Iowa Supreme Court oral argument recap: Justices see a problem with jury selection, but no easy solution

By: Rox Laird on February 14th, 2017

It’s not often a lawyer can predict the outcome of a case based on an appellate court oral argument. But more than one Iowa Supreme Court justice readily acknowledged Tuesday that Des Moines attorney Gary Dickey exposed a constitutional problem with Iowa’s process for selecting juries.

The problem was illustrated in a Black Hawk County criminal case involving a black defendant where the pool of 56 potential jurors included just one African-American.

Based on an Iowa Supreme Court’s 1992 precedent in State v. Jones, that is an acceptable ratio for a community whose population includes 9 percent African-Americans. (Go to our earlier post for more background on State v. Plain.)

As a result, Dickey argued before the court, under that 1992 precedent, it is statistically possible – in Black Hawk County or virtually anywhere else in Iowa for that matter – for a jury pool with zero blacks to meet the Sixth Amendment requirement that juries reflect a cross-section of the community.

Justice Edward Mansfield posed the first question: I agree, you have identified a problem. The question is what standard should be applied?

Dickey: We specifically ask this Court to eliminate the absolute racial disparity standard [adopted in Jones]. We would say that comparative disparity or standard deviation would be most appropriate.

Justice Daryl Hecht: How much data on the racial disparity of jury pools does the trial court need?

Dickey: The more the better. Look over time to determine procedures that are systemically a problem.

Justice David Wiggins: Do you look at the pool over a year, or each pool as assembled for each defendant?

Dickey: You can do both, case by case and over time.

Justice Bruce Zager: Nobody disagrees with the proposition that we have a problem with the disparity of jury panels. If we say district courts must use another test, what do we do in the intervening two or three years while we come up with a reasonable solution?

Dickey: Overrule Jones and explain why other analyses are relevant. As for the larger policy issue, maybe we have a real problem with jury venires and we will have to throw out and retry cases. It is not an excuse to abandon constitutional rights because there is not an easy fix.

Assistant Attorney General Louis Sloven, arguing the case for the State: I don’t know how we can overrule Jones. The Court should avoid the constitutional question.

Mansfield: Eventually we’re going to overrule Jones . . . maybe (adding the “maybe” after his statement prompted some courtroom laughter). It strikes me as statistically flawed. If so, why don’t we go to a better system?

Sloven: The result in Black Hawk County was statistically acceptable.

Wiggins: Looked at over time?

Sloven: Looked at over time.

Wiggins: We’ve had this problem for a long time. Isn’t it incumbent on the state to look into it?  Why not overrule Jones as a good start?

Sloven: Jones makes sense for a single jury pool.

Mansfield: Shouldn’t we go to something more sound?

Sloven: It is not enough to show numerical disparity in a single jury pool. A systematic problem must be shown. Something the state is doing that produces disparity.

Zager: We have to work harder to get more people [representing minority groups] involved in juries; that is the appropriate response.

Sloven: I share the concern. It’s an important problem to address.

It’s not clear whether the Court will overrule its precedent in this case. It was clear from the questions and comments from the justices, however, that Iowa’s process of selection juries is ripe for review.

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On Brief is devoted to appellate litigation, with a focus on the Iowa Supreme Court, the Iowa Court of Appeals, and the United States Court of Appeals for the Eighth Circuit.
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