Lead Opinion
In this case a gay defendant, Stephen Jonas, was charged with first-degree murder
Jonas appealed. Jonas claims that because he was forced to use a peremptory strike to disqualify a potential juror who should have been disqualified for cause, reversal is required even though the challenged potential juror was not seated and there is no specific showing of prejudice in the case. Jonas recognizes our prior precedent, State v. Neuendorf,
We transferred the case to the court of appeals. On the question of jury selection, the court of appeals, citing Neuendorf, rejected Jonas’s challenge on the ground that even if the district court erred in refusing to dismiss the potential juror, the defendant failed to show prejudice. The court of appeals further rejected Jonas’s challenge to the sufficiency of the evidence and his claims that counsel was ineffective for failing to object to closing argument and failing to seek a limiting instruction.
We granted further review. When we grant further review, we have discretion to limit the issues considered by this court. State v. Pearson,
I. Factual and Procedural Background.
On August 23, 2014, Zachery Paulson was found dead in the lot of his father’s business bordering the Clive Greenbelt Trail. Following an autopsy, it was determined Paulson died from multiple stab and incised wounds. The police investigation focused on Jonas. Jonas hltimately admitted to stabbing Paulson but asserted he did so in self-defense.
According to Jonas, about one week before Paulson’s death, he and Paulson engaged in a mutual hug that led to kissing. Other witnesses described the encounter as unwanted and Paulson pushed Jonas away and asked him to leave. After the incident, Jonas continued to contact Paul-son via text message throughout the next week. The text messages went unanswered.
Jonas claimed on the night of Paulson’s death, he went to a local bar to confront Paulson about the incident. According to Jonas, he and Paulson left the bar for a parking lot where they engaged in small talk. Jonas maintained Paulson struck him with a hammer and a fight ensued. Jonas told the police he remembered stabbing Paulson only five times. Paulson was
On September 30, 2014, Jonas was charged by trial information with.murder in the first degree. Jonas filed a notice of defense of justification. The trial began on July 2, 2015.
A written questionnaire asked each potential juror the following question: “The defendant in this case is gay. Would this fact in any way influence your ability to be fair and impartial if you were selected to be a juror in this case?” A potential juror put an X next to “yes” and, in the place provided for an explanation, wrote “I would try to keep an open mind, but I would have a hard time overlooking it.” During voir dire, Jonas’s defense attorney asked the potential juror about the potential juror’s affirmative answer to the question. The defense attorney asked, about Jonas’s sexuality, ‘You agree that fact is going to affect your ability to be fair?” The potential juror replied, “Somewhere in the back of my mind something would come up. I just—I’m just being honest with you.” The defense attorney pressed further, “So is it fair to say that you are not going to be able to give Mr. Jonas a fair trial because of that?” The potential juror answered,
I would say that young man would probably do .better without me on the jury, just to be honest with you. I would try to be fair. I’m 50 years old and I would try to be fair, but he probably would have better jury selection than myself.
The defense attorney asked, “Because is that a factor you will not be able to exclude?” The potential juror said, “I don’t know if I’d be able to. I would try to exclude it, but, you know, somewhere in the back something is' going to come up I guess.”
The prosecutor tried to get a different answer from thé potential juror, asking if the juror could not make a decision based on the evidence. The potential juror responded, “Again, I would sit there and somewhere along the way something would come up in the back of my mind. I will try. Honestly I will try that, but the young man would probably do better with someone else.” The prosecutor said, “I know you have personal feelings. Can you set those aside and made a decision based on [the evidence and the judge’s instructions]?” The potential juror answered,
Again, I would try, but I’m sure there would be something. that would come up.... I’m 50 years old. I work with truckers and guys in oil refineries and in oil wells. It’s just permeated in my life. So I will try to be honest and fair, but again, there would be something that would .come up. I’m just being honest.
The court then took over questioning of the potential juror:
THE COURT: When you say there is going to be something that .comes up, what do you mean by that? A. You know, in the back of my mind, and I don’t want to insult anybody here, I just would—I - don’t know. I would think I will try to be honest, but then again I would be like, oh, well. And I can’t explain it exactly.
THE COURT: My question for us is this: Does the fact that the ■ defendant, Mr. Jonas, has identified himself as a gay man, does that fact alone cause you to be biased or prejudice^] against him in determining whether or not he’s guilty or innocent in this case? A. Again, -I don’t think it would be determined whether he was guilty or innocent, but I would still have a bias there some place, yes.
THE COURT: Okay. So are you—if I instruct you as to what the law is, areyou going to be able to follow what the law says? A. Yes. ,
THE COURT: Are you—does the fact that the defendant, again, is gay, does that, cause you to not be able to listen tp the .evidence and.keep, an open mind with respect to guilty or not guilty, the facts of this case? Do you understand that question? That was a little bib— A. I understand that, you know, again the facts are going to be the facts and my— and that’s what we. will hear and that’s what we will determine. But, again, somewhere down in the—
THE COURT: Well, the law doesn’t require that you forget the fact that Mr. Jonas is gay, so that’s why I’m concerned .'about' the fact'that you are telling ' us that there is ■ something that might pop up in the back of your head. You don’t have to forget the fact that he has identified himself as being gay.
Is that what you are telling the Court is that you are not going to be able to forget the fact that he’s gay. Or do you think that the fact that he’s gay means that more-likely than not that he—that you are not going tó be able to give him a fair trial? A. I think, again, the gentleman would' probably do better without me on the jury. T think there could be something in the back of my mind that would—again, I’d listen to the facts. I would try my best, but it’s who we are.
. The defense attorney then resumed questioning the potential juror, asking him if there will still be bias in the back of his mind. “I think there will be, yes, sir,” the potential juror replied. The defense attorney-asked the potential-juror, if a gay man making a sexual advance to another man would bother him. The-potential juror said, “[I]t would bother me, yes.”
After the potential juror left the room, Jonas’s defense attorney moved, to dismiss him for cause, stating, “[Tjhere is no question that this juror cannot be fair and impartial to Mr. Jonas because he is gay.” After hearing arguments from both sides regarding the potential juror, the court made the following ruling:
Well, my problem is he has said that he’s going to have it in the back of his mind and that the defendant would be better off not having him as a juror. After he said that, he still continues to express the opinion that he could be fair and unbiased and be able to try a fair case.
And I just don’t think that the record is there to strike him for cause at this point. So I’m going to allow [the juror] to stay on the panel.
The potential juror was allowed to stay on the panel until defense counsel used a peremptory strike to remove him. Jonas used all ten of his peremptory strikes.
The jury returned a verdict of guilty for murder in the second degree. Jonas appealed. The court of appeals affirmed. On the issue of jury selection, the court of appeals held Jonas could not show he was prejudiced by the' denial of a for-cause strike for the potential juror because the potential juror did'not serve on the jury and Jonas did not allege the remaining jury was biased as a result of his use of all of his peremptory challenges. See Neuendorf,
Jonas applied for further review, which we granted.
II. Standard of Review.
We review the district court’s rulings on challenges to potential jurors for cause for abuse of discretion. State v. Tillman,
III. Discussion.
A. Introduction. This challenge related to the failure of the district court to disqualify the potential juror raises two state law issues under Iowa Rule of Criminal Procedure 2.18(5)(⅛) dealing with disqualifications for cause and rule 2.18(9) providing for peremptory challenges.
B. Disqualification of Juror for Cause. On the issue of disqualification of a juror for cause, there is authority for the proposition that when a potential juror at the outset of voir dire expresses bias or prejudice unequivocally, the potential juror should be disqualified for cause notwithstanding later, generalized statements the potential juror could be fair. See generally 58 Am. Jur. Proof of Facts 3d Challenges for Cause in Jury Selection! Processes § 23, at 434-36 (2000) (describing history and proper role of rehabilitation). According to this approach, once the genie of prejudice or bias is out of the bottle, it is a fool’s errand to put it back in through persistent coaxing.
There is ample authority for this approach' in the caselaw. For example, in Morgan v. Illinois, the United States Supreme Court stated when actual bias is stated, generalized affirmative response to questions like “[wjould you follow my instructions on the law even though you may not agree” is insufficient to avoid disqualification of potential juror.
Únder the actual-bias cases, a later affirmative response to a “magic question” using the words fair and impartial is not enough to rehabilitate the potential juror.
As a [federal] district court judge for over fifteen years, I cannot help but notice that jurors are all too likely to give me the answers that they think I want, and they almost uniformly answer that they can “be fair.”
Mark W. Bennett, Unraveling the Gordian Knot of Implicit Bias in Jury Selection: The Problems of Judge-Dominated Voir Dire, the Failed Promise of Batson, and Proposed Solutions, 4 Harv. L. & Pol’y Rev. 149, 160 (2010); see also Dov Fox, Neuro-Voir Dire and the Architecture of Bias, 65 Hastings L.J. 999, 1011 (2014) (“[S]imply asking jurors whether they can be impartial is not likely to reveal with any reliability the presence or strength of many of the outside influences that they would in fact bring to bear on the questions at trial.”); Mary R. Rose & Shari Seidman Diamond, Judging Bias: Juror Confidence and Judicial Rulings on Challenges for Cause, 42 Law & Soc’y Rev. 513, 516 (2008) (expressing concerns about quality and reliability of juror claims of fairness from a law and social science perspective).
In a similar vein, courts have cautioned that judicial rehabilitation should not become a “stark little exercise,” State v. Saunders,
[c]are should be taken that the nuances imbedded in the judges’ questions do not suggest that there is only one proper answer, and that questions are asked in a way that would not cause one, from fear or embarrassment, to give anything less than frank, honest answers.
Bell v. State,
Another cautionary factor that counsels against a “magic question” approach on judicial voir dire is the presence of implicit bias. See Smith v. Phillips,
On the other hand, there is caselaw supporting the authority of judges to rehabilitate jurors. In Thomas ex rel. Thomas v. Mercy Hospitals East Communities, the Supreme Court of Missouri found no abuse of discretion when the court rehabilitated a juror who had expressed bias in favor of the hospital.
We have scoured the cases to learn how courts have treated juror rehabilitation in cases in which potential jurors expressed bias related to gay people in cases -with sexual context. In People v. McGuire, a defendant was charged with sexual abuse of a minor child.
Some cases seem to turn on unequivocal statements by potential jurors to solely consider the evidence, statements from which they do not waiver. For example, in State v. Marble, a potential juror expressed strong religious conviction against homosexuality.
Yet, in T.K.'s Video, Inc. v. State, a potential juror indicated homosexuality was “shameful, ■ morbid and sick.”
Turning to Iowa cases, we find no case close to the present facts and none dealing with .claimed bias against homosexuals. Further, our easelaw on juror disqualification and judicial rehabilitation is sparse. It is undisputed, however, that our traditional standard of review for district court rulings on the qualifications of jurors is for abuse of discretion. Tillman,
In State v. Winfrey, we held a district court did not abuse its discretion in- refusing to disqualify for-cause a potential juror who indicated he and his wife had experienced trouble in the past with two young African-Ameriéans and had moved out of a predominantly African-American neighborhood.
Another case of interest is Hardin. In that case, Hardin was charged with disrupting a speech by President George H.W. Bush with anti-war chants.
In at least two cases, we have found district courts abused their discretion in failing to disqualify potential .jurors. In State v. Kuster, the potential juror was the sister of a person whose home was the target of a shooting in the case at issue.
A second case where we found an abuse of discretion when a district court declined to disqualify a juror for cause is Neuen-dorf. In Neuendorf, a juror had been exposed to pretrial publicity and knew Neuendorfs codefendant had been found guilty.
While we have generally reviewed disqualification of jurors deferentially, we have long cautioned trial courts against allowing close issues to creep into the record and threaten the validity of a criminal trial. In State v. Teale, we stated,
[W]e see no occasion in the ordinary administration of the criminal law in this state for the close rulings on the qualifications of jurors that are, constantly brought to our attention. Although a ruling may be technically right, if it must be so doubtful as to raise a fair question as to its correctness, it is far better to give the accused the benefit of the doubt, to the end that he and- all other men may be satisfied that his rights have not been invaded.
We cited the above language with approval in Beckwith,
Based on our review of the record and relevant authorities, we conclude that the district court abused its discretion in refusing to disqualify the potential juror for cause. We rely primarily on the potential juror’s expression of actual bias against gay people in the original questionnaire and during voir dire. See Morgan,
1. Traditional Iowa state law approach. For many years, our caselaw in Iowa provided that error in denying a challenge to a potential juror for cause was presumed to be prejudicial under state law. In State v. Reed, we considered a case where a potential juror had. preconceived views of the defendant’s guilt.
On appeal, Reed claimed he was entitled to a new trial because of the failure of the trial court to disqualify the potential juror. Id. at 1354,
The court has no right to deprive the defendant of the full number of statutory peremptory challenges given him by overruling challenges for cause and thus requiring a defendant to use his peremptory challenges against jurors to whom the challenge for cause should have been sustained.
Id. at 1353-54,
Notably, Justice Stevens dissented in Reed. Id. at 1355,
We revisited the issue twenty-five years later in Beckwith. In Beckwith, the defendant, again citing the applicable Iowa statute related to juror disqualification, argued the district court erred in refusing to grant defendant’s challenge for cause with respect to two potential jurors who expressed possible difficulty in giving the defendant a fair trial.
2. Evolving approach of the United States Supreme Court under federal law. Over the years, the United States Supreme Court has considered on a number of occasions whether a defendant has rights under the United States Constitution that are implicated by state-provided rights to peremptory challenges. In Swain v. Alabama, the Court considered the exercise of peremptory challenges to remove African-Americans from the jury.
[t]he function of the challenge is not only to eliminate extremes of partiality on both sides, but to assure the parties that the jurors before whom they try the case will decide on the basis of the evidence placed before them, and not otherwise.
Swain,
In Davis v. Georgia,
■ The - Supreme Court next considered whether an improper granting of a motion to strike offended the Sixth and Fourteenth Amendments of the United States Constitution in Gray v. Mississippi,
The United States Supreme Court, however, employed different reasoning only á year later in Ross v. Oklahoma,
Unlike in Gray, the Ross majority determined the focus of the inquiry on the question of prejudice was not on the nature of the jury panel, but was on whether the jury that was actually seated was impartial. Id. at 90,
There was, howevér, an intriguing footnote in Ross. In footnote 4, the Ross majority stated it was' not deciding, in the absence of Oklahoma’s limitation on the “right” to exercise peremptory challenges, whether “a denial or impairment” of the exercise of peremptory challenges occurs if the defendant uses one or -more challenges to remove jurors who should have been excused for cause. Id. at 91 n.4,
. 3. Impact of federal law on state law: reversal of course in Neuendorf. The claims in Ross were brought solely under the Sixth (impartial jury) and Fourteenth (due-process)-Amendments to the United States Constitution. Id. at 83,
The defendant in Neuendorf asserted the trial court should have disqualified a potential juror for cause and, as a result, reversal of his conviction was required under Iowa statutes and rules governing jury selection and peremptory strikes.
4. Subsequent United States Supreme Court cases regarding juror disqualification under federal law. Subsequent to Neuendorf, the United States Supreme Court in United States v. Martinez-Salazar considered a case in which a defendant argued a trial court’s failure to disqualify jurors for cause violated his right under Federal Rule of Criminal Procedure 24(b) and his due process rights under the United States Constitution.
The Martinez-Salazar Court repeated the Court’s prior statements that “peremptory challenges are not of federal constitutional dimension.”
There was, however, an intriguing suggestion in a concurring opinion by Justice Souter. Id. at 317,
whether it is reversible error to refuse to afford a defendant a peremptory challenge beyond the maximum otherwise allowed, when he has used a peremptory challenge to cure an erroneous denial of a challenge for cause and when he shows that he would otherwise use his full complement of peremptory challenges for the noncurative purposes that are the focus of the peremptory right.
Id. at 317-18,
The United States Supreme Court again considered federal law claims arising from alleged infringement on peremptory challenges in Rivera v. Illinois,
5. State court responses to Ross-Martinez-Salazar-Rivera line of cases under state law. After Ross, Martinez-Salazar, and Rivera, state courts considering challenges to jury disqualification under the Sixth and Fourteenth Amendments were, of course, required to follow the United States Supreme Court precedent. As the Court has repeatedly emphasized, state courts are not required to follow these cases in the interpretation of state
Although not required to do so, some states have elected to follow the Ross-Martinez-Salazar-Rivera line of cases ih their interpretation of state law. After Martinez-Salazar, the South Dakota Supreme Court declared there was no principled basis for interpreting a court rule governing peremptory challenges more broadly than a federal constitutional right. State v. Verhoef,
A number of states, however, have declined to follow the ■ Ross-Martinez-Salazar-Rivera line and have followed an approach to state law interpretation more consistent with Gray,
There is a third approach to the problem of harmless' error when a district court erroneously fails to disqualify a potential juror. For example, Texas has long adhered to the view that harm may be shown if the district court erred in excluding a potential juror, the defense exhausts all peremptory challenges, and the defense identifies a seated juror upon whom the defense would have exercised a peremptory challenge. See Johnson v. State,
' Florida has a similar rule. In Trotter v. State, the Supreme Court of Florida, citing prior precedent, emphasized that to show reversible error arising from an erroneous refusal of the trial court to disqualify a potential juror for cause, a defendant must show “all peremptories had been exhausted and that an objectionable juror had
6. Mootz and the revival of‘peremptory challenges and per se prejudice. We recently considered -a question regarding juror selection in Mootz,
On further review, we concluded Mootz had legitimate reasons for striking the juror and the district, court erred in refusing to- allow him to use a peremptory strike to exclude the juror. Id. at 220. We stated-the issue before us in the case was what remedy to provide when a defendant is wrongfully prohibited , from using a peremptory strike on a particular juror and the juror is ultimately seated. Id. at 221.
In considering the issue, we distinguished our prior cases, noting that in - Mootz the court allowed a juror to sit on a jury when the defendant properly objected. Id. at 222. We emphasized that .in Mootz, the jury included “a juror.-, that Mootz found objectionable and who he had every right to remove from the jury.” Id. at 224. We noted that without presuming prejudice we could not conceive of any situation in which a defendant might show prejudice arising out of the wrongful denial of a peremptory challenge when the juror was not removable by a challenge for cause. Id. at 225. We noted Rivera expressly left to the states to decide “whether the ‘mistaken denial of a peremptory challenge is reversible error, per.se’” under state law. Id. at 225 (quoting Rivera,
Justice Wiggins concurred., Id. at ■ 226 (Wiggins, J., concurring specially). He noted, however,, .the reasoning of the Mootz majority logically extended to situations in which a potential juror should have been disqualified for cause but the defendant was forced to use a peremptory strike, Id. According to Justice Wiggins, a defendant forced to use a peremptory strike when a potential juror, should have been disqualified for cause is in the same position -as a defendant who sought to exercise a peremptory strike on a potential juror which the court wrongly denied. Id.
Thus, in Mootz', unlike in Neuendorf, we declined to adopt the minimum floor of constitutional protections provided by the United States Constitution to-dictate our interpretation of state law. Mootz emphasizes the fundamental role that peremptory challenge has played in the jury selection process.
7. Discussion. The question of prejudice in cases involving improper denial of challenges to potential jurors for cause has obviously confounded the courts for some time. Upon reviewing, the multiple options under the caselaw and our recent holding in Mootz, we conclude the best option is to adopt the theory of prejudice outlined by the courts of Texas and Florida and at least suggested in Justice Souter’s concurrence in Martinez-Sglazar. Specifically, in order to show prejudice when the district court improperly refuses to disqualify a potential juror under Iowa Rule of Criminal Procedure 2.18(5)(⅞) and thereby Pauses a defendant to expend a peremptory challenge under rulé 2.18(9), the defendant must specifically ask the court for an additional strike of a particular juror after his peremptory challenges have been exhausted.
This three-pronged approach discourages a defendant who is satisfied'with a jury notwithstanding judicial error in failing to strike a potential juror for ’cause from engaging in a sandbagging approach of awaiting the'results of a jury verdict before crying foul. See Trotter,
'Under our approach, Neuendorf remains good law where a judge improperly denies a challenge for cause’ but the defendant does not specifically ask for an additional peremptory challenge of a particular juror after exhausting his peremptory challenges under the rule. When a defendant identifies a particular juror for an additional peremptory challenge and the district court denies th'e additional peremptory challenge, however, the defendant is in
In this case, Jonas did not identify an additional juror who the defense sought to remove from the jury through the exercise of an additional peremptory challenge. As a result, the actual prejudice test of Neuendorf, rather than the automatic prejudice test of Mootz, controls. As a result, the defendant cannot succeed in this appeal.
IV. Conclusion.
. For the above reasons, we affirm the judgment of the trial court on the issue of juror disqualification. On all other issues, the decision of the court of appeals stands.
AFFIRMED.
Notes
. Rule 2.18(5)(fc) provides, in relevant part, a challenge for cause may be made by the state or defendant if the juror has “formed or expressed such an opinion as to the guilt or innocence of the defendant as would prevent the juror from rendering a true verdict upon the evidence submitted on the trial." Iowa R. Crim, P. 2,18(5)(7c). Rule 2.18(9) grants ten peremptoty strikes to each party in cases involving Class "A” felonies. Id.
. The.string cite of cases in Neuendorf,
At least five of the cases cited in Neuendorf were simply following Ross as required by the Supremacy -Clause expressly with respect to Sixth and Fourteenth Amendment claims, provide no resolution of state law claims, hnd thus do not represent an independent decision to adopt Ross in the application of state law. See People v. Pride,
In another nine of the cases cited in Neuen-dorf,'the cases include no discussion'of any kind on the question of whether Ross should be adopted under state law, See Pickens v. State,
Some cases, cited in Neuendorf did not, in fact, follow Ross but had their own permutations, In Trotter v. State, the Florida court concluded that when a district court erroneously refused to disqualify a juror, the' defen- ' dant exhausted available challenges, and the defendant proposed that an additional juror ,bes stricken, the automatic prejudice rule still .applied,
The Neuendorf string-cite also fails to mention contrary cases that came to a different conclusion under state law. See, e.g., State v. Sexton,
. Even under the traditional automatic reversal rule, we held 'that a defendant must exhaust all peremptory strikes in order to challenge a district court’s failure to strike a potential juror for cause. See State v. Tyler,
Concurrence Opinion
(concurring specially).
I concur with the result of the majority opinion affirming Stephen Jonas’s conviction for second-degree murder. I write separately because I disagree with the majority’s conclusion that the district court abused its discretion by denying Jonas’s motion to disqualify the juror for cause. In my view, the district court acted within its discretion. I would affirm Jonas’s conviction on that basis and leave the rest of the majority’s discussion for another case and another day.
A prospective juror must be dismissed for cause when he or she has “formed or expressed such an opinion as to the guilt or innocence of the defendant as would prevent the juror from rendering a true verdict upon the evidence submitted on the trial.” Iowa R. Crim. P. 2.18(5)(⅛). Jonas failed to establish disqualification was required under that standard. It is undisputed this prospective juror did not know Jonas or the victim or anything about the case, and Jonas makes no claim this person or anyone close to him ever had a bad experience with a gay person. Nothing in this prospective juror’s life experience disqualified him. Nothing he said showed he was unable to decide the case based on the evidence and the court’s instructions. To the contrary, when the trial judge asked if he was “going to be able to follow what the law says,” he unequivocally answered, “Yes.”
Some citizens summoned for jury duty look for a way out. Trial judges risk a mass exodus for the door if they are too quick to excuse prospective jurors based on asserted inconvenience or vocalized angst about a type of claim or lifestyle.
On the questionnaire, he expressed concern about being away from work for the expected duration of the trial likely to extend into a second week, explaining, “I schedule ... trucks across the country. It
The first part of voir dire was conducted by the prosecution. Even after reminding the prospective juror that the defendant was gay, the prosecution drew no troubling responses at all. The prospective juror concluded his answers by agreeing that he would make a good juror because he would keep an open mind.
The second part of the voir dire was conducted by defense counsel. The prospective juror at this stage admitted that “somewhere in the back something is going to come up,” and the defendant “probably would have better jury selection than myself.” At this point, the prosecution came back and asked more questions, but the juror continued to say that the defendant “would probably do better with someone else” and “something would come up in the back of my mind.” •
The court took over questioning but received essentially the same answers: (1) “there could-be something in the back of my mind,” and (2) the defendant “would probably do better without me on the jury.” Yet the juror also confirmed he would follow the law and the evidence.
On this cold record, I see no abuse of discretion by the trial judge. As the trial judge said in denying the defense’s motion to strike for cause,
[M]y problem is he has said that he’s going to have it in the back of his mind and that this defendant would be better off not having him as a juror. After he said that, he still continues to express the opinion that he could be fair and unbiased] and be able to try a fair case.
This ruling seems to me entirely defensible. The test on a for-cause challenge should not be whether a prospective juror has something “in the back” of their mind or whether one of the parties would “do better” with a different juror. Those are precisely the kinds of answers that ought to trigger the use of a peremptory strike, but they are not enough to mandate that a juror be excused for cause. All of us walk around with our own notions, biases, and experiences and, in any given case, would make a better juror for one side rather than the other. That is what peremptory strikes are for.
Furthermore, the trial judge, a veteran of many jury trials, made this judgment call denying disqualification based not on the cold transcript we review, but rather on his personal observations and interactions with the prospective juror. For good reasons, appellate courts traditionally and quite appropriately defer to the trial court’s superior vantage point, and we therefore review rulings on motions to disqualify jurors under the abuse-of-discretion standard. See State v. Tillman,
Reviewing courts are properly resistant to second-guessing the trial judge’s estimation of a juror’s impartiality, for that judge’s appraisal is ordinarily influenced by a host of factors impossible to capture fully in the record—among them, the prospective juror’s inflection, sincerity, demeanor, candor, body language, and apprehension of duty.
Skilling v. United States,
We do not live in a world where prospective jurors under questioning make clean responses that automatically eliminate all doubt about .their fairness (and I might be worried about the candor of jurors who gave such responses). As the United States Supreme Court has recognized,
The testimony of each of the three challenged jurors is ambiguous and at times contradictory. This is not unusual on voir dire examination, particularly in a highly publicized criminal case. It is well to remember that the lay persons on the panel may never have been subjected to the type of leading questions and cross-examination tactics that frequently are employed, and that were evident in this case. Prospective jurors represent a cross section of the community, and their education and experience vary widely; Also, unlike witnesses, prospective jurors have had no briefing by lawyers prior to taking the stand. Jurors thus cannot be expected invariably to express themselves carefully or even consistently. Every trial judge understands this, and under our system it is that judge who is best situated to determine competency to serve impartially. The trial judge properly may choose to believe those statements that were the most fully articulated or that appeared to have been least influenced by leading.
Patton,
While I do not think precedents are all that helpful in this area of trial judge discretion, I would note the following cases in which appellate courts have affirmed rulings denying disqualification for cause of jurors in criminal trials of gay, defendants despite the juror’s personal feelings against homosexuality. See, e.g., United States v. Elfayoumi,
The majority relies on readily distinguishable cases to support its conclusion that the district court abused its discretion. Morgan v. Illinois held a trial court could not refuse inquiry into whether potential jurors would automatically impose the death penalty upon conviction of the defendant, regardless of whether they stated, they .would “follow the law.”
I respect the opinion of jurists who refrain from rehabilitating jurors challenged for cause. See generally Mark W. Bennett, Unraveling the Gordian Knot of Implicit Bias in Jury Selection: The Problems of Judge-Dominated Voir Dire, the Failed Promise of Batson, and Proposed Solutions, 4 Harv. L. & Pol’y Rev. 149, 160 (2010) (noting jurors almost always say what they think the judge wants to hear). But “lawyers may have an incentive to keep a juror whose biases increase the lawyer’s chances of winning.” Id. at 166. Some judicial intervention may be appropriate when the lawyer-advocates conduct voir dire through leading questions or other tactics seeking a jury favorable to their client. I defer to the trial judges to best decide how to engage prospective jurors. See State v. Barrett,
The prosecution could have and perhaps should have avoided this appeal issue altogether by consenting to the dismissal of the prospective juror who Jonas challenged for cause. But it is not our role to second-guess the State’s decision not to join in Jonas’s for-cause challenge. Regardless, Jonas removed the juror by using one of his ten peremptory challenges, so the challenged juror did not sit.
For all these reasons, I would decide this case by holding the district court acted within its discretion in denying Jonas’s motion to strike the prospective juror for cause.
. The district court appropriately conducted individual voir dire outside the presence of other prospective jurors in this highly publicized first-degree murder trial with a prominent victim. In routine cases, Iowa courts appropriately conduct more time-efficient group voir dire in which prospective jurors can respond to common questions with a show of hands. The trial judge can read the room and observe the reactions of prospective jurors.