fair cross-section requirement in Iowa

2025To show a violation of the fair-cross-section requirement, under Duren v. Missouri, 439 U.S. 357, 364 (1979), an individual must establish: (1) that the group alleged to be excluded is a “distinctive” group in the community; (2) that the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) that this underrepresentation is due to systematic exclusion of the group in the jury-selection process.

2023But Duren itself explicitly makes clear that membership is not a requirement, stating, “A criminal defendant has standing to challenge exclusion resulting in a violation of the fair-cross-section requirement, whether or not he is a member of the excluded class.” 439 U.S. at 359 n.1; see also Taylor, 439 U.S. at 9 We review constitutional issues de novo.

2021As our supreme court explained in State v. Plain: [A] defendant can establish a prima facie violation of the fair cross- section requirement by showing (1) that the group alleged to be excluded is a ‘‘distinctive’’ group in the community; (2) that the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) that this underrepresentation is due to systematic exclusion of the group in the jury-selection process. 898 N.W.2d 801 , 821–22 (Iowa 2017) (quoting Duren v. Missouri, 439 U.S. 357,

2020Shortly after Gibson filed his notice of appeal, the Iowa Supreme Court decided State v. Lilly, 930 N.W.2d 293 (Iowa 2019), and State v. Veal, 930 N.W.2d 319 (Iowa 2019), which together clarified the second and third prongs of the fair-cross- section analysis.

2022A 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)).

2022See 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).

2023I, § 10 (providing the right to “public trial by an impartial jury”); Taylor v. Louisiana, 419 U.S. 522, 530 (1975) (“We accept the fair-cross-section requirement as fundamental to the jury trial guaranteed by the Sixth Amendment and are convinced that the requirement has solid foundation.”).

2023I, § 10 (providing the right to “public trial by an impartial jury”); Taylor v. Louisiana, 419 U.S. 522, 530 (1975) (“We accept the fair-cross-section requirement as fundamental to the jury trial guaranteed by the Sixth Amendment and are convinced that the requirement has solid foundation.”).

2020The United States Supreme Court articulated a three-part test for establishing a prima facie violation of the fair cross-section requirement in Duren v. Missouri, 439 U.S. 357, 364 (1979), and our supreme court adopted the test in State v. Watkins, 463 N.W.2d 411, 414 (Iowa 1990).

2017In Duren v. Missouri, the Supreme Court defined a three-part test for establishing a violation of the fair cross-section requirement. 439 U.S. 357, 364 , 99 S. Ct. 664, 668 (1979); see also State v. Watkins, 463 N.W.2d 411, 414 (Iowa 1990).

2020Shortly after Gibson filed his notice of appeal, the Iowa Supreme Court decided State v. Lilly, 930 N.W.2d 293 (Iowa 2019), and State v. Veal, 930 N.W.2d 319 (Iowa 2019), which together clarified the second and third prongs of the fair-cross- section analysis.

2019That being said, we note that, while Shaw’s appeal was pending, the Iowa Supreme Court decided State v. Lilly, 930 N.W.2d 293 (Iowa 2019), and State v. Veal, 930 N.W.2d 319 (Iowa 2019), which together clarified the second3 and third4 prongs of the fair-cross-section analysis.

2020See State v. Jones, 490 N.W.2d 787, 793 (Iowa 1992) (expressly rejecting reliance on the comparative-disparity method and holding the absolute-disparity method “is the appropriate method to be used”), overruled in part by Plain, 898 N.W.2d at 826 ; see also Plain, 898 N.W.2d at 825 (indicating Jones resulted in the exclusive use of the absolute-disparity method); Thongvanh II, 494 N.W.2d at 683–84 (finding criminal defense counsel was not ineffective for failing to raise a fair-cross-section claim because the results of the absolute-disparity method prevented the PCR applicant from making a pr

2017In Thongvanh v. State, we decided a 0.18% absolute disparity between Asians selected for jury duty (0%) and Asians in the general population of a county (.18%) did not violate the fair cross-section requirement. 494 N.W.2d 679, 683 (Iowa 1993). i. Courts criticize the absolute disparity test.

2019The Court then went on, This Court . . . has never “clearly established” that jury- selection-process features of the kind on Smith’s list can give 12 rise to a fair-cross-section claim. . . . [I]n Duren, the Court understood that hardship exemptions resembling those Smith assails might well “survive a fair-cross-section challenge.” Id. at 333 , 130 S. Ct. at 1395 (citation omitted) (quoting Duren, 439 U.S. at 370 , 99 S. Ct. at 669 ).

2019The Court then went on, This Court . . . has never “clearly established” that jury- selection-process features of the kind on Smith’s list can give 12 rise to a fair-cross-section claim. . . . [I]n Duren, the Court understood that hardship exemptions resembling those Smith assails might well “survive a fair-cross-section challenge.” Id. at 333 , 130 S. Ct. at 1395 (citation omitted) (quoting Duren, 439 U.S. at 370 , 99 S. Ct. at 669 ).

2022State v. Williams, 929 N.W.2d 621 , 629 n.1 (Iowa 2019).

2021See State v. Spiker, 2021 WL 377120 , at *5 (Iowa Ct. App. Feb. 3, 2021) (“After a party objects, a ‘subsequent affirmative act amounting to an express or implied assent . . . ’ waives that objection.” (quoting State v. Schmidt, 312 N.W.2d 517, 518 (Iowa 1981)); State v. Escobedo, 573 N.W.2d 271, 277 (Iowa Ct. App. 1997) (“Nearly all error, including jury irregularities, may be waived.”); see also State v. Sage, 162 N.W.2d 502, 504 (Iowa 1968) (“A party to a criminal proceeding cannot assume inconsistent 929 N.W.2d 621, 630 (Iowa 2019) (“For Sixth Amendment purposes, the defendant must . . . s

2023See Dunbar v. State, 515 N.W.2d 12, 15 (Iowa 1994) (explaining that, to show prejudice, the applicant must “identify how competent representation probably would have changed the outcome”).

2022See, e.g., Harryman v. State, No. 14-1334, 2015 WL 4935640 , at *5 (Iowa Ct. App. Aug. 19, 2015) (“Nevertheless, an applicant may raise an ineffective-assistance-of-PCR- counsel claim on appeal from the denial of a PCR application. (citing Dunbar v. State, 515 N.W.2d 12 , 15–16 (Iowa 1994))). 13 court ruled only on the fair cross-section claim.7 Further, the PCR court never received arguments about opening statements that Harris now raises on appeal.8 As neither claim was properly preserved, we discuss them no further. 5.

2023See State v. Carroll, 767 N.W.2d 638, 645 (Iowa 2009) (“[C]ounsel has no duty to pursue a meritless issue.”).

2019See State v. Carroll, 767 N.W.2d 638, 645 (Iowa 2009) (“[C]ounsel has no duty to pursue a meritless issue.”). 4.

2017See State v. Knutson, 220 N.W.2d 575, 577 (Iowa 1974).

2017See State v. Knutson, 220 N.W.2d 575, 577 (Iowa 1974).

2020See State v. Jones, 490 N.W.2d 787, 793 (Iowa 1992) (expressly rejecting reliance on the comparative-disparity method and holding the absolute-disparity method “is the appropriate method to be used”), overruled in part by Plain, 898 N.W.2d at 826 ; see also Plain, 898 N.W.2d at 825 (indicating Jones resulted in the exclusive use of the absolute-disparity method); Thongvanh II, 494 N.W.2d at 683–84 (finding criminal defense counsel was not ineffective for failing to raise a fair-cross-section claim because the results of the absolute-disparity method prevented the PCR applicant from making a pr

2017Id. at 791–92.

2022This issue was apparently not pursued on direct appeal because, according to Harper, his appellate attorney told him that was something he had to raise in a postconviction-relief action. 2 See Batson v. Kentucky, 476 U.S. 79, 80 (1986) (“[T]he Equal Protection Clause forbids the prosecutor to challenge potential jurors solely on account of their race 5 A week before the postconviction-relief hearing was scheduled to begin, Harper requested a continuance until the supreme court decided Thongvanh v. State, 938 N.W.2d 2 (Iowa 2020) on further review.

2019Therefore, we conditionally affirm while remanding for further proceedings consistent with Lilly and this opinion. 1See Batson v. Kentucky, 476 U.S. 79 , 106 S. Ct. 1712 (1986). 3 II.

2022In 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).

1997“A defendant challenging the composition of a jury panel must first establish a prima facie violation of the sixth amendment’s fair cross-section requirement.” Id.

2022Indeed, 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)).

1997Rather, the Court considers the distinctiveness of a particular group in reference to the three purposes of the fair-cross-section requirement: (1) ensuring the composition of juries is not arbitrarily skewed so as to deprive a defendant of the “commonsense judgment of the community”; (2) maintaining the public’s confidence in the fairness of our jury system; and (3) giving effect to our conviction that “sharing in the administration of justice is a phase of civic responsibility.” Id. at 174-75 , 106 S.Ct. at 1765-66 , 90 L.Ed.2d at 148 -49 (quoting Taylor v. Louisiana, 419 U.S. 522, 534 , 95

2025“To prevail on a claim of ineffective assistance of counsel, the applicant must demonstrate both ineffective assistance and prejudice.” Ledezma v. State, 626 N.W.2d 134, 142 (Iowa 2001); see Strickland v. Washington, 466 U.S. 668, 687 (1984).

2025“To prevail on a claim of ineffective assistance of counsel, the applicant must demonstrate both ineffective assistance and prejudice.” Ledezma v. State, 626 N.W.2d 134, 142 (Iowa 2001); see Strickland v. Washington, 466 U.S. 668, 687 (1984).

2022In time, the State filed a motion for summary disposition, arguing Herron’s application was barred by the three-year statute of limitations contained in Iowa Code section 822.3 (2017), the second application was not promptly filed after the conclusion of the first proceeding within the meaning of Allison v. State,1 and Plain 1 See 914 N.W.2d 866, 891 (Iowa 2018) (holding that where a timely application is filed within the statute of limitations alleging ineffective assistance of trial counsel, the filing of a successive application that alleges ineffective assistance of postconviction counsel

2021See State v. Spiker, 2021 WL 377120 , at *5 (Iowa Ct. App. Feb. 3, 2021) (“After a party objects, a ‘subsequent affirmative act amounting to an express or implied assent . . . ’ waives that objection.” (quoting State v. Schmidt, 312 N.W.2d 517, 518 (Iowa 1981)); State v. Escobedo, 573 N.W.2d 271, 277 (Iowa Ct. App. 1997) (“Nearly all error, including jury irregularities, may be waived.”); see also State v. Sage, 162 N.W.2d 502, 504 (Iowa 1968) (“A party to a criminal proceeding cannot assume inconsistent 929 N.W.2d 621, 630 (Iowa 2019) (“For Sixth Amendment purposes, the defendant must . . . s

2021See State v. Spiker, 2021 WL 377120 , at *5 (Iowa Ct. App. Feb. 3, 2021) (“After a party objects, a ‘subsequent affirmative act amounting to an express or implied assent . . . ’ waives that objection.” (quoting State v. Schmidt, 312 N.W.2d 517, 518 (Iowa 1981)); State v. Escobedo, 573 N.W.2d 271, 277 (Iowa Ct. App. 1997) (“Nearly all error, including jury irregularities, may be waived.”); see also State v. Sage, 162 N.W.2d 502, 504 (Iowa 1968) (“A party to a criminal proceeding cannot assume inconsistent 929 N.W.2d 621, 630 (Iowa 2019) (“For Sixth Amendment purposes, the defendant must . . . s

2021See State v. Spiker, 2021 WL 377120 , at *5 (Iowa Ct. App. Feb. 3, 2021) (“After a party objects, a ‘subsequent affirmative act amounting to an express or implied assent . . . ’ waives that objection.” (quoting State v. Schmidt, 312 N.W.2d 517, 518 (Iowa 1981)); State v. Escobedo, 573 N.W.2d 271, 277 (Iowa Ct. App. 1997) (“Nearly all error, including jury irregularities, may be waived.”); see also State v. Sage, 162 N.W.2d 502, 504 (Iowa 1968) (“A party to a criminal proceeding cannot assume inconsistent 929 N.W.2d 621, 630 (Iowa 2019) (“For Sixth Amendment purposes, the defendant must . . . s

2020See State v. Moore, 469 N.W.2d 269, 272 (Iowa Ct. App. 1991).

2019See State v. Sanderson , 182 Ariz. 534 , 898 P.2d 483 , 488 (Ct. App. 1995) ("Granting excuses based on the application of neutral criteria to prospective jurors' individual situations does not constitute systematic exclusion."); Douglas v. State , No. 2006-SC-000882-MR, 2007 WL 4462309 , at *7 (Ky. Dec. 20, 2007) (finding defendant's showing that 48% of potential jurors did not respond to their summonses did not prove that the pool was not a fair cross section of the community); People v. Wallace , No. 237115, 2003 WL 1439812 , at *7-8 (Mich. Ct. App. Mar. 20, 2003) (per curiam) (finding exem

2019See State v. Sanderson , 182 Ariz. 534 , 898 P.2d 483 , 488 (Ct. App. 1995) ("Granting excuses based on the application of neutral criteria to prospective jurors' individual situations does not constitute systematic exclusion."); Douglas v. State , No. 2006-SC-000882-MR, 2007 WL 4462309 , at *7 (Ky. Dec. 20, 2007) (finding defendant's showing that 48% of potential jurors did not respond to their summonses did not prove that the pool was not a fair cross section of the community); People v. Wallace , No. 237115, 2003 WL 1439812 , at *7-8 (Mich. Ct. App. Mar. 20, 2003) (per curiam) (finding exem