State of Iowa v. Kenneth L. Lilly , 930 N.W.2d 319 ( 2019 )

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.
2
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
11
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.