Iowa Supreme Court says its ruling on racial composition of juries does not apply retroactively

by Rox Laird | January 28, 2020

Two years ago the Iowa Supreme Court overruled a quarter-century-old precedent that established an exclusive test for determining whether a criminal jury reflects a fair cross section of the community. In its decision in Thongvanh v. State handed down Jan. 24, the Court held that its 2017 decision in State v. Plain does not apply retroactively to appellants whose convictions were final before that decision.

The Court in Plain recognized that, because of Iowa’s relatively small minority population, using the Court’s previous methodology made it virtually impossible for minority defendants to demonstrate that their jury pools do not fairly represent the minority makeup of their community.

Prior to Plain, the Court had said “absolute disparity” is the exclusive method for measuring whether juries reflect a fair cross section of the community. Absolute disparity is the difference between the percentage of members of a minority group in a jury pool and the percentage of that minority group in the community.

In Plain, the Court said a defendant could use any one of a number of statistical models, including absolute disparity, comparative disparity, and statistical standard deviation, to assess whether a jury pool is representative. (In 2019, in State v. Lilly, the Court clarified its position in Plain, holding that neither the absolute disparity nor the comparative disparity model is workable, and that courts should use statistical standard deviation method.)

The question raised by Khamfeung Thongmanh in his appeal is whether Plain applies retroactively to him in his appeal of his 1984 conviction of first-degree murder. Thongvanh argued that the exclusion of Asians from his jury pool violated his right to an impartial jury under the Sixth Amendment.

The Webster County District Court ruled that Plain did not apply to him retroactively, and on appeal the Iowa Court of Appeals agreed.

The Iowa Supreme Court now affirms the appeals court on further review in a decision written by Acting Chief Justice David Wiggins joined by Justices Brent Appel, Susan Christensen, Thomas Waterman and Edward Mansfield. Justice Christopher McDonald did not participate in the case, presumably because he wrote the appeals court ruling when he was a member of that court.

Wiggins explained that under U.S. Supreme Court precedent, new substantive rules generally apply retroactively while new procedural rules generally do not. Because the connection between new procedural rules and innocence is weak, courts give retroactive effect to new “watershed rules of criminal procedure” that implicate the fundamental fairness and accuracy of a criminal proceeding.

Applying that standard to Thongvanh’s case, the Iowa Supreme Court held that Plain’s change in which mathematical formula a defendant may use to challenge the fair-cross-section of his or her jury does not implicate the fundamental fairness of the trial, and thus does not meet the definition of a watershed rule.

“We recognize that the composition of jury pools can have real-world effects,” Wiggins wrote. “That is why we changed the law in Plain. In fact, since 1984, when Thongvanh was tried and convicted, Iowa’s criminal justice system has evolved in many ways — hopefully for the better. We believe if Thongvanh were tried today, thirty-six years later, he would receive better procedural protections on the whole. But against this consideration, we have to weigh the need for finality of judgments when the issue does not bear directly on guilt or innocence and the impracticality of reconstructing events that occurred between three and four decades ago.”


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