STATE OF IOWA, Appellee, vs. PETER LEROY VEAL, Appellant.
No. 21-0144
IN THE SUPREME COURT OF IOWA
Submitted November 16, 2021—Filed April 1, 2022
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.
David S. Walker, Windsor Heights, and Russell E. Lovell, II, Des Moines, for amicus curiae NAACP.
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
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
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
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
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
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
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
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 Durenv. 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
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
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
But the United States Supreme Court has already foreclosed this type of challenge to strikes of individual panel members under the
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.
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
Veal thus has failed to show that his right to a fair cross section has been infringed under the
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
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 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
AFFIRMED.