IN THE SUPREME COURT OF IOWA
No. 21–0144
Submitted November 16, 2021—Filed April 1, 2022
STATE OF IOWA,
Appellee,
vs.
PETER LEROY VEAL,
Appellant.
Appeal from the Iowa District Court for Cerro Gordo County,
Rustin Davenport, 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 to the United States Constitution.
AFFIRMED.
McDermott, J., delivered the opinion of the court, in which all justices
joined.
Martha J. Lucey, State Appellate Defender, and Theresa R. Wilson,
Assistant Appellate Defender, for appellant. 2
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. 3
McDERMOTT, Justice.
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 4
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 5
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 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
(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 6
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 7
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 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 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 8
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. Plain I, 898
N.W.2d at 821–22; Lilly I, 930 N.W.2d at 299; see also Duren, 439 U.S. at 363–
64.
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 Veal 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. Plain I, 898 N.W.2d at
810.
A. The Scope of the Remand and Our Review on Appeal. On remand,
Veal asked the district court to evaluate his claims under both the Sixth
Amendment to the United States Constitution and article I, section 10 of the
Iowa Constitution. In Veal I, we held that Veal hadn’t raised a claim under the
Iowa Constitution in the district court as required before his trial. 930 N.W.2d
at 328 n.5. We thus limited our remand to his claims under the Sixth
Amendment. Id. at 330. The district court on remand determined that Veal
hadn’t preserved a fair-cross-section challenge under the Iowa Constitution, and
that the issue in any event would exceed the scope of the remand, and thus
didn’t rule on it. Veal concedes in this appeal that error wasn’t preserved on a
challenge under article I, section 10 of the Iowa Constitution. We thus will 9
address Veal’s claims under the Sixth Amendment to the United States
Constitution only.
B. Veal’s Proof of Causation under Duren/Plain’s Second Prong. We
will begin our analysis on the second prong. To satisfy this prong, a defendant
must offer proof “that the representation of a distinctive group in the jury pool
falls below the representation in the eligible juror population.” Veal I, 930 N.W.2d
at 328. In Lilly I, we introduced two steps to this analysis. The first step requires
the defendant to prove underrepresentation in the defendant’s own jury pool by
a straightforward comparison of the actual percentage of the distinctive group in
the jury pool against the group’s percentage in the jury-eligible population. 930
N.W.2d at 305. If the actual percentage exceeds the percentage in the jury-
eligible population, then no violation. Id. This is because 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.” Id. This initial step acts (as amicus curiae NAACP
accurately describes it) in effect as a standing requirement: if the defendant can’t
establish underrepresentation in the defendant’s own pool under a direct
comparison of percentages, then that defendant’s fair-cross-section challenge
fails.
If the defendant satisfies this initial step, then the defendant must next
show that the percentage of the distinctive group in the defendant’s own jury
pool or in jury pools over a recent representative period is less than the expected
percentage by at least—under the Sixth Amendment—two standard deviations. 10
Veal I, 930 N.W.2d at 328–29 (citing Castaneda v. Partida, 430 U.S. 482, 496
n.17 (1977)). Standard deviation analysis, we explained in Lilly I, “uses accepted
statistical methods to determine the likelihood that a disparity” between the
distinctive group’s percentage in the pool and in the population “is the result of
something other than chance.” 930 N.W.2d at 300. Historical data from multiple
jury pools may be aggregated for this analysis, but the defendant may not
selectively limit the historical data by, for example, including some earlier jury
pools but excluding other, more recent jury pools. Id. In Duren v. Missouri, for
instance, the defendant’s trial began in March 1976, and the analysis focused
on the county’s historical jury pool data from June–October 1975 and January–
March 1976. 439 U.S. at 362–63.
African-Americans comprised 3.27% (5 of 153) of Veal’s own pool and
8.82% (3 of 34) of Veal’s own panel. We noted in Veal I that adjusting the Webster
County population to the jury-eligible population by removing the Fort Dodge
prison population might actually make Veal’s pool over-representative of African-
Americans and, if so, would foreclose his fair-cross-section claim. 930 N.W.2d at
329 n.8. Veal’s expert calculated the percentage of the jury-eligible African-
American population at 3.02%. African-Americans were thus overrepresented in
his pool and panel. Under this analysis, Veal fails to show any violation under
the first step of Duren/Plain’s second prong.
Veal argues that permitting for-cause strikes of panel members with prior
felony convictions amounts to the systematic exclusion of African-Americans in
jury pools. He thus contends that we shouldn’t include in calculations of his pool 11
the two prospective African-American jurors removed from the panel for having
prior felony convictions, and similarly shouldn’t include the prospective African-
American juror excused by the State’s peremptory strike. If we didn’t include the
3 jurors with prior felonies (2 African-American and 1 white) in the calculation,
African-Americans would comprise 2.00% of Veal’s jury pool (3 of 150) and 3.23%
of his panel (1 of 31). And if we also removed from the calculation the African-
American juror excused by peremptory strike, African-Americans would
comprise 1.34% of Veal’s pool (2 of 149) and 0% of his panel (0 of 30).
But the United States Supreme Court has already foreclosed this type of
challenge to strikes of individual panel members under the Sixth Amendment.
In Holland v. Illinois, the Court noted that the Sixth Amendment’s fair-cross-
section requirement “is derived from the traditional understanding of how an
‘impartial jury’ is assembled.” 493 U.S. 474, 480 (1990). This “includes a
representative venire, so that the jury will be, as we have said, ‘drawn from a fair
cross section of the community.’ ” Id. (quoting Taylor v. Louisiana, 419 U.S. 522,
527 (1975)). But the fair-cross-section requirement, the Court continued, “has
never included the notion that, in the process of drawing the jury, that initial
representativeness cannot be diminished by allowing both the accused and the
State to eliminate persons thought to be inclined against their interests.” Id. The
Court in Holland thus declined to extend the Sixth Amendment right even to
peremptory strikes—let alone for-cause challenges—since the fair-cross-section
requirement assures “not a representative jury (which the Constitution does not
demand), but an impartial one (which it does).” Id. Indeed, the Court noted it has 12
gone out of its way to make this point: “We have never invoked the fair-cross-
section principle to invalidate the use of either for-cause or peremptory
challenges to prospective jurors, or to require petit juries, as opposed to jury
panels or venires, to reflect the composition of the community at large.” Id. at
482–83 (quoting Lockhart v. McCree, 476 U.S. 162, 173 (1986)). We don’t
foreclose the possibility of other challenges to the use of a felony disqualification
rule. See, e.g., Batson, 476 U.S. at 96–98; Castaneda, 430 U.S. at 494–95; Plain
I, 898 N.W.2d at 823 n.9. We simply hold that where it doesn’t affect the jurors
who are summoned and appear for juror duty, it doesn’t implicate the fair-cross-
section requirement under the Sixth Amendment.
Veal’s particular claim about for-cause challenges of prospective jurors
with felony convictions suffers from a further defect. Veal mistakenly claims that
people with felony convictions are “jury ineligible” and, thus, should be excluded
when calculating statistics about the pool. It’s true that if a party challenges a
prospective juror on the panel having a prior felony, the court must grant the
challenge. Iowa R. Crim. P. 2.18(5)(a). But prospective jurors with felony
convictions may—and indeed, do—serve on juries if no party challenges them.
The rule states that challenges for cause “may be made by the state or
defendant.” Id. (emphasis added). Nothing requires a party to make such a
challenge. The two African-American jurors and one white juror with prior
felonies in Veal’s pool could have served on the jury had the State not made a
challenge to remove them during voir dire. They thus were never “jury ineligible,”
making their inclusion when calculating percentages of the pool and panel 13
appropriate. A rule that automatically excluded felons upon appearing for jury
service, without any requirement of a for-cause challenge by the State or other
action by the court, isn’t before us.
Under Duren/Plain’s second prong, the defendant is required to prove that
the distinctive group’s representation in his jury pool is not “fair and reasonable”
when considered against the group’s percentage in the community. Lilly I, 930
N.W.2d at 302. As we stated in Veal I, there would be no need to examine
aggregate historical data from other jury pools if Veal couldn’t first establish on
remand any underrepresentation in his own pool. 930 N.W.2d at 329–30 n.8.
The evidence showed that Veal’s own pool and panel contained a percentage of
African-Americans that exceeded their percentage in Webster County’s jury-
eligible population, and there is no basis under the Sixth Amendment to adjust
any calculations as Veal requests based on the for-cause challenges during voir
dire. Having a fair cross section of the population in a defendant’s pool, as the
district court noted, doesn’t guarantee a racially representative jury. “Defendants
are not entitled to a jury of any particular composition.” Taylor, 419 U.S. at 538
(emphasis added).
Veal thus has failed to show that his right to a fair cross section has been
infringed under the Sixth Amendment. Because Veal hasn’t delivered on his
burden under the second 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 third prong’s requirement to establish that the underrepresentation
results from systematic exclusion of the group in the jury-selection process. 14
C. Veal’s Claim of Underrepresentation of Hispanics. On remand, Veal
also asked the district court to rule on a separate challenge about alleged
underrepresentation and exclusion of Hispanics. The district court ruled that
Veal failed to preserve error on this claim before his trial and, in any event, such
a challenge was beyond the scope of our court’s remand order.
Veal argues that he preserved error on a claim that Hispanics were
underrepresented when his lawyer objected to his first all-white jury pool,
stating: “[W]e are concerned about the racial composition of the jury panel. It
includes no minorities that we can determine, and I believe that it violates
Defendant’s Sixth Amendment right to a fair trial.” (Emphasis added.) After the
district court added another batch of summoned jurors to his pool (bringing the
number of prospective jurors to 153), Veal’s lawyer objected to this pool, stating:
“[I]t seems to me that we are showing that there is a systematic exclusion of
minorities, particularly African-American, in the pools over a period of time, as
required by Duren and further mandated by Plain.” Finally, Veal presented
evidence during his objection to the pool that over the past six months there
were only 35 African-American, 20 Native American, 40 Hispanic, and 24 “Other”
prospective jurors summoned for jury duty.
Veal argues that his reference to “minorities” preserved a claim that
included the underrepresentation of Hispanics. While he acknowledges that he
focused primarily on the exclusion of African-Americans, Veal argues that his
mention of Hispanics suffices to preserve error. Veal also argues that the remand 15
order wasn’t specific to African-Americans and thus supports his argument that
he is allowed to raise a claim about the exclusion of Hispanics on remand.
But the district court, in ruling on Veal’s initial challenge to his jury pool,
never addressed any claim about Hispanic underrepresentation on Veal’s jury.
The ruling is brimming with references to arguments about African-American
underrepresentation but silent about any claims involving Hispanics. Veal’s
motion for new trial and in arrest of judgment that followed the district court’s
ruling never mentioned the exclusion of Hispanics either; it, like the court’s
ruling, focused exclusively on African-Americans. So while Veal mentioned
“minorities” and mentioned “Hispanics” one time each, the district court never
decided any Hispanic underrepresentation issue and Veal never pursued a
posttrial motion asking the court to rule on such a claim.
What’s more, a reference to “all minorities” hardly seems sufficient to
identify a “distinctive” group in the community under the Duren/Plain analysis.
See Duren, 439 U.S. at 364. Mentioning “all minorities” and then focusing
exclusively on African-Americans fails to put the State on notice of a challenge
based on the exclusion of Hispanic jurors. And Veal’s written submission on
prior jury pools only provided a census figure for African-Americans, suggesting
again that his Sixth Amendment claim implicated only the exclusion of African-
Americans.
When the district court doesn’t decide an issue presented to it and a party
fails to file a posttrial motion requesting a ruling on the issue, the party fails to
preserve error. Fennelly v. A-1 Mach. & Tool Co., 728 N.W.2d 163, 177 (Iowa 16
2006). The district court in the initial proceedings never ruled on a claim alleging
underrepresentation of a group other than African-Americans, and our opinion
in Veal I similarly mentioned only African-Americans. We find no error in the
district court’s holding that Veal failed to preserve error on a claim of Hispanic
underrepresentation.
III. Conclusion.
In Veal I, we conditionally affirmed Veal’s conviction and remanded for a
determination on his fair-cross-section challenge. We now affirm the district
court’s holding on remand that Veal failed to prove a violation of his Sixth
Amendment right to an impartial jury and affirm his conviction.