State v. Plain, 20-1000

• Court: United States State Supreme Court of Iowa
• Writing for the Court: McDERMOTT, Justice.
• Citation: 969 N.W.2d 293
• Parties: STATE of Iowa, Appellee, v. Kevin PLAIN Sr., Appellant.
• Docket Number: No. 20-1000,20-1000
• Decision Date: 21 January 2022

969 N.W.2d 293

STATE of Iowa, Appellee,
v.
Kevin PLAIN Sr., Appellant.

No. 20-1000

Supreme Court of Iowa.

Submitted October 20, 2021
Filed January 21, 2022

Gary Dickey (argued) of Dickey, Campbell, and Sahag Law Firm, PLC, Des Moines, for appellant.

Thomas J. Miller, Attorney General, and Louis S. Sloven (argued), Assistant Attorney General, for appellee.

David S. Walker (argued), Windsor Heights, and Russell E. Lovell, II, Des Moines, for amicus curiae NAACP.

McDermott, J., delivered the opinion of the court, in which all justices joined.

McDERMOTT, Justice.

A jury in Black Hawk County found Kevin Plain guilty of harassment in the first degree. Plain, an African-American, appealed his conviction, arguing that his right to an impartial jury under the United States Constitution and the Iowa Constitution had been violated because his jury panel contained only one African-American out of forty-nine potential jurors that appeared for trial. On appeal, we remanded the case to give Plain an opportunity to develop his impartial-jury arguments in response to refinements to how a defendant must prove a constitutional violation that we explained in his and other cases after his trial. The district court ultimately rejected Plain's further-developed claims. Plain now appeals that ruling.

I. Facts Developed on Remand.

We described the underlying facts from Plain's trial and earlier procedural history of this case in the opinion filed in Plain's initial appeal and will forego restating them here. See State v. Plain (Plain I ), 898 N.W.2d 801, 809–10 (Iowa 2017). Pertinent to this appeal are the facts that the parties developed on remand related to the only remaining issue in the case: Plain's fair-cross-section claim.

Before continuing, we offer first a few definitions for clarity and consistency. The jury pool refers to members of the community summoned for jury duty and reporting to the courthouse for a particular time

969 N.W.2d 295

period. Iowa Code § 607A.3(6) (2017). The jury panel refers to members of the pool directed to a particular courtroom after they arrive at the courthouse to serve as possible jurors for a specific trial. Id. § 607A.3(10). The jury refers to the group actually selected for a specific trial and generally given the power to decide questions of fact and return a verdict in the case. See Iowa R. Crim. P. 2.18. One can think of each of these groups as concentric circles: from the community, we draw the pool; from the pool, we draw the panel; and from the panel, we draw the jury.

Evidence presented in the district court on remand showed that the jury selection process for Plain's trial in 2015 began with the Black Hawk County jury manager, Billie Treloar, sending a jury summons to 100 people. If the post office returned a summons as undeliverable, Treloar would attempt to find an updated address using the court and Iowa Department of Transportation databases available to her. Sometimes the post office would return undeliverable mail with an updated address for the recipient. If Treloar could find an updated address, she would resend the summons; if not, the summons would remain undelivered.

The jury summons instructed jurors to complete and return a juror questionnaire within seven days. Treloar would send a reminder letter to summoned jurors who failed to return their questionnaires after three weeks. Summoned jurors who failed to appear at the courthouse would be summoned again for an ensuing jury trial. Treloar would send letters to summoned jurors who failed to appear at the courthouse after their first and second summonses, reminding them of their legal obligation to appear. If a summoned juror failed to appear for a third time, the court would set the matter for hearing to determine whether the summoned juror should be held in contempt of court. The punishment following a finding of contempt was usually a monetary fine.

The juror questionnaire in 2015 invited summoned jurors—but didn't require them—to answer a question about their race. As a result, of the 100 jurors summoned, the races of only 84 could be determined. Seven of the 84 were African-American. Of the 100 potential jurors summoned, the parties agree (despite some discrepancy in the record) that 49 summoned jurors actually appeared at the courthouse for trial. Only 1 of the 49 was African-American.

The district court retained Paula Hannaford-Agor, the Director of the National Center for State Courts for Jury Studies, to testify as a court-appointed expert on jury issues. Hannaford-Agor reviewed the county's jury composition data from the year leading up to Plain's trial. She found that about half of all summoned jurors in this data set failed to identify a race on the questionnaire. Hannaford-Agor created two different models using a method called "geocoding"—which looks at geographic information (such as a person's address) to infer demographic information (in this case, the person's race)—to extrapolate the races of summoned jurors. Plain also offered two written reports from statisticians that provided statistical analysis of the figures reported by Treloar and Hannaford-Agor.

Hannaford-Agor's first model estimated the racial composition of all jurors based entirely on the juror's zip code. The second model used the same method but predicted the races of only those jurors who didn't report their race on the questionnaires, which she then added to the actual reported data for those who did. Hannaford-Agor found that, under either model, African-Americans were summoned for jury service at a rate that slightly exceeded their

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prevalence among all eligible jurors in the county. But African-American representation fell as a percentage of those who returned questionnaires and fell even further among those who appeared for jury service. Hannaford-Agor determined that the decreases at each stage were likely due to disproportionately high nonresponse, undeliverable, and failure-to-appear rates among the residents of one particular zip code in which fifty-seven percent of all African-Americans in the county resided.

II. The Duren/Plain Elements.

The Sixth Amendment to the United States Constitution guarantees the right to "an impartial jury of the state and district wherein the crime shall have been committed." U.S. Const. amend VI. The Iowa Constitution similarly guarantees the right to a "trial by an impartial jury." Iowa Const. art. I, § 10. The constitutional guarantees of an impartial jury entitle the accused to a jury "drawn from a fair cross-section of the community." Plain I , 898 N.W.2d at 821.

A defendant establishes a prima facie violation of the fair-cross-section requirement by showing that (1) a group alleged to have been excluded is a "distinctive" group in the community, (2) the group's...