from the Iowa District Court for Cerro Gordo County, Rustin
T. Davenport Judge.
defendant appeals his convictions for first-degree murder and
attempted murder, challenging the jury pool and raising
several other claims of error. AFFIRMED ON CONDITION AND
REMANDED WITH DIRECTIONS.
J. Thomas, Mason City, for appellant.
J. Miller, Attorney General, Louis S. Sloven and Scott D.
Brown, Assistant Attorneys General, and Carlyle T. Dalen,
County Attorney, for appellee.
Russell E. Lovell, II, Des Moines, and David S. Walker,
Windsor Heights, for amicus curiae NAACP.
double homicide case presents important questions concerning
a defendant's right to an impartial jury drawn from a
fair cross section of the community, as well as a number of
other trial-related issues. The defendant, an
African-American, was charged with committing two murders in
Cerro Gordo County and attempting to commit a third. Because
of pretrial publicity he asked for a change of venue, and the
trial was moved to Webster County. Although the Webster
County jury venire contained five African-Americans, no
African-American was seated on the jury that actually heard
the defendant's case. The State exercised a peremptory
strike on the last remaining African-American on the panel
because the State's lead prosecutor in this case had also
prosecuted her father successfully for murder. Following a
jury trial, the defendant was convicted.
appeal, we affirm the district court's ruling that there
was no Batson violation in the striking of the
juror. We also reject the defendant's
claims of a speedy trial violation, prosecutorial error,
evidentiary error, lack of competence to stand trial, and
insufficient evidence to sustain his convictions. However, we
believe further consideration of the defendant's
fair-cross-section claim is warranted in light of the
decision we are filing today in State v. Lilly, ___
N.W.2d ___ (Iowa 2019). Therefore, we conditionally affirm
while remanding for further proceedings consistent with
Lilly and this opinion.
Background Facts and Proceedings.
about 2:00 a.m. on November 17, 2016, Mason City police
officer Jennifer Barr was on patrol when she received a call
from the dispatcher. An individual named Ron Willis, calling
from outside Caleb Christensen's house, reported that
Peter Veal had shot Willis's cousin and hit Willis on the
head with a pistol. While en route to the location identified
by the dispatcher, Officer Barr saw Veal walking in her
direction. Veal was wearing a "light green coat,"
jeans, and a hat. Veal stopped when Officer Barr began to
pull her patrol vehicle over. As soon as Officer Barr
directed her spotlight toward Veal and made eye contact with
him, he took off running. Officer Barr tried to pursue Veal
but was unable to locate him.
Veal was subsequently apprehended, he was shirtless and
hatless, and it was apparent that his hands and jeans were
very bloody. Veal also had mist drops of blood on his face.
Veal had a cut on his hand, which he claimed to have received
from jumping a fence, although the cut was on the top-not the
bottom-of his hand.
at Christensen's house, two people were dead. Melinda
Kavars, Willis's cousin, was dead from a single gunshot
wound. Christensen had been stabbed to death as a result of
multiple knife wounds. The semiautomatic handgun used to kill
Kavars was found at the scene with a jammed cartridge inside.
police spotted Willis outside Christensen's house. He was
shaking, sobbing, and crying. He informed police that Veal
had shot Kavars and had tried to shoot him but the gun had
malfunctioned. Willis explained that he had run out of the
house. He expressed concern for the fate of Christensen.
Willis had a cut on the top of his head where he said Veal
had struck him with the gun.
was a bloody trail beginning in the house that continued all
the way to the location where Veal was apprehended. Along the
trail, police found several items discarded by Veal-a hat, a
cellphone, a green jacket, a shirt, and a folding knife.
footprint analysis confirmed that the bloody footprints in
the house matched the shoes Veal had been wearing. There was
no trace or trail of blood out the door where Willis had
analysis confirmed the presence of Christensen's blood on
Veal's discarded knife and shirt. Christensen's blood
was also found on the jeans and shoes Veal was still wearing
when apprehended. Veal's shirt, jeans, and shoes also
contained evidence of his own blood.
analysis of the gun determined that Willis's skin tissue
was on the back of the slide. This was consistent with
Willis's claim that Veal had struck Willis with the gun
after it jammed when Veal tried to shoot Willis. The gun also
had DNA from an unknown contributor on the textured portion
of the pistol grip, but the sample was too weak to determine
the source of the DNA.
knew both Veal and Christensen. Willis later testified that
on November 16, at around 7:00 p.m., Willis received a call
from Veal, who wanted to hang out. Willis picked up Veal and
bought beer from a liquor store before the two of them
arrived at Christensen's home at around 8:00 or 8:30 p.m.
Willis introduced Veal to Christensen.
Willis and Veal left and went over to Kavars's home. As
noted, Kavars was Willis's cousin. She had invited Willis
over for an early Thanksgiving dinner. Willis introduced Veal
to Kavars. While at Kavars's house, Veal cut two lines of
methamphetamine with a pocket knife. Kavars and Veal inhaled
methamphetamine through a straw, and Willis smoked marijuana.
After about forty minutes, the three of them went over to
Christensen's house. They likely arrived after midnight.
Christensen's house, the four of them socialized in the
living room. Willis and Veal drank beer, Kavars drank Vodka,
and Christensen drank whiskey. Veal indicated at some point
that he was not feeling well. Willis told him to go outside
and get some fresh air. Veal left for about ten or fifteen
minutes. When he came back in, he sat down briefly, but then
he got back up and went to the bathroom.
thereafter, Veal returned from the bathroom and sat down.
Willis and Kavars were talking and laughing when suddenly
Willis saw Veal abruptly rise from his seat and shoot Kavars
in the throat with a pistol. Willis could not see the
location from which Veal had obtained the gun. Willis
observed blood coming from Kavars's throat, and he
watched her take her final breaths.
then turned the pistol on Willis. Willis pled with him not to
shoot. "I got kids, Peter," he told him. Veal
attempted to fire but the gun jammed. Veal hit Willis on the
right side of the head with the pistol.
was happening, Christensen was frozen on the couch. Willis
saw Veal trying to get the jammed round out of the pistol,
and Willis started running, believing Christensen would be
following him. By the time Willis reached the side exterior
door in the kitchen, the place was dark because the only lamp
being used in the house had gone out. Willis managed to
unlock the door in the dark and exit the house. The last
thing he heard Christensen say as he was departing was,
"What the f ___ are you doing?"
out of the home, Willis ran across the street and called 911.
Willis later saw Veal leave the house and run south. Willis
remained across the street and called some friends who
arrived and helped calm him down. When the police came,
Willis remained at the scene. He gave the police permission
to search his vehicle, and he agreed to go to the police
station to make a statement.
November 23, the State filed a trial information in the Iowa
District Court for Cerro Gordo County charging Veal with two
counts of first-degree murder for the deaths of Kavars and
Christensen and one count of attempted murder with respect to
Willis. See Iowa Code §§ 707.1,
.2(1)(a), .11 (2017). Because of the publicity
surrounding the case, Veal sought a change of venue, and the
trial was moved to Webster County.
parties appeared for trial on Monday, July 10, 2017. Of the
Webster County jury pool of 100 people who had returned juror
surveys, eighty-seven of them checked in at the courthouse
African-American. However, of those in the jury pool who
reported their ethnicity, only one juror had self-identified
as African-American, and she did not appear on July 10.
Webster County is approximately 4.6%
voir dire began, Veal objected to the jury venire. He alleged
a violation of his Sixth Amendment right to a fair trial
based on underrepresentation and systematic exclusion of
African-Americans from the jury selection process.
court initially gave the defense until later that day to
investigate its claim of underrepresentation and systematic
exclusion. Further discussions took place on the record
during the course of the day, and the court ultimately agreed
to conduct a hearing on July 11. Because July 10 was the
ninetieth day for speedy trial purposes, the court found good
cause to extend the speedy trial deadline to July 11.
attempt to increase the number of African-Americans in the
venire, the court summoned an additional jury pool to appear
on the 11th. The court also instructed the sheriff to contact
the jurors who had been summoned but had not appeared on the
the extra jury pool, there were 153 potential jurors
available at the courthouse on July 11. Five were
African-American. Meanwhile, defense counsel had
completed a historical review of jury questionnaires in
Webster County for all of 2016. They reported to the court
that the overall African-American percentage of Webster
County jury pools that year was approximately 1.3%. Veal
moved to strike the jury panel and dismiss the case, arguing
the State had systematically excluded and underrepresented
African-Americans in its jury pools in violation of the Sixth
Amendment and that it was too late to fix the problem given
the speedy trial deadline.
district court denied the motions, noting that the additional
pool had redressed to some extent the lack of
African-American jurors in the original pool. As the court
explained in its subsequent written ruling,
The Court denied Defendant's motion [to strike the jury
panel] based on both the second and third part of the
Duren [v. Missouri, 439 U.S. 357, 99 S.Ct.
644 (1979)] test. The Court found that with the addition of
Pool 2 and the availability of additional jurors who
self-identified as African-American, at least in part, that
the representation of African-Americans was fair and
reasonable. As to the third part of the Duren test,
the Court found that there was insufficient evidence that
there was systematic exclusion of African-Americans in the
jury selection process.
Jury selection then took place.
initial voir dire panel of thirty-four potential jurors
included three African-Americans. One had a prior felony
conviction in Iowa, was still on parole, and had been
prosecuted by the State's lead prosecutor. He was excused
for cause. See Iowa R. Crim. P. 2.18(5)(a)
(allowing a challenge for cause based on "[a] previous
conviction of the juror of a felony"). A second
potential juror also had a felony conviction, although from
another state. His civil rights had not been restored, and he
was excused for cause. See id.
final African-American potential juror was S.H. The
State's lead attorney had prosecuted S.H.'s father in
a prior case resulting in three class A felony convictions.
During voir dire, S.H. acknowledged that she had attended
part of the trial. The State exercised a peremptory challenge
on her. Although the defense lodged a Batson
challenge to the strike, the district court overruled the
challenge finding that the State had offered "a
sufficient nondiscriminatory reason for striking that
four days of presentation of evidence, a jury found Veal
guilty on all charges. On September 12, Veal was sentenced to
consecutive sentences of life without parole on the
first-degree murder charges and twenty-five years on the
attempted murder charge. See Iowa Code § 901.5;
id. § 902.1, .3, .9. Veal appealed, and we
retained the appeal.
Standard of Review.
review constitutional questions de novo. State v.
Plain, 898 N.W.2d 801');">898 N.W.2d 801, 810 (Iowa 2017). This includes
claims of systematic exclusion of a distinctive group from
the jury pool in violation of the Sixth Amendment.
Id. at 810, 821-29. It also includes Batson
challenges. See State v. Mootz, 808 N.W.2d
207, 214, 215-20 (Iowa 2012). Yet, we give "a great deal
of deference to the district court's evaluation of
credibility when determining the true motives of the attorney
when making strikes." Id. at 214; see also
State v. Griffin, 564 N.W.2d 370, 375-76 (Iowa 1997).
likewise review de novo a district court's decision
whether a defendant is competent to stand trial. See
State v. Lyman, 776 N.W.2d 865, 873 (Iowa 2010),
overruled on other grounds by Alcala v. Marriott
Int'l Inc., 880 N.W.2d 669, 708 & n.3 (Iowa
speedy trial area, "[w]e review a district court's
determination whether the State carried its burden to show
good cause for the delay for abuse of discretion."
State v. McNeal, 897 N.W.2d 697, 703 (Iowa 2017).
Also, "[w]e review a district court's decision on
claims of prosecutorial misconduct for abuse of discretion,
which occurs when 'a court acts on grounds clearly
untenable or to an extent clearly unreasonable.'"
State v. Coleman, 907 N.W.2d 124, 134 (Iowa 2018)
(quoting State v. Krogmann, 804 N.W.2d 518, 523
(Iowa 2011)). We review rulings on demonstrative evidence for
an abuse of discretion. See McNeal, 897 N.W.2d at
703. We also review evidentiary rulings regarding the
admission or exclusion of prior bad acts for abuse of
discretion. State v. Putman, 848 N.W.2d 1, 7 (Iowa
review challenges to the sufficiency of the evidence for
correction of errors at law. State v. Sanford, 814
N.W.2d 611, 615 (Iowa 2012). We review a denial of new trial
on the ground the verdict is contrary to the weight of the
evidence for abuse of discretion. State v. Ary, 877
N.W.2d 686, 706 (Iowa 2016).
maintains that the jury selection process used in Webster
County violated the Sixth Amendment requirement that juries
be drawn so as to represent a fair cross section of the
community. We addressed a similar claim today in
Lilly, ___ N.W.2d ___. In Lilly, the
defendant raised both the Sixth Amendment and article I,
section 10. Id. at ___. We applied the
Duren/Plain framework to these issues.
Id.; see also Duren, 439 U.S. at 364, 99
S.Ct. at 668; Plain, 898 N.W.2d at 822. We held that
under article I, section 10, a defendant establishes the
underrepresentation prong of the Duren/Plain
framework by showing that the representation of a distinctive
group in the jury pool falls below the representation in the
eligible juror population by more than one standard
deviation. Lilly, N.W.2d at ___. We held that the
representation of the group in the eligible juror population
should be assessed using the most current census data,
adjusted for any reliable data that might affect eligibility,
such as the numbers of persons under the age of eighteen.
Id. at ___. Lilly also held that
aggregated data on multiple jury pools could be used, so long
as the data were not selective. Id. at ___.
Additionally, Lilly held that a defendant whose jury
pool contains at least as high a percentage of the
distinctive group as the eligible population has not been
aggrieved under the Duren/Plain framework.
Id. at ___.
to the systematic-exclusion prong of Duren/Plain, we
reiterated in Lilly that the defendant must prove
"causation," that is, that the underrepresentation
actually resulted from a particular feature or features of
the jury selection system. Id. at ___. However, we
held that "run-of-the-mill jury management
practices" can, under appropriate circumstances,
constitute systematic exclusion. Id. at ___.
believe that Lilly's holdings are equally valid
when a case is decided under the Sixth Amendment, with two
exceptions. We are not persuaded that one standard deviation
would be enough to establish the underrepresentation prong
for federal constitutional purposes. In Castaneda v.
Partida, the United States Supreme Court seemingly
endorsed two to three standard deviations as an appropriate
threshold under the Fourteenth Amendment, and we are not
persuaded the Supreme Court would adopt a more lenient
standard under the Sixth Amendment. 430 U.S. 482, 496 n.17,
97 S.Ct. 1272, 1281 n.17 (1977). We believe a downward
variance of two standard deviations must be shown under the
are not persuaded that run-of-the-mill jury management
practices can constitute systematic exclusion under the Sixth
Amendment. In Berghuis v. Smith, the Supreme Court
Smith catalogs a laundry list of factors in addition to the
alleged "siphoning" that, he urges, rank as
"systematic" causes of underrepresentation of
African-Americans in Kent County's jury pool. Smith's
list includes the County's practice of excusing people
who merely alleged hardship or simply failed to show up for
jury service, its reliance on mail notices, its failure to
follow up on nonresponses, its use of residential addresses
at least 15 months old, and the refusal of Kent County police
to enforce court orders for the appearance of prospective
559 U.S. 314, 332, 130 S.Ct. 1382, 1395 (2010) (citations
omitted). The Court then went on,
This Court . . . has never "clearly established"
that jury-selection-process features of the kind on
Smith's list can give 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).
Veal's pool contained only five African-Americans out of
153 potential jurors. This 3.27% figure is below the
percentage of African-Americans in Webster County (4.6%) and
also below the percentage of eighteen-and-over
African-Americans in Webster County (3.9%). Turning to
the aggregate data, they show only thirty-five
self-identifying African-Americans out of 2637 persons who
responded to the juror questionnaire in Webster County in
2016. This is statistically significant even under the higher
Castaneda threshold. The odds of getting only
thirty-five successes out of 2637 trials with p of .046 are
4.05 X 10-21. As the State concedes in its brief,
"The odds of that occurring randomly . . . are very
low." This remains true even if the overall percentage
of African-Americans living in Webster County is adjusted to
account for the fact that a higher percentage of
African-Americans living in Iowa are under eighteen and
cannot serve on juries. See Lilly, ___ N.W.2d at
___. The odds of getting only thirty-five successes out of
2637 trials with p of .039 in that case are 2.29 X
10-15. Other adjustments, such as for the Fort
Dodge prison population or for individuals of mixed race,
likely would not alter the bottom line revealed by the
note that Veal's counsel aggregated data from jury
questionnaires for 2016 only. Veal's trial actually took
place in July 2017. The record does not indicate whether
similar data were available for the first half of 2017. We
cautioned in Lilly that aggregate data cannot be
gathered selectively. See id. at ___. Thus, if data
were readily available for the first half of 2017, it would
be inappropriate to exclude them.
did not attempt to meet the third prong of
Duren/Plain other than by arguing that systematic
exclusion can be inferred from the 2016 aggregated data. As
we explained in Lilly, that is not enough.
Id. at ___. The defendant must identify some
practice or combination of practices that led to the
underrepresentation, and it must be something other than the
"laundry list" the Supreme Court declined to
condemn in Berghuis. See 559 U.S. at 332,
130 S.Ct. at 1395.
Plain and Lilly, we believe the appropriate
course of action here would be to remand the case. Neither
the parties nor the district court had the benefit of
today's decisions. A remand will offer Veal a further
opportunity to develop his arguments that his Sixth Amendment
right to an impartial jury was violated. If the district
court concludes a violation occurred, it shall grant Veal a
Speedy Trial Claim.
next argues his rule 2.33 right to a speedy trial was
violated. See Iowa R. Crim. P. 2.33(2)(b).
Veal's argument centers on a one-day delay that occurred
from July 10, 2017, to July 11, 2017, while the parties
litigated the fair-cross-section claim.
begin by reviewing the relevant dates. The trial information
was filed November 23, 2016. Trial was originally scheduled
for January 24, 2017. Veal never waived speedy trial.
December 30, 2016, Veal applied for a psychiatric evaluation
of himself at state expense. On January 4, the court
suspended proceedings and ordered such an evaluation. The
evaluation was filed on February 28. The evaluator
recommended that Veal be referred to the forensic psychiatric
hospital for restoration of competency. On March 3, the court
approved the referral and continued the suspension of
proceedings. On May 15, the reports of two professionals were
filed concluding Veal was now competent to stand trial. On
May 23, the court found that Veal's competency had been
restored and vacated the suspension of proceedings. The court
reset trial for June 26.
counsel shortly thereafter moved to continue trial from June
26 to July 10 based on counsel's unavailability. The
State did not oppose this request, and the court granted it.
Everyone agreed that July 10 was the last available date
within the ninety-day speedy trial window, taking into
account the date the trial information was filed and
excluding the time spent addressing Veal's competency.
morning of July 10, the court convened proceedings intending
to begin the trial. Veal's counsel observed there were no
minorities and sought until the afternoon to explore racial
disparity and systematic exclusion in the jury venire.
Further discussions occurred later that morning and
Veal's counsel asked for additional time past the 10th to
investigate systematic exclusion. The State resisted the
request. It noted that Veal had been in possession of the
list of potential jurors earlier and could have raised the
fair-cross-section claim before the day of trial. The State
also asked the court to find good cause for extending the
ninety-day deadline if it granted more time.
court decided to give Veal's counsel until the following
day, i.e., the 11th, to conduct research and discovery on the
fair-cross-section claim. On the question of speedy trial,
the court ruled,
THE COURT: To grant the motion to -- to allow time to do
discovery and make a further record regarding whether an
under-representation is due to the systematic exclusion of a
group in the jury selection process necessarily requires
trial to begin after the 90 days. I think there has to be a
conscious choice of that or at least be aware of that.
So given those situations, that they're really in
conflict, counsel for the defendant, I just want to, you
know, understand for the record, knowing that you're at
the 90th day, you are asking for additional time to do
further discovery or present further arguments on this matter
to extend -- and that would extend this case past 90 days. Is
that your position? MR. KLOBERDANZ: Yes, Your Honor.
THE COURT: All right. And you've discussed that with your
client also? MR. KLOBERDANZ: Yes, Your Honor, we have.
THE COURT: All right. Based upon that record, I will agree to
give defense counsel additional time. I find, however, that
there is good cause shown for extending the time to present
this case for trial:
As Mr. Brown has said about four times, the State is ready to
proceed here today. The jury panel was here. We were ready to
begin the case. The jury panel is coming back at 1:00, so we
could continue the case yet today;
That the circumstances where Defendant's motion was first
raised on Friday of last week [July 7], frankly, without any
time for any of us to do anything about it, and then raised
today, makes the situation where it would have been
impossible to deal with this matter before the conclusion of
the 90 days;
That this is the defendant's motion with full knowledge
that this would require trial to begin after 90 days.
And in light of that, the defendant has chosen to seek the
additional time to exercise his rights under the
Plain case to do some further discovery; and,
therefore, I think that the -- any delay in the case would --
would be attributable to the defendant and there'd be
good cause for -- for not getting this case tried within 90
next day, July 11, a second pool of potential jurors had been
summoned to add to the first pool. Veal, meanwhile, provided
additional data based on jury pools in Webster County for all
of 2016 and formally moved that his jury venire be stricken
as not reflecting a fair cross section of the community. In
addition, Veal moved for dismissal of the case based on
violation of his speedy trial rights, reasoning that it was
the State's duty to provide a jury panel representing a
cross section of community within the ninety-day deadline.
The court denied both motions, reiterating on the speedy
trial issue that "there was good cause to go past the 90
days." At this point, the parties proceeded with jury
Rule of Criminal Procedure 2.33(2)(b) provides,
If a defendant indicted for a public offense has not waived
the defendant's right to a speedy trial the defendant
must be brought to trial within 90 days after indictment is
found or the court must order the indictment to be dismissed
unless good cause to the contrary be shown.
good cause determination focuses on "the reason for the
delay." McNeal, 897 N.W.2d at 704 (quoting
State v. Winters, 690 N.W.2d 903, 908 (Iowa 2005)).
Yet we also consider "surrounding circumstances such as
the length of the delay, whether the defendant asserted his
right to a speedy trial, and whether prejudice resulted from
the delay." Id. Here the delay was only one
day, it was precipitated by the defendant's request for
more time to investigate and present evidence on the
fair-cross-section issue, and the defendant cites no
prejudice that resulted from this single-day postponement. In
our view, the district court carefully balanced a number of
concerns. "[P]utting ourselves in the shoes of the
district judge," we find no abuse of discretion. See
id. at 708.
denies there was good cause for any delay. Treating the
judicial branch and the county attorney's office
collectively as "the State," Veal maintains it was
the State's obligation not just to be ready to try the
case on July 10, but also to have a jury pool meeting
constitutional standards available that day. Thus, Veal's
argument would effectively transform any
fair-cross-section violation not remedied before the
ninety-day deadline into a speedy trial violation.
cites no authority for his effort to conflate substantive
legal claims with speedy trial violations. We are not
persuaded. By Veal's logic, any time we find on appeal
that a defendant is entitled to a new trial, we should also
find that "the State" violated the defendant's
speedy trial rights by committing a legal error that resulted
in a new trial beyond the ninety-day deadline. This would go
contends the district court erred in overruling his
Batson challenge to the State's exercise of a
peremptory strike on an African-American prospective
juror. Batson holds that a defendant may establish a
prima facie case of racial discrimination by showing that the
prosecutor has exercised one or more peremptory challenges to
remove from the venire members of a racial minority and that
these facts and other relevant circumstances raise an
inference of discrimination. See Batson v. Kentucky,
476 U.S. 79, 96-98, 106 S.Ct. 1712, 1723-24 (1986). Such a
showing shifts the burden to the prosecution to come forward
with a race-neutral explanation for exercising the
voir dire of this juror, the lead prosecutor recognized her
as the daughter of a person he had prosecuted successfully
for three class "A" felonies. The juror had
attended two days of her father's trial. The juror stated
during voir dire that she believed her father was treated
fairly. She conceded he was "involved" in the
crimes but said she did not "know for sure if he was the
State exercised one of its peremptory strikes on this juror.
Veal's counsel objected on the basis of Batson
and the prosecutor provided the following explanation:
So I'll tell you why we struck Ms. [H.]. Ms. [H.] is the
daughter of [S. H.]. I prosecuted [S. H.] for three class A
felonies in this county; kidnapping, sexual abuse, and
murder, all in the first degree. It was a very high-profile
case, a very brutal killing . . . .
At the time of the -- the crime -- I can't tell you the
year or the date. I do lose dates -- but Ms. [H.], I believe,
was right around the age of 17 years old. I vaguely remember
her being present at least at part of the -- if it wasn't
the trial, it would have been part of the pretrial
proceedings. She was with her mother . . . .
. . . .
I mean, I can't keep a juror on whose father I prosecuted
for a class A felony. I mean, there -- there -- she may have
latent hostility towards me personally because of what I did.
Her expressions that she made on the -- on the record, she
said that his sentence was fair. She doesn't appear to
have a whole lot of contact with him; but that's not a
risk I can take, particularly under the circumstances of this
We have -- The allegation is that Mr. Veal killed two people.
At least based in part on what our expert has said, he may be
blaming a -- a second person, may be blaming Ron Willis,
claiming that he didn't -- that Mr. Veal's claiming
that he didn't do the crime that he's accused of.
And Ms. [H.] raised that issue with me concerning the
fairness and what she thought about the trial of her father,
[S. H.], whenever she said somebody else might have been
I can tell you right now, in the [S. H.] case, no one else
was involved. We had strong physical evidence against him
that he was the sole perpetrator of those three crimes.
That's what concerns me about Ms. [H.]. I think those are
race-neutral reasons to strike her.
If she were white, I would make the exact same objection to
having her -- or make the same exact strike that I would. And
it -- this has nothing to do with her race; it has everything
to do with her background and who her father is and the fact
that I was directly involved in that case and that
prosecution. So for those reasons, that's why we
exercised our preemptory challenge.
One other thing I would tell you is we did wait to the end to
strike her with No. 10 because I thought the defense might
actually challenge her for the same reason; that she had, you
know, had this -- this connection to a previous high-profile
violent crime here in the county. I could see actually how
that they could maybe justify a preemptory strike on that
basis, as well. I thought that would alleviate this problem
of having to articulate why we're doing it; but
apparently that didn't happen, so that's why we took
her with No. 10.
Just don't want you to read anything else into that.
That's why we waited till the end. So those are our
reasons, and we would ask that our strike be upheld.
counsel did not question the State's motive for striking
this juror, but argued that her voir dire responses gave no
indication of bias. Because this juror was the last available
African-American juror, defense counsel "ask[ed] the
Court to hold the State to a very high standard given the
district court overruled Veal's Batson
Prosecution of a potential juror's father in a -- in an
apparently class A case by the same attorney as is in this
case, I think, is a sufficient nondiscriminatory reason for
striking that juror; and that's why I'm going to
overrule your objection.
and below, Veal insists that a nondiscriminatory reason for
striking the last African-American juror is insufficient and
that we should adopt something like a cause requirement in
those circumstances. This is contrary to our precedent. In
Griffin, we upheld a prosecutor's use of strikes
on the only two African-American members of the panel. 564
N.W.2d at 375-76. We noted that the prosecutor's
explanation "need not rise to the level justifying
exercise of a challenge for cause" but must be
race-neutral and "related to the particular case to be
tried." Id. at 375 (quoting Batson,
476 U.S. at 97-98, 106 S.Ct. at 1723-24). We affirmed the
district court's acceptance of the prosecutor's
explanation that both jurors had previously sat on a jury
that convicted the defendant of lesser included offenses in a
willful injury case. Id. at 376. We stated that
"[t]hese qualify as racially-neutral reasons" and
"[t]here is nothing to suggest they were a mere
pretext." Id. The same observations can be made
here; indeed, to an outsider, the prosecutor's reason for
striking juror H. here seems more substantial than the
reasons given in Griffin.
recently, in Mootz, we said that a Batson
challenge should not prevail "merely because the judge
does not find the reason given to be persuasive." 808
N.W.2d at 218. Rather, "[t]he reason given must, in and
of itself, violate equal protection." Id.
argues that allowing prosecutors to use peremptory strikes on
prospective jurors who are relatives of individuals they
previously prosecuted "disproportionately implicates
African-American potential jurors." We are aware of the
disproportionate impact when jurors can be removed based on
prior interactions with law enforcement. But see id.
at 219 ("Our cases have repeatedly noted that a
juror's interactions with law enforcement and the legal
system are a valid, race-neutral reason for a peremptory
challenge."). But this case involved a special set of
circumstances-a prosecutor's use of a peremptory strike
on a juror because the same prosecutor had sent her father to
prison for the rest of his life. We affirm the district
court's ruling that this was a valid, race-neutral reason
for rejecting the Batson challenge.
Prosecutorial Error or Misconduct.
contends that the prosecutor was guilty of misconduct in
several instances, requiring reversal of his convictions and
a new trial. We have drawn a distinction between
prosecutorial misconduct and prosecutorial error. State
v. Schlitter, 881 N.W.2d 380, 392-94 (Iowa 2016). The
former requires an intentional violation of a clear legal or
professional standard; the latter involves a mistake or an
exercise of "poor judgment." Id. at 394
(quoting Shawn E. Minihan, Measuring Prosecutorial
Actions: An Analysis of Misconduct Versus Error,
Prosecutor, Dec. 2014, at 25). We will treat Veal's claim
as one of prosecutorial misconduct or error.
first takes issue with the following exchange during voir
MR. BROWN: . . . Ms. [M.], I'll come back to you.
I've mentioned multiple times here that this is a murder
case and an attempted murder; right? Okay. And I think with
Ms. [P.], she talked about a case that she was on that dealt
with a --serving a minor; correct? Okay. So obviously when
you compare the two, that's, you know, certainly minor
compared to -- to a murder. Would you agree? MS. [M.]: Yes.
MR. BROWN: Okay. So looking at comparing those two, would you
say that we would have to have more evidence in a murder case
than we would in someone who sells alcohol to a minor? MS.
MR. BROWN: Okay. I get that answer a lot too. Do you realize
that the burden in those two cases is exactly the same, the
definition would be the same? Do you follow me? MS. [M.]:
MR. BROWN: So it'd be beyond a reasonable doubt as
it's defined by the judge here. The same instruction
would be given in the case like what Ms. [P.] had talked
about. So the burden is the same in the sense that it's
defined the same. Do you follow me? MS. [M.]: Yes.
MR. BROWN: Okay. So would you hold us to the burden as the
Judge gives it to you -- MS. [M.]: Yes.
MR. BROWN: -- and not think that we have to have something
more than that? MS. [M.]: Correct.
counsel shortly thereafter moved for a mistrial based on this
exchange. He said, "I don't know if that went over
the line but want to bring it to the court's attention. .
. . It was a comparison of selling alcohol to minors and --
and murder . . . ." He then added that when a prosecutor
compares two crimes it is "at least arguably a comment
on potential punishment; and certainly that's not
appropriate or proper."
court denied the motion for mistrial. It recalled the
reference as an effort to equate the burden of proof for both
crimes. It did say that the comment could be viewed as one on
possible punishment, and counsel ...