In the district court, defense counsel asserted that Webster County was 5.5% African-American according to 2016 census data; the State asserted that it was 4.1%, citing our Plain opinion. See State v. Plain , 898 N.W.2d 801 , 825 (Iowa 2017) (referencing a 4.1% figure for Webster County in 2013). In its amicus brief, the NAACP uses a 4.6% number for the African-American population of Webster County drawn from 2017 census data. The NAACP states that both the 5.5% and 4.1% figures are "clearly erroneous," the 4.1% number from Plain being "too old." We take judicial notice of the 4.6% figure, which we believe to be more accurate as of the time of trial in this case.

The district court found that 153 potential jurors reported, although the parties use the number 157 in their briefs.

Two of them had self-identified as both African-American and Caucasian. The NAACP notes the 2017 census data reflect an additional 2.1% of the population as being of "two or more races."

On appeal, Veal also raises article I, section 10 of the Iowa Constitution, although he does not offer a separate state constitutional analysis. However, in the proceedings below, Veal cited only the Sixth Amendment, not article I, section 10. Likewise, the district court mentioned only the Sixth Amendment in its ruling. By contrast, Veal did mention the Iowa Constitution when asserting his Batson challenge and when moving for change of venue. We have held that a defendant who specifically identifies only a federal constitutional claim in the trial court has not preserved a state constitutional claim. See State v. Coleman , 890 N.W.2d 284 , 286 (Iowa 2017) ; State v. Prusha , 874 N.W.2d 627 , 630 (Iowa 2016). Veal does not argue ineffective assistance on direct appeal based on trial counsel's failure to raise the Iowa Constitution below.

At oral argument, the parties agreed that another valid adjustment would be to exclude persons incarcerated in the state prison in Fort Dodge who obviously could not serve as jurors.

The State proposes an age-related adjustment of .8559, because 77.7% of all Iowans are eighteen and over (and thus eligible to serve on juries) but only 66.5% of Iowan African-Americans are eighteen and over. Doing the math, 66.5 divided by 77.7 is .8559.

However, it is possible that an adjustment for the Fort Dodge prison population would bring the percentage of jury-eligible African-Americans in the overall jury-eligible population below 3.27%, i.e., below the actual percentage of African-Americans in Veal's juror pool. If so, for reasons we discuss in Lilly , Veal would not be able to meet the underrepresentation prong of the Duren / Plain framework, and there would be no need to examine aggregate data. See Lilly , 930 N.W.2d at ----. This is a matter on which the parties can present proof on remand. We do not have an adequate record before us.

For the same reasons as noted in Lilly , we do not address here whether there should be outer limits on aggregation. See Lilly , 930 N.W.2d at 305 n.7.

In closing argument, Veal's counsel advanced the theory that Willis was actually the murderer of both Kavars and Christensen. According to defense counsel, Willis sent Veal outside Christensen's house wearing Willis's clothing and carrying the knife used to murder Christensen so Veal could be a "fall guy." According to this theory, Willis managed to clean himself up to eliminate all traces of blood on his body and his whereabouts before calling 911 to contact police.

In addition to its overall implausibility, this theory fails to explain why the bloody footprints in the house matched Veal's shoes, how Veal ended up with a cut on his hand, why Veal ran away from the police whereas Willis cooperated, and how Willis's skin tissue ended up on the slide of the gun.

Veal frames the issue on appeal as whether a "new" competency evaluation should have been ordered. In the trial court, Veal's position was that additional evaluation was needed to determine whether Veal was suffering from schizophrenia or not. Regardless of how the issue is characterized, the role of the trial court as of May 23 was to determine Veal's competency to stand trial in light of the expert evaluations and other evidence before it. See Iowa Code §§ 812.5 , .8(5).

Willis consented to a search of his vehicle, a point the prosecution used at trial to show that Willis was not trying to hide anything from the police.

WIGGINS, Justice (concurring in part and dissenting in part).

I join Justice Appel's opinion in this case. However, I think it is time to abolish peremptory challenges in Iowa. The Code and our rules provide for reasons why a court should not seat a juror. Iowa Code §§ 607A.4, .5, .6 (2019); Iowa R. Crim. P. 2.18(5) ; accord Iowa R. Civ. P. 1.915(6). And, if the rules are inadequate, we should amend our rules. If a person can sit as a juror under the Code and rules, a party should not be able to strike that otherwise qualified juror.

As Justice Marshall pointed out in his concurring opinion in Batson v. Kentucky , "[m]isuse of the peremptory challenge to exclude black jurors has become both common and flagrant." 476 U.S. 79 , 103, 106 S. Ct. 1712 , 1726, 90 L.Ed.2d 69 (1986) (Marshall, J., concurring). Even after Batson , I see the same problem in Iowa. In the majority of the cases, the reasons given by prosecutors in response to a Batson challenge appear to be pretexual. Washington General Rule 37, cited by Justice Appel in his opinion, helps but does not solve the problem. The only way to stop the misuse of peremptory challenges is to abolish them in Iowa and require judges to enforce rigorously challenges for cause. If our judges would enforce our rules on challenges for cause, the district court can be confident that it sat an impartial jury.

The practice of allowing peremptory challenges started in England in the 1300s. Raymond J. Broderick, Why the Peremptory Challenge Should Be Abolished , 65 Temp. L. Rev. 369 , 371-72 (1992). In 1988, Parliament abolished peremptory challenges altogether. Id. at 373 . Parliament's concern was "that defense lawyers were manipulating the peremptory challenge to pack juries with biased individuals, thereby defeating the ability of random draw techniques to ensure a representative petit jury." Id. When prosecutors systematically remove minorities from juries, we should do what Parliament did and abolish peremptory challenges.

Peremptory challenges are a creature of our rules and are not constitutionally required. All that is required under our Constitutions is that a defendant receives a trial by an impartial jury. U.S. Const. amend. VI ; Iowa Const. art. I, sec. 10. Abolishing peremptory challenges will go a long way toward fulfilling that constitutional obligation.

Therefore, I think we should begin a discussion to remove peremptory challenges from our rules.

APPEL, Justice (concurring in part and dissenting in part).

In this case, I concur with the majority opinion except for division VI (the Batson challenge).

Today, we consider three important cases related to this court's ongoing efforts to ensure that the notion of equality before the law applies to African-Americans in our justice system and in our jury system. As professional hair splitters, it is easy for us to dive directly into the intricacies of the cases, disappear, and resurface with narrowly diced results in each case.

Before doing so, however, I think we should put these cases in a larger perspective in three ways. First, we should recognize the profound and persistent problem of racial discrimination in our society. Second, we should put each of the cases we decide today in their larger context within our legal system. We should decide these cases only after we have understood that context. Third, we should recognize the role of state courts in working to develop a system of justice where fair and impartial juries and freedom from discrimination are the norm and not the exception.

I. Contextualizing Civil Rights in Jury Cases.

A. The Persistent, Stubborn, and Ongoing Struggle for Racial Equality. Achieving the promise of equality before the law for African-Americans, in Iowa and across the nation, has been a difficult, painful, and ongoing challenge. The bitter reality of chattel slavery, accommodated in the United States Constitution and protected in the federal courts, was dismantled by the American Civil War, motivated at least in part and for some by the founders' stirring phase that "all Men are created equal." The Declaration of Independence para. 2 (U.S. 1776); Stephen L. Mikochik, A Celebration of Equality , 64 Temple L. Rev. 371, 371 (1991) ("The Constitution endured slavery until the Civil War ...."). The war was won and the victors imposed amendments to the United States Constitution abolishing slavery. See U.S. Const. amends. XIII, XIV, XV [hereinafter Reconstruction Amendments].

But the struggle for equality before the law did not end at Appomattox or after enactment of the postwar constitutional amendments. It had only begun. After a brief period of hope and some accomplishment, the reforms of reconstruction, fiercely and violently opposed in the South and losing political support in the North, were tragically abandoned. See David Lyons, Corrective Justice, Equal Opportunity, and the Legacy of Slavery and Jim Crow , 84 B.U. L. Rev. 1375 , 1376 (2004). The oppressive slave regime was replaced by Jim Crow in the states of the former confederacy and a pattern of less blatant but hurtful discrimination in other areas of the country. Id. at 1376-77 . Although slavery passed from the scene, persistent and explicit discrimination against African-Americans remained part of the American landscape for almost a hundred years. Id.

Iowa has, in some ways, been a leader in efforts to ensure racial equality. The trilogy of our early civil rights cases have been justly and widely celebrated. The differences in tone and content between In re Ralph and the proslavery Dred Scott decision are stark. Compare In re Ralph , 1 Morris 1 , 7 (Iowa 1839), with Dred Scott v. Sandford , 60 U.S. (19 How.) 393, 403, 15 L.Ed. 691 (1857), superseded by U.S. Const. amends. XIII, XIV. Leading Iowa politicians, constitutional convention members, lawyers, and eventually judges condemned the proslavery declarations of federal courts culminating in Dred Scott . See State v. Short , 851 N.W.2d 474 , 484 (Iowa 2014). When the United States Supreme Court invalidated the Federal Civil Rights Act of 1866 in 1883, the Iowa legislature in its next session enacted a state civil rights act outlawing, at least to a degree, racial discrimination in a variety of settings. Russell E. Lovell, Shine on, You Bright Radical Star: Clark v. Board of School Directors (of Muscatine) -The Iowa Supreme Court's Civil Rights Exceptionalism , 67 Drake L. Rev. 175 , 195-96 & n.121 (2019) [hereinafter Lovell].

Yet, the early version of the Iowa civil rights legislation was not routinely enforced by elected county attorneys. Id. at 196 n.121. And, this court's decisions were not always encouraging. For instance, in Brown v. J.H. Bell Co., 146 Iowa 89 , 96-97, 123 N.W. 231 , 233-34 (1909), the Iowa civil rights statute was applied very narrowly in the case of a farmers market-type activity that included a food court. The Brown court concluded that the food court was not "a place of amusement" under the Act. Id. at 99, 123 N.W. at 234 .

It would certainly be a mistake to conclude that our state was been free of discriminatory animus in the years following reconstruction. For example, the soda fountain at the Katz drug store in downtown Des Moines, an iconic feature of the city's postwar cultural landscape, declined to serve African-American patrons in the years after World War II. See State v. Katz , 241 Iowa 115 , 116, 40 N.W.2d 41 , 43 (1949). After a combination of political protest, civil litigation, and criminal prosecution, the blatant discrimination in the heart of Iowa's capital city was discontinued. See id. at 117 , 40 N.W.2d at 43 . The Katz episode occurred more than eighty years after the last shot was fired in the Civil War.

Shortly after our decision upholding the criminal conviction in Katz , the United States Supreme Court in Brown v. Board of Education , 347 U.S. 483 , 493, 74 S. Ct. 686 , 691, 98 L.Ed. 873 (1954), consistent with much earlier Iowa judicial precedent, declared that racial segregation in public schools violated the nation's commitment to equal protection. The reaction in some quarters to Brown , of course, was bitter. Leading southern politicians produced the Southern Manifesto, a declaration defiantly blasting the courts as overstepping their authority. Reva B. Siegel, Equality Talk: Antisubordination and Anticlassification Values in Constitutional Struggles over Brown, 117 Harv. L. Rev. 1470 , 1488-89 & n.59 (2004). Yet, a decade later, after events including the murders of civil rights workers and the terrorist bombing of a Birmingham church, Iowa strengthened its Reconstruction Era statutory regime protecting civil rights, while important and comprehensive federal legislation protecting civil rights and voting rights was enacted. See Iowa Civil Rights Act of 1965, Iowa Code ch. 216 (2019); Kenneth W. Mack, Foreword: A Short Biography of the Civil Rights Act of 1964 , 67 SMU L. Rev. 229 , 242 (2014) ; Margaret M. Russell, Cleansing Moments and Retrospective Justice , 101 Mich. L. Rev. 1225 , 1226 (2003).

No one, however, believes that the important judicial and legislative developments of more than fifty years ago has ended racial discrimination in America. For the most part, however, political and cultural developments, supported by judicial, legislative, and executive actions, have driven overt racial discrimination underground. Expressly discriminatory political appeals of "segregation forever" have generally disappeared from the public square. But the fact that most overt racism is now under the radar does not mean it does not exist. See Rose v. Mitchell , 443 U.S. 545 , 558-59, 99 S. Ct. 2993 , 3001, 61 L.Ed.2d 739 (1979) (noting that more than a century after the Civil War, "racial and other forms of discrimination still remain a fact of life, in the administration of justice as in our society as a whole").

Further, social scientists have now thoroughly documented what has been known for decades, namely, that all of us-judges, lawyers, legislators, and jurors-have unconscious or implicit biases. Michael B. Hyman, Implicit Bias in the Courts , 102 Ill. B.J. 40 , 42 (2014) ("Implicit bias weaves its way through the legal system in interactions between attorneys, clients, jurors, and judges."). Many of these unconscious biases may be harmless, if not helpful, to daily living. But to the extent implicit bias reflects unconscious racial bias, it can be a driver in perpetuating racial inequality. Id. at 41-42 . And there is reason to believe that many of us-including intelligent and conscientious people of good will-have unconscious racial bias shaped by our culture and experience. Id. at 43 ("[J]udges, like everyone else, harbor their own set of implicit biases, shaped by their experiences and identity ....").

The need to address racial bias continues in law enforcement and in the courts. As noted by Justice Wiggins in State v. Plain , 898 N.W.2d 801 , 830 (Iowa 2017) (Wiggins, J., concurring specially), "A recent report by The Sentencing Project found 25.8% of Iowa's prison population was black, while blacks made up only 3.1% of Iowa's population." According to a 2016 study, African-Americans in Iowa are seven times more likely than whites to be arrested for drug possession, even though all available studies indicate that drug possession and use among African-Americans and Caucasian Americans is roughly the same. Human Rights Watch & Am. Civil Liberties Union, Every 25 Seconds: The Human Toll of Criminalizing Drug Use in the United States 41, 46 (2016). Iowa's racial disparity in drug possession arrests was the second worst in the country. Id. at 46. Racial discrimination persists.

The bottom line is that the struggle for equal justice before the law is continuing. It can best be understood as a process, not an event. In seeking to advance the process of equal justice before the law, it is essential that we understand the persistent character of racial discrimination and its evolving nature. We must recognize that although overt racial bias is, in most quarters, in retreat, the problem of implicit bias poses a major challenge and must be addressed. Finally, because of the intractable and evolving nature of racial bias, we must adopt a pragmatic and flexible approach to sculpting appropriate judicial remedies to meet the challenge.

B. Systematic Review of the Jury Process. Given the above history of the persistent and evolving nature of the struggle for racial equality, it is not surprising that the effort to promote equal justice under the law in law enforcement and in our judicial system has been persistent and evolving too. By way of example, although the United States Supreme Court in Strauder v. West Virginia , 100 U.S. 303 , 308-09, 25 L.Ed. 664 (1879), abrogated on other grounds by Taylor v. Louisiana , 419 U.S. 522 , 536-37, & n.19, 95 S. Ct. 692 , 700-01 & n.19, 42 L.Ed.2d 690 (1975), declared that African-Americans could not be disqualified as jurors, experience showed that Strauder was unenforced if not unenforceable. Decades later, the United States Supreme Court advanced beyond Strauder in Swain v. Alabama , 380 U.S. 202 , 226, 85 S. Ct. 824 , 839, 13 L.Ed.2d 759 (1965). Yet, Swain proved inadequate to the task as well, and was overruled twenty years later in Batson v. Kentucky , 476 U.S. 79 , 96, 106 S. Ct. 1712 , 1723, 90 L.Ed.2d 69 (1986). And today, scholars believe we need to move beyond Batson in advancing the notion of "equality before the law" for African-Americans. See, e.g. , Jeffrey Bellin & Junichi P. Semitsu, Widening Batson 's Net to Ensnare More Than the Unapologetically Bigoted or Painfully Unimaginative Attorney , 96 Cornell L. Rev. 1075 , 1108 (2011) [hereinafter Bellin & Semitsu] (stating further measures must be taken to guard against discrimination in the courts because " Batson cannot be expected to have anything but the most superficial success in rooting out unconstitutional race- or gender-based peremptory challenges"). If anything, our civil rights experience suggests that, particularly when it comes to remedies, judicial approaches should not be cast in stone but should be shaped and sculpted in light of experience arising from their application.

When we approach a case with civil rights implications, it is important to think systemically. Important issues involving the make-up of the venire pool, the scope of voir dire of potential jurors, the use of peremptory challenges, and the instructions given to the jury intersect and act together to promote, or resist, our efforts to provide all defendants with a fair trial. See 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 , 168 (2010) [hereinafter Bennett] (discussing tandem remedies).

For instance, today we have announced a new approach designed to ensure that the jury pools in our judicial system represent a fair cross section of the community. These cases reflect a significant, and necessary, step in vindicating the right of citizens to a fair and impartial jury. I applaud the court for its approach to fair-cross-section requirements. My view on this issue is further stated in State v. Lilly , 930 N.W.2d 293 , 310 (Iowa 2019) (Appel, J., concurring specially).

But the advances reflected in our approach to fair-cross-section requirements will be meaningless if a party is able to exercise peremptory challenges in a fashion that eliminates the few African-Americans who are on the pool or venire from the petit jury. See Swain , 380 U.S. at 241 , 85 S.Ct. 824 (Goldberg, J., dissenting) (noting the interlocking relationship between an inadequate venire selection system and the use of peremptory challenges). In Iowa, the minority population is sufficiently small that few African-Americans are likely to be in the venire pool even with the more generous approach to fair-cross-section challenges commendably embraced in our cases decided today. See Plain , 898 N.W.2d at 830 (noting that black people comprise a small percentage of Iowa's population). It will do little to advance the cause of impartial juries if the preliminary jury pool is more representative of the community but all minority members are routinely eliminated from the jury that actually sits.

Further, if our process is such that it yields few African-American venire jurors and fewer still African-American petit jurors, we cannot rely on fair-cross-section- or Batson -type concepts as the only tools to eliminate racial bias in our jury system. Bennett, 4 Harv. L. & Pol'y Rev. at 168. The importance of voir dire and jury instructions as tools to eliminate or reduce the influence of racial bias in our system proportionately increases as the proportion of African-American or other minorities on the petit jury decreases. See id.

The degree to which voir dire is effective in rooting out racial prejudice has been debated by scholars. Compare Jeffrey M. Gaba, Voir Dire of Jurors: Constitutional Limits to the Right of Inquiry into Prejudice , 48 U. Colo. L. Rev. 525 , 533-34 (1977) ("While voir dire may not be completely effective in discovering prejudice, there are additional objectives, both proper and improper, which it serves. Furthermore, it is still the primary mechanism by which prejudicial attitudes are revealed and is thus an essential-if imperfect-element of the challenge system." (Footnotes omitted.)), with Valerie P. Hans & Alayna Jehle, Avoid Bald Men and People with Green Socks? Other Ways to Improve the Voir Dire Process in Jury Selection , 78 Chi.-Kent L. Rev. 1179 , 1179 (2003) ("[V]oir dire is often ineffective in detecting juror bias ...."). I suspect the batting average may not be very high. But while many overtly or implicitly biased jurors may not be identified in the voir dire process, some plainly are. The fact that voir dire is not 100% effective, or even 50% effective, in identifying biased jurors does not mean it should be abandoned, but only that we should maximize its effectiveness and develop other tools to back it up. For example, it is clear that voir dire's effectiveness in rooting out racial prejudice is maximized by eliminating reliance on judge-directed, closed-end "yes" or "no" questions that almost universally produce compliant answers. See Anne M. Payne & Christine Cohoe, Annotation, Jury Selection and Voir Dire in Criminal Cases , 76 Am. Jur. Trials 127, § 56, Westlaw (database updated May 2019.) ("It is wise for counsel to avoid asking questions of prospective jurors during voir dire which can be answered either yes or no."). Instead, we should permit attorneys to engage in individual, open-ended examination of jurors designed to allow the juror to speak about his or her cultural attitudes. Id. § 23 ("An open-ended question permits each juror to explain his answer in his own words through his own thoughts."). With this approach, voir dire is not remotely perfected, but it is somewhat enhanced, as a tool to explore potential bias.

On the very back end of the jury process, the United States Supreme Court, following the lead of many state courts, has opened the door to exploration of jury deliberation where the process is tainted by egregious and overt racial discrimination. See Peña-Rodriguez v. Colorado , 580 U.S. ----, ----, 137 S. Ct. 855 , 869, 197 L.Ed.2d 107 (2017). This remedy, however, has been very narrowly crafted. It amounts to a last ditch backstop for the worst of cases that come to the attention of the court.

In short, because of the limited number of African-American jurors who will make it to the jury pool, the possibility that Batson strikes will eliminate them from the petit jury, and the helpful but limited effectiveness of voir dire as an antibias tool, the court's instructions to the jury may be the last, best line of defense against racial bias in our jury system. This is particularly true with respect to implicit bias. Studies show that identifying and discussing the possibility of unconscious racial bias can be effective in minimizing or eliminating it. Cynthia Lee, A New Approach to Voir Dire on Racial Bias , 5 U.C. Irvine L. Rev. 843, 872 (2015). An implicit-bias instruction, therefore, should play a part in our effort to ensure that equality before the law is a reality for African-Americans and other minorities in our jury system. I further discuss these issues in State v. Williams , 929 N.W.2d 621 , 641 (Iowa 2019) (Appel, J., concurring in part and dissenting in part).

C. Role for State Courts. Finally, I want to emphasize the important role of state courts in addressing the continuing challenge of bringing us closer to the goal of racial equality in our courts. Obviously, the Iowa Constitution and our supervisory authority over Iowa courts provides an independent basis for addressing fundamental issues such as the rights to an impartial jury and to equality before the law. See Iowa Const. art. I, §§ 1, 6, 9, 10.

But it is also important to note the vibrant constitutional dialogue that arises when state courts engage in independent constitutional analysis. Throughout our constitutional history, state court decisions have been precursors to later developments in federal law. We all know about how the Iowa Civil Rights cases provided an example for later federal constitutional adjudication. See, e.g. , Lovell, 67 Drake L. Rev. at 189. There are other, more recent examples of state courts leading the way. For instance, in 1948, the California Supreme Court in Perez v. Lippold , 32 Cal.2d 711 , 198 P.2d 17 , 29 (1948) (en banc), struck down a state statute invalidating interracial marriages. Perez laid the groundwork for the pivotal United States Supreme Court case, twenty years later, of Loving v. Virginia , 388 U.S. 1 , 2, 87 S. Ct. 1817 , 1818-19, 18 L.Ed.2d 1010 (1967). Similarly, after Swain , state courts rejected the high burdens imposed on those challenging racially tinged peremptory challenges. For instance, in People v. Wheeler , 22 Cal.3d 258 , 148 Cal.Rptr. 890 , 583 P.2d 748 , 765-67 (1978), overruled in part on other grounds by Johnson v. California , 545 U.S. 162 , 164, 173, 125 S. Ct. 2410 , 2414, 2419, 162 L.Ed.2d 129 (2005), the California Supreme Court, relying on state constitutional provisions resembling Iowa's, specifically rejected Swain and developed a far more workable framework for dealing with racially discriminatory strikes. So did Massachusetts. See Commonwealth v. Soares , 377 Mass. 461 , 387 N.E.2d 499 , 509-16 (1979). So did Florida. See State v. Neil , 457 So. 2d 481 , 485-87 (Fla. 1984), receded from in part by State v. Johans , 613 So. 2d 1319 , 1321 (Fla. 1993). So did New Mexico. See State v. Crespin , 94 N.M. 486 , 612 P.2d 716 , 717-18 (N.M. Ct. App. 1980). These cases, all cited later by the United States Supreme Court in Batson , blazed the way for the further development of federal constitutional law. 476 U.S. at 82 n.1, 106 S. Ct. at 1715 n.1. And, after Batson , a number of state supreme courts extended the Batson rule to cover gender under their own state constitutions. See, e.g. , State v. Levinson , 71 Haw. 492 , 795 P.2d 845 , 849-50 (1990) ; Commonwealth v. Hyatt , 409 Mass. 689 , 568 N.E.2d 1148 , 1150 (1991) ; State v. Gonzales , 111 N.M. 590 , 808 P.2d 40 , 49-50 (N.M. Ct. App. 1991). The United States Supreme Court later followed suit. J.E.B. v. Ala. ex rel. T.B. , 511 U.S. 127 , 128-29, 114 S. Ct. 1419 , 1421, 128 L.Ed.2d 89 (1994).

The recent Supreme Court case of Peña-Rodriguez demonstrates the important role of state courts in developing legal doctrine on the federal level. 580 U.S. at ----, 137 S. Ct. at 865 . In its decision, the Supreme Court noted that sixteen states had developed exceptions to their no-impeachment-of-jury-verdict rules in cases involving explicit racial bias in jury deliberations. Id.

The unmistakable point is that vibrant, independent state constitutional law has enriched the development not only of the law in each state, but has promoted the development of federal constitutional law as well.

II. Challenge Based on Fair Cross Section.

For the reasons expressed in my concurring opinion in Lilly , I am not convinced that the sole test for the second Duren and Plain prong should always be one standard deviation. Lilly , 930 N.W.2d at 311 ; see Duren v. Missouri , 439 U.S. 357 , 364, 99 S. Ct. 664 , 668, 58 L.Ed.2d 579 (1979) ; Plain , 898 N.W.2d at 826-27 . Yet, as indicated there, I think that using a relatively low statistical deviation threshold may be sufficient to avoid the pitfalls of the application of the statistical method. The step forward on the fair-cross-section issue, however, will be meaningless if prosecutors use peremptory strikes to eliminate minority jurors and if we fail to take other effective steps to combat racial bias in our court system.

III. Challenge to Peremptory Strike of the Last African-American Member of a Venire Pool.

In addition to the fair-cross-section issue, this case involves another important issue, namely, a challenge to the prosecution's use of a peremptory challenge to eliminate the last African-American from the jury pool. In defending the strike, the prosecutor explained that he had personally prosecuted the juror's father for three class A felonies and feared that the potential juror harbored "latent hostility" toward him as a result. The potential juror, however, stated that she was not close to her father, that the situation would have no effect on her ability to be an impartial juror, that her father was treated fairly by the state, that she would not hold the prosecution of her father against the state, that she did not recognize the prosecutor as someone involved in the prosecution until the prosecutor brought it up, and that she had no relationship with her father in any event. The district court found no Batson violation.

Veal argues that the voir dire of the juror negated any legitimate concern that the prosecutor might have had about latent hostility towards him, and as a result, he showed pretext under Batson . If we were to find the State's exercise of its peremptory challenge of the last African-American on the jury panel under the circumstances satisfies Batson , however, Veal urges us to reconsider the application of Batson in the circumstances of this case where the last potential African-American juror is stricken from the jury pool. According to Veal, the court should hold the State to a "very high standard" in these circumstances.

Citing an unpublished court of appeals opinion, Veal asserts that the prosecutor's "reasoning seems to fit into that category of facially nondiscriminatory reasoning that disproportionately implicates African-American potential jurors." State v. Miller , No. 16-0331, 2017 WL 1088104 , at *3 (Iowa Ct. App. Mar. 22, 2017). Veal incorporates at length the court of appeals discussion, which I reproduce below, of a scholarly article and a dissenting opinion by Justice Stevens:

"A significantly higher percentage of people of color have arrest records due to the disproportionate number of stops, searches, and arrests of people of color." Vida B. Johnson, Arresting Batson : How Striking Jurors Based on Arrest Records Violates Batson, 34 Yale L. & Pol'y Rev. 387 , 389 (Spring 2016). Additionally, "Black people are more likely to have friends and family who are Black. As a result, Black jurors are more likely than White jurors to have friends and family who have been arrested." Id. The logical next step is that someone who has been arrested themselves or had someone they care about be arrested is more likely to have negative views of law enforcement. Id. at 407 . 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. See id. at 389 ("Judges and prosecutors then use the existence of prior arrests of the jurors or the jurors' friends or family to strike these prospective jurors, in effect producing juries whose racial compositions are whiter than that of the respective communities."); see also Hernandez v. New York , 500 U.S. 352 , 376[, 111 S. Ct. 1859 , 1875] [ 114 L.Ed.2d 395 ] (1991) (Stevens, J., dissenting) ("An avowed justification that has a significant disproportionate impact will rarely qualify as a legitimate, race-neutral reason sufficient to rebut the prima facie case because disparate impact is itself evidence of discriminatory purpose.").

Id. Based on the above reasons, Veal asserts that the trial court should have sustained the Batson challenge and requests a new trial as a result of the error.

The NAACP has filed an amicus brief in support of Veal challenging the continued viability of Batson. The NAACP notes that in Foster v. Chatman , 578 U.S. ----, ----, 136 S. Ct. 1737 , 1754-55, 195 L.Ed.2d 1 (2016), the Supreme Court required trial courts to engage in a searching inquiry of the prosecutor's demeanor and stated justifications for striking jurors of color, including a comparative juror analysis to determine whether the stated race-neutral reasons for striking black jurors were in fact even-handedly applied to white jurors. Further, in Peña-Rodriguez , 580 U.S. at ----, 137 S. Ct. at 868-69 , the NAACP points out that the Supreme Court noted that racially biased comments in jury deliberations could require the trial court to overturn a jury verdict.

In addition, the NAACP cites cases from Washington State as providing a better approach. See City of Seattle v. Erickson , 188 Wash.2d 721 , 398 P.3d 1124 , 1127-31 (2017) ; State v. Saintcalle , 178 Wash.2d 34 , 309 P.3d 326 , 333-39 (2013) (en banc) (plurality opinion). In these cases, the Washington Supreme Court extensively canvassed the shortcomings of Batson jurisprudence and proposed changes in the judicial approach to eliminating racial discrimination in the selection of jurors. Erickson , 398 P.3d at 1127-31 ; Saintcalle , 309 P.3d at 333-39 . The NAACP suggests that there is a growing national consensus that the procedural protections in Batson simply do not work. The NAACP cites a symposium that appeared in the Iowa Law Review in 2012 on Batson . See Symposium, Batson at Twenty Five: Perspectives on the Landmark, Reflections on Its Legacy , 97 Iowa L. Rev. 1393 (2012).

On appeal, the State opposes Veal's Batson challenge. The State asserts that the prosecutor in this case presented a nondiscriminatory reason for the peremptory strike. While the State recognizes that generalized reasons for striking African-Americans from juries might be more problematic, the State points out that in this case, the prosecution had a specific reason tied to the case at hand, namely, that the prosecutor had tried the father of the prospective juror on a class A felony. Further, the State rejects the notion that the juror was rehabilitated, noting that "neutral answers can still conceal deep, unconscious bias." The State urges that we give "great deference" to the trial court's finding crediting the prosecution's reason for striking the juror as race neutral.

A. The Road to Batson and Beyond.

1. Introduction. This case involves both state and federal constitutional questions. In order to illuminate the choices presented in this case, a survey of how the United States Supreme Court has grappled with the issue provides context. In addition, exploration of dissents gives texture to the issues and may recommend to us alternative approaches.

2. From Strauder to Swain. After the Civil War and the passage of the Reconstruction Amendments, the United States Supreme Court, at least in theory, sought to protect the right of African-Americans to serve on juries. The first major case was Strauder , 100 U.S. 303 . In Strauder , the Supreme Court considered the validity of a West Virginia statute that excluded African-Americans from jury service. Id. at 304 . The Strauder Court held that the practice violated the Fourteenth Amendment. Id. at 310 .

The Strauder Court recognized the importance of having representation of the unpopular on the jury. According to the Strauder Court, the rights associated with jury trials were designed "to make impossible what Mr. Bentham called 'packing juries.' " Id. at 309 . Further, the Strauder Court declared,

It is well known that prejudices often exist against particular classes in the community, which sway the judgment of jurors, and which, therefore, operate in some cases to deny to persons of those classes the full enjoyment of that protection which others enjoy.

Id.

Yet the Strauder Court emphasized that the question was not whether a defendant had a right to "a petit jury composed in whole or in part of persons of his own race." Id. at 305 . The question was whether all members of a race may be excluded from the jury by law. Id.

Experience, however, showed Strauder was ineffective. Strauder made clear, of course, that statutes expressly prohibiting African-Americans from serving on juries would not pass constitutional muster. Id. at 304 . In at least two cases, the United States Supreme Court ventured beyond the four corners of Strauder to invalidate convictions of all white juries where the right of African-Americans to serve on the juries, though not categorically denied by statute, was "denied in substance and effect." Norris v. Alabama , 294 U.S. 587 , 590, 597-98, 55 S. Ct. 579 , 580, 583-84, 79 L.Ed. 1074 (1935) (noting that no witness could recall an African-American ever serving on a jury); see also Hill v. Texas , 316 U.S. 400 , 401-02, 404, 62 S. Ct. 1159 , 1160-61, 86 L.Ed. 1559 (1942) (observing that commissioners with discretion "consciously omitted to place" any African-Americans on jury list).

But these prohibitions proved easy to avoid by erecting less absolute, but nonetheless effective, informal obstacles to prevent African-American jury service, including the use of peremptory challenges to eliminate African-Americans from the jury box. By 1961, the United States Commission on Civil Rights observed that "[t]he practice of racial exclusion from juries persists today even though it has long stood indicted as a serious violation of the 14th [A]mendment." Swain , 380 U.S. at 231 , 85 S. Ct. at 842 (first alteration in original) (quoting U.S. Comm'n on Civil Rights, Justice 103 (1961)).

The informal obstacles to African-Americans serving on juries were evident in Swain . In Swain, a nineteen-year-old African-American was convicted of raping a seventeen-year-old white girl and sentenced to death. Id. African-Americans had been on the venire, but none had sat on a petit jury in the county for fifteen years. Id. at 205 , 85 S. Ct. at 828 (majority opinion). Swain claimed a violation of the Equal Protection Clause of the Fourteenth Amendment. Id. at 203-04 , 85 S. Ct. at 826 .

The Swain majority rejected his challenge. The Swain majority emphasized that an African-American is not entitled to a proportionate number of his race on the jury. Id. at 208 , 85 S. Ct. at 829 . Although Swain stated that systematic exclusion of African-Americans from the jury might violate the Fourteenth Amendment, the Swain majority concluded that such systematic exclusion was not shown in the case. See id. at 226-27 , 85 S. Ct. at 839 . The Swain majority recognized that African-Americans had not served on petit juries in fifteen years but concluded that the record was insufficient to show that the exclusion of African-Americans from the petit juries was due to the prosecutor alone. Id. at 226-28 , 85 S. Ct. at 839-40 .

In support of its conclusion, the Swain Court cited parts of the record showing that defense lawyers may have sometimes participated in the striking of African-American jurors. Id. at 225 & n.31, 85 S. Ct. at 838 & n.31. Thus, although no African-American juror had ever served on a petit jury in the county in fifteen years, the Swain majority reasoned that that was not necessarily due to systematic use of peremptory challenges by the prosecutions. Id. at 225-26 , 85 S. Ct. at 838-39 . The Swain majority emphasized the requirement of "purposeful or deliberate denial" of the right of African-Americans to participate as jurors. Id. at 203-04 , 85 S. Ct. at 826 . Anything short of systematic purposeful or deliberate denial "in case after case" by the prosecution did not affront the Equal Protection Clause. Id. at 223 , 85 S. Ct. at 837 .

Justice Goldberg, joined by Chief Justice Warren and Justice Douglas, dissented. Id. at 228 , 85 S. Ct. at 840 (Goldberg, J., dissenting). Justice Goldberg wrote it was undisputed that no African-American had sat on a petit jury in the county "within the memory of persons [then] living." Id. at 231-32 , 85 S. Ct. at 842 . He wrote that "[t]he very point" of the court's prior cases was to prevent deliberate and systematic exclusion of African-Americans "not merely from being placed upon the panel, but from serving on the jury." Id. at 239 , 85 S. Ct. at 846 . Further, Justice Goldberg wrote that the majority overlooks that the exclusion of African-American jurors in the county "results from the interlocking of an inadequate venire selection system ... and the use of peremptory challenges." Id. at 241 , 85 S. Ct. at 847 .

3. Post- Swain independent state constitutional law development. After Swain , a number of state courts rejected its limitations under their state constitutions. In Wheeler , the California Supreme Court considered the question of peremptory challenges based on race under article I, section 16 of the California Constitution. 148 Cal.Rptr. 890 , 583 P.2d at 754 . The Wheeler court declared that if a defendant made a prima facie showing of discrimination based on race, the burden of justification would then shift to the prosecution that the strike was not based on group bias alone. Id. , 148 Cal.Rptr. 890 , 583 P.2d at 764-65 . If the prosecution's justification is not sustained, the jury would fail to comply with the fair-cross-section requirements of the California Constitution. Id. , 148 Cal.Rptr. 890 , 583 P.2d at 765 .

Notably, the Wheeler court recognized that Swain provided less protection. Id. , 148 Cal.Rptr. 890 , 583 P.2d at 767 . The Wheeler court concluded that under Swain it was practically impossible for a defendant to show systematic exclusion of a racial group across multiple juries as a result of cost and lack of information. Id. , 148 Cal.Rptr. 890 , 583 P.2d at 767-68 . The court also noted that "each and every defendant not merely the last in this artificial sequence is constitutionally entitled to trial by a jury drawn from a representative cross-section of the community." Id. , 148 Cal.Rptr. 890 , 583 P.2d at 767 . The Wheeler court cited an annotation and its own experience for the proposition that since Swain , no defendant had succeeded in applying the test. Id. , 148 Cal.Rptr. 890 , 583 P.2d at 768 . Noting that "[i]t demeans the Constitution to declare a fundamental personal right under that charter and at the same time make it virtually impossible for an aggrieved citizen to exercise that right," the Wheeler court declared that the rule of Swain was not to be followed in California courts. Id. State appellate courts in several other jurisdictions came to essentially the same conclusions under the jury trial rights established in their state constitutions. See, e.g. , Neil , 457 So. 2d at 485 ; Soares , 387 N.E.2d at 509-16 .

4. Taking the hint: Abandonment of Swain for Batson . Spurred by state court constitutional precedent, the Supreme Court reconsidered Swain in Batson , 476 U.S. at 82 , 106 S. Ct. at 1714-15 . In Batson , the African-American defendant had been indicted on charges of second-degree burglary and receipt of stolen goods. Id. at 82 , 106 S. Ct. at 1715 . The prosecutor used peremptory challenges to remove all four African-Americans on the venire. Id. at 83 , 106 S. Ct. at 1715 . Writing for the majority, Justice Powell stated that the case required reexamination of the holding in Swain concerning the evidentiary burden placed on a criminal defendant who claims an equal protection violation due to the state's use of peremptory challenges to exclude African-Americans from the petit jury. Id. at 90 , 106 S. Ct. at 1719 .

Largely following contemporaneous state supreme court precedent, the United States Supreme Court departed from the "crippling burden" of Swain and adopted a three-step approach to claims of racial discrimination in the exercise of peremptory challenges. Id. at 92-94 , 106 S. Ct. at 1721 . Under Batson , the defendant first must make a prima facie case of purposeful discrimination. Id. at 93-94 , 106 S. Ct. at 1721 . If the defendant presents a prima facie case, the burden then shifts to the state to articulate a racially neutral basis for the strike. Id. at 94 , 106 S. Ct. at 1721 . If the state articulates a racially neutral reason, the court must then decide whether the articulated reason is pretextual. Johnson , 545 U.S. at 168 , 125 S. Ct. at 2416 .

Justice Marshall applauded the ruling but feared it would prove unworkable. Batson , 476 U.S. at 102-03 , 106 S. Ct. at 1726 (Marshall, J., concurring). In a prescient opinion, Justice Marshall noted that any prosecutor could easily assert facially neutral reasons for striking a juror and that courts would be hard-pressed to second guess the judgment. Id. at 106 , 106 S. Ct. at 1728 . Justice Marshall noted apparently neutral " 'seat-of-the-pants instincts' may often be just another term for racial prejudice." Id. Justice Marshall concluded that the only way to accomplish the goal of eliminating racial discrimination in peremptory challenges was to eliminate them completely. Id. at 107 , 106 S. Ct. at 1728-29 .

5. Post- Batson Supreme Court developments limiting (and expanding?) Batson. After Batson , the Supreme Court decided a number of cases that affected the importance of the decision. In Holland v. Illinois , 493 U.S. 474 , 478, 110 S. Ct. 803 , 806, 107 L.Ed.2d 905 (1990), in a divided 5-4 majority opinion, Justice Scalia remarkably concluded that a prosecutor's use of peremptory challenges to eliminate a distinctive group in the community does not deprive a defendant of a Sixth Amendment right. Further, in Hernandez , 500 U.S. at 360 , 111 S. Ct. at 1867 (plurality opinion), in another divided opinion, Justice Kennedy wrote for a plurality that peremptory strikes against Hispanic jurors-made on the asserted ground that they might not accept the court's translator as the official record of the proceedings-was not invalid notwithstanding the disproportionate impact of the strikes on the jury.

A remarkable opinion, Purkett v. Elem , 514 U.S. 765 , 769, 115 S. Ct. 1769 , 1771, 131 L.Ed.2d 834 (1995) (per curiam), gave no encouragement to those who wanted Batson to have "teeth." In this case, the prosecutor explained that he struck two African-American jurors because of their facial hair. Id. The per curiam opinion emphasized that the facial hair issue was race neutral and satisfied step two of the Batson formula. Id. The Court emphasized that the asserted race-neutral reason did not need to be even minimally persuasive or plausible. Id. at 768-69 , 115 S. Ct. at 1771 . The per curiam opinion stressed that a trial court judge must first make the determination as to whether the asserted reason was pretext, and that such a determination would be presumed correct and reversed only if not fairly supported by the record. Id. at 769 , 115 S. Ct. at 1771 . In dissent, Justice Stevens, joined by Justice Breyer, stated that it was not too much to require that the prosecutor's purported neutral reason be trial related . Id. at 775 , 115 S. Ct. at 1774 (Stevens, J., dissenting).

Yet the ability to prove a Batson violation was not impossible. In Miller-El v. Dretke , 545 U.S. 231 , 235-36, 125 S. Ct. 2317 , 2322, 162 L.Ed.2d 196 (2005), in another divided decision so characteristic of Batson progeny, Justice Souter for a six-member majority reversed a state court determination that the striking of ten out of eleven black venire persons by a prosecutor from the notorious Dallas County District Attorney's office was not racially motivated.

Justice Souter began by noting that the test developed in Swain requiring an extended pattern of discrimination left a prosecutor's use of peremptory challenges "largely immune from constitutional scrutiny." Id. at 239 , 125 S. Ct. at 2324 (quoting Batson , 476 U.S. at 92-93 , 106 S. Ct. at 1721 ). But Batson , Justice Souter wrote, had a weakness of its own, namely, that although focus on the strikes in an individual trial might be theoretically sufficient, a Batson violation might nonetheless be hard to prove to the satisfaction of a wavering court without systemic discrimination. See id. at 239-40, 125 S. Ct. at 2325.

Justice Souter chopped and diced the evidence. He generally noted that the prosecution used its peremptory strikes to exclude 91% of the eligible African-American venire members from the jury pool. Id. at 240-41, 125 S. Ct. at 2325. But mostly, Justice Souter examined the side-by-side comparisons of some black panelists who were struck and white panelists allowed to serve. Id. at 241-51, 125 S. Ct. at 2325-31. For example, Justice Souter noted that one African-American potential juror was struck because the prosecutor inaccurately characterized his views on the death penalty and religion, even as white potential jurors who expressed reservations about imposing the death penalty were not struck. Id. at 243-45, 125 S. Ct. at 2327-28. With respect to another potential juror, Justice Souter also noted shifting explanations by the state to defend one of its peremptory strikes which, according to Justice Souter, "reeks of afterthought." Id. at 246, 125 S. Ct. at 2328. With respect to a third juror, Justice Souter found that while the purported reason for striking the African-American juror for her views on the death penalty seemed reasonable on its face, the purported reason was severely undercut by the prosecution's failure to object to other jurors who gave similar answers. Id. at 248, 125 S. Ct. at 2329-30.

In addition, Justice Souter noted that the prosecution engaged in a jury shuffle-literally a shuffling of cards representing jurors-whenever African-American jurors tended to be in the front rows of the venire panel and thus more likely to be picked for the jury than those seated at back. Id. at 253-54, 125 S. Ct. at 2332-33. Further, Justice Souter noted that graphic scripts related to the death penalty were read to African-American venire members, while bland descriptions were read to white prospective jurors. Id. at 255-56, 125 S. Ct. at 2333-34.

Finally, Justice Souter cited the history of the Dallas County District Attorney's office. Id. at 263-64, 125 S. Ct. at 2338-39. That history showed prosecutors marked the race of each potential juror on their juror cards and a manual, written in 1968 yet available to one of the prosecutors in Miller-El , outlined the reasons for striking African-American jurors. Id. at 264, 125 S. Ct. at 2339.

Even with all the evidence, Justice Thomas, joined by Chief Justice Rehnquist and Justice Scalia, dissented. Id. at 274, 125 S. Ct. at 2344 (Thomas, J., dissenting). Among other things, the dissent emphasized that Justice Souter relied on evidence such as juror questionnaires and juror cards that were not provided to the Texas courts. Id. at 279, 125 S. Ct. at 2347. Justice Thomas further found, among other things, that the majority misread the voir dire transcripts, utilized claims of disparate questioning that did not fit the facts, and engaged in pure speculation about the jury shuffles. Id. at 286, 296, 304, 125 S. Ct. at 2351, 2357, 2361-62.

Justice Breyer concurred. Id. at 266, 125 S. Ct. at 2340 (Breyer, J., concurring). But he took up the mantle of Justice Marshall in his Batson dissent. Id. at 266-67, 125 S. Ct. at 2340. Justice Breyer noted that in this case, twenty-three judges reviewed the matter, with six finding a violation of Batson and sixteen to the contrary. Id. at 267, 125 S. Ct. at 2340. He noted that judges are put in the awkward, and sometimes hopeless, task of second guessing a prosecutor's judgments. Id. at 267, 125 S. Ct. at 2341. According to Justice Breyer, it becomes impossible for a judge to distinguish between a " 'seat-of-the-pants' peremptory challenge" and " 'seat-of-the-pants' racial stereotype." Id. at 268, 125 S. Ct. at 2341. Justice Breyer extensively cited studies tending to show that Batson had not been successful in rooting out racial stereotyping in the use of peremptory challenges. Id. at 268-69, 125 S. Ct. at 2341-42. Justice Breyer also observed that "the law's antidiscrimination command and a peremptory jury-selection system that permits or encourages the use of stereotypes work at cross-purposes." Id. at 271-72, 125 S. Ct. at 2343. Justice Breyer concluded that the case demonstrated the need to reconsider Batson 's test and the peremptory challenge system as a whole. Id. at 272-73, 125 S. Ct. at 2343-44.

Yet another Batson case, Felkner v. Jackson , 562 U.S. 594 , 131 S. Ct. 1305 , 179 L.Ed.2d 374 (2011) (per curiam), gives one pause. One potential juror in this case was an African-American who stated that he had been stopped by police numerous times. Id. at 595 , 131 S. Ct. at 1306 . The prosecutor exercised a peremptory challenge, fearing the potential juror would not be favorable to law enforcement. Id. Of course, the experience of "Driving While Black" is common among African-Americans. See David A. Harris, The Stories, The Statistics, and the Law: Why "Driving While Black" Matters , 84 Minn. L. Rev. 265 , 266 (1999). Yet the Supreme Court upheld the challenge in a per curiam opinion. Felkner , 562 U.S. at 598 , 131 S. Ct. at 1307 . The Felkner result suggests that any young African-American male who has been stopped by police is subject to exclusion from the jury.

Finally, I consider the recent Supreme Court case of Foster , 578 U.S. ----, 136 S. Ct. 1737 . In Foster , the defendant had been convicted of murder and sentenced to death thirty years before the appeal. Id. at ----, 136 S. Ct. at 1742-43 . He claimed that the prosecution violated Batson in the exercise of peremptory strikes at trial. Id. at ----, 136 S. Ct. at 1742 . After the Georgia courts denied relief, the Supreme Court granted certiorari. Id. at ----, 136 S. Ct. at 1742-43 .

Interestingly, after his conviction, Foster was able to obtain 103 pages of the prosecution's file under the Georgia Open Records Act. Id. at ----, ----, 136 S. Ct. at 1743-44, 1747 . Documents in the file, not available to the defense at time of trial, revealed numerous racial references. Id. An "N" appeared before the name of each African-American juror, and a list of jurors to be stricken listed all five African-Americans at the top. Id.

In an opinion by Chief Justice Roberts, the Foster Court found the strikes of two African-American jurors were pretextual. Id. at ----, 136 S. Ct. at 1754-55 . The Foster Court engaged in extensive comparative analysis of the questions and responses of white and African-American jurors. Id. at ----, 136 S. Ct. at 1748-55 . The Foster Court concluded that the asserted neutral reasons were contradicted by the record or difficult to accept because white jurors with the same traits or answers were accepted by the prosecution. Id. at ----, 136 S. Ct. at 1754 . The Foster Court further relied on the "definite NO" list, the first five names of which were African-American and all of whom were struck but one who was excused for cause. Id. at ----, 136 S. Ct. at 1755 .

Justice Thomas dissented. Id. at ----, 136 S. Ct. at 1761 (Thomas, J., dissenting). Aside from a jurisdictional issue, Justice Thomas questioned the use of information on the voir dire process obtained by Foster years after his conviction. Id. According to Justice Thomas, the uncovering of new evidence does not justify upending the deferential Batson framework. Id. at ----, 136 S. Ct. at 1766 . Aside from the use of new evidence, Justice Thomas believed the Court should defer to the courts in Georgia who had the opportunity to conduct their own comparative analysis and make their own credibility determinations. Id. at ----, 136 S. Ct. at 1767-69 .

B. State Court Responses to Batson .

1. Revising Batson: Eliminating step one. What constitutes a prima facie case under step one of Batson has confused the courts and commentators. Several states have decided to eliminate step one altogether. For instance, in Johans , 613 So. 2d at 1321-22 , the Florida Supreme Court eliminated the first prong of the Batson inquiry under Florida law. All that was required was that the person eliminated from the jury be a member of a minority group. See id. The Connecticut Supreme Court took a similar step in State v. King , 249 Conn. 645 , 735 A.2d 267 , 279 & n.18 (1999). In State v. Daniels , 109 Hawai'i 1 , 122 P.3d 796 , 800 (2005), the Hawaii Supreme Court held that a prima facie case of discriminatory purpose is automatically established "if the effect of the prosecution's exercise of its peremptory challenges is to exclude from the jury all members of the same protected group as the defendant, and the defense raises a Batson challenge." Id. The departure from the Batson framework in these cases is not revolutionary but demonstrates the ability of state supreme courts to exercise their own pragmatic judgment under state law when dealing with the question of peremptory strikes.

2. Strengthening Batson (Batson with teeth ). Another state court reformist approach to Batson is reflected in cases that employ what might be referred to colloquially as " Batson with teeth." These cases tend to focus on the second prong of Batson and seek to be at least somewhat more demanding on what the state must show to demonstrate a racially neutral basis for a strike.

For instance, in Ex Parte Bruner , 681 So. 2d 173 , 176 (Ala. 1996), the Alabama Supreme Court followed a "quasi- Batson " approach. When a movant meets the first prong of Batson , the state must "articulat[e] a clear, specific, and legitimate reason for the challenge which relates to the particular case to be tried , and which is nondiscriminatory." Id. at 178-79 (alteration in original) (quoting Ex parte Branch , 526 So. 2d 609 , 623 (Ala. 1987) ).

Similarly, the Florida Supreme Court has emphasized that, under the second prong of its approach to Batson , the prosecution must identify a "clear and reasonably specific" race-neutral explanation that is related to the trial at hand. Spencer v. State , 238 So. 3d 708 , 712 (Fla. 2018) (quoting State v. Slappy , 522 So. 2d 18 , 22 (Fla. 1988), receded from in part by Melbourne v. State , 679 So. 2d 759 , 764-65 (Fla. 1996) ).

A substantial number of commentators seek to work within the Batson framework but provide greater potential for effective enforcement. See Bellin & Semitsu, 96 Cornell L. Rev. at 1121-25 (suggesting higher standard of proof to rebut discriminatory motive without requiring finding of pretext); Camille A. Nelson, Batson , O.J., and Snyder: Lessons from an Intersecting Trilogy , 93 Iowa L. Rev. 1687 , 1703 (2008) (arguing Batson challenge should be sustained where evidence "fits" racial motivation more easily than race-neutral reason).

3. Reconsidering Batson : State of Washington. The Supreme Court of Washington has addressed Batson jurisprudence recently in three important cases. These cases thoroughly highlight the pressure points in current Batson jurisprudence. In addition, the Washington court has now promulgated a rule revamping how Batson -type challenges will be treated in state court. The Washington experience suggests that Batson jurisprudence may be on the verge of reformulation in state courts.

The first case, Saintcalle , 309 P.3d at 329 , involved a challenge to a conviction of first-degree felony murder because the prosecution struck the only black venire person from the jury pool. The potential juror in Saintcalle knew someone who had recently been murdered. Id. at 331 . When asked how she would feel about sitting on a murder trial, the juror told the lawyers, "I don't know how I'm going to react." Id. The prosecution exercised a peremptory strike on the ground that there was a realistic possibility that the juror might be "lost" at the end of the trial. See id. at 340 . The district court observed the juror and agreed that she was having difficulties and that the prosecution's strike was legitimate and race neutral. Id.

Over a dissent, the Saintcalle plurality, applying Batson, upheld the trial court and affirmed the conviction under the court's prevailing precedent. Id. At the same time, however, the Saintcalle plurality explored its approach to Batson to determine whether its approach was "robust enough to effectively combat race discrimination in the selection of juries." Id. at 329, 333-39 .

The Saintcalle plurality noted that race discrimination in courtrooms raises a serious problem but that Batson , though designed to escape the crippling burden of proof in prior cases involving racial discrimination concerning juries, created its own crippling burden. Id. at 333-35 . The Saintcalle plurality noted that the requirement of conscious discrimination was especially disconcerting because "it seemingly requires judges to accuse attorneys of deceit and racism in order to sustain a Batson challenge." Id. at 338 .

The Saintcalle plurality further noted while Batson dealt with purposeful discrimination, discrimination today "is frequently unconscious" but not "any less pernicious." Id. at 336 . The Saintcalle plurality noted that research showed that "people will act on unconscious bias far more often if reasons exist giving plausible deniability." Id. The Saintcalle plurality observed that "[a] strict 'purposeful discrimination' requirement thus blunts Batson 's effectiveness and blinds its analysis to unconscious racism." Id. at 338 .

As a first step, the Saintcalle plurality stated that the purposeful discrimination requirement of Batson should be replaced with a requirement which "accounts for and alerts trial courts to the problem of unconscious bias." Id. at 339 . The Saintcalle plurality suggested that

it might make sense to require a Batson challenge to be sustained if there is a reasonable probability that race was a factor in the exercise of the peremptory or where the judge finds it is more likely than not that, but for the defendant's race, the peremptory would not have been exercised.

Id. In the alternative, however, the Saintcalle plurality recognized that it may be that the problem of racial discrimination in jury selection is so dire that the only solution is elimination of peremptory challenges altogether. Id.

The Saintcalle plurality reasoned that allowing systematic removal of minority jurors will "create a badge of inferiority, cheapening the value of the jury verdict." Id. at 337 . The Saintcalle plurality cited research that indicates that "compared to diverse juries, all-white juries tend to spend less time deliberating, make more errors, and consider fewer perspectives." Id.

A concurring opinion by Justice González provided an even more extended analysis of Batson than the Saintcalle plurality. Id. at 350-68 (González, J., concurring). Justice González began his analysis with a review of the voir dire process. Id. at 351 . Justice González observed that "[w]ith limited information and time, and a lack of any reliable way to determine the subtle biases of each prospective juror, attorneys tend to rely heavily on stereotypes and generalizations in deciding how to exercise peremptory challenges." Id. at 353 . Jurors are excused based on "rough and rapid" and "superficial judgments." Id. at 355 .

After stressing the limitations of the voir dire process, Justice González explored the contours of racial bias in jury selection. Id. He reviewed studies from Washington State and other jurisdictions, coming to the conclusion that "racial discrimination in the use of peremptory challenges is widespread." Id. at 356-58 .

Justice González asserted that for several reasons, "[c]ase-by-case adjudication and appellate review under Batson cannot effectively combat the widespread racial discrimination that underlies the use of peremptory challenges." Id. at 358 . First, Justice González observed that the presence of racial discrimination remains entirely imperceptible to the opposing party and the trial judge. Id. Second, Justice González wrote that "even if an objection is made, plausible race-neutral reasons are quite easy to conjure up in any given case." Id. at 359 . Third, Justice González observed that there is usually no way for a trial court to accurately and reliably determine whether a given peremptory challenge is racially discriminatory, noting, among other things, that trial judges may be hesitant to question the integrity or self-awareness of counsel. Id. Fourth, Justice González declared "there is no way for appellate courts to provide sufficiently meaningful review" of trial court decisions where inconsistencies might be ambiguous and the record of the rapid voir dire may not have explored the comparative characteristics of other jurors. Id. at 360 . Finally, Justice González stated that too many unanswered questions remain under Batson , including which groups are protected, how a prima facie case is established and reviewed on appeal, how dual motive cases should be considered, and how to deal with questions of unconscious bias. Id. at 360-61 . Justice González concluded that application of Batson "will continue to engender confusion and needless administrative and litigation costs, while racial discrimination in the use of peremptory challenges-both conscious and unconscious-continues unabated." Id. at 361 .

Justice González next made the case for elimination of peremptory challenges. Id. at 362 . Justice González noted that peremptory challenges contribute to the underrepresentation of minority groups on juries even in the absence of purposeful discrimination, impose substantial administrative and litigation costs, result in juries that are less effective and less productive, and amplify the underlying resource disparity among litigants. Id. at 362-63 .

On the other hand, Justice González asserted that the benefits of peremptory challenges were minimal. Id. at 363 . Justice González marshalled studies to support his view that peremptory challenges were generally ineffective in excluding unfavorable jurors and concluded that the notion that impartiality is furthered by allowing litigants to exercise arbitrary and unsupported juror challenges is a farce. Id. at 364-65 .

Yet, on the facts presented, Justice González concluded that the defendant was not entitled to relief because the erroneous allowance of a peremptory challenge does not warrant reversal in every case. Id. at 369 . Justice Chambers, however, came to a different conclusion. Id. at 371 (Chambers, J., dissenting).

According to Justice Chambers, Batson "was a great, symbolic step forward" but "was doomed from the beginning because it requires one elected person to find that another elected person (or one representing an elected person) acted with a discriminatory purpose." Id. Justice Chambers urged that the court, in the exercise of its supervisory power, "hold that a prima facie case of discrimination is established when the sole remaining venire member of a constitutional cognizable racial group is peremptorily challenged." Id.

The Washington Supreme Court returned to the Batson issue in Erickson , 398 P.3d at 1126 . In this case, a black man was charged with unlawful use of a weapon and resisting arrest. Id. In voir dire, the prosecutor exercised a peremptory challenge against the only African-American on the jury panel. Id. Unlike in Saintcalle , the court was explicitly asked to alter the standard framework of the Batson analysis. Id. The Washington Supreme court proceeded to do so. Id.

The Erickson court adopted a "bright-line rule" and concluded that a peremptory strike of the only African-American on a jury panel gives rise to a prima facie case under Batson . Id. Because the passage of time prevented the district court from conducting a reasonable evaluation of the underlying basis for the strike, the Erickson court concluded that a remand for a new trial was the appropriate remedy. Id. at 1131 .

Justice Stephens concurred in the result, but emphasized that the Washington Supreme Court had a pending rulemaking to reconfigure Batson so that intentional discrimination must no longer be proved. Id. at 1133 (Stephens, J., concurring). Justice Stephens characterized the debate surrounding the proposed rule as "robust and informative." Id. He noted that the court in its decision had not "fixed the problem" and stressed that the court was "unanimous in its commitment to eradicate racial bias from our jury system, and that [the court would] work with all partners in the justice system to see this through." Id.

Finally, the Washington Supreme Court considered a Batson -type issue in State v. Jefferson , 192 Wash.2d 225 , 429 P.3d 467 , 470 (2018). In Jefferson , the prosecution exercised a peremptory challenge to remove the last African-American from the jury pool. Id. The stated reasons were that the juror thought voir dire was "a waste of time," the juror had specific knowledge of the movie 12 Angry Men, and the juror in a prior trial had brought into jury deliberations outside discussions. Id. at 472 .

The Jefferson court first concluded that, under Batson , there would be no violation. Id. The Jefferson court also concluded that Washington's new rule related to jury selection would not apply to the proceeding. Id. at 477 . But the Jefferson court proceeded to apply a "new" Batson test to decide the issue. Id. at 480 .

The Jefferson court departed from step three in Batson . Id. Under the new formulation, the Jefferson court stated the question on step three of the analysis "is whether 'an objective observer could view race or ethnicity as a factor in the use of the peremptory challenge.' " Id. The test was not based on purposeful discrimination, but instead focused on objective analysis. Id. The Jefferson court emphasized that review of this determination would be de novo. Id.

Applying the test de novo, the Jefferson court determined that the strike was invalid. Id. at 480-81 . The Jefferson court carefully examined the record and determined that the information the juror brought into a prior trial was not germane to the issues at hand. Id. at 480 .

Promulgated before the Jefferson case but only applying prospectively, jury selection in Washington is now subject to Washington General Rule 37. See Wash. Gen. R. 37 (2018). The new rule regulates peremptory challenges. See id. According to the new rule, "If the court determines that an objective observer could view race or ethnicity as a factor," then the peremptory strike is invalid. Id. R. 37(e). Further, the new rule emphasizes that "an objective observer is aware that implicit, institutional, and unconscious biases, in addition to purposeful discrimination, have resulted in the unfair exclusion of potential jurors in Washington State." Id. R. 37(f). The new rule provides a number of factors to be considered in making the objective determination, including the number and type of voir dire questions, a comparison of the number and nature of questions posed to other jurors, whether jurors with similar answers were stricken, whether the reason asserted might be disproportionately associated with race or ethnicity, and whether the party disproportionately used peremptory challenges in the present case or in past cases. Id. R. 37(g). The new rule provides a list of reasons that are presumed to be invalid, including having prior contact with law enforcement, expressing distrust in law enforcement or a belief that law enforcement engages in racial profiling, having a close relationship with people who have been stopped for a crime, living in high crime neighborhoods, having children outside marriage, receiving state benefits, and not being a native English speaker. Id. R. 37(h). Finally, the rule provides a list of conduct-oriented reasons that have "historically been associated with improper discrimination," including sleeping, failure to make eye contact, body language, and other demeanor-type evidence. Id. R. 37(i). The new rule further provides that if a party intends to rely on such conduct as a basis for the exercise of a peremptory challenge, notice has to be served on the other party. Id. Further, if the demeanor rationale is not corroborated by the judge or opposing party, that lack of corroboration could be a basis for invalidating the attempted strike. Id. The rule, as available at Washington Courts, General Rule 37: Jury Selection , https://www.courts.wa.gov/court_rules/?fa=court_rules.rulesPDF & ruleId=gagr37 & pdf=1 (last visited May 21, 2019), is reproduced herein in Appendix A.

C. Discussion. It seems to me beyond clear that our system's approach to achieving a fair cross section of the community in the jury pool and in ensuring African-Americans receive a fair trial is in need of an overhaul. We have made a good first step in our revisions of the fair-cross-section jurisprudence. See Lilly , 930 N.W.2d at 313 (Appel, J., concurring specially). But it is critically important that the gains made today are not eliminated by a Batson framework that permits the elimination of African-American petit jurors through the back door of peremptory challenges.

It seems to me the experience of over thirty years demonstrates not that Batson is worthless, but rather that it is very ineffective. The reasons are well known.

First, just like in the fair-cross-section question, Iowa constitutional law must recognize that African-Americans and other minorities make up a relatively small proportion of the state's population. See Plain , 898 N.W.2d at 830 (noting that black people comprise a small percentage of Iowa's population). Because of this salient fact, the absolute disparity approach to fair cross section required revision. Likewise, the relatively small proportion of minorities in Iowa means that it will be relatively easy for all minority jurors to be eliminated through the exercise of peremptory challenges. Leonard L. Cavise, The Batson Doctrine: The Supreme Court's Utter Failure to Meet the Challenge of Discrimination in Jury Selection , 1999 Wis. L. Rev. 501 , 527 (noting that minorities in low population jurisdictions can be completely eliminated from jury pool through peremptory challenges). A toothless Batson review in Iowa courts could eliminate the fair-cross-section gains achieved in today's cases.

Second, the state's justification offered in Batson 's step two need not be persuasive and can even be frivolous or utterly nonsensical. See, e.g. , Purkett , 514 U.S. at 768-69 , 115 S. Ct. at 1771 (majority opinion). It has been charitably described as an "extremely low" threshold. Alafair S. Burke, Prosecutors and Peremptories , 97 Iowa L. Rev. 1467 , 1470 (2012). Any reasonably imaginative prosecutor can come up with a facially neutral justification. See Bellin & Semitsu, 96 Cornell L. Rev. at 1090-99 (providing list of cases upholding peremptory strikes for racially neutral but apparently insubstantial reasons).

Third, once the low threshold of articulating a facially neutral justification has been crossed, the burden shifts to the defendant to show pretext and what amounts to purposeful discrimination. Purposeful discrimination is very difficult to prove. If a prosecutor asserts vague but racially neutral demeanor observations of a potential juror such as lack of eye contact, tone of voice, or body language, how does a district court evaluate such claims? And even in very compelling cases like Miller-El and Foster , the fractured decisions of the United States Supreme Court on the factual issue of purposeful discrimination illustrate the problem.

Fourth, requiring a district court judge to, in effect, charge the local prosecutor with lying and racial motivation from the bench in the course of voir dire is unrealistic. See Coombs v. Diguglielmo , 616 F.3d 255 , 264 (3d Cir. 2010) ("No judge wants to be in the position of suggesting that a fellow professional-whom the judge may have known for years-is exercising peremptory challenges based on forbidden racial considerations."); Saintcalle , 309 P.3d at 338 (plurality opinion) ("A requirement of conscious discrimination is especially disconcerting because it seemingly requires judges to accuse attorneys of deceit and racism in order to sustain a Batson challenge."); José Felipé Anderson, Catch Me If You Can! Resolving the Ethical Tragedies in the Brave New World of Jury Selection , 32 New Eng. L. Rev. 343 , 374, 377 (1998) (noting that judges "have little incentive to use [the power granted by Batson ] against lawyers who regularly practice before them.").

Fifth, the trial judge will not have a transcript from which to conduct the kind of meticulous but ultimately highly persuasive comparative analysis engaged in by Justice Souter in Miller-El , 545 U.S. at 240-51, 125 S. Ct. at 2325-31 (majority opinion). Although it is possible for an appellate court to later engage in the review, the reliance on the prospect of reversal many years after a tainted conviction is not very comforting.

Sixth, Batson does not purport to address at all the problem of implicit bias. Jean Montoya, The Future of the Post- Batson Peremptory Challenge: Voir Dire by Questionnaire and the "Blind" Peremptory , 29 U. Mich. J.L. Reform 981 , 1024 (1996). But as noted by Justice O'Connor, "It is by now clear that conscious and unconscious racism can affect the way white jurors perceive minority defendants and the facts presented at their trials, perhaps determining the verdict of guilt or innocence." Georgia v. McCollum , 505 U.S. 42 , 68, 112 S. Ct. 2348 , 2364, 120 L.Ed.2d 33 (1992) (O'Connor, J., dissenting).

Seventh, Batson 's relatively free reign on peremptory challenges cuts rough against the grain of the constitutional value of achieving juries with fair cross sections of the community. By opening the valve on peremptory challenges, you close the fair-cross-section pipe and lose the benefits of diversity, which are substantial. See id. at 61 , 112 S. Ct. at 2360 (Thomas, J., concurring) ("[S]ecuring representation of the defendant's race on the jury may help to overcome racial bias and provide the defendant with a better chance of having a fair trial."); Peters v. Kiff , 407 U.S. 493 , 503-04, 92 S. Ct. 2163 , 2169, 33 L.Ed.2d 83 (1972) ("When any large and identifiable segment of the community is excluded from jury service, the effect is to remove from the jury room qualities of human nature and varieties of human experience .... [I]ts exclusion deprives the jury of a perspective on human events that may have unsuspected importance in any case that may be presented."); State v. LaMere , 298 Mont. 358 , 2 P.3d 204 , 212 (2000) ("[D]iversity begets impartiality."); Samuel R. Sommers, On Racial Diversity and Group Decision Making: Identifying Multiple Effects of Racial Composition on Jury Deliberations , 90 J. Personality & Soc. Psychology 597, 597 (2006) (explaining that racially diverse juries were more amenable to discussion of racism, discussed more trial evidence, and made fewer errors).

To some extent, the Supreme Court in Miller-El may have wished to inject some life into Batson by carefully canvassing the evidence and modelling how comparative analysis of juror questioning can be used to establish pretext. But in Miller-El , there were ten African-Americans in the jury panel. Thus, the voir dire of these ten African-Americans, along with voir dire of other jurors, provided a mountain of comparative evidence. Voir dire in Miller-El's trial comprises eleven volumes and 4662 pages. Miller-El , 545 U.S. at 283, 125 S. Ct. at 2350 (Thomas, J., dissenting). In Iowa, however, there will likely never be a jury pool with ten African-Americans in the juror panel and an eleven volume voir dire transcript. Even with the proposed reforms embraced today, only a few African-Americans are likely to be in most Iowa jury pools. In these cases, there will be no body of comparative evidence similar to that developed by Justice Souter in Miller-El . In Iowa , Miller-El is likely a mirage.

It remains to be seen whether any Batson reform can be successful in Iowa. It is certainly true that without engaging in a robust review of a prosecutor's stated reasons for exclusion, Batson will likely be largely ineffective in eliminating racial discrimination in jury selection. See Anna Roberts, Disparately Seeking Jurors: Disparate Impact and the (Mis)use of Batson, 45 U.C. Davis L. Rev. 1359 , 1388 (2012) (advocating "proactive, creative, and assertive" scrutiny of race-neutral justifications).

Given all the problems of Batson , it may well be that an adjustment here and there may not be enough. I certainly recognize the power of Justice Marshall's dissent in Batson , the views of experienced judges, and the large body of academic commentary that has followed, all of which suggest that the only solution is the elimination of peremptory challenges from our jury system. See Morgan v. Commonwealth , 189 S.W.3d 99 , 115-16 (Ky. 2006) (Graves, J., concurring) (expressing the hope that the case put the state "one step closer to the inevitable implosion of the current peremptory challenge system"), majority opinion overruled on other grounds by Shane v. Commonwealth , 243 S.W.3d 336 , 341 (Ky. 2007) ; People v. Brown , 97 N.Y.2d 500 , 743 N.Y.S.2d 374 , 769 N.E.2d 1266 , 1272 (2002) (Kaye, C.J., concurring) ("My own years ... dealing with countless Batson challenges, have brought me far closer to the perception of Justice Thurgood Marshall ...."); Tania Tetlow, Why Batson Misses the Point , 97 Iowa L. Rev. 1713 , 1735-36 (2012) (asserting Batson 's problems cannot be solved by mere tinkering).

The elimination of peremptory challenges, of course, is a substantial proposition and no one has asked for it in this case. What Veal does ask for, however, is a revision of our approach when the last African-American is removed from the jury with a peremptory strike.

I agree. When the last African-American member of the jury is subject to a peremptory challenge, the interest in achieving a fair cross section of the community on the jury is at its highest point. I think we should be giving the elimination of the last minority juror through a peremptory challenge greater scrutiny than other Batson challenges ordinarily require. For last minority jurors, I think we should require at this stage that the prosecutor provide a specific challenge related to the facts of the case. That amounts to Batson with teeth on step two of the traditional analysis. Then, in step three, as under the Washington approach, the district court should objectively determine whether the asserted reason was in fact race neutral or whether race may have played a role in the strike. See Wash. Gen. R. 37(e) ; Jefferson , 429 P.3d at 480 . If the district court objectively determines that the reason asserted for the strike is race neutral, the district court should then objectively weigh the prosecution's racially neutral interest in eliminating the juror against the defendant's interest in a jury composed of a fair cross section of the community. See Tania Tetlow, Solving Batson, 56 Wm. & Mary L. Rev. 1859 , 1894-1900 (2015) (proposing a balancing of prosecution's neutral interest against defendant's fair-cross-section interest).

Applying this test, I would hold that the strike of the last African-American juror was invalid. Based on my review of the record, I would credit the prosecution's reason for the strike as race neutral based on objective analysis of the facts. I would then proceed to the balancing test. While the prosecution may have had an interest in exclusion of the juror, the juror appeared to have very little contact with her father and little if any bitterness arising out of his past prosecution. More importantly, she was the last African-American member of the venire pool. On balance, I would conclude that Veal's interest in a fair cross section outweighed the prosecution's interest in disqualifying the juror. Because an error in jury selection persists through the entire course of the proceeding, I would reverse Veal's conviction and remand for a new trial. See Tankleff v. Senkowski , 135 F.3d 235 , 248 (2d Cir. 1998).

Wiggins, J., joins this concurrence in part and dissent in part.

APPENDIX A

General Rules

GR 37

JURY SELECTION

(a) Policy and Purpose. The purpose of this rule is to eliminate the unfair exclusion of potential jurors based on race or ethnicity.

(b) Scope. This rule applies in all jury trials.

(c) Objection. A party may object to the use of a peremptory challenge to raise the issue of improper bias. The court may also raise this objection on its own. The objection shall be made by simple citation to this rule, and any further discussion shall be conducted outside the presence of the panel. The objection must be made before the potential juror is excused, unless new information is discovered.

(d) Response. Upon objection to the exercise of a peremptory challenge pursuant to this rule, the party exercising the peremptory challenge shall articulate the reasons the peremptory challenge has been exercised.

(e) Determination. The court shall then evaluate the reasons given to justify the peremptory challenge in light of the totality of circumstances. If the court determines that an objective observer could view race or ethnicity as a factor in the use of the peremptory challenge, then the peremptory challenge shall be denied. The court need not find purposeful discrimination to deny the peremptory challenge. The court should explain its ruling on the record.

(f) Nature of Observer. For purposes of this rule, an objective observer is aware that implicit, institutional, and unconscious biases, in addition to purposeful discrimination, have resulted in the unfair exclusion of potential jurors in Washington State.

(g) Circumstances Considered. In making its determination, the circumstances the court should consider include, but are not limited to, the following:

(i) the number and types of questions posed to the prospective juror, which may include consideration of whether the party exercising the peremptory challenge failed to question the prospective juror about the alleged concern or the types of questions asked about it;

(ii) whether the party exercising the peremptory challenge asked significantly more questions or different questions of the potential juror against whom the peremptory challenge was used in contrast to other jurors;

(iii) whether other prospective jurors provided similar answers but were not the subject of a peremptory challenge by that party;

(iv) whether a reason might be disproportionately associated with a race or ethnicity; and

(v) whether the party has used peremptory challenges disproportionately against a given race or ethnicity, in the present case or in past cases.

(h) Reasons Presumptively Invalid. Because historically the following reasons for peremptory challenges have been associated with improper discrimination in jury selection in Washington State, the following are presumptively invalid reasons for a peremptory challenge:

(i) having prior contact with law enforcement officers;

(ii) expressing a distrust of law enforcement or a belief that law enforcement officers engage in racial profiling;

(iii) having a close relationship with people who have been stopped, arrested, or convicted of a crime;

(iv) living in a high-crime neighborhood;

(v) having a child outside of marriage;

(vi) receiving state benefits; and

(vii) not being a native English speaker.

(i) Reliance on Conduct. The following reasons for peremptory challenges also have historically been associated with improper discrimination in jury selection in Washington State: allegations that the prospective juror was sleeping, inattentive, or staring or failing to make eye contact; exhibited a problematic attitude, body language, or demeanor; or provided unintelligent or confused answers. If any party intends to offer one of these reasons or a similar reason as the justification for a peremptory challenge, that party must provide reasonable notice to the court and the other parties so the behavior can be verified and addressed in a timely manner. A lack of corroboration by the judge or opposing counsel verifying the behavior shall invalidate the given reason for the peremptory challenge.

[Adopted effective April 24, 2018.]

McDONALD, Justice (concurring in part, dissenting in part).

I concur in the following divisions of Justice Mansfield's opinion: divisions V (speedy trial), VI ( Batson challenge), VII (prosecutorial error), VIII (firearm demonstration), IX (competency hearing), X (excluded evidence), and XI (sufficiency of the evidence). I dissent from division IV (fair cross section) of the opinion. On that claim, I would affirm the ruling of the district court and affirm the conviction without remand. I thus respectfully concur in part and dissent in part.

I.

On appeal, defendant Peter Veal asserts a fair-cross-section claim arising under article I, section 10 of the Iowa Constitution. To the extent Justice Mansfield's opinion could be interpreted to mean Veal can assert a state constitutional claim on remand, I respectfully disagree. Veal failed to present a state constitutional claim in the district court, and the claim is not preserved for appellate review. It is improper to remand this matter to allow Veal to assert a claim arising under the state constitution when he failed to first present the issue to the district court prior to trial or in his posttrial motion. See State v. Coleman , 890 N.W.2d 284 , 286 (Iowa 2017) (stating where a defendant "only identifies [a federal] claim, the state constitutional claim has not been preserved at the district court"); Van Gorden v. Schuller , 192 Iowa 853 , 859, 185 N.W. 604 , 607 (1921) ("Neither is it within the scope of our appellate jurisdiction to remand this proceeding to the district court for the making and trial of new issues at law.").

II.

Veal also asserts a federal claim arising under the Sixth and Fourteenth Amendments to the United States Constitution. As pertinent here, the Sixth Amendment provides, "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial[ ] by an impartial jury of the State and district wherein the crime shall have been committed ...."

A.

In Taylor v. Louisiana , the Supreme Court held, "[T]he selection of a petit jury from a representative cross section of the community is an essential component of the Sixth Amendment right to a jury trial." 419 U.S. 522 , 528, 95 S. Ct. 692 , 697, 42 L.Ed.2d 690 (1975).

This Sixth Amendment right is not grounded in text or history. See Holland v. Illinois , 493 U.S. 474 , 480, 110 S. Ct. 803 , 807, 107 L.Ed.2d 905 (1990) ("The fair-cross-section venire requirement is obviously not explicit in this text ...."); see also Berghuis v. Smith , 559 U.S. 314 , 334, 130 S. Ct. 1382 , 1396, 176 L.Ed.2d 249 (2010) (Thomas, J., concurring) ("[The right] seems difficult to square with the Sixth Amendment's text and history."); Duren v. Missouri , 439 U.S. 357 , 371, 99 S. Ct. 664 , 672, 58 L.Ed.2d 579 (1979) (Rehnquist, J., dissenting) ("The Constitution does not require, and our jurisprudence is ill served, by a hybrid doctrine such as that developed in Taylor , and in this case."); Taylor , 419 U.S. at 539 , 95 S. Ct. at 702 (Rehnquist, J., dissenting) ("Relying on carefully chosen quotations, [the majority] concludes that the 'unmistakable import' of our cases is that the fair-cross-section requirement 'is an essential component of the Sixth Amendment right to a jury trial.' I disagree. Fairly read, the only 'unmistakable import' of those cases is that due process and equal protection prohibit jury-selection systems which are likely to result in biased or partial juries.").

Despite the lack of textual or historical support for a constitutional right to a jury venire composed of a fair cross section of the community, the Supreme Court continued to develop the right post- Taylor . In Holland , the Supreme Court explained the right "is derived from the traditional understanding of how an 'impartial jury' is assembled." 493 U.S. at 480 , 110 S. Ct. at 807 . The Supreme Court explained the right does not entitle the accused to a representative jury, but only an impartial one:

The Sixth Amendment requirement of a fair cross section on the venire is a means of assuring, not a representative jury (which the Constitution does not demand), but an impartial one (which it does). Without that requirement, the State could draw up jury lists in such manner as to produce a pool of prospective jurors disproportionately ill disposed towards one or all classes of defendants, and thus more likely to yield petit juries with similar disposition. The State would have, in effect, unlimited peremptory challenges to compose the pool in its favor. The fair-cross-section venire requirement assures, in other words, that in the process of selecting the petit jury the prosecution and defense will compete on an equal basis.

Id. at 480-81 , 110 S. Ct. at 807 ; see Duren , 439 U.S. at 364 n.20, 99 S. Ct. at 668 n.20 (majority opinion) ("We further explained that this requirement does not mean 'that petit juries actually chosen must mirror the community.' " (quoting Taylor , 419 U.S. at 538 , 95 S. Ct. at 702 ) (majority opinion)).

In Duren , the Supreme Court set forth the elements necessary to establish a prima facie violation of the right:

In order to establish a prima facie violation of the fair-cross-section requirement, the defendant must show (1) that the group alleged to be excluded is a "distinctive" group in the community; (2) that the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) that this underrepresentation is due to systematic exclusion of the group in the jury-selection process.

439 U.S. at 364 , 99 S. Ct. at 668. With respect to the third element, the Supreme Court concluded systematic exclusion requires proof the underrepresentation is persistent and caused by some particular mechanism in the jury-selection process. See id. at 366, 99 S. Ct. at 669 ; Berghuis , 559 U.S. at 328 , 130 S. Ct. at 1392-93 (majority opinion) (explaining the defendant in Duren established a prima facie case when he showed with "particularity" the "underrepresentation was persistent" and caused by "two [particular] stages of the jury-selection process").

B.

Veal failed to establish that the jury pool was not a fair and reasonable representation of the jury-eligible population. I disagree with the majority's decision to nonetheless remand this matter to allow Veal to try and marshal additional evidence in support of a claim he already lost.

First, as noted in my separate opinion in State v. Lilly , 930 N.W.2d 293 , 314-19 (Iowa 2019) (McDonald, J., concurring in part and dissenting in part), there is no reliable county-level data regarding the number of eligible jurors. There is also no reliable county-level data regarding the race or ethnicity of eligible jurors. It was Veal's burden to establish a prima facie case, and the failure to present reliable evidence to support his claim defeats the claim.

Second, even assuming the data was reliable, the data shows this jury pool was actually overrepresentative. During the relevant time period, the population of Webster County was approximately 36,000. Of those, 4.6%, or 1656, were African-American, and 34,344 persons were not African-American. As I noted in Lilly , there is no reliable information regarding how many persons in the county were jury-eligible. Setting aside that particular criticism, using the majority's assumptions, the number of eligible African-American jurors was approximately 1100 while the number of jury-eligible others was 26,685. Approximately 700 white persons and 400 African-Americans were incarcerated at the Fort Dodge Correctional Facility located in Webster County. This is consistent with historical census information. See Rose Heyer & Peter Wagner, Prison Policy Initiative, Too Big to Ignore: How Counting People in Prisons Distorted Census 2000 (2004) [hereinafter Heyer & Wagner], https://www.prisonersofthecensus.org/toobig/datasearch.php?field=GEO_NAME & operator=LIKE & q=webster & Submit=Search & field1= & operator1= & q1= & sortby= & sortorder= [https://perma.cc/7DGC-CT3Y] (containing data set showing 26.47% of the African-American population in Webster County in 2000 was incarcerated). The majority agrees that the census counts prisoners in its census data and that prisoners should be excluded from determining the jury-eligible population. See Heyer & Wagner, https://www.prisonersofthecensus.org/toobig/exec_sum.html [https://perma.cc/CUJ4-SEF7] ("The Census Bureau counts people incarcerated in state and federal correctional facilities as if they were residents of the prison town. Although incarcerated people are not a part of the prison town, they are a part of the community's statistics."). If one removes incarcerated persons from the calculation (assuming all or almost all are 18 or older), there were 26,285 non-African-American eligible jurors and only 700 African-American eligible jurors, or 2.6% of all eligible jurors. The majority concludes the percentage of African-Americans in the jury pool was 3.27%. Thus, when adjusted for the unique demographics of this county, the jury pool here was actually overrepresentative of the African-American community.

In Lilly , the majority concluded that "[a] defendant whose jury pool has a percentage of the distinctive group at least as large as the percentage of that group in the jury-eligible population has not had his or her right to a fair cross section infringed." --- N.W.2d at ----. I agree. The defendant's fair-cross-section claim fails as a matter of law. This court should affirm the defendant's conviction rather than remand.

C.

Remand is also improper because Veal failed to establish systematic exclusion within the meaning of Duren .

Veal's only allegation of systematic exclusion was that "these jury pools were only pulled from Driver's license/ID information and voter registration." This court has repeatedly rejected this challenge. See State v. Huffaker, 493 N.W.2d 832 , 834 (Iowa 1992) (approving the use of voter registration list and motor vehicle operator's list); State v. Jones , 490 N.W.2d 787 , 794 (Iowa 1992) (holding defendant failed to establish a violation of the fair-cross-section right where the jury manager used voter registration and motorist/identification lists), overruled on other grounds by State v. Plain , 898 N.W.2d 801 , 822 (Iowa 2017) ; State v. Johnson , 476 N.W.2d 330 , 333 n.1 (Iowa 1991) ("Although we do not reach the merits of defendant's contentions, we believe county officials should implement the directives of Iowa Code chapter 607A. Jury commissions and jury managers should use the source lists described in sections 607A.3(9) and 607A.22 to fulfill their statutory duties under sections 607A.1 and 607A.2 to provide for jury service a fair cross-section of the population of the area served by the court."). These cases are controlling, but the majority opinion does not address them. It is unclear to me why these long-standing, controlling precedents do not resolve Veal's claim.

In addition to the controlling authority, the persuasive authorities have approved the use of these lists. The Iowa Court of Appeals has repeatedly upheld the use of voter registration lists and driver's license/identification lists. See State v. Washington , No. 15-1829, 2016 WL 6270269 , at *11 (Iowa Ct. App. Oct. 26, 2016) ("While we agree that the best practice would involve increasing the number of lists used in order to reach more of the population, Washington cannot establish that the use of the lists of registered voters and current motor vehicle operat[ors] is a systematic exclusion."); State v. Jackson , No. 09-0462, 2010 WL 624906 , at *7 (Iowa Ct. App. Feb. 24, 2010) (holding defendant failed "to prove a systematic exclusion, as the testimony of the Black Hawk County jury manager evidences that section 607A.22 was properly followed"); State v. Salinas , No. 05-0772, 2006 WL 1910207 , at *4 (Iowa Ct. App. July 12, 2006) (holding the defendant failed to show systematic exclusion where jury manager used statutorily-required lists).

It appears that almost every federal circuit court has concluded that the use of voter registration lists to select a jury pool-less than what was done in this case-is constitutionally permissible. See United States v. Willis , 868 F.3d 549 , 555 (7th Cir. 2017) ("In this case, the defendants cannot show that the underrepresentation of blacks in the jury pool was due to a systematic exclusion of this group. Rather, the jury venire was pulled from individuals registered to vote and this court has previously upheld this methodology ...."); United States v. Garcia , 674 F. App'x 585 , 587 (8th Cir. 2016) ("[E]thnic and racial disparities between the general population and jury pools do not by themselves invalidate the use of voter registration lists and cannot establish the systematic exclusion of allegedly under-represented groups." (quoting United States v. Greatwalker , 356 F.3d 908 , 911 (8th Cir. 2004) )); United States v. Hernandez-Estrada , 749 F.3d 1154 , 1166 (9th Cir. 2014) (en banc) ("Hernandez has not provided sufficient evidence 'linking sole reliance on voter registration lists for jury selection to current systematic exclusion of [distinctive groups] in the [Southern District].' " (alterations in original) (quoting United States v. Rodriguez-Lara , 421 F.3d 932 , 945 (9th Cir. 2005), overruled on other grounds by Hernandez-Estrada , 749 F.3d at 1157 )); United States v. Watkins , 691 F.3d 841 , 850-51 (6th Cir. 2012) ("Specifically, he argues that the practice of summoning jurors using voter registration lists exclusively, rather than also drawing from driver's-license and state-identification lists, disfavors minorities, who tend to vote in lower proportions than other groups. But we specifically rejected this argument in [ United States v. ] Odeneal [, 517 F.3d 406 (6th Cir. 2008) ]."); United States v. Smith , 247 F. App'x 321 , 323 n.2 (3d Cir. 2007) ("We have affirmed the validity of jury selection procedures using voter registration and motor vehicle records as procedures 'constituted using facially neutral criteria [that] allow no opportunity for subjective or racially motivated judgments.' " (alteration in original) (quoting Ramseur v. Beyer , 983 F.2d 1215 , 1233 (3d Cir. 1992) )); 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. Joost , No. 95-2031, 1996 WL 480215 , at *8 (1st Cir. Aug. 7, 1996) ("As for Duren 's third prong, the requirement that systematic exclusion be shown, we have already ruled out reliance simpliciter on voter registration lists."); Schanbarger v. Macy , 77 F.3d 1424 , 1424 (2d Cir. 1996) (per curiam) ("[A] jury venire drawn from voter registration lists violates neither the Sixth Amendment's fair cross-section requirement nor the Fifth Amendment's guarantee of Equal Protection."); United States v. Cecil , 836 F.2d 1431 , 1454 (4th Cir. 1988) ("We are reasonably confident that every jury plan in this Circuit, as well as those in most of the other Circuits, provides for the use of voter registration lists in the jury selection process ... [which] have been approved, as satisfying the fair cross-section requirement of the statute and the Constitution.").

On this record, it is unclear to me why remand is necessary or proper. In Plain , we remanded the case to develop the record where the defendant "lacked the opportunity to do so because he was not provided access to the records to which he was entitled." 898 N.W.2d at 829 . There is no such claim here.

Nothing in Lilly or the majority opinion in this case purports to change the showing required to establish "systematic exclusion" under the Sixth Amendment. Indeed, the majority agrees Veal's claim fails as a matter of law:

Veal did not attempt to meet the third prong of Duren / Plain other than by arguing that systematic exclusion can be inferred from the 2016 aggregated data. As we explained in Lilly , that is not enough. 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 ."

(Citation omitted.)

I can find no authority to remand a case to allow the defendant an opportunity to relitigate a claim that everyone agrees he lost as a matter of law.

III.

For these reasons, and for the reasons set forth in my separate opinion in Lilly , I concur in part and dissent in part.

Waterman and Christensen, JJ., join this concurrence in part and dissent in part.