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By DAVID PITT
Justice Daryl Hecht
DES MOINES, Iowa – Black defendants on trial in Iowa have a better chance of challenging all-white juries after the Iowa Supreme Court concluded judges must broaden their analysis when considering whether jury pools include enough minority members to guarantee a fair trial.
As part of its decision, the court took the rare step of reversing its own ruling from a case 25 years ago. The ruling came in an appeal by Kelvin Plain Sr., a black Waterloo man convicted by an all-white jury of harassing a neighbor in 2015. The court threw out the method previously used to gauge the racial composition of a jury and said judges should consider multiple methods that offer a more balanced review.
“A test without teeth leaves the right to an impartial jury for some minority populations without protection,” Justice Daryl Hecht wrote for the court in a ruling released June 30. He went on to write: “Having just one person of color on an otherwise all-white jury can reduce disparate rates of convictions between black and white defendants.”
Plain’s attorney Gary Dickey said the ruling is a significant victory.
“Now minority populations in Iowa have an avenue to challenge jury pools that are not reflective of their communities,” he said.
While the court affirmed Plain’s conviction, it returned his case to district court and ordered the judge to consider, using the court’s new directive to use multiple tests, whether the racial composition of his jury pool violated his constitutional right to an impartial jury. If it did, Plain will get a new trial.
Plain, 49, was charged with harassment after a dispute with a neighbor. Out of 56 potential jurors at his trial, only one was black; that man wasn’t seated on his jury.
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Although African Americans represent 8.9 percent of the population of Black Hawk County, the one black prospective juror represented just 1.8 percent of potential jurors. The trial judge denied Plain’s request for a new jury.
In its ruling, the Supreme Court said a 1992 decision was wrong to order judges to use an absolute disparity test as the only measure of jury pool minority balance. That test takes the percentage of blacks in the population and subtracts it from the percentage represented in the jury pool. Justices acknowledged that since their 1992 case, the U.S. Supreme Court and others have concluded that method is not an accurate indication of minority balance in locations where minorities represent less than 10 percent of the overall population. Since minorities make up no more than 10 percent of any Iowa county, blacks virtually had no legal challenge to all-white jury pools.
“If you showed up and you had zero African Americans in the jury pool, there was no recourse,” Dickey said. “It was a loser of an issue to the point that attorneys were no longer making the argument because you felt like you had no shot of winning.”
The high court’s new instruction to judges is that they must use several widely accepted assessment models to determine jury balance.
Plain’s appeal also challenged the trial judge’s refusal to read a jury instruction that said jurors “must not consider the defendant’s race, color, religious beliefs, national origin, or sex” in reaching a verdict. The Supreme Court refused to reverse the conviction on that basis. Iowa allows judges to issue such an instruction but doesn’t require it.
The justices, however, strongly urged judges to begin using such instructions to battle the notion that white juries are often guided by unconscious stereotypes toward minorities.
Justice David Wiggins, writing separately, said Iowa should require such instructions when they’re requested. He cited research from The Sentencing Project that found 25.8 percent of Iowa’s prison population is black, while blacks made up only 3.1 percent of Iowa’s population. The same report found the black to white incarceration ratio in Iowa’s prisons was 11 to 1.
“These numbers are shameful, and I believe much of the cause for these alarming statistics is due to implicit bias against blacks in Iowa,” he said.
Court documents and Iowa Department of Corrections records show Plain has a lengthy criminal record, and is on probation for previous convictions. He’s also on the Iowa Sex Offender registry for a 2010 assault with intent to commit sexual abuse conviction.