(concurring specially).
I concur with the result of the majority opinion affirming Stephen Jonas’s conviction for second-degree murder. I write separately because I disagree with the majority’s conclusion that the district court abused its discretion by denying Jonas’s motion to disqualify the juror for cause. In my view, the district court acted within its discretion. I would affirm Jonas’s conviction on that basis and leave the rest of the majority’s discussion for another case and another day.
A prospective juror must be dismissed for cause when he or she has “formed or expressed such an opinion as to the guilt or innocence of the defendant as would prevent the juror from rendering a true verdict upon the evidence submitted on the trial.” Iowa R. Crim. P. 2.18(5)(⅛). Jonas failed to establish disqualification was required under that standard. It is undisputed this prospective juror did not know Jonas or the victim or anything about the case, and Jonas makes no claim this person or anyone close to him ever had a bad experience with a gay person. Nothing in this prospective juror’s life experience disqualified him. Nothing he said showed he was unable to decide the case based on the evidence and the court’s instructions. To the contrary, when the trial judge asked if he was “going to be able to follow what the law says,” he unequivocally answered, “Yes.”
Some citizens summoned for jury duty look for a way out. Trial judges risk a mass exodus for the door if they are too quick to excuse prospective jurors based on asserted inconvenience or vocalized angst about a type of claim or lifestyle.4 I have seen it happen. My takeaway from reviewing the juror questionnaire and the cold transcript of the voir dire is that this prospective juror was concerned about the time required to serve, was honest about his personal views, but was capable of being a fair juror.
On the questionnaire, he expressed concern about being away from work for the expected duration of the trial likely to extend into a second week, explaining, “I schedule ... trucks across the country. It would be hard keeping these people in work if I did not schedule it.” He also characterized himself as “very conservative” on a spectrum ranging from “very liberal” to “very conservative” regarding the criminal laws. This made him a likely candidate for a defense peremptory strike regardless of any other circumstances. On the question noting that the defendant is gay and asking whether this would in any way influence your ability to be fair and impartial, the juror admitted, “I would try to keep an open mind, but I would have a hard time overlooking it.” Yet he also agreed that he would “listen to and consider all the evidence before making a final decision in this case.” He did not mark as true or mostly true statements that “being gay is immoral” or “being gay is a sin.” In response to the last question, he stated that he thought he would be a good juror in the case and “would try to keep an open mind.”
The first part of voir dire was conducted by the prosecution. Even after reminding the prospective juror that the defendant was gay, the prosecution drew no troubling responses at all. The prospective juror concluded his answers by agreeing that he would make a good juror because he would keep an open mind.
The second part of the voir dire was conducted by defense counsel. The prospective juror at this stage admitted that “somewhere in the back something is going to come up,” and the defendant “probably would have better jury selection than myself.” At this point, the prosecution came back and asked more questions, but the juror continued to say that the defendant “would probably do better with someone else” and “something would come up in the back of my mind.” •
The court took over questioning but received essentially the same answers: (1) “there could-be something in the back of my mind,” and (2) the defendant “would probably do better without me on the jury.” Yet the juror also confirmed he would follow the law and the evidence.
On this cold record, I see no abuse of discretion by the trial judge. As the trial judge said in denying the defense’s motion to strike for cause,
[M]y problem is he has said that he’s going to have it in the back of his mind and that this defendant would be better off not having him as a juror. After he said that, he still continues to express the opinion that he could be fair and unbiased] and be able to try a fair case.
This ruling seems to me entirely defensible. The test on a for-cause challenge should not be whether a prospective juror has something “in the back” of their mind or whether one of the parties would “do better” with a different juror. Those are precisely the kinds of answers that ought to trigger the use of a peremptory strike, but they are not enough to mandate that a juror be excused for cause. All of us walk around with our own notions, biases, and experiences and, in any given case, would make a better juror for one side rather than the other. That is what peremptory strikes are for.
Furthermore, the trial judge, a veteran of many jury trials, made this judgment call denying disqualification based not on the cold transcript we review, but rather on his personal observations and interactions with the prospective juror. For good reasons, appellate courts traditionally and quite appropriately defer to the trial court’s superior vantage point, and we therefore review rulings on motions to disqualify jurors under the abuse-of-discretion standard. See State v. Tillman, 514 N.W.2d 105, 107 (Iowa 1994) (“In ruling on a challenge for cause, the district court is vested with broad discretion.”). As the United States Supreme Court aptly observed,
Reviewing courts are properly resistant to second-guessing the trial judge’s estimation of a juror’s impartiality, for that judge’s appraisal is ordinarily influenced by a host of factors impossible to capture fully in the record—among them, the prospective juror’s inflection, sincerity, demeanor, candor, body language, and apprehension of duty.
Skilling v. United States, 561 U.S. 358, 386, 130 S.Ct. 2896, 2918, 177 L.Ed.2d 619 (2010); see also Thompson v. Keohane, 516 U.S. 99, 111, 116 S.Ct. 457, 464-65, 133 L.Ed.2d 383 (1995) (noting the assessment of a juror’s impartiality “depends heavily on the trial court’s appraisal of witness credibility and demeanor”: and stating that “ttjhis Court has reasoned that a trial court is better positioned to make decisions of this genre,, and has therefore accorded the judgment of the jurist-observer ‘presumptive weight’”); Patton v. Yount, 467 U.S. 1025, 1036-38, 104 S.Ct. 2885, 2891-92, 81 L.Ed.2d 847 (1984) (explaining that a trial court’s ruling on a challenge for cause receives “special deference” because “the determination has been made only after an often extended voir dire proceeding designed specifically to identity biased veniremen” and “the determination is essentially one of credibility, and therefore largely one of demeanor”). This deference is shared by other state supreme courts. See, e.g., Thomas ex rel. Thomas v. Mercy Hosps. E. Cmtys., 525 S.W.3d 114, 118 (Mo. 2017) (en banc) (“The trial court is in the best position to evaluate a venireper-son’s qualifications to serve as a juror and has broad discretion in making the evaluation.” (quoting Joy v. Morrison, 254 S.W.3d 885, 888 (Mo. 2008) (en banc))).
We do not live in a world where prospective jurors under questioning make clean responses that automatically eliminate all doubt about .their fairness (and I might be worried about the candor of jurors who gave such responses). As the United States Supreme Court has recognized,
The testimony of each of the three challenged jurors is ambiguous and at times contradictory. This is not unusual on voir dire examination, particularly in a highly publicized criminal case. It is well to remember that the lay persons on the panel may never have been subjected to the type of leading questions and cross-examination tactics that frequently are employed, and that were evident in this case. Prospective jurors represent a cross section of the community, and their education and experience vary widely; Also, unlike witnesses, prospective jurors have had no briefing by lawyers prior to taking the stand. Jurors thus cannot be expected invariably to express themselves carefully or even consistently. Every trial judge understands this, and under our system it is that judge who is best situated to determine competency to serve impartially. The trial judge properly may choose to believe those statements that were the most fully articulated or that appeared to have been least influenced by leading.
Patton, 467 U.S. at 1038-39, 104 S.Ct. at 2893. The Missouri Supreme Court recently reiterated the distinction “between the disqualifying bias of those who have formed an opinion on the material facts of the case, and other types of bias that are merely ‘opinions about “larger issues” ’ ... that all prospective jurors will have to some extent,” which are disqualifying only if- they preclude following the court’s instructions. Thomas, 525 S.W.3d at 118 (citation omitted) (quoting Ray v. Gream, 860 S.W.2d 325, 333 n.1 (Mo. 1993) (en banc)). The prospective juror challenged by Jonas had no opinions or knowledge about the case. I would not second-guess the trial judge’s assessment that the challenged juror would follow the court’s instructions and decide the case based on the evidence, regardless of the defendant’s sexual orientation.
While I do not think precedents are all that helpful in this area of trial judge discretion, I would note the following cases in which appellate courts have affirmed rulings denying disqualification for cause of jurors in criminal trials of gay, defendants despite the juror’s personal feelings against homosexuality. See, e.g., United States v. Elfayoumi, 66 M.J. 354, 355 (C.A.A.F. 2008) (The court held there was no abuse of discretion when prospective juror said, “I feel that [homosexuality] is morally wrong. It is against what I believe as a Christian and I do have some strong opinions against it” but replied, “Yes, sir” after being asked, “Do you think, with your moral beliefs that you can fairly evaluate the evidence, of this case given the nature- of the allegations?”); People v. Simon, 100 P.3d 487, 493, 495 (Colo. App. 2004) (holding no abuse of discretion in denying motion to dismiss for cause a juror who expressed that the defendant’s homosexuality- “made her feel ‘sick’ ” and “that her belief system ‘says homosexuality is wrong’” but also stated that she “would put her feelings aside, refrain from allowing them to enter into her deliberation, and abide by the judge’s instructions”); People v. Hoskay, 87 P.3d 194, 196 (Colo. App. 2003) (holding no abuse of discretion when the prospective juror “had a religious objection to homosexuality and admitted that if she were in defendant’s position, she would be concerned about having a person such as ,herself on the jury” but said “she would ‘judge solely upon the evidence that’s presented’ and ‘would never send someone [to prison] for something [she] did not feel ... they committed just based upon some feelings that [she had] about certain subjects’ ” (alterations in original)); T.K.’s Video, Inc. v. State, 871 S.W.2d 527, 528-29 (Tex. App. 1994) (holding no abuse of discretion in denying motion to dismiss for cause when the potential juror “condemned [homosexuality] as shameful, morbid and sick” and acknowledged that objectivity is “something [he] would struggle with” but stated, “I think that I could be pbjective enough, though, to the best of my abilities to carry out the Judge’s instructions”); State v. Miller, 197 W.Va. 588, 476 S.E.2d 535, 551-53 (1996) (holding no abuse of discretion for denying defendant’s motion to dismiss two potential jurors who indicated they could “adhere to the evidence” in deciding- the case despite the fact that one “said he was ‘one hundred percent’ against homosexuality” and the other “expressed strong feeling that he believed homosexuality is wrong and a homosexual -is in need of reform”). Note that, the jurors allowed to sit in • these cases expressed much stronger opinions against homosexuality than the prospective juror challenged by Jonas (who- declined to agree that being gay is a sin or immoral). The weight of this authority refutes Jonas’s claim that the trial court abused its discretion by denying his motion to disqualify the juror for cause.
The majority relies on readily distinguishable cases to support its conclusion that the district court abused its discretion. Morgan v. Illinois held a trial court could not refuse inquiry into whether potential jurors would automatically impose the death penalty upon conviction of the defendant, regardless of whether they stated, they .would “follow the law.” 504 U.S. 719, 734-36, 112 S.Ct. 2222, 2232-33, 119 L.Ed.2d 492 (1992). By contest, here, the district court freely allowed voir dire into prospective jurors’ attitude toward gay people, and the person challenged never suggested the defendant’s sexual orientation would dictate his verdict. Dyer v. Calderon held a juror who lied in voir dire about never being a victim of crimes and about her brother’s shooting death should have been removed for cause. 151 F.3d 970, 981, 985 (9th Cir. 1998). The prospective juror Jonas challenged was entirely candid about his attitudes and withheld no prior experiences reflecting on his ability to be fair. In State v. Fletcher, the appellate court held the trial court acted within its discretion by asking follow-up questions in voir dire and allowing a juror to sit on a drug case despite her positive experiences with law enforcement witnesses and her son’s role as a confidential informant. 353 P.3d 1273, 1278, 1281-82 (Utah Ct. App. 2015). That case supports my conclusion the court acted within its discretion here. Gosling v. Commonwealth held the trial court erred by failing to strike a juror who acknowledged in voir dire that he would accept the testimony of a corrections officer over an inmate. 7 Va.App. 642, 376 S.E.2d 541, 544-45 (1989). The prospective juror challenged by Jonas never indicated he would believe one witness over another. Finally, the concurring opinion in People v. Merrow criticized a “record laden with leading questions by the trial court” that is quite different from the record here. 181 P.3d 319, 323 (Colo. App. 2007) (Webb, J., concurring specially).
I respect the opinion of jurists who refrain from rehabilitating jurors challenged for cause. See generally 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, 160 (2010) (noting jurors almost always say what they think the judge wants to hear). But “lawyers may have an incentive to keep a juror whose biases increase the lawyer’s chances of winning.” Id. at 166. Some judicial intervention may be appropriate when the lawyer-advocates conduct voir dire through leading questions or other tactics seeking a jury favorable to their client. I defer to the trial judges to best decide how to engage prospective jurors. See State v. Barrett, 445 N.W.2d 749, 753 (Iowa 1989) (explaining district court may participate in voir dire to determine a juror’s state of mind); Thomas, 525 S.W.3d at 119-20 (discussing trial court’s obligation to follow up on equivocal statements by “questioning] the juror further to either confirm the lack of qualifications to serve, or to rehabilitate the venireperson” (quoting Rodgers v. Jackson Cty. Orthopedics, Inc., 904 S.W.2d 385, 387-88 (Mo. Ct. App. 1995))). In any event, I am not really sure this is a case about rehabilitation, and I would refrain from micromanaging voir dire from our vantage point.
The prosecution could have and perhaps should have avoided this appeal issue altogether by consenting to the dismissal of the prospective juror who Jonas challenged for cause. But it is not our role to second-guess the State’s decision not to join in Jonas’s for-cause challenge. Regardless, Jonas removed the juror by using one of his ten peremptory challenges, so the challenged juror did not sit.
For all these reasons, I would decide this case by holding the district court acted within its discretion in denying Jonas’s motion to strike the prospective juror for cause.
Mansfield and Zager, JJ., join this special concurrence.. The district court appropriately conducted individual voir dire outside the presence of other prospective jurors in this highly publicized first-degree murder trial with a prominent victim. In routine cases, Iowa courts appropriately conduct more time-efficient group voir dire in which prospective jurors can respond to common questions with a show of hands. The trial judge can read the room and observe the reactions of prospective jurors.