in the record

regarding the jury-eligible population of North Lee County. The majority
 39

assumes an equal distribution of races between the two districts. There is

no evidence of this. Quite simply, the defendant requests, and the majority

adopts, a rule that requires proportionality to a largely indeterminate

comparison population.

In addition to the problems inherent in determining the jury-eligible

population in all cases, there is an additional problem in the data

presented in this case. There is no record establishing the percentage of

African-Americans in the jury pool. The record reflects 125 jury

questionnaires were sent out, but there is no evidence in this record

showing how many of those were returned. Of those returned, one juror

identified herself as African-American, but many others did not identify

any race. Without knowing the number of people in the pool and the races

of the persons who failed to identify, it is simply guesswork to determine

whether this particular pool was even underrepresentative.

It was the defendant’s burden to establish a prima facie case, and

he failed to do so. There is thus no reason to remand the case.

C.

The majority’s rule is also impractical and burdensome. As former

Chief Justice Rehnquist explained,

No one but a lawyer could think that this was a
managerially sound solution to an important problem of
judicial administration, and no one but a lawyer thoroughly
steeped in the teachings of cases such as Taylor [v. Louisiana,
419 U.S. 522, 95 S. Ct. 692 (1975)], [Califano v.] Goldfarb,
[430 U.S. 199, 97 S. Ct. 1021 (1977)], and Craig [v. Boren, 429
U.S. 190, 97 S. Ct. 451 (1976)] could think that such a
solution was mandated by the United States Constitution. No
large group of people can be conscripted to serve on juries
nationwide, any more than in armies, without the use of broad
general classifications which may not fit in every case the
purpose for which the classification was designed. The
alternative is case-by-case treatment which entails
administrative burdens out of all proportion to the end sought
to be achieved.
 40
The short of it is that the only winners in today’s
decision are those in the category of petitioner, now freed of
his conviction of first-degree murder. They are freed not
because of any demonstrable unfairness at any stage of their
trials, but because of the Court’s obsession that criminal
venires represent a “fair cross section” of the community,
whatever that may be. The losers are the remaining members
of that community—men and women seeking to do their duty
as jurors and yet minimize the inconvenience that such
service entails, judicial administrators striving to make the
criminal justice system function, and the citizenry in general
seeking the incarceration of those convicted of serious crimes
after a fair trial.

Duren, 439 U.S. at 377–78, 99 S. Ct. at 675 (Rehnquist, J., dissenting).

The majority’s new rule will create just as many problems as it hopes

to solve. Of particular note, the majority’s approach will increase the

pressure to transfer venue of criminal cases with African-American

defendants to urban counties to find more jury-eligible minorities. Such

transfers burden already overcrowded city dockets and increase the

inconvenience to the parties, victims, other witnesses, and community

members who want to observe the trial. These out-of-district transfers

also increase costs for the judicial branch by requiring additional travel for

judges and court reporters. For the protection of the defendant, criminal

cases should be tried in the county where the alleged crimes occurred,

unless pretrial publicity requires a change in venue. See State v. Rimmer,

877 N.W.2d 652, 664–65 (Iowa 2016) (discussing history and purpose of

the vicinage clause).

The problems identified by former Chief Justice Rehnquist will be

particularly acute in our busier district courts. The jury managers in our

more congested district courts will now be subject to discovery and

subpoenaed to testify regarding jury management practices every time

there is a small but immaterial variance in the racial composition of the

jury pool.
 41

Of course, administrative burden alone is not a sufficient ground to

ignore a constitutional command. It is the judicial branch’s obligation to

interpret and apply the constitution to the facts of a particular case. It is

also our special charge to continuously work to improve the administration

of justice in this state. Where, as here, however, the constitutional rule is

of dubious provenance and without any identifiable benefit to the fair and

impartial administration of justice, the administrative burden is and

should be a consideration when extending a rule that will have significant

impact in the day-to-day operation of the courts.

D.

Finally, remand is not necessary because Lilly’s claim fails as a

matter of law.

First, the representation of the distinctive group in the jury pool (to

the extent that can be determined) was fair and reasonable in relation to

the number of such persons in the community. The census data shows

approximately 34,000 people resided in Lee County during the relevant

time. Of those, 3%, or approximately 1020 were African-American,

meaning the non-African-American population was 32,980. Using the

majority’s estimates of eligible jurors (75.83% for all Iowans and 65.4% of

African-American Iowans), there were approximately 25,008 non-African-

American eligible jurors and 667 African-American eligible jurors.

However, of those African-Americans eighteen years of age or older,

approximately 300 were incarcerated at the Iowa State Penitentiary in Fort

Madison. This is consistent with historical census information. See Rose

Heyer & Peter Wagner, Too Big to Ignore: How Counting People in Prisons

Distorted Census 2000, Prison Policy Initiative (April 2004) [hereinafter

Heyer & Wagner], https://www.prisonersofthecensus.org/

toobig/datasearch.php?field=GEO_NAME&operator=LIKE&q=lee&Submit
 42

=Search&field1=Inc_Pop_Black&operator1=&q1=&sortby=&sortorder=

[https://perma.cc/7DGC-CT3Y] (containing data set showing 27.67% of

the African-American population in Lee County in 2000 was incarcerated).

The parties agree the census counts prisoners in its census data and the

prisoners should be excluded from determining the jury-eligible

population. Removing incarcerated persons from the calculation, using

the State’s and majority’s assumed statistics regarding the number of

eligible jurors, shows the number of jury-eligible African-Americans in the

county was actually only 367, or 1.4%. At least one of the jurors identified

as African-American. In my opinion, when the jury-eligible population is

adjusted for the incarcerated persons at Fort Madison, the jury pool here

was “fair and reasonable in relation to the number of such persons in the

community.” Duren, 439 U.S. at 364, 99 S. Ct. at 668 (majority opinion).

There is no reason for remand.

Second, I dissent from the majority’s conclusion that run-of-the-mill

jury management practices can support a systematic exclusion claim.

That conclusion is in tension with Berghuis. A number of other

jurisdictions have also concluded that run-of-the-mill jury management

practices cannot support a showing of systematic exclusion. See State v.

Sanderson, 898 P.2d 483, 488 (Ariz. Ct. App. 1995) (“Granting excuses

based on the application of neutral criteria to prospective jurors’ individual

situations does not constitute systematic exclusion.”); Douglas v. State,

No. 2006-SC-000882-MR, 2007 WL 4462309, at *7 (Ky. Dec. 20, 2007)

(finding defendant’s showing that 48% of potential jurors did not respond

to their summonses did not prove that the pool was not a fair cross section

of the community); People v. Wallace, No. 237115, 2003 WL 1439812, at

*7–8 (Mich. Ct. App. Mar. 20, 2003) (per curiam) (finding exemptions from

jury summons based on age, citizenship, medical conditions, and inability
 43

to speak English did not violate the fair-cross-section requirement because

“a defendant is not constitutionally entitled to a petit jury that precisely

mirrors the makeup of the community”); State v. Murphy, No. A04-926,

2005 WL 1216635, at *2 (Minn. Ct. App. May 24, 2005) (finding that

excusing eligible jurors from service because they lacked transportation

did not result in a Sixth Amendment violation despite the fact the

exclusion decreased the number of Native Americans in the jury pool);

State v. Casillas, 205 P.3d 830, 837 (N.M. 2009) (finding no systematic

exclusion resulting from “the court clerk’s practice of excusing jurors and

the fact that Spanish-language jury summonses [were] not provided”);

State v. Tremblay, No. P1 97-1816AB, 2003 WL 23018762, at *9 (R.I. Mar.

19, 2003) (finding no Sixth Amendment violation when jurors were

excused because of financial hardship and medical reasons). I would

follow these authorities rather than creating a new rule.

II.

Although I dissent from the majority’s resolution of the

constitutional claim, I do not dissent from the conclusion that the

administration of justice is enhanced by greater civic participation from all

members of our Iowa community. On this, everyone agrees. The other

branches of the government have already enacted legislation to that effect.

See Iowa Code § 607A.1 (2017) (“It is the policy of this state that all persons

be selected at random from a fair cross section of the population of the

area served by the court, and that a person shall have both the opportunity

in accordance with the provisions of law to be considered for jury service

in this state and the obligation to serve as a juror when selected.”). In my

experience, our state court administration, district court judges, district

court clerks, and jury managers have acted in good faith to implement the

statutory command for full civic participation in jury service. Justice
 44

Wiggins recently chaired a commission tasked with identifying ways to

increase minority representation in jury pools. Such efforts can and

should continue. Ultimately, however, there is a legal distinction between

constitutional command and best practices; the constitution does not

require we micromanage the significant advances already made in jury

representation and those yet to come.

For these reasons, and for the reasons stated in my separate opinion

in State v. Veal, ___ N.W.2d ___, ____ (Iowa 2019), I respectfully concur in

part and dissent in part.

Waterman and Christensen, JJ., join this concurrence in part and

dissent in part.