State of Iowa v. Reath Stephen Yak

IN THE COURT OF APPEALS OF IOWA
No. 21-1185
Filed January 10, 2024
STATE OF IOWA,
Plaintiff-Appellee,
vs.
REATH STEPHEN YAK,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Polk County, Scott J. Beattie, Judge.
A defendant appeals his convictions for two counts of attempted murder,
intimidation with a dangerous weapon, and willful injury. AFFIRMED.
Martha J. Lucey, State Appellate Defender, and Rachel C. Regenold,
Assistant Appellate Defender, for appellant.
Brenna Bird, Attorney General, and Louis S. Sloven, Assistant Attorney
General, for appellee.
Considered by Bower, C.J., and Tabor and Greer, JJ.
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GREER, Judge.
The State charged five defendants in connection with a drive-by shooting at
a Des Moines residence. In a trial severed from his co-defendants, a jury found
Reath Yak guilty of intimidation with a dangerous weapon, willful injury causing
serious injury, and two counts of attempted murder. On appeal, Yak argues the
State presented insufficient evidence to support his convictions. He also contends
the district court erred in denying his challenge to the prosecutor’s peremptory
strike of a Black woman from the jury under Batson v. Kentucky, 476 U.S. 79(1986). We find substantial evidence to support his convictions and affirm the
district court’s denial of Yak’s Batson challenge.
I. Facts and Prior Proceedings.
On March 1, 2021, sixteen-year-old N.M. was babysitting when she slipped
outside around 10:40 p.m. to retrieve a phone charger from her mother’s car.
Inside the house, her nine-year-old brother, B.C., was sleeping and her two-year-
old nephew, D.M., was watching cartoons. Moments later, N.M was dodging
bullets, thinking “it was going to be my last day living.” As the shots rang out, N.M.
ducked into the car for shelter. Investigators later found eleven bullets struck the
vehicle. Sixteen bullets struck the house. One bullet struck D.M. in the head.
Right before the shooting, N.M. saw a dark-colored sport utility vehicle
(SUV) stop on the street in front of her house. The driver’s side was closest to the
house. Inside were “at least four” males. N.M. did not recognize the occupants,
but she later described them as “really dark” skinned. They said “something” to
N.M.; she asked: “Who are you?” One responded: “You know who this is.” Then
the shooting started. Before she ducked into the vehicle, N.M. saw only one
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shooter—a Black male wearing a ski mask reaching over the roof from the
passenger side. N.M. heard “at least” thirty gunshots before the SUV sped away.
After the shooting, N.M. returned to the house to check on her brother and
nephew. But extensive damage to the front door prevented her from going back
inside. Panicked, she ran to a neighbor’s house to call 911. When the medics
arrived, they found D.M. with a gunshot wound to his head. They rushed the two-
year-old to the children’s hospital where he underwent surgery to remove the bullet
from his scalp. D.M. survived, but he now has seizures, needs medication, and is
paralyzed in his right hand.
Meanwhile, police canvassed the neighborhood looking for surveillance
systems. They succeeded. One neighbor’s system picked up what sounded like
“multiple guns” being fired at a shooting range. Another camera showed that the
“possible suspect vehicle” was a black Nissan Rogue that had circled back around
to the house several times. Des Moines police broadcast that description to other
law enforcement agencies.
Just after midnight, a passerby reported a single-car crash on westbound
Interstate 80 in Dallas County. The car was a Nissan Rogue. It was “disabled up
against the center guard wire.” Deputy Nicholas Merwald arrived at the crash
scene around 12:30 a.m. From the frost building up on the windows in the early
March chill, he estimated that the SUV had been stranded there at least half an
hour. The airbags had deployed, yet none of the five occupants tried to move while
speaking to the deputy. The man in the driver’s seat, Thon Bol, said he swerved
to avoid hitting a deer. He said they were waiting on his sister and didn’t need any
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help. Thon’s brother, Owo Bol, was a backseat passenger, along with Odol Othow
and Caine Dominguez-Schiesl. Yak sat in the front passenger seat.
After state troopers arrived to assist, Deputy Merwald directed the driver
back to his patrol vehicle. Thon Bol had to crawl through the front passenger seat
to get out because the driver’s door was wedged against the cable barrier. As this
was happening, officers noticed a Glock pistol under the driver’s seat. That
discovery created a “tense situation” as the officers removed the four remaining
passengers. During a search of Thon Bol, officers found a black ski mask. During
a search of Owo Bol, officers found two more nine-millimeter pistols.1 They also
collected many spent bullet casings from the SUV. Those casings matched
casings recovered at N.M.’s residence.
All five occupants were taken to the Des Moines police station to be
interviewed. In his interview, Yak—who lived in Storm Lake—confirmed that the
Nissan Rogue belonged to his parents. He acknowledged being friends with Owo
Bol but denied knowing about the guns found in the SUV. When asked how he
knew Bol, Yak just repeated over and over: “I know him.” Yak did tell Detective
Jeffrey Shannon that the group came to Des Moines to see “family,” though he did
not disclose whose family. Yak was standoffish during the interview, answering
Detective Shannon’s questions with a monotone delivery and using as few words
as possible. Yet their closing exchange was revealing. As the detective was
leaving the room, he accused Yak of driving the group to Des Moines where they
“shot a two-year-old boy.” Yak claimed: “I never even drove.” Detective Shannon
1 The Iowa Division of Criminal Investigation (DCI) later reported that swabs of
these guns revealed a mixture of DNA from at least four people.
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repeated the accusation, telling Yak the two-year-old was “probably not going to
make it.” Yak responded: “So that’s who came to the door?” Shannon followed
up: “What’s that?” Yak rephrased: “Who came to the door?” Shannon asked:
“What door?” Yak replied: “Never mind.”
After those interviews and other evidence gathering, the State charged Yak
and his four companions with attempted murder, a class “B” felony, in violation of
Iowa Code section 707.11(1) (2021);2 intimidation with a dangerous weapon with
intent, a class “C” felony, in violation of section 708.6; and willful injury causing
serious injury, a class “C” felony in violation of section 708.4(1). At a pretrial
conference ten days before trial involving all five defendants, a Polk County
sheriff’s deputy heard Owo Bol say across the courtroom: “Hey, Yak, you better
not fucking fold. Don’t fucking say shit.”
The trial started with all five defendants together. But after jury selection
and opening statements, the court severed the prosecutions of Thon Bol, Owo Bol,
Dominguez, and Othow.3 Yak consented to continuing with the selected jury.4
That jury found Yak guilty as charged. For the intimidation and willful-injury
offenses, the jury found that Yak possessed or aided and abetted someone who
2 The State ended up charging two counts of attempted murder: one listing the
victims as D.M. and/or B.C. and the other listing the victim as N.M.
3 That severance was sparked by the opening statement from Dominguez’s
attorney. She suggested that the motive for the shooting was gang hostility
between the victims’ family and the other four defendants who were members of a
rival Sudanese tribe. The court agreed that separate trials were necessary
because Dominguez would be pursuing a “mutually antagonistic defense” from the
others charged in the shooting.
4 As to his Batson challenge, no one argues this consent constituted waiver, so we
do not consider it. See State v. Short, 851 N.W.2d 474, 480 (Iowa 2014)
(recognizing an argument is not before the court when neither party raised it).
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possessed a dangerous weapon. The district court sentenced Yak to concurrent
prison sentences for a total of twenty-five years—with mandatory minimums of
seventeen and one-half years on the attempted murder counts and five years on
the intimidation and willful injury counts.
Yak appeals, arguing two issues.
II. Analysis.
A. Sufficiency of the Evidence.
Yak contests the sufficiency of the State’s evidence for all four crimes. We
review his challenge for correction of legal error. See State v. Acevedo, 705
N.W.2d 1, 3 (Iowa 2005). If substantial evidence supports the verdicts, we will
uphold them. State v. Ramirez, 895 N.W.2d 884, 890 (Iowa 2017). Evidence is
substantial if—when viewed in the light most favorable to the verdicts—it can
convince a rational jury that the defendant is guilty beyond a reasonable doubt.
State v. Reed, 875 N.W.2d 693, 704–05 (Iowa 2016).
1. Aiding and Abetting All Four Crimes.
For all four counts, the court instructed the jurors that they could find Yak
guilty if he acted either as the principal or as an aider and abettor. On appeal, Yak
concedes the jury could have inferred from the State’s evidence that he was “likely
present in the vehicle at the time of the shooting.” But he argues that the State did
not prove that he “knowingly approved or agreed to the commission of the crimes
or that he encouraged or actively participated.” We read Yak’s challenge to the
State’s proof of aiding and abetting as subsuming the theory that he acted as the
principal shooter.
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The court provided the jury with this definition:
“Aid and abet” means to knowingly approve and agree to the
commission of a crime, either by active participation in it or by
knowingly advising or encouraging the act in some way before or
when it is committed. Conduct following the crime may be
considered only as it may tend to prove the defendant’s earlier
participation. Mere nearness to, or presence at, the scene of the
crime, without more evidence, is not “aiding and abetting.” Likewise,
mere knowledge of the crime is not enough to prove “aiding and
abetting.”
Yak emphasizes that the State had to show “something more than mere
presence” to prove he aided and abetted the other defendants. He urges that even
if he knew what was going on during the shooting, he did not participate in the
“planning, execution, and attempted flight from this crime.”
But the State can prove aiding and abetting without direct proof of
participation. Jurors may infer an accused’s participation from “circumstantial
evidence such as ‘presence, companionship, and conduct before and after the
offense.’” State v. Lewis, 514 N.W.2d 63, 66 (Iowa 1994) (citation omitted). Since
Yak conceded that the jury could infer his presence in the SUV during the shooting,
we turn to the idea of companionship. In his interview with police, Yak
acknowledged being friends with Owo Bol. Owo Bol too described the group as
“all friends”5 and claimed they came to Des Moines to visit his “auntie.” The
familiarity among the companions was corroborated by Thon Bol in a recorded
5 And not only were the five friends, but testimony revealed that some were
affiliated with a gang called the Trip Set Gang or South Sudanese Soldier. It was
Yak’s attorney who asked Detective Shannon about the information he received
from Omaha detectives that Dominguez and the Bol brothers were “known gang
members.” Defense counsel followed up: “You didn’t have conversations with
anybody that Mr. Yak is part of the Trip Set Gang; correct?” The detective replied:
“No, that’s not correct. . . . Recently I’ve spoken with one of the detectives over
there, and he indicated that they were all familiar with Mr. Reath Yak.”
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phone conversation with his sister after the crash. She asked Thon who was in
the SUV; he identified the other four occupants by name. She seemed to
recognize all the names.
All in all, evidence of Yak’s companionship with the other four people in the
SUV contributes to the aiding-and-abetting inference. Under the State’s theory of
the case, Yak drove his father’s SUV from Storm Lake to Sioux City, where he
picked up Othow and the Bol brothers; drove to Omaha, where he picked up
Dominguez; and then continued to Des Moines. While Yak would have driven
some distance to gather those passengers, Detective Shannon confirmed that the
route could be traveled in one day. From the State’s evidence, a rational jury could
infer that Yak provided transportation to facilitate the shooting.
We next look to Yak’s conduct after the shooting. He remained in the front
passenger seat after the SUV crashed on the interstate. He refused to talk to the
police at the crash scene or to offer much information in his interview. In closing
arguments, defense counsel said Yak was “just along for the ride” and was afraid
to “snitch” on his companions. But the State countered that once Yak was isolated
at the police station, if he really had been surprised by the shooting, it would have
made sense for him to disclose that experience when urged to do so by law
enforcement. A reasonable jury could have accepted the State’s inference that
Yak’s reluctance to distance himself from the scheme signaled his complicity.
The State also rebutted Yak’s along-for-the-ride defense. The prosecutor
suggested that Yak was driving at the time of the shooting but switched places with
Thon Bol after the crash because Thon had a driver’s license and Yak did not. The
State supported this theory with evidence that when officers responded to the
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crash, Thon was holding the only black ski mask. And N.M. recalled that the
shooter wearing a black ski mask was on the passenger side. The State reasoned:
“[I]f Thon was the masked shooter, he could not have also been the driver.”
Viewed in the light most favorable to the State, this circumstantial evidence could
support a finding that Yak actively participated in the crimes by driving the SUV at
the time of the shooting. See State v. Turner, 345 N.W.2d 552, 556 (Iowa Ct. App.
1983) (finding sufficient evidence of aiding and abetting when Turner acted as
“getaway” driver). And as the State argues, even if Yak was not the driver, jurors
could still have inferred he took part in the shooting. He lent his parents’ SUV to
the cause. He took notice of a would-be victim who appeared at the door of the
house. And DCI testing showed the three guns in the SUV had DNA from four
contributors, allowing the jurors to infer that each of the passengers may have
handled the weapons. Therefore, we find substantial evidence for the aiding-and-
abetting theory, which supports the guilty verdict.
2. Intent Elements of Attempt to Commit Murder of D.M. and/or B.C.,
Intimidation with a Dangerous Weapon, and Willful Injury.
Beyond his general challenge to the State’s proof of his participation, Yak
contests the specific-intent elements for three of the offenses: the attempted
murder charge involving the two boys, intimidation with a dangerous weapon, and
willful injury causing serious injury.
To prove Yak guilty of the attempted murder of either boy, the State had to
offer substantial evidence for these elements:
1. On or about the 1st day of March 2021, [Yak], or someone
he aided and abetted, shot firearms into the home of D.M. and/or
B.C.
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2. By his acts, [Yak], or someone he aided and abetted,
expected to set in motion a force or chain of events, which could have
caused or resulted in the death of D.M. and/or B.C.
3. When [Yak], or someone he aided and abetted, acted, he
specifically intended to cause the death of D.M. and/or B.C.
Yak challenges only the State’s proof of specific intent in the third element.
To prove Yak guilty of intimidation with a dangerous weapon, the State had
to offer substantial evidence for these elements:
1. On or about the 1st day of March 2021, [Yak], or someone
he aided and abetted, shot firearms into a home . . . which was
occupied by D.M. and/or B.C.
2. A firearm is a dangerous weapon . . . .
3. D.M. and/or B.C. actually experienced fear of serious injury
and their fear was reasonable under the existing circumstances.
4. [Yak], or someone he aided and abetted, shot the
dangerous weapon with the specific intent to injure or cause fear or
anger in D.M. and/or B.C.
Like the attempted-murder count, Yak challenges only the State’s proof of specific
intent in the fourth element.
Yak next turns to his conviction for willful injury. The State had to prove
these elements:
1. On or about March 1, 2021, [Yak], or someone he aided
and abetted, shot firearms into the home . . . .
2. [Yak], or someone he aided and abetted, specifically
intended to cause a serious injury to D.M. or any of the occupants of
the home . . . .
3. [Yak’s] act, or the act of someone he aided and abetted,
caused a serious injury to D.M. . . . .
Again, Yak challenges only the proof of specific intent for the second element.
The district court provided the jury with this definition:
“Specific intent” means not only being aware of doing an act
and doing it voluntarily, but in addition, doing it with a specific
purpose in mind.
Because determining a defendant’s specific intent requires
you to decide what he was thinking when an act was done, it is
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seldom capable of direct proof. Therefore, you should consider the
facts and circumstances surrounding the act to determine a
defendant’s specific intent. You may, but are not required to,
conclude a person intends the natural consequences of his acts.
For all three crimes, Yak points to the lack of evidence that he or his co-
defendants knew either D.M. or B.C.; knew they were inside the house; or, in fact,
knew that anyone was inside the house. Without that knowledge, Yak contends
that he could not have intended to cause their deaths, to injure them or cause them
fear or anger, or to cause serious injury to D.M.—nor could he have known of his
co-defendants’ intent to do so.
On the law, Yak argues that this case does not involve transferred intent
like State v. Mong, 988 N.W.2d 305, 307−08 (Iowa 2023) (upholding conviction for
attempted murder when shooter missed intended victim but injured a bystander).6
Unlike Mong, Yak’s jury was not instructed that his intent to inflict harm on one
victim shifted to another. See 988 N.W.2d at 314. The instructions here required
the jury to find that Yak “specifically intended to cause the death of D.M. and/or
B.C.” for the attempted-murder count and had “specific intent to injure or cause
fear or anger in D.M. and/or B.C.” for the intimidation count. According to Yak, by
naming the victims in the marshalling instructions, the State had to prove his intent
to harm one or both individuals.
6 States like California that do not apply the doctrine of transferred intent in
attempted murder cases have shaped a “kill zone” theory, recognizing that a
person’s desire to kill a particular target does not preclude finding that the person
concurrently intended to kill others in the immediate vicinity. See People v. Bland,
48 P.3d 1107, 1118 (Cal. 2002). But that theory has not been addressed in Iowa.
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The State agrees with Yak that this is not a case of transferred intent.7 But
it disagrees that it needed to prove that Yak or his companions knew the boys by
name or only wanted to harm them, to the exclusion of anyone else in the house.
It was enough, in the State’s view, that Yak and his companions knew “someone”
was inside the house when they fired at least sixteen rounds at the front door. And
the State points to evidence from which the jury could infer that knowledge. For
example, the State offered surveillance video of the Nissan Rogue circling the
house “two or three times” in the five or six minutes before the shooting. Detective
Shannon testified the group could have been “making sure they have the right
target” or “hoping somebody comes out of the residence.”
Beyond that video showing the SUV casing the house, the evidence
included Yak’s question to the detectives—“who came to the door?”—letting slip
that he saw someone inside the house. Granted, the timing of that sighting is
unclear. But the jury could fairly infer that Yak saw a child come to the door either
before or during the gunfire, because the SUV sped away after the shooting.
Indeed, these circumstances do not make for a neat determination of
specific intent. As another jurisdiction observed: “A drive-by shooting is the
paradigm problematic attempted murder case.” Richeson v. State, 704 N.E.2d
1008, 1010 (Ind. 1998). That’s true because it is often hard to discern the intent
of the shooter. Id. But in Iowa we follow the “general rule” that “one who arms
himself with the express purpose of shooting another cannot ordinarily claim the
7 Yet the State appreciates that “this case bears some similarities to cases about
transferred intent.” We agree that concepts underlying the transferred intent
doctrine are also at play here.
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elements of” attempted murder are lacking. Mong, 988 N.W.2d at 314–15 (citation
omitted). We also recognize “an intent to kill may be inferred from the use of a
deadly weapon in a deadly manner.” State v. Mart, 20 N.W.2d 63, 66 (Iowa 1945).
With those principles in mind, we believe that the jury could have inferred
Yak’s intent to kill D.M. or B.C. from evidence that he or his companions fired
multiple shots directly into the house where Yak had just seen one of the boys
come to the door. Juries must often rely on circumstantial evidence when
determining a shooter’s intent. See State v. Clarke, 475 N.W.2d 193, 197 (Iowa
1991); see also State v. Brown, No. 02-0086, 2003 WL 1967828, at *5 (Iowa Ct.
App. Apr. 30, 2003) (“Although there is no direct evidence that Brown had the
specific intent to kill or seriously injure another person, there is considerable
circumstantial evidence from which a reasonable juror could find such intent.”).
And juries are free to view defendants “as intending the natural and probable
consequences that ordinarily follow from their voluntary acts.” State v. LuCore,
989 N.W.2d 209, 216 (Iowa Ct. App. 2023) (citation omitted).
Viewing all the evidence in the light most favorable to the verdicts, we
believe the jury could reasonably infer from the State’s evidence that Yak had the
specific intent to cause one or both boys’ deaths, to injure them or cause them
fear, and to cause serious injury to D.M.
B. Batson Challenge
Yak’s last claim involves the Batson challenge he joined with his co-
defendants. See Batson, 476 U.S. at 89 (holding the Equal Protection Clause
forbids a prosecutor from challenging potential jurors solely based on the juror’s
race); see also U.S. Const. amend. XIV; Iowa Const. art. I, § 6. Because the case
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was tried during the COVID-19 pandemic, jury selection of the sixty potential jurors
in the jury pool occurred over two days with four smaller groups of fifteen
questioned separately. The State was allowed fifteen strikes, and each of the five
co-defendants could exercise three strikes. Yak confirmed that all five co-
defendants were Black and all cooperated in the decisions involving each of their
strikes. Of the sixty potential jurors in the four pools, only two identified as
“Black/African.” Of those two jurors, Juror 29 was in jury pool two and Juror 39
was in jury pool three. As the jury selection wound down, the State exercised its
last peremptory strike by removing one of the “Black/African” jurors: Juror 39.
Juror 29 remained and served on the jury.
The Batson objection, eventually joined by all co-defendants, followed the
State’s strike of Juror 39. Once made, a Batson challenge requires a burden-
shifting, three-step inquiry: (1) the challenging party, Yak, “must establish a prima
facie case of purposeful racial discrimination in the peremptory strike” of Juror 39;
“(2) the striking party [the State] must proffer a race-neutral explanation for the
strike; and finally, (3) the challenging party [Yak] must carry the ultimate burden of
proving purposeful discrimination.” State v. Booker, 989 N.W.2d 621, 627 (Iowa
2023). We conduct a de novo review of the record when analyzing the Batson
three-step inquiry, but at step three, because the district court evaluates an
attorney’s credibility over his or her true motives behind the strike, we give a great
deal of deference to the district court’s evaluation of that credibility. Id.; see also
State v. Mootz, 808 N.W.2d 207, 214 (Iowa 2012). We also recognize that district
court judges make juror disqualification rulings “on the spot and in real time.” State
v. Jonas, 904 N.W.2d 566, 574 (Iowa 2017); see also Mootz, 808 N.W.2d at 225
15
(“Voir dire is a very short window of time for attorneys and the court to determine
whether a juror will be unbiased and impartial.”). And because of those tensions,
appellate courts should be resistant to second guessing the trial court’s decisions
on juror impartiality, which is influenced by many factors impossible to capture in
a cold record. Skilling v. United States, 561 U.S. 358, 386–87 (2010).
Yet, Booker also informs us that “Batson necessarily requires a heavily
context-specific inquiry, so although striking the sole Black juror does not, in a
vacuum, establish a prima facie case, that fact in itself is relevant to the analysis
and may be sufficient when viewed in context.” 989 N.W.2d at 629. And while
Booker dealt with the ramifications of striking the one Black juror on the panel and
here there were two, we still treat the analysis with a similar focus. Thus, we turn
to our review of the record made over the challenge, which was first framed by
counsel for Owo Bol as:
We have five defendants here, who are all—at least four of
them are of African descent, or if not directly immigrated from Africa.
And I believe a fifth who is African-American. As the Court knows,
there has been increased scrutiny as it relates to racial issues related
to a jury panel makeup. I’m not raising a claim or real issue, it’s just
the Batson challenge. I believe the circumstances of this case give
us at least a prima facie Batson challenge here.
(Emphasis added.) Although all defendants joined in the motion, none offered
further reasoning when asked to do so by the district court. Turning to the State’s
response to the tepid objection, the prosecutor countered without fully addressing
the first step of the Batson inquiry:
If the Court then believes [Owo Bol’s counsel] made a prima
facie case that we, in fact, engaged in a discriminatory pattern, then
we would address the issue of whether or not there’s a race-neutral
reason to explain why, as tough as it was, we had to make the strike.
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So I guess, if I’m reading the case correctly, and I’ll defer to
the Court’s wisdom, I think he has to—the Court has to first find that
he actually made a prima facie case, other than simply saying they
struck someone because of—unless he’s saying the only reason we
struck her was because of her race, then he needs to be very clear
on the record that that’s what we did, and then we would respond
accordingly.
With this invitation, the district court then asked for all defendants to
expound upon the reasons each believed there was purposeful racial
discrimination with the strike exercised by the State. Counsel for Owo Bol noted
there was not much to add beyond the factors already articulated. But counsel for
Dominguez developed a broader argument and explained that the strike came:
based upon the opinions [Juror 39] shared in voir dire and her
obvious desire to talk, to be vocal—she talked with every one of us,
and she shared things about the fact that—about the fact that these
were Black men, I do believe there’s a prima facie case that some of
the things she shared related to her opinions on race and her being
Black are the reasons—make a prima facie case for the reasons the
State stuck her.
In these arguments, Dominguez’s counsel refers to her exchange with Juror 39,
when defense counsel broached the subject of her client’s race during the voir dire:
DOMINGUEZ’S COUNSEL: The other thing that nobody
wants to talk about is that these gentlemen are Black. That’s hard
for me to say with you in here, [Juror 39]; do you know why?
JUROR 39: Why?
DOMINGUEZ’S COUNSEL: Because I’m white and I don’t
know what it means to be Black.
JUROR 39: It’s hard.
DOMINGUEZ’S COUNSEL: Thank you for saying that.
Noting this exchange during voir dire in the Batson challenge, Dominguez’s
counsel characterized Juror 39’s reaction as a connection between the two of
them:
I identified the fact that these five gentlemen are Black, and [Juror
39] vocally said yes, and was visibly appreciative that someone said
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that there are Black men accused here. And in my opinion,
expressed her opinion that that needed to be talked about, that that
was an issue.
The prosecutor picked up on counsel’s characterization, noting:
I can interpret that as very supportive of [Dominguez’s
counsel], if that’s the way [Dominguez’s counsel] wants to analyze
the reaction, because the reaction is not on the record. Go, you are
the fighter for Black people. That’s not—that’s arguably me not doing
my job if I don’t have concerns that not only is she saying she’s not—
she has a difficulty with law enforcement in general, but more
importantly, sharing the advocate and zealous defender of Black
folks.
(Emphasis added.) In addition to the reasons articulated, defense counsel
emphasized that there were only two Black jurors and it was significant that one
was struck with the final strike by the prosecutor. The district court did not find the
timing of the strike supported purposeful discrimination and observed that a juror
of any race articulating a strong opinion or being outspoken generally likely would
be struck because of those tendencies and not because of purposeful
discrimination. As the district court noted, “If that was a white individual articulating
the same type of things, or even articulating as strong an opinion on other things,
that person would likely be struck because you don’t want them—an individual may
not want them on the jury because they’re very outspoken generally.”
In addressing the first step of the Batson challenge, the district court found
that the co-defendants did not make a prima facie case for purposeful
discrimination. Even so, where that ends the inquiry under the three-part Batson
test, here, the district court moved to step two and asked for the State’s reasoning
behind the strike. But, because the prosecutor offered and the court considered
race-neutral justifications for the strike, “the preliminary issue of whether [Yak]
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ha[s] made a prima facie showing [is] moot.” See Mootz, 808 N.W.2d at 218
(quoting Hernandez v. New York, 500 U.S. 352, 359 (1991)). We move to step
two.
At step two, the State must articulate racially neutral reasons for the strike.
See Booker, 989 N.W.2d at 629. In response to Yak’s challenge, the prosecutor
laid out reasons for the strike, which focused on Juror 39’s comments that “she
doesn’t trust law enforcement” and that her attitude was a concern because there
were going to be over eight law enforcement witnesses testifying. To support its
concerns, the State draws our focus to the discussions that occurred during the
examination of the third jury pool. The district court asked if anyone knew people
from the list of witnesses; four people raised their hands indicating they personally
knew a law enforcement witness. From that disclosure, the district court explored
the officer’s name and their specific relationship. Three described personal
positive connections, and one explained the officer was investigating his son,
possibly a negative association. After the prosecutor began his examination, he
returned to some of those individuals specifically, and then this exchange occurred
with Juror 39 about a question made to the full jury pool:
PROSECUTOR: Anyone have—I see [another juror] knows a
couple officers, so does [another juror]. Does anybody here have a
bias towards police officers?
JUROR 39: (Indicating.)
PROSECUTOR: Thank you so much. That is what this—what
we call jury selection—tell us, because we have a lot of police officers
who are going to testify, and this is your opportunity, when you’ve
been sworn in, and knowing that officers are going to be a lot of our
witnesses, tell us your bias towards officers.
JUROR 39: My bias all stems from the Central Park crowd,[8]
like a lot of situations like that, where police officers are put into the
8
As recounted in an article about the Central Park Five:
19
highest order and they take advantage of opportunity because others
can’t speak for themselves.
PROSECUTOR: And I don’t mean to cut you, but there are
rules we follow, and the Court and the rest of the lawyers know why
I have to cut you. But I’m going to still stay with you. I just want to
make sure that this bias that you have, which is fair, it’s a bias right
now that you still hold on to?
JUROR 39: Yes.
PROSECUTOR: It’s a bias that you believe would affect how
you look at this case?
JUROR 39: If I’m being honest, kind of.
PROSECUTOR: I want you to be honest because you have a
right to be honest, and we will respect your position.
JUROR 39: Okay.
PROSECUTOR: You’re not going to be judged for your
position. It’s just important that we all know your position. And I’m
sure anybody else here wants to know your position and everybody
else’s position, which is why we put it out there. You were just brave
and honest enough to tell us, so don’t even hold back. Tell me would
that affect how you look at the testimony?
JUROR 39: No, because I’m still going to listen to what they
say, but I’m going to be more attentive to what they say.
PROSECUTOR: Bottom line is this, they are—we have
several officers that we’re going to be calling. The State of Iowa has
to be assured that you are prepared—the State of Iowa and you will
be fair to the defendants. So the question now is, can you truthfully,
knowing all what you know and feel, can you be fair, honestly, to the
State? Can you be fair to the State?
JUROR 39: Yes.
In 1989 [Korey Wise, Kevin Richardson, Raymond Santana, Antron
McrCray, and Yusef Salaam]—then teenagers—were arrested in
connection with the rape and assault of a white female jogger, and
eventually convicted in a case that came to symbolize the stark
injustices black and brown people experience within the legal system
and in media coverage. They were convicted based partly on police-
coerced confessions, and each spent between six and 13-plus years
in prison for charges including attempted murder, rape and assault.
The men maintained their innocence throughout the case, trial
and prison terms, and all were exonerated after Matias Reyes, a
convicted murderer and serial rapist, confessed to the crime in 2002.
In 2014, they were awarded a $41 million settlement, though the City
of New York denied any wrongdoing.
Aisha Harris, The Central Park Five: “We Were Just Baby Boys”, N.Y. Times, May
30, 2019, https://www.nytimes.com/2019/05/30/arts/television/when-they-see-
us.html.
20
PROSECUTOR: And can you be fair to the defendants?
JUROR 39: Yes.
PROSECUTOR: And as much as you have belief systems, so
do a lot of people, but when you walk into this building, it is critical
that you’ll at least be fair to both sides and set aside and see that we
simply do our jobs; can you do that?
JUROR 39: Yes, I can.
PROSECUTOR: Thank you. So right now are they guilty or
not guilty?
JUROR 39: Not guilty.
PROSECUTOR: Why is that so?
JUROR 39: They haven’t been proven guilty.
PROSECUTOR: If we do prove them guilty, can you find them
guilty?
JUROR 39: Yeah.
PROSECUTOR: Without hesitation, if we do prove them
guilty, and you along with others say they’re guilty, would you—or is
that going to be your hesitancy, I don’t like police, I’m going to stick
it to the Government?
JUROR 39: I wouldn’t do that.
(Emphasis added.) From this exchange, the prosecutor later identified his concern
over Juror 39’s discussion with him, stating: “We contemplated, we did everything,
we reviewed it, we thought about it. It was stressful, but I will not be doing my job
if we left somebody who says, basically, I have an issue with police officers.”
But in the final summary, the prosecutor based the State’s decision on what
he perceived as the juror’s attitude toward police officers. And he was not alone
in this perception because the district court referenced a similar reaction:
I understand that an issue as to the timing of the strike may
be used as proof of purposeful discrimination. The Court first
addresses whether—if there has been a prima facie case articulated
in this case. The Court does not find that there has not been a prima
facie case articulated in purposeful discrimination, and as such, the
burden does not shift to the State; however, for purposes of
arguendo, for purposes of the appellate record, the Court will
address step two as under the analysis, as well, and that’s whether
the State can articulate a reason as to why this strike was made.
First and foremost, the Court finds the statements of counsel
concerning the strike both credible and believable. The Court finds
that the reasons that were provided by the counsel for the State, as
21
to striking this particular panel member, were both plausible and
reasonable, and provide a legitimate ground for the counsel to form
an opinion as to the prospective juror and why that prospective juror
was objectionable.
Specifically, the Court notes that this juror, without question,
articulated an opinion as to law enforcement personnel. As the State
has argued, this case involves more than just one or two law
enforcement personnel testifying. As I stated, the Court believes that
this is a plausible and reasonable, legitimate ground for an opinion
to strike this individual.
As such, the Court finds that, in this case, the defense has
failed to establish that the counsel for the State was using a strike to
engage in purposeful discrimination; as such, the Court will deny the
motion.
(Emphasis added.)
At this second step, the district court “is extremely deferential to the party
seeking to strike the juror.” Mootz, 808 N.W.2d at 218. “Unless a discriminatory
intent is inherent in the [attorney’s] explanation, the reason offered will be deemed
race neutral.” Hernandez, 500 U.S. at 360 (noting that the prosecutor’s perception
the Latino persons struck from the jury would not accept the interpreter as the final
arbiter of the witnesses’ responses was a race-neutral reason and was not just to
remove a certain race from the jury but to get jurors who would accept the
interpreter’s translation). “A neutral explanation in the context of our analysis here
means an explanation based on something other than the race of the juror.” Id. A
juror’s bias against law enforcement has been found to be race neutral. State v.
Thomas, 847 N.W.2d 438, 447 (Iowa 2014). And once a race-neutral reason is
given, the district court is required to accept the reason and proceed to step three,
where Yak had the burden to show the reason was “merely a pretext for
discrimination.” See Mootz, 808 N.W.2d at 219.
22
Now at step three, with the race-neutral reason formulated, the district court
had to decide if it believed the prosecutor’s explanation for striking the juror or if it
was simply a pretext for racial discrimination. Id. at 219–20. In the end, the district
court here accepted the reasons as race neutral—not using that term, but
characterizing the reason for the strike as a legitimate, reasonable, and plausible
ground. As stated in Booker, our cases have “have repeatedly noted that a juror’s
interactions with law enforcement and the legal system are . . . valid, race-neutral
reason[s] for a peremptory challenge.” 989 N.W.2d at 630 (alterations in original)
(quoting State v. Veal, 930 N.W.2d 319, 334 (Iowa 2019)). And the explanation
for the strike “‘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.’” Veal, 930
N.W.2d at 334 (citation omitted).
Thus, the district court drilled down to the one point advocated by the
prosecutor—the bias against police officers—that the district court observed and
noted as well. The prosecutor emphasized:
But more importantly, Judge, she said she doesn’t trust law
enforcement, and nobody mentioned that.
So what she wants me to do is leave a juror, knowing that we
have probably eight, nine, if not more law enforcement officers
testifying, she made it abundantly clear, as it relates to her opinion,
regarding law enforcement officers. If that’s not a race-neutral
reason to strike someone—I’ve been in courtrooms when other
lawyers heard that and they recognized that was a race-neutral, from
the totality of the circumstances.
(Emphasis added.) Oddly, no one challenged this race-neutral reason or protested
it was not a legitimate reason to strike a juror. Specifically, Yak made no record of
Juror 39’s discussion of her feelings about law enforcement, if she had been
23
rehabilitated by other questions, or any concern that in the other juror pools
potential jurors were not asked the same question.
Now on appeal, Yak maintains the record supports upholding the Batson
challenge because the State’s reasons for the strike were not race neutral. As Yak
now frames the challenge, the reasons for the strike were not race neutral because
the circumstances show the third of the four small juror groups was the only one
that was asked a question about bias towards law enforcement, Juror 39 was
treated differently because the prosecutor directly asked her that question, and
asking a juror a question on this subject is “merely a proxy for race.” Likewise, Yak
also asserts the prosecutor’s reason that Juror 39 “being supportive of defense
counsel as a ‘zealous defender of black folks’” was “explicitly about race.”
On the last point, the discussion began because Dominguez’s counsel
inserted a comment about race in her question to Juror 39. Then when making a
record about the Batson challenge, Dominguez’s counsel described Juror 39 as
being “appreciative” of their discussion. The State argues “[a]ny attorney should
feel compelled to strike a juror who appears to be more favorable to another
attorney in the case before the evidence has even been presented.” And, it was
defense counsel who identified observations of a favor by Juror 39 toward
supporting the defendants. But even if this reasoning was closer to the line, the
prosecutor identified a racially neutral explanation—Juror 39’s bias against law
enforcement—and the district court determined that the explanation was credible.
As for the other arguments advanced by Yak to attack the district court’s
ruling on the race-neutral reasoning, he directs us to points in the voir dire
examination that he believes belie the race-neutral finding. First, Yak maintains
24
that questioning a Black juror about bias against law enforcement is “merely a
proxy for race.” But the question came only after several potential jurors identified
a law enforcement witness they knew and after one mentioned the officer was
investigating his son. It would be proper to explore those attitudes toward or
against officers in a general sense at this point, and the question was directed to
the group of fifteen jurors generally. “Skilled attorneys” often ask “a simple factual
question where a prospective juror can be expected to give an honest answer in
order to get at the prospective juror’s underlying outlook and beliefs.” Booker, 989
N.W.2d at 635 (Mansfield, J., specially concurring). Juror 39 indicated a response
to a general question, which is when the prosecutor asked her to “tell us your bias
towards officers,” and the specific questioning about bias began with Juror 39. And
as in Booker, the prosecutor did not limit his concerns only to Juror 39; when
another potential juror—who is not Black—made statements about bias against
the State, the prosecutor requested the potential juror be removed for cause. See
989 N.W.2d at 631 (finding it persuasive, when considering whether the
prosecutor’s stated non-racial reason for use of a strike was pretextual, that the
prosecutor did not limit his concerns about potential “victim blaming” solely to the
Black juror who was struck).
Next, Yak contends it is suspicious that the question about law enforcement
bias was only asked of the third group of jurors, which included a Black potential
juror. The State maintains the reason was that this was the only group that had
members who directly knew law enforcement witnesses. And, the second group
of jurors contained the other Black potential juror, who did serve on the jury, but
who was not asked any questions about bias towards law enforcement. This
25
factors into the overall circumstances we are to consider in evaluating the Batson
challenge. See id. at 630 (“The ultimate inquiry is whether, under the totality of the
circumstances, the strike was ‘motivated in substantial part by discriminatory
intent.’” (quoting Flowers v. Mississippi, 139 S. Ct. 2228, 2244 (2019)). The totality
of the full voir dire examination does not support the suspicions of Yak.9
From a practical vantage point, we understand that “showing that a juror is
actually biased poses difficult problems of proof.” State v. Webster, 865 N.W.2d
223, 237 (Iowa 2015) (reflecting that voir dire is the method available to “smoke
out” a juror’s bias). Here, we have the cold record without the benefit of facial
expressions or tone of the response. But we do have the credibility determination
of the district court. See Flowers, 139 S. Ct. at 2244 (“[T]he best evidence of
discriminatory intent often will be the demeanor of the attorney who exercises the
challenge.” (citation omitted)); see also Veal, 930 N.W.2d at 327 (“[A] great deal of
deference is given to the district court’s evaluation of credibility when determining
the true motives of the attorney when making strikes.” (citation omitted)). And it
seems strange that neither Yak nor his co-defendants argued that the State
misinterpreted Juror 39’s attitude about law enforcement when they were there in
real time. Perhaps the defendants understood the premise that “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.” Jonas, 904 N.W.2d at 571 (“Under the actual-bias cases, a
9 In the other three groups, although no potential juror indicated they knew law
enforcement witnesses, the State explored potential jurors’ bias towards the State
or the criminal justice system in general and defense counsel asked about attitudes
towards law enforcement in general as well. So, there was discussion about these
topics in the other groups though not the exact same question.
26
later affirmative response to a ‘magic question’ using the words fair and impartial
is not enough to rehabilitate the potential juror.”). And while there appeared to be
some rehabilitation of Juror 39’s position, we cannot say from our perch what
demeanor each of the lawyers in the room and the judge observed as to her initial
attitude, as opposed to during her later comments, solicited from the leading
questions. See State v. Williams, No. 21-1772, 2022 WL 16985147, at *4 (Iowa
Ct. App. Nov. 17, 2022) (“The subtext, tone of voice, and demeanor of the jurors
are relevant and not apparent from a transcript.”).
We can only observe that at the time the Batson record was made both the
prosecutor and the district court were under the impression that “without question”
the juror expressed a “bias” (in the juror’s own words) against law enforcement that
would require her to be “more attentive” to their testimony over other witnesses.
And the need to be “more attentive” to testimony from police officers could be fairly
interpreted to reflect Juror 39’s stated concerns about law enforcement in general.
And, we have no record from Yak and his co-defendants arguing against that race-
neutral reason, as they did not push back on that articulated concern raised by the
State.
In sum, given the deference we are to afford the district court in its role to
ascertain the true motive for the strike along with viewing the totality of the
circumstances of this case, we do not find that the strike was “motivated in
substantial part by discriminatory intent.” Booker, 989 N.W.2d at 630. The district
court did not abuse its broad discretion in overruling Yak’s Batson challenge. See
Jonas, 904 N.W.2d at 571 (“The district court is vested with broad discretion in
such rulings.”).
27
Because substantial evidence supports each of Yak’s convictions, and
because our de novo review does not lead us to a different result on the Batson
issue, we affirm.
AFFIRMED.
Bower, C.J., concurs; Tabor, J., partially dissents.
28
TABOR, Judge. (concurring in part and dissenting in part)
I concur in the majority’s substantial-evidence analysis. But I respectfully
dissent on the Batson10 issue. “Equal justice under law requires a criminal trial
free of racial discrimination in the jury selection process.” Flowers v. Mississippi,
139 S. Ct. 2228, 2242 (2019). Yak’s trial did not meet that test.
First, Yak established a prima facie case of purposeful racial discrimination
in the State’s peremptory strike of Juror 39, one of only two Black citizens in the
jury pool.11 Second, the prosecutor’s reasons for the strike were not race neutral.
And third, even if the reasons were race neutral, Yak carried his burden to show
that they were a pretext for racial discrimination. See State v. Booker, 989 N.W.2d
621, 629 (Iowa 2023).
The district court was dubious of the Batson challenge from the start.
Without prompting from the prosecution, it questioned whether the defendants
made a prima facie case, noting “just because they struck a Black juror does not
necessarily mean that it was purposeful discrimination.” Counsel for Dominguez
agreed with the court’s premise but explained why striking Juror 39 appeared to
be about race:
[B]ased upon the opinions she shared in voir dire and her obvious
desire to talk, to be vocal—she talked with every one of us, and she
shared things about the fact that—about the fact that these were
black men, I do believe there’s a prima facie case that some of the
things she shared related to her opinions on race and her being black
10 See Batson v. Kentucky, 476 U.S. 79 (1986).
11 Both Yak and the State suggest that we may bypass this step as moot because
the court asked the State to provide race-neutral reasons. See State v. Mootz,
808 N.W.2d 207, 215 (Iowa 2012). But because I disagree that the State’s
proffered reasons for the strike were race neutral, it completes the analysis to
address the first step.
29
are the reasons—make a prima facie case for the reasons the State
struck her.
The court rejected that explanation, saying it had “a hard time extrapolating or
connecting” Juror 39’s “being vocal” with a finding of purposeful discrimination.
The court then seemed to offer its own race-neutral reason for the State’s strike,
comparing Juror 39 to a hypothetical opinionated white juror. “If that was a white
individual articulating the same type of things, or even articulating as strong an
opinion on other things, that person would likely be struck because you don’t want
them—an individual may not want them on the jury because they’re very
outspoken generally.”
Contrary to the district court’s finding, Yak did present a prima facie case of
purposeful discrimination.12 This first step is not intended “to be so onerous that a
defendant would have to persuade the judge—on the basis of all the facts, some
of which are impossible for the defendant to know with certainty—that the
challenge was more likely than not the product of purposeful discrimination.”
Johnson v. California, 545 U.S. 162, 170 (2005). Instead, evidence is sufficient if
the court can “draw an inference that discrimination has occurred.” Id.Yak cleared that low bar to show an inference of purposeful discrimination.
As Yak notes on appeal, “Juror 39’s group was the only group that the State asked,
‘Does anybody here have a bias towards police officers?’” The State counters that
the examination of Juror 39’s group was the one time that several panelists said
12 Courts may consider all relevant circumstances in deciding whether the objector
makes a prima facie case. See Batson, 476 U.S. at 97. Examples of relevant
circumstances include a pattern of strikes against Black jurors and the prosecutor’s
questions and statements during jury selection. Id.30
they knew police officers who would be testifying. The State also points to the
prosecutor’s phrasing—asking if anyone had a bias towards police, not against
police. But that word choice was lost on Juror 39, who took “bias” to mean
skepticism of police conduct. When Juror 39 raised her hand in response to the
prosecutor’s inquiry, he probed her view of police officers and her ability to be fair.
In contrast, the prosecutor did not ask the same probing questions of white
prospective jurors who confirmed that they knew police officers who might be
witnesses, suggesting that he was not trying to ferret out panelists who were
biased towards law enforcement.13 What’s more, when the prosecutor used his
last peremptory strike on Juror 39, he eliminated fifty percent of the available Black
jurors. It’s true that statistics alone do not give rise to an inference of purposeful
discrimination. But numbers are relevant. See Flowers, 139 S. Ct. at 2245; see
also Booker, 989 N.W.2d at 629 (“[A]though striking the sole Black juror does not,
in a vacuum, establish a prima facie case, that fact is relevant to the
analysis . . . .”). Considering all relevant circumstances, the record supports an
inference of purposeful discrimination.
Moving to the second Batson step, while the court did not find that the
burden had shifted, it still asked the State to articulate the justification for its strike.
Before articulating his reasons for striking Juror 39, the prosecutor complained that
the defense attorneys did not give him credit for leaving a Black person on the jury:
13 In fact, two panelists (Jurors 35 and 43) conveyed that they knew one of the
police officers listed as a possible State’s witness, and a third panelist (Juror 19)
was married to a police detective. The prosecutor did not probe their potential
biases. That third juror did assure defense counsel that he would not “believe the
police officer just because they’re a police officer.” All three of those panelists
ended up serving on the jury.
31
We’re not shying away from the issue, but too often we throw things
out there and people’s credibility are on the line. What I didn’t see
any one of them do is stand up and tell this Court what we did: left
an African-American on the jury, to say, whoa, they left an African-
American on the jury, but the moment we struck one, this
insinuation/suggestion that it was because of her race.
But leaving one of two Black jurors on the panel did not shield the State from a
Batson challenge. See Miller-El v. Dretke, 545 U.S. 231, 250 (2005) (skeptically
viewing State’s decision to accept one Black juror as attempt to obscure pattern of
opposition to seating Black jurors); see also Batson, 476 U.S. at 95 (“‘A single
invidiously discriminatory governmental act’ is not ‘immunized by the absence of
such discrimination in the making of other comparable decisions.’” (citation
omitted)).
The prosecutor then asserted that he struck Juror 39 because “she said she
doesn’t trust law enforcement, and nobody mentioned that.” The prosecutor
claimed that Juror 39’s opinion on law enforcement officers was “abundantly
clear.”14 But the prosecutor mischaracterized the juror’s responses.
14 The prosecutor also called out one of the defense attorneys for “feeling it was
important to accuse the Government of engaging in purposeful discrimination.”
Another defense counsel responded that “the allegations from the State that this
is a personal issue versus a constitutional issue are ridiculous.” Defense counsel’s
point is an important one.
[U]nder Batson, the issue is not racial animus but the respondent’s
right to a fair trial, including a jury selection process untainted by
improper exclusion of prospective jurors based on race. The State,
like any other party to a jury trial, wants to seat a jury that will be
favorable (or at least not hostile) to its case. Batson focuses on the
reason the State believes a particular juror should not be seated, and
if the juror’s race is the reason, a violation exists despite the fact that
the prosecutor does not otherwise discriminate against or harbor any
animus toward that race.
In re A.S., 76 N.E.3d 786, 793 (Ill. App. Ct. 2017); see Harris v. United States, 260
A.3d 663, 669 (D.C. 2021) (“[R]ace is an impermissible factor in jury selection even
if (as we assume here) the prosecutor was not motivated by racial animus, but
32
As the majority notes, Juror 39 raised her hand when the prosecutor asked
members of the fourth venire panel whether anybody had “a bias towards police
officers.” In detailing the juror’s exchange with the prosecutor, the majority
italicizes what it believes are the key passages. But the majority’s emphasis
overlooks the tempering statements interspersed in the juror’s responses. For
example, Juror 39 did not recount any negative personal knowledge or
experiences with police in the community. Instead, she mentioned an infamous
rape case from New York City in which detectives used improper tactics to coerce
false confessions from Black teenagers over thirty years ago.15 The prosecutor
encouraged her to discuss her “bias towards officers,” and she answered honestly.
Contrary to the prosecutor’s recollection, Juror 39 did not say she did not
trust law enforcement. Rather, she was concerned by situations when officers
exploit their authority over “others who can’t speak for themselves.” The
prosecutor told her it was “fair” to hold that opinion, she had “a right to be honest,”
and he would respect her position. Further stretching sincerity, he said: “You’re
not going to be judged for your position.” The prosecutor described her as “brave”
and told her: “[D]on’t even hold back.” When asked how her “bias” would affect
instead acted on an assumption that a black woman juror, because of her race,
would be favorable to a black defendant or unfavorable to the government.”); see
also People v. Ojeda, 487 P.3d 1117, 1132 (Colo. App. 2019) (Harris, J., specially
concurring) (“A defendant need not show that the race-based strike was motivated
by the lawyer’s prejudice or animus.”), aff’d on other grounds, 503 P.3d 856 (Colo.
2022).
15 This case returned to the public eye in 2019 when Netflix aired When They See
Us, a hit miniseries based on the true story. See Elizabeth Vulaj, From the Central
Park 5 to the Exonerated 5: Can It Happen Again?, 91 N.Y. ST. B.J. 24, 24 (August
2019) (noting miniseries “reignited a national conversation about race, our criminal
justice system, and the role of police, prosecutors and the press in the treatment
and depiction of these men”).
33
how she viewed the officers’ testimony, she assured the prosecutor that she would
“listen to what they say.” She added that she would “be more attentive to what
they say.” But being “more attentive” is not the same as saying she would
disbelieve them. In fact, when asked if she could be fair to the State, she answered
“yes.” And when the prosecutor questioned whether she would hesitate to return
a guilty verdict if the State proved its case, just to “stick it to the government”
because she didn’t like police, she said: “I wouldn’t do that.” Seemingly satisfied
with her response, the prosecutor said: “And that’s all we are asking for are fair
people and honest people.” In this exchange, the prosecutor uttered inflammatory
language, which Juror 39 disavowed. So for the prosecutor to later say her distrust
of police was “abundantly clear” was an exaggeration.
Overlooking that nuance, the majority characterizes Juror 39’s “bias against
police officers” as the “one point advocated by the prosecutor” for striking her. 16
And it questions the defense preservation of error, finding it “odd” that “no one
challenged this race-neutral reason or protested that it was not a legitimate reason
to strike a juror.” Yet the State concedes that Yak preserved his Batson challenge
by raising it before the jury panel was dismissed and receiving an adverse ruling.
Plus, a review of the record reveals that the district court did not welcome in-depth
16 The majority mentions that the prosecution asked to remove for cause another
potential juror—who was not Black—after he suggested that he could not be fair
to the State. But that same venire member, Juror 17, also said that “the
defendant’s attorney is basically the devil’s advocate.” The court later struck Juror
17, finding that he was giving answers “in attempt to get off the jury and has not
necessarily been truthful.” The prosecution’s treatment of that potential juror was
not a useful comparison to its peremptory strike against Juror 39.
34
rebuttals to the State’s explanation for its strike, repeatedly telling defense counsel
to “be brief” because they were “running out of time.”
The record also shows that Juror 39’s alleged distrust of the police was not
the prosecutor’s sole reason for striking her. After asserting that Juror 39 “had an
issue with law enforcement officers,” the prosecutor offered a second—and what
he called “more important”—reason for his strike: Juror 39’s expression of gratitude
when counsel for Dominguez acknowledged the race of the five co-defendants
during jury selection.
DOMINGUEZ’S COUNSEL: The other thing that nobody
wants to talk about is that these gentlemen are black. That’s hard
for me to say with you in here, [Juror 39]; do you know why?
JUROR 39: Why?
DOMINGUEZ’S COUNSEL: Because I’m white and I don’t
know what it means to be black.
JUROR 39: It’s hard.
DOMINGUEZ’S COUNSEL: Thank you for saying that.
Later in arguing the Batson motion, Dominquez’s counsel confirmed that Juror 39
“vocally said yes, and was visibly appreciative that someone said that there are
Black men accused here.”17
Recalling that exchange, the prosecutor was at first dismissive of the juror’s
reaction, saying; “It’s obvious to anybody who was not blind that the defendants
were Black, so giving credit to . . . a juror, who said, guess what? The defendants
are Black. Thank you for telling us what is obvious.” Then in his later remarks the
prosecutor couched the reason for his strike in race-based language, suggesting
17 On that point, the majority finds it significant that it was Dominguez’s attorney
who broached the topic of race with Juror 39. Granted, the defense pointed to the
elephant in the room. But that opening did not excuse the prosecution from offering
a race-neutral reason for its peremptory strike.
35
that Juror 39 was essentially cheering on Dominguez’s counsel: “Go, you are the
fighter for Black people.” The prosecutor drew this juxtaposition: “[S]he has a
difficulty with law enforcement in general, but more importantly, sharing the
advocate and zealous defender of Black folks.”
But the prosecutor put those words into her mouth. Juror 39 did not say
that she sided with the defense as the “zealous defender of Black folks.”18 See
State v. Cook, 312 P.3d 653, 655 (Wash. Ct. App. 2013) (ruling that concern by
prosecutor that defense counsel, who was Black, made a connection with a Black
juror, allegedly calling him “brother,” was not a race-neutral reason to strike that
juror). Viewed in context, the prosecutor’s second reason was not race neutral; it
was infused with racial overtones. The prosecutor’s justification for excluding
Juror 39 was a pretext for a racially motivated strike. See Mootz, 808 N.W.2d at
218 (noting that not until step three does the persuasiveness of the justification
become relevant).
The majority acknowledges that this second line of reasoning offered by the
prosecutor comes “closer to the line” of purposeful discrimination based on
Juror 39’s race. But the majority falls back on the prosecutor’s statement that the
juror had “bias against law enforcement” to find the strike was race neutral.
In cases like this, where the prosecutor gives more than one justification for
a peremptory strike, courts assessing race neutrality have followed three
approaches: (1) the per se approach; (2) a mixed-motive approach; and (3) the
substantial-motivating-factor approach. See Ojeda, 487 P.3d at 1122. Under the
18 At most, in response to defense counsel’s prompting, Juror 39 expressed that it
was “hard” to be a Black person.
36
per se approach, a racially discriminatory peremptory strike violating Batson
cannot be saved because the strike’s proponent offers another nondiscriminatory
reason. See Payton v. Kearse, 495 S.E.2d 205, 210 (S.C. 1998) (“Once a
discriminatory reason has been uncovered—either inherent or pretextual—this
reason taints the entire jury selection procedure.”). Under the mixed-motive
approach, once the challenger has shown a discriminatory motivation for the strike,
the proponents can still prevail by proving they would have taken the same action
absent that improper motivation. Ojeda, 487 P.3d at 1122. Finally, under the
substantial-motivating-factor approach, courts ask whether the prosecutor was
motivated in substantial part by discriminatory intent. See Cook v. LaMarque, 593
F.3d 810, 815 (9th Cir. 2010).
Our supreme court has not addressed which of these approaches is proper
when the prosecutor has offered more than one reason in response to a Batson
challenge. To fill that void, I believe we should adopt the per se approach, which
“is the most faithful to the principles outlined in Batson.” See Ojeda, 487 P.3d
at 1122; see also Wilkerson v. Texas, 493 U.S. 924, 928 (1989) (mem.) (Marshall,
J., dissenting) (“I would find that this Court’s requirement that a prosecutor provide
a ‘neutral’ explanation for challenging an Afro-American juror means just what it
says—that the explanation must not be tainted by any impermissible factors.
Requiring anything less undermines an already underprotective means of
safeguarding the integrity of the criminal jury selection process.”); State v. Lucas,
18 P.3d 160, 163 (Ariz. Ct. App. 2001) (“Regardless of how many other
nondiscriminatory factors are considered, any consideration of a discriminatory
factor directly conflicts with the purpose of Batson and taints the entire jury
37
selection process.”). But even if we follow the substantial-motivating-factor
approach, the prosecutor’s justification for striking Juror 39 was not race neutral.
After hearing the State’s reasons for striking Juror 39, the district court
declared them “both credible and believable.” The court added:
[T]his juror without question articulated an opinion as to law
enforcement personnel. As the State has argued, this case involves
more than just one or two law enforcement personnel testifying. As
I stated, the Court believes that this is a plausible and reasonable,
legitimate ground for an opinion to strike this individual.
What the court did not say was that the prosecutor’s reasons were race neutral.
The majority maintains the district court did so without using that term. But race-
neutral reasons are the key to overcoming a Batson challenge. The prosecutor’s
reason for finding a prospective juror objectionable must be unbiased. Because
the district court did not make that explicit finding, less deference is due to its
rejection of the Batson challenge. See Harris, 260 A.3d at 674 (stressing the need
for “a rigorous evaluation of the credibility of the prosecutor’s explanations”
(citation omitted)).
Still, the majority accepts the district court’s bare-bones reference to finding
the prosecutor’s statements to be credible, noting that on appeal we have only a
“cold record without the benefit of facial expressions or tone of the response.” It’s
true that we can’t see what the trial judge saw or hear what the trial judge heard.
But the trial judge did not record his observations. As an experienced federal judge
has written—it is troubling for appellate courts to rely on a juror’s “demeanor and
body language” as supporting the “race-neutral” reason for a peremptory strike,
often “without requiring the trial court to develop or evaluate the factual basis for
the ‘demeanor’ objection, thus apparently taking the [prosecutor’s] explanation as
38
credible on its face.” Judge 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,
164 (2010).
The majority also deems it “strange” that the defense did not argue that the
prosecutor “misinterpreted Juror 39’s attitude about law enforcement when they
were there in real time.” It then speculates that perhaps the defendants
understood the premise that once a potential juror expresses bias, it is hard to
rehabilitate her, citing State v. Jonas, 904 N.W.2d 566, 571 (Iowa 2017). But the
majority mixes apples and oranges. Jonas is about disqualifying a juror for cause
based on his expression of bias against gay people. Id. Here, the question is the
discriminatory intent of the prosecutor in striking a Black juror based on her race.
And unlike the judge in State v. Williams, No. 21-1772, 2022 WL 16985147, at *4
(Iowa Ct. App. Nov. 17, 2022), the court here did not offer any observations about
Juror 39’s demeanor that would support the prosecutor’s rationale that she was
hostile to law enforcement.
The State and the majority cite Booker for the proposition that 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.” See
989 N.W.2d at 630. In Booker, the State’s justification focused on the juror’s
familiarity with “a very similar set of circumstances” and how it “might shape his
perspective of this particular case.” Id. But that is not what happened here.
Juror 39 did not recount any personal negative experiences with the police.
Rather, at the urging of the prosecutor, she articulated her general bias stemming
39
from a high-profile case in which police officers abused their authority. As Yak
argues on appeal, “[i]t’s no secret that African Americans generally hold more
negative views about police than Whites based on law enforcement’s lengthy
history of abusive and sometimes deadly encounters with African Americans.” The
State does not dispute that supposition. But it insists the prosecution “is not
required to accept jurors who openly state that they have a bias that will affect how
they view the evidence, even if similar biases are more common among certain
racial groups.” Trouble is, Juror 39 did not openly state that her bias would affect
how she would view the evidence. In fact, she assured the prosecutor that she
could be fair to both sides.
On this record, pointing to the juror’s views on law enforcement was not a
race-neutral reason for the peremptory strike. Rather, it underscored the race-
based implications in the prosecutor’s baiting of Juror 39 to expound on her bias
involving law enforcement after her mention of the Central Park Five. See
generally Booker, 989 N.W.2d at 635 (Mansfield, J., specially concurring)
(embracing Cooper v. State, 432 P.3d 202, 206 (Nev. 2018), which voiced concern
that questioning would-be juror’s support for social justice movements had
“indisputable racial undertones”)).
And even if Juror 39’s skepticism of law enforcement had come from
personal experience, it is high time for Iowa’s courts to stop accepting such all-too-
common negative interactions with police as carte blanche race-neutral reasons
for removing Black citizens from juries. A noted jurist captured the injustice of this
reasoning:
40
The fact that these everyday experiences of Black Americans are
considered legitimate grounds for a peremptory strike—even when a
juror unequivocally says she will be fair and follow the law, and even
when there is no basis to remove the juror for cause—goes a long
way to explaining why Batson “has been roundly criticized as
ineffectual in addressing the discriminatory use of peremptory
challenges during jury selection.” It may also help explain why a
substantial majority of Americans believe the criminal justice system
treats Blacks less fairly than whites.
No great sociological inquiry is needed to understand the
problematic nature of the strike at issue here. Countless studies
show that Black Americans are disproportionately subject to police
and court intervention, even when they are no more likely than whites
to commit offenses warranting such coercive action.
People v. Triplett, 267 Cal. Rptr. 3d 675, 688–89 (Cal. Ct. App. 2020) (Liu, J.,
dissenting) (internal citations omitted). “As it stands, our case law rewards parties
who excuse minority jurors based on ostensibly race-neutral justifications that
mirror the racial fault lines in society.” Id. at 692. This case presents an opportunity
to recognize that a minority juror’s negative perception of law enforcement is not
alone a race-neutral reason to exercise a peremptory strike. See State v. Miller,
No. 16-0331, 2017 WL 1088104, at *3 (Iowa Ct. App. Mar. 22, 2017) (“While using
potential jurors’ response about law enforcement appears to be race-neutral, it is
likely to have a disparate impact on potential black jurors.”).
So, finally, step three of the Batson inquiry. Even if the majority were correct
in finding the prosecutor’s reasons to be race neutral, that does not end the inquiry.
We must decide whether to believe the prosecutor’s explanation or decide that the
reasons were “merely pretext for racial discrimination.” See Booker, 989 N.W.2d
at 630. Bottom line, we ask whether the State’s peremptory strike of Juror 39 “was
‘motivated in substantial part by discriminatory intent’” under the totality of
circumstances. See id. (quoting Flowers, 139 S. Ct. at 2244). “Although a neutral
41
explanation is one based on something other than the race of the juror and need
not rise to the level justifying a challenge for cause, the neutrality of that
explanation must be viewed in the totality of the prosecutor’s comments.” See
Cook, 312 P.3d at 657.
The prosecutor’s comments during jury selection support a finding of
discrimination. After Juror 57, who was white, told the court that he did not believe
in putting people in jail, the prosecutor berated him for being unwilling to do his
civic duty. After a protracted discourse on sacrifice and the rule of law, the
prosecutor singled out Juror 57: “I’m not going to stand up here and lecture you.
For the rest of you, other than . . . the gentleman who’s made up his mind, I believe
you can be fair, just, which is all we ask. So for the rest of you, I say thank you.”
When it was defense counsel’s turn, she told Juror 57 that he was “really
brave,” and that she disagreed with the prosecutor: “I think we need people like
you to say the truth in how they’re feeling.” After Juror 57 said he didn’t “want to
be responsible for putting five young men in jail or not in jail,” counsel for
Dominguez discussed the presumption of innocence and implicit bias. Counsel
described the temptation to believe the defendants were guilty before the State
presented evidence: “They’re here. They’re charged. They have attorneys.
They’re Black. Their faces were on the news. They were wearing stripes. Aren’t
they guilty?” The prosecutor then revealed his discomfort with defense counsel’s
reference to race, objecting to the phrase “that they’re Black.” The court asked
defense counsel to rephrase her question to Juror 57. But after all of that, the
prosecutor did not use a peremptory strike on Juror 57. “Comparing prospective
42
jurors who were struck and not struck can be an important step in determining
whether a Batson violation occurred.” Flowers, 139 S. Ct. at 2248.
In arguing the Batson challenge, counsel for Dominguez pointed to the
prosecutor’s decision not to strike Juror 57 “when he expressed similar views” as
Juror 39. “That, Your Honor, should be telling to this Court about the intentions.”
Defense counsel continued:
I do not believe [Juror 57] was treated with dignity and respect by the
State. And I believe that the manner in which the State handled voir
dire was inappropriate, and the manner in which [Juror 57] was
treated versus that Black young lady should be evidence for this
Court, and for the appellate court, that [the prosecutor’s] treatment
of individuals who voiced concerns about law enforcement and not
wanting people to go to jail is not unbiased.
When evaluating discriminatory intent, we may also consider “that the
prosecutor misstated the record (whether intentionally or not) in defending against
the Batson challenge.” See Booker, 989 N.W.2d at 631. As discussed, the
prosecutor overstated Juror 39’s distrust of police and embellished her praise for
defense counsel’s advocacy. After reviewing jury selection in its totality, I would
find that the State’s peremptory strike of Juror 39 was substantially motivated by
her race.
The Equal Protection Clause forbids striking even one prospective juror for
a discriminatory purpose. See Snyder v. Louisiana, 552 U.S. 472, 478 (2008).
And the damage from this discriminatory jury selection extends beyond Yak. See
Batson, 476 U.S. at 87 (“Racial discrimination in selection of jurors harms not only
the accused whose life or liberty they are summoned to try.”). Denying
participation in jury service on account of race unconstitutionally discriminates
against the excluded juror too. Id. And beyond the harm to Yak and Juror 39,
43
“[s]election procedures that purposefully exclude black persons from juries
undermine public confidence in the fairness of our system of justice.” Id. Finding
a constitutional violation, I would reverse and remand for a new trial.