State of Iowa v. Kelvin Plain, Sr.

• Court: Supreme Court of Iowa
• Decided: January 21, 2022
• Docket: 20-1000
• Status: Published

Opinion

IN THE SUPREME COURT OF IOWA

No. 20–1000

Submitted October 20, 2021—Filed January 21, 2022

STATE OF IOWA,

Appellee,

vs.

KEVIN PLAIN SR.,

Appellant.

Appeal from the Iowa District Court for Black Hawk County, William P.

Wegman, District Associate Judge.

The defendant appeals the district court’s denial on remand of his motion

challenging the representativeness of the jury pool under the fair-cross-section

requirements under the Sixth Amendment of the United States Constitution.

AFFIRMED.

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

joined.

Gary Dickey (argued) of Dickey, Campbell, and Sahag Law Firm, PLC, Des

Moines, for appellant. 2

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. 3

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 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 4

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. 5

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 prevalence 6

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 representation in jury pools

is not “fair and reasonable” when considered against the group’s percentage in

the community, and (3) the group’s underrepresentation “is due to systematic

exclusion of the group in the jury-selection process.” Id. at 822 (quoting Duren

v. Missouri, 439 U.S. 357, 364 (1979)). The defendant bears the burden of proof

to show a prima facie violation of the fair-cross-section requirement. Id. at 821– 7

22; see also Duren, 439 U.S. at 363–64; State v. Lilly (Lilly I), 930 N.W.2d 293,

299 (Iowa 2019).

The State concedes the first Duren/Plain prong and thus that African-

Americans constitute a distinctive group in the community. The contest involves

the second and third prongs. The district court held that Plain failed to prove

either one. We review challenges alleging the denial of constitutional rights—in

this case, the right to an impartial jury—de novo and thus evaluate the evidence

anew without deferring to the district court’s findings. Lilly I, 930 N.W.2d at 298.

A. The Scope of the Remand and Our Review on Appeal. Plain asks us

to evaluate his claims under both the Sixth Amendment to the United States

Constitution and article I, section 10 of the Iowa Constitution. In Plain I, we held

that Plain hadn’t raised a claim under the Iowa Constitution in the district court.

Plain I, 898 N.W.2d at 821 n.6. We thus limited the remand to his Sixth

Amendment claims. Id. at 829. But Plain argues that the district court on

remand nonetheless analyzed his arguments under the Iowa Constitution by

addressing the second prong’s standard under Lilly I. Lilly I includes an analysis

of claims under article I, section 10 of the Iowa Constitution. From this, Plain

infers, the district court both ruled on and preserved for our review his claims

under the Iowa Constitution.

As an initial matter, the district court’s analysis in its ruling of Lilly I

doesn’t mean that the district court ruled on the merits of Plain’s claims under

the Iowa Constitution. The district court, in any event, lacked the authority to

rewrite our remand order to address claims that we rejected and refused to 8

remand. See City of Okoboji v. Iowa Dist. Ct., 744 N.W.2d 327, 331 (Iowa 2008).

“[W]e have repeatedly observed that a district court, on remand of a case for some

special purpose, ‘is limited to do the special thing authorized by this court in its

opinion, and nothing else.’ ” Id. (quoting Kuhlmann v. Persinger, 154 N.W.2d 860,

864 (Iowa 1967)). We specified, in the clearest of terms, the law to be applied on

remand: “[W]e conditionally affirm Plain’s conviction and remand to the district

court for development of the record on the Sixth Amendment challenge. Following

proper development of the record pertaining to that challenge, the district court

shall determine whether Plain’s right to a representative jury under the Sixth

Amendment was violated.” Plain I, 898 N.W.2d at 829 (emphases added).

Plain needed to raise a fair-cross-section challenge under the Iowa

Constitution before trial. State v. Williams, 929 N.W.2d 621, 629 n.1 (Iowa 2019).

As we already determined, he didn’t. Plain I, 898 N.W.2d at 821 n.6. The district

court lawfully could not—and, in fact, did not—venture beyond the scope of its

charge on remand. We thus will address Plain’s claims under the Sixth

Amendment of the United States Constitution only.

B. Plain’s Proof of Causation Under Duren/Plain’s Third Prong. We will

begin our analysis on the third prong, since an inability to establish any one of

the three Duren/Plain elements is fatal to a defendant’s fair-cross-section

challenge. To establish the third prong, a defendant must prove that the

underrepresentation resulted from a particular feature (or features) of the jury

selection system. Plain I, 898 N.W.2d at 823–24. The defendant, in other words,

“must establish the exclusion is ‘inherent in the particular jury-selection process 9

utilized’ ” and show that the practice caused the systematic exclusion of the

distinctive group in the jury selection process. Id. at 824 (quoting Duren, 439

U.S. at 366).

Plain identifies three practices that he argues caused the

underrepresentation of African-Americans in his jury pool: (1) the failure to

update addresses when summonses were returned as “undeliverable,” (2) the

failure to follow up with jurors who didn’t respond, and (3) the failure to hold

jurors accountable through enforcement proceedings for failing to respond or

appear. The district court addressed each argument on the merits, finding that

Plain failed to prove “causation” as required on any of the claims.

In State v. Veal, we held that to prove a Sixth Amendment fair-cross-

section violation, the defendant “must identify some practice or combination of

practices that led to the underrepresentation, and it must be something other

than the ‘laundry list’ the Supreme Court declined to condemn in Berghuis [v.

Smith].” 930 N.W.2d 319, 330 (Iowa 2019) (quoting Berghuis v. Smith, 559 U.S.

314, 332 (2010)). Challenges to “run-of-the-mill” jury management practices, we

said, are insufficient to show systematic exclusion under the Sixth Amendment.

Id. at 329. We described run-of-the-mill jury management practices in Lilly I as

“the relatively commonplace” practices that might include, for instance, “the

updating of address lists, the granting of excuses, and the enforcement of jury

summonses.” Lilly I, 930 N.W.2d at 308. These common jury practices fall within

a state’s “broad discretion,” according to the Supreme Court in Berghuis, and 10

will not sustain a cross-section challenge under the Sixth Amendment. Berghuis,

559 U.S. at 333 (quoting Taylor v. Louisiana, 419 U.S. 522, 537–38 (1975)).

Two of the three practices that Plain advances as causing the alleged

systematic exclusion not only meet the definition of a “run-of-the-mill jury

management practice” that we set out in Lilly I, but in fact are practices that we

offered as exemplars of run-of-the-mill jury management practices. Lilly I, 930

N.W.2d at 308. Plain’s claim that Black Hawk County failed to update addresses

when summonses were returned as “undeliverable,” and failed to hold jurors

accountable through enforcement proceedings for not responding or appearing,

thus don’t help him. They are, by straightforward application of our own

illustrations, run-of-the-mill practices that we previously said will not constitute

evidence of causation.

The third practice that Plain points to as causing the

underrepresentation—failing to follow up with jurors who didn’t respond—isn’t

one of the explicit examples of run-of-the-mill practices that we previously

offered. But it, too, unquestionably falls within the category. In Berghuis, the

Supreme Court, when describing the defendant’s “laundry list” of commonplace

jury management practices, included the county’s alleged “failure to follow up

on nonresponses” from summoned jurors. Berghuis, 559 U.S. at 332.

All three of the practices that Plain presents as “causing” the alleged

underrepresentation under the third prong amount to run-of-the-mill practices

that the Supreme Court has declined to condemn. Veal, 930 N.W.2d at 330 11

(citing Berghuis, 559 U.S. at 332). He thus has not proved a fair-cross-section

violation under the Sixth Amendment.

Because Plain failed to deliver on his burden under the third prong, which

on its own is sufficient to affirm the district court’s denial of his claim, we need

not take up his arguments relating to the second prong’s requirement to

establish actual underrepresentation of African-Americans in his jury pool.

C. The “Run-of-the-Mill” Limitation in Veal. Plain argues that our

refusal to consider run-of-the-mill jury management practices to establish the

third prong’s systemic exclusion under the Sixth Amendment hinges on a

misreading of Berghuis, and he asks us to overrule our holding in Veal on this

point. Plain argues that Berghuis was an appeal from a federal habeas corpus

petition and that the question presented turned on whether the lower court’s

denial of the defendant’s fair-cross-section claim “resulted in a decision that was

contrary to, or involved an unreasonable application of, clearly established

Federal law, as determined by the Supreme Court of the United States.”

28 U.S.C. § 2254(d)(1). Plain contends that the Berghuis Court applied the

deferential analysis required under the Antiterrorism and Effective Death Penalty

Act of 1996 and thus simply looked at whether the lower court unreasonably

applied clearly established federal law. Under Plain’s reading, Berghuis doesn’t

address whether the challenged jury management practices could be offered to

establish systematic exclusion.

But this characterization reads Berghuis too narrowly, particularly in its

limited treatment of the Court’s reliance on Duren. The “unreasonable 12

application of federal law” question centered on the application of Duren itself.

Duren is among the Supreme Court’s leading cases on the issue of systemic

exclusion. See Plain I, 898 N.W.2d at 821–24 (analyzing Duren’s three-part test

for establishing a violation of the fair-cross-section requirement). The Supreme

Court first noted that the defendant “catalogs a laundry list of factors” that, he

claims, “rank as ‘systematic’ causes of underrepresentation of African-

Americans in Kent County’s jury pool.” Berghuis, 559 U.S. at 332. Jury

management practices such as those on the defendant’s “laundry list,” according

to the Court in Berghuis, were unlikely, based on the holding in Duren, to sustain

a fair-cross-section challenge under the Sixth Amendment. Id. at 333 (citing

Duren, 439 U.S. at 370). The Court noted that it “has never ‘clearly established’

that jury-selection-process features of the kind on [the defendant]’s list can give

rise to a fair-cross-section claim.” Id. On the contrary, the Court stated that these

practices fall within the “broad discretion” already granted to the states to

establish juror qualifications and to implement their own jury management

processes. Id. (quoting Taylor, 419 U.S. at 537–38).

We thus find no error in our prior interpretation—or current application—

of Duren and Berghuis to bar Sixth Amendment challenges that allege systemic

exclusion as a consequence of run-of-the-mill jury management practices.

III. Conclusion.

In Plain I, we conditionally affirmed Plain’s conviction and remanded for a

determination on his fair-cross-section challenge. We now affirm the district 13

court’s holding on remand that Plain failed to prove a violation of his Sixth

Amendment right to an impartial jury, and affirm his conviction.