State of Iowa v. Kenneth Lee Lilly ( 2022 )

IN THE SUPREME COURT OF IOWA
No. 20–0617
Submitted October 20, 2021—Filed February 4, 2022
STATE OF IOWA,
Appellee,
vs.
KENNETH LEE LILLY,
Appellant.
Appeal from the Iowa District Court for Lee (North) County, Mary Ann
Brown, Judge.
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 of the United States and Iowa Constitutions. AFFIRMED.
McDermott, J., delivered the opinion of the court, in which all justices
joined. Mansfield, J., filed a concurrence, in which Appel, J., joined. McDonald,
J., filed a concurrence, in which Christensen, C.J., and Waterman, J., joined.
Martha J. Lucey, State Appellate Defender, and Shellie L. Knipfer (argued),
Assistant Appellate Defender, for appellant.
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Thomas J. Miller, Attorney General, and Louis S. Sloven (argued) and
Andrew Prosser, Assistant Attorneys General, for appellee.
David S. Walker, Windsor Heights, and Russell E. Lovell, II (argued), Des
Moines, for amicus curiae NAACP.
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McDERMOTT, Justice.
A jury in North Lee County found Kenneth Lilly guilty of aiding and
abetting a bank robbery. Lilly, an African-American, appealed his conviction,
arguing that his right to an impartial jury under both the United States and Iowa
Constitutions had been violated because neither his jury nor even the jury panel
contained any African-Americans. On appeal, we remanded the case to give Lilly
an opportunity to develop his impartial-jury arguments in response to
refinements to how a defendant must prove a constitutional violation that we
explained in several cases after his trial. The district court ultimately rejected
Lilly’s further-developed claims. Lilly now appeals that ruling, arguing that the
district court erred in holding that he failed to prove a violation.
I. The Issue on Remand.
We described the underlying facts from Lilly’s trial and earlier procedural
history of this case in the opinion filed in Lilly’s initial appeal and will forego
restating them here. See State v. Lilly (Lilly I), 930 N.W.2d 293, 296–98 (Iowa
2019). Pertinent to this appeal are the facts that the parties developed on remand
related to the only remaining issue in the case: Lilly’s fair-cross-section claim.
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
courtroom to serve as possible jurors for a specific trial), and “jury” (the members
of the panel actually selected for a specific trial), and will use the same definitions
in this case. ___ N.W.2d ___, ___ (Iowa 2022).
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Evidence offered at Lilly’s hearing on remand showed that of the people
summoned who indicated their race on a summoned-juror questionnaire, one
person marked “Other,” one marked “American,” one marked “Asian,” one
marked “Japanese,” and one marked “White/Black.” Ultimately, none of the
potential jurors in Lilly’s pool were African-American, and (thus) none of the
members of Lilly’s jury were African-American. Lilly called only one witness at
the hearing, the jury manager for Lee County, who testified about how the jury
selection process worked in the county at the time of Lilly’s trial.
II. The Duren/Plain Elements.
The Sixth Amendment to the United States Constitution guarantees the
right to “an impartial jury of the state and district wherein the crime shall have
been committed.” U.S. Const. amend VI. The Iowa Constitution similarly
guarantees the right to a “trial by an impartial jury.” Iowa Const. art. I, § 10. The
constitutional guarantees of an impartial jury entitle the accused to a jury
“drawn from a fair cross-section of the community.” State v. Plain (Plain I),
898 N.W.2d 801, 821 (Iowa 2017).
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 Duren
v. Missouri, 439 U.S. 357, 364 (1979)). The defendant bears the burden of proof
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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. at363–64.
The State concedes the first Duren/Plain prong and thus that African
Americans constitute a distinctive group in the community. The dispute centers
on the second and third prongs. The district court held that Lilly 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. Lilly I, 930 N.W.2d at 298.
III. Lilly’s Proof of Causation Under Duren/Plain’s Third Prong.
We will begin our analysis on the third prong, since an inability to establish
any one of the three Duren/Plain elements is fatal to a defendant’s fair-cross-
section challenge. In Lilly I, we explained that to establish the third prong a
defendant must prove that the underrepresentation resulted from a particular
feature (or features) of the jury selection system. Id. at 306. The defendant, in
other words, “must tie the disparity to a particular practice” and show that the
practice caused the systematic exclusion of the distinctive group in the jury
selection process. Id. at 307.
Lilly points to a single jury management practice to prove his claim of
African-American underrepresentation in jury pools. He targets the lists—voter
registration, driver’s license, and nonoperator identification—that are combined
to form the source list from which people are randomly selected for jury pools.
Lilly’s argument then proceeds with several factual propositions. He first asserts
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that low-income people tend to register to vote and to acquire driver’s licenses
and nonoperator identification cards at a lower rate than other members of the
community. He next asserts that African-Americans make up a higher
percentage of low-income people in Lee County. Taking these premises together,
Lilly infers that African-Americans register to vote and get driver’s licenses and
nonoperator identification cards at lower rates than other races. African-
Americans are, following this logic, underrepresented in the lists from which jury
pools are sourced. From this conclusion, Lilly argues that failing to supplement
the source list with other lists that might include more lower-income people
amounts to “mismanagement” resulting in the systemic exclusion of African-
Americans.
A. Analysis Under the Sixth Amendment. Lilly presents his arguments
both under the Sixth Amendment to the United States Constitution and under
article I, section 10 of the Iowa Constitution. An important distinction exists in
how we analyze claims under the two constitutions. In State v. Veal (Veal I), we
held that for a Sixth Amendment fair-cross-section claim, 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.” 930 N.W.2d 319, 330 (Iowa
2019) (quoting Berghuis v. Smith, 559 U.S. 314, 332 (2010)). Challenges to “run-
of-the-mill” jury management practices are thus insufficient to show systematic
exclusion under the Sixth Amendment. Id. at 329. We described run-of-the-mill
jury management practices in Lilly I as “the relatively commonplace” practices
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that might include, for instance, practices for updating juror address lists,
excusing potential jurors for hardship or other reasons, and enforcing jury
summonses. 930 N.W.2d at 308. These common jury practices fall within a
state’s “broad discretion,” according to the Supreme Court in Berghuis, and will
not sustain a Sixth Amendment cross-section challenge. 559 U.S. at 333(quoting Taylor v. Louisiana, 419 U.S. 522, 537–38 (1975)).
The practice of using the state’s own voter registration list, motor vehicle
operator list, and nonoperator identification list to construct a source list from
which to draw jury pools amounts to a commonplace, run-of-the-mill practice.
Courts in jurisdictions around the country have upheld the use of voter
registrations lists (without the addition of another list) as a jury-pool source. See
United States v. Orange, 447 F.3d 792, 800 (10th Cir. 2006) (“The circuits are ‘in
complete agreement that neither the Act nor the Constitution require that a
supplemental source of names be added to voter lists simply because an
identifiable group votes in a proportion lower than the rest of the population.’ ”
(quoting United States v. Test, 550 F.2d 577, 586 n.8 (10th Cir. 1976))); United
States v. Sanchez, 156 F.3d 875, 879 (8th Cir. 1998) (“We have consistently
upheld the use of voter registration lists to select jury pools.”). Lilly acknowledges
that “[i]t has been the practice for district courts to solely use the lists
provided”—the very lists he challenges in this case—to create jury pools. These
lists are the only ones that the Iowa Code requires courts to use in drawing jury
pools. Iowa Code § 607A.22(1) (2017). The challenged practice alleged to have
caused the underrepresentation under the third prong “must be something other
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than” the run-of-the-mill practices that the Supreme Court has declined to
condemn. Veal I, 930 N.W.2d at 330 (citing Berghuis, 559 U.S. at 332). Use of
the source list to draw jury pools is, perhaps, as garden-variety a practice as one
could find. Because he challenges a run-of-the-mill practice, and no other
practices, Lilly cannot show a violation under the Sixth Amendment.
B. Analysis Under the Iowa Constitution. Lilly’s claim under article I,
section 10 of the Iowa Constitution requires a different analysis. In Lilly I, we
held that run-of-the-mill jury management practices can support a systemic
exclusion claim under the Iowa Constitution. 930 N.W.2d at 308. We thus will
analyze Lilly’s argument based on source list deficiencies under the Iowa
Constitution’s separate, unconstrained analysis.
But Lilly still must prove that the challenged practice caused the
systematic exclusion of the group in the jury-selection process. Id. at 307–08.
And here Lilly’s claim falters in multiple ways. As an initial matter, Lilly attempts
to apply deductive reasoning showing causation by constructing a syllogism that,
in simple form, goes as follows:
Low-income residents are underrepresented on the source list;
African-Americans are more likely to be low-income residents;
Therefore, African-Americans are underrepresented on the source
list.
But Lilly doesn’t prove the key premise. He asserts that low-income people
register to vote and acquire driver’s licenses and nonoperator identification cards
at lower rates than others in the community, but he offers no evidence to
establish this fact. The proposition is supported by supposition, not proof. “Mere
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speculation about the possible causes of underrepresentation will not substitute
for a credible showing of evidence supporting those allegations.” Lilly I,
930 N.W.2d at 307 (quoting Paula Hannaford-Agor, Systematic Negligence in
Jury Operations, 59 Drake L. Rev. 761, 790 (2011) [hereinafter Hannaford-Agor]).
Lilly presented no testimony about the demographic make-up of the people
included on the source list. He offered no evidence that low-income people
actually register to vote or get driver’s licenses or nonoperator identification
cards at lower rates than others. And he offered no evidence that African
Americans in particular register to vote or get driver’s licenses or identification
cards at lower rates than others. The amicus curiae, the NAACP, attempts to fill
this void in part by attaching an email from a former Iowa Department of
Transportation director as an exhibit to its appeal brief, but that email was never
offered or entered in the district court and is beyond the record for our
consideration on appeal. Iowa R. App. P. 6.801.
Even if Lilly had introduced evidence on that particular point, proof of
actual causation in the record nonetheless remains absent. In Lilly I, we said
that a defendant’s proof of causation will “almost always require expert
testimony” to (1) identify “the precise point of the juror summoning and
qualification process in which members of distinctive groups were excluded from
the jury pool” and (2) offer “a plausible explanation of how the operation of the
jury system resulted in their exclusion.” Lilly I, 930 N.W.2d at 307 (quoting
Hannaford-Agor, 59 Drake L. Rev. at 790–91). Lilly called no expert witness
whatsoever, let alone one that pinpointed the procedural step in which African-
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Americans were excluded and offered a plausible explanation for how the
summoning and qualification process brought it about. He has failed to show
(even assuming his supporting premises had been established in the record) that
using the existing source list to generate jury pools resulted in the alleged
underrepresentation. On this point, the record scarcely provides evidence of
correlation, never mind causation.
As a fallback, Lilly argues that requiring the defendant to establish
causation under the third prong of the Duren/Plain analysis assigns the burden
to the wrong party. He urges instead that once the defendant shows that a
distinctive group has been underrepresented in jury pools under the second
prong, the burden should shift to the State to show affirmatively that the group
has not been systematically excluded. But in Lilly I we analyzed the amicus’s
argument on burden shifting and explained at some length why the burden to
prove causation appropriately resides with the defendant. Id. at 305–06. In Lilly’s
initial appeal, we expressly assigned the burden of proof on these issues to Lilly,
stating that “the defendant must prove that the practice has caused systematic
underrepresentation.” Id. at 307–08 (emphasis added). He has not met his
burden.
Because Lilly failed to deliver on his burden under the third prong, which
on its own is sufficient to affirm the district court’s denial of his claim, we need
not take up his arguments relating to the second prong’s requirement to
establish actual underrepresentation of African-Americans in his jury pool.
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IV. Conclusion.
In Lilly I, we conditionally affirmed Lilly’s conviction and remanded for a
determination on his fair-cross-section challenge. We now affirm the district
court’s holding on remand that Lilly failed to prove a violation of his right to an
impartial jury, and we affirm his conviction.
AFFIRMED.
All justices concur. Mansfield, J., files a concurrence, in which Appel, J.,
joins. McDonald, J., files a concurrence, in which Christensen, C.J., and
Waterman, J., join.
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#20–0617, State v. Lilly
MANSFIELD, Justice (concurring).
I join the majority opinion. I write briefly to respond to the suggestion of
those who partially dissented in State v. Lilly (Lilly I), 930 N.W.2d 293 (Iowa
2019), that after one remand, it is time to overrule Lilly I and abandon the effort.1
The Iowa Constitution guarantees defendants the right to have their jury
drawn from a fair cross-section of the community. Many African-American
defendants in Iowa are tried by juries that contain no African-American jurors.
In a given case, that may be the result of a constitutional violation; it may not.
In Lilly I, our court took two, common-sense steps to add rigor to the
constitutional analysis.2
First, instead of examining numbers that have no statistical validity
whatsoever, like the absolute disparity between the percentage of African-
Americans in the jury pool and the percentage in the overall population, we
focused the analysis on the only measure that has statistical validity: whether
there is an underrepresentation of African-Americans in the jury pool that is
unlikely to be due to chance. Lilly I, 930 N.W.2d at 302. We also explained that
to make the analysis more sound, the baseline should “reflect the population
that would actually be eligible for jury service.” Id. at 304–05.
1See the concurrence that immediately follows this opinion.
2Obviously, the Lilly I decision applies to any distinctive group, not just African-
Americans. But the scenario that has drawn the most attention is the African-American
defendant whose jury contains no African-American members. Lilly I presents exactly this
situation.
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Second, we required the defendant to prove, again using proper methods
of proof, that a specific practice was causing the systematic underrepresentation
of a distinctive group. Id. at 308. This was a middle position between those who
argued that the State should have the burden of justifying its jury selection
practices whenever the defendant proved underrepresentation and those who
argued current practices should be held per se constitutional. See id. at 307. It’s
a logical line to draw. If a practice leads to systematic exclusion of African-
Americans from jury pools, who cares what that practice is? The important thing
is that it is exclusionary. As we put it in Lilly I, “If a practice that leads to
systematic underrepresentation of a distinctive group in jury pools can be
identified and corrected, there is no reason to shield that practice from scrutiny
just because it is relatively commonplace.” Id. at 307–08.
Our recent caselaw has led to several helpful developments. Attorneys on
both sides are assembling more accurate data about the jury-eligible populations
in specific counties. Those same attorneys are using statistical analyses instead
of the old-fashioned, discredited, correlation-means-causation kinds of
arguments. (Doing the statistics is not that difficult.) No longer do we get to rely
only on our own assumptions. Instead, our caselaw has put the spotlight on
specific practices and enabled us to learn whether, in fact, they lead to
systematic underrepresentation of distinctive groups. None of these things would
have happened without Lilly I and related cases, at least not to the same degree.
Here, the defendant has been unable to establish a constitutional
violation. That does not mean we were wrong in Lilly I.
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In today’s concurrence, the Lilly I partial dissenters claim the mantle of
precedent. They assert that we decided categorically forty-six years ago that
using voter registration lists to summon jurors did not violate the Iowa
Constitution. See State v. Williams, 243 N.W.2d 658, 662 (Iowa 1976). Actually
no. What we said in Williams was:
Absent a showing of systematic discrimination, other courts have
consistently turned back constitutional assaults on the use of voter
registration lists as the sole source of names for jury duty.
Defendant had the burden of establishing a prima facie case that the
Black Hawk County selection procedure systematically excluded a
particular group. Trial court properly ruled the record made here
failed to meet that test.
Id. (citations omitted) (emphases added). In other words, we held on that record
that the use of voter registration lists didn’t violate the Iowa Constitution. The
Lilly I majority is consistent with that holding; the Lilly I partial dissent is not.
In the present appeal, the NAACP, as amicus, asks us again to eliminate
the defendant’s burden of proof on systematic exclusion, shifting the burden to
the State to prove why it cannot “mak[e] the necessary reforms” to secure a jury
pool that represents a fair cross-section: once the defendant proves
underrepresentation. The NAACP raised a similar argument as amicus in Lilly I,
and a majority of this court rejected it. Lilly I, 930 N.W.2d at 305–07 (“[A]t this
time, we are not prepared to embrace the NAACP’s proposal.”). Thus, the NAACP
wants us to depart from the law of the case. That is something we don’t ordinarily
do, and I would not favor doing it today.
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However, we also said in Lilly I, “We may be willing to impose such an
obligation in the future when we have more data about what [known best
practices] are and their effectiveness.” Id. at 307.
For the foregoing reasons, I concur in the majority opinion and also submit
this concurrence.
Appel, J., joins this concurring opinion.
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#20–0617, State v. Lilly
McDONALD, Justice (concurring).
I agree with the majority that Lilly failed to provide any evidence in support
of his fair-cross-section claims arising under the federal and state constitutions
and that Lilly is not entitled to any relief, and I join the court’s opinion. The law
concerning fair cross-sections applied in the majority opinion is the law of the
case with respect to Lilly’s claims, but I would revisit this area of law in the
appropriate case. The court’s recent fair-cross-section jurisprudence under the
Iowa Constitution is undermining the administration of justice, rendering it
incredibly difficult simply to have a jury trial without months of discovery,
expensive motion practice, expensive expert witness testimony, and days of
hearings. And to what end? None that have been evidenced to date.
The practices being challenged in this court’s most recent fair-cross-
section cases are standard practices used for decades all over the country. Forty-
six years ago, this court rejected the same challenge raised in this case. See State
v. Williams, 243 N.W.2d 658, 662 (Iowa 1976). Rather than continuing to
adjudicate these same issues for the next half-century, I would hold, in the
appropriate case, that run-of-the-mill jury management practices cannot
establish a claim of systematic exclusion under the Iowa Constitution. See State
v. Veal, 930 N.W.2d 319, 364–65 (Iowa 2019) (McDonald, J., concurring in part
and dissenting in part) (discussing federal standard); State v. Lilly (Lilly I), 930
N.W.2d 293, 318 (Iowa 2019) (McDonald, J., concurring in part and dissenting
17
in part) (collecting cases); State v. Williams, 929 N.W.2d 621, 645 (Iowa 2019)
(McDonald, J., concurring in part and dissenting in part).
Christensen, C.J., and Waterman, J., join this concurring opinion.