State v. Veal, 21-0144

CourtUnited States State Supreme Court of Iowa
Writing for the CourtMcDERMOTT, Justice.
Citation972 N.W.2d 728
Parties STATE of Iowa, Appellee, v. Peter Leroy VEAL, Appellant.
Docket Number21-0144
Decision Date01 April 2022

972 N.W.2d 728

STATE of Iowa, Appellee,
v.
Peter Leroy VEAL, Appellant.

No. 21-0144

Supreme Court of Iowa.

Submitted November 16, 2021
Filed April 1, 2022


Martha J. Lucey, State Appellate Defender, and Theresa R. Wilson, Assistant Appellate Defender, for appellant.

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

David S. Walker, 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.

972 N.W.2d 731

Peter Veal was charged with committing two murders and attempting to commit a third in Cerro Gordo County. He requested a change of venue because of pretrial publicity, and the court moved his trial to Webster County. The jury found him guilty of two counts of murder in the first degree and one count of attempted murder. Veal, an African-American, appealed his conviction, arguing that his right to an impartial jury under the United States Constitution had been violated because, although his jury pool contained five African-Americans, the jury that decided his case contained none. On appeal, we remanded the case to give Veal an opportunity to develop his impartial-jury arguments in response to refinements that we made to how a defendant must prove a fair-cross-section constitutional violation. The district court ultimately rejected Veal's further-developed claims. Veal now appeals that ruling.

I. Facts Developed on Remand.

We described the underlying facts from Veal's trial and earlier procedural history of this case in the opinion filed in Veal's initial appeal and will forego restating them here. See State v. Veal (Veal I ), 930 N.W.2d 319, 324–26 (Iowa 2019). Pertinent to this appeal are the facts that the parties developed on remand related to the only remaining issue in the case: Veal's fair-cross-section challenge.

In State v. Plain (Plain II ), we defined the terms "jury pool" (the members of the community selected for jury duty and summoned and reporting to the courthouse), "jury panel" (the members of the pool directed to a particular courtroom to serve as possible jurors for a specific trial), and "jury" (the members of the panel actually selected for a specific trial), and will use the same definitions in this case. 969 N.W.2d 293, 294–95 (Iowa 2022). "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." Id.

Veal's pool included 153 potential jurors, of whom 5 were African-American. From this pool was drawn a panel of 34 potential jurors, of whom 3 were African-American. Of the 3 African-Americans, 2 had prior felony convictions. Under Iowa Rule of Criminal Procedure 2.18(5)(a ) (2017), the State may challenge "for cause" any panel member with a prior felony conviction, and the court must then strike the prospective juror from the panel. (Under a recent amendment to this rule inapplicable to this case, prospective jurors with felonies will not be struck if "it can be established ... that the juror's rights of citizenship have been restored." Iowa R. Crim. P. 2.18(5)(a ) (2021).) The State challenged both of these prospective jurors, and the district court removed them from the panel. The State also challenged, and the district court also removed, a white juror with a prior felony conviction from the panel.

The third African-American on the panel was the daughter of a man whom the State's lead attorney had prosecuted successfully for three serious felonies (kidnapping, sexual assault, and murder). The prospective juror acknowledged that she'd attended part of her father's trial. The State exercised a peremptory challenge to remove her from the panel. Unlike challenges for cause, peremptory challenges (sometimes called peremptory "strikes") permit parties to strike prospective jurors from the panel without the need to state the "cause" or reason. Compare Iowa R. Crim. P. 2.18(5) (2017), with id. r. 2.18(9). Veal lodged an objection to the State's

972 N.W.2d 732

peremptory strike of this panel member under Batson v. Kentucky , which forbids a party from using peremptory strikes to eliminate potential jurors based on their race. See Batson v. Kentucky , 476 U.S. 79, 96–98, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). The district court overruled Veal's Batson challenge, finding that the State had offered "a sufficient nondiscriminatory reason" for striking the panel member, and excused her from the panel. We already affirmed the district court's ruling on this Batson challenge in Veal's initial appeal. Veal I , 930 N.W.2d at 334.

On remand to address his fair-cross-section challenge, Veal called several witnesses. Todd Nuccio, the state court administrator at the time of the hearing, testified about statewide changes to the jury management practices implemented in December 2018 and aimed in part to address issues raised in our decisions in Plain I , Lilly I , Veal I , and Williams I . See State v. Plain (Plain I ), 898 N.W.2d 801, 827–28 (Iowa 2017) ; State v. Lilly (Lilly I ), 930 N.W.2d 293, 305–07 (Iowa 2019) ; Veal I , 930 N.W.2d at 328–29 ; State v. Williams (Williams I ), 929 N.W.2d 621, 629–30 (Iowa 2019). The changes included creating uniform jury management practices in summoning prospective jurors, addressing failures to appear or respond, establishing procedures for reminder letters and electronic notifications, implementing electronic (as opposed to paper) juror questionnaires, and publicizing the source list from which courts draw jury pools. Before the changes, it was optional for jurors to identify their race on the questionnaire; now it's required. Nuccio testified that he lacked sufficient data to say whether the changes had increased representation but that anecdotal information suggested it was improving.

Mark Headlee, the judicial branch's information technology director, testified about the jury management software that courts throughout the state use. He explained that the judicial branch receives voter registration, driver's license, and nonoperator identification lists that are combined (with duplications removed) to form the source list from which people are randomly selected for jury pools. See Iowa Code §§ 607A.21 –.22.

Grace Zalenski, a private statistical consultant, testified about her analysis of the racial composition of Veal's jury pool and Webster County's historical data for jury pools in the year preceding Veal's trial. She testified that Veal's jury pool had 5 African-Americans out of the 153 potential jurors, equating to 3.27%. She calculated the jury-eligible population of African-Americans in Webster County at the time of trial (subtracting for African-Americans in the Fort Dodge Correctional Facility population) at 3.02%.

Zalenski conducted two separate analyses on Veal's pool that adjusted for the African-Americans who were removed from his panel. In the first analysis, Zalenski subtracted the two African-Americans removed for having prior felonies from the five in his pool. In the second analysis, Zalenski subtracted three African-Americans (including the panel member excused after the State's peremptory strike) from the five in his pool. Zalenski concluded that both analyses demonstrated an underrepresentation of African-Americans that was not random. Zalenski also analyzed the representation of Hispanics in Veal's pool and in the county's pools over time using the historical data.

The court also heard testimony from Mary Rose, an associate professor of sociology at the University of Texas at Austin, who described her areas of expertise to include jury decision-making, jury representation, and jury participation. Rose identified several factors based on her research

972 N.W.2d 733

that were associated with the underrepresentation of African-Americans and Hispanics on juries, including laws excluding felons from serving, failing to issue reminders to summoned jurors, and failing to impose consequences for summoned jurors who don't show.

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...

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