State of Iowa v. Trapp Leroy Trotter Jr.

IN THE COURT OF APPEALS OF IOWA

No. 23-0876
Filed July 24, 2024

STATE OF IOWA,
Plaintiff-Appellee,

vs.

TRAPP LEROY TROTTER JR.,
Defendant-Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Worth County, Rustin Davenport,

Judge.

A criminal defendant appeals the denial of his challenge to his jury’s

composition. AFFIRMED.

Martha J. Lucey, State Appellate Defender, and Bradley M. Bender,

Assistant Appellate Defender, for appellant.

Brenna Bird, Attorney General, and Louis S. Sloven, Assistant Attorney

General, for appellee.

Considered by Greer, P.J., Chicchelly, J., and Blane, S.J.*

*Senior judge assigned by order pursuant to Iowa Code section 602.9206

(2024).
2

BLANE, Senior Judge.

Trapp Trotter appeals the district court ruling rejecting his fair-cross-section

challenge to the jury that convicted him of attempted murder and criminal trespass.

He contends the district court erred in finding he failed to satisfy his burden to prove

there was systematic exclusion of a distinctive group from the jury pool. On our

review, we affirm.

I. Background facts and proceedings

In 2018, Trotter was charged with attempted murder, first-degree burglary,

and fourth-degree criminal mischief. The court granted a change of venue from

Worth County to Bremer County. At trial, Trotter, an African American, challenged

the composition of the jury, asserting jury pools over the previous year

underrepresented African American potential jurors in Bremer County. The court

denied that challenge, and the all-white jury found Trotter guilty of attempted

murder and the lesser included criminal trespass.1

On direct appeal, our court affirmed his convictions conditionally and

remanded with directions for reconsideration of Trotter’s jury-composition

challenge. State v. Trotter, No. 19-1019, 2021 WL 594559, at *2 (Iowa Ct. App.

Feb. 3, 2021). Our court found the district court did not have the benefit of “our

supreme court’s clarification of the Duren[2/Plain3] test when it decided this case in

April 2019.” Id. (noting the supreme court handed down State v. Lilly (Lilly I), 930

N.W.2d 293 (Iowa 2019), in May 2019). We remanded for Trotter to “develop his

1 Trial started on April 16, 2019, and the jury returned its verdict on April 19, 2019.
2 Duren v. Missouri, 439 U.S. 357 (1979).
3 State v. Plain, 898 N.W.2d 801, 821–22 (Iowa 2017).
3

arguments that his constitutional right to a jury drawn from a fair cross-section of

the community was violated.” Id. We held, “If the district court finds a violation, it

shall grant Trotter a new trial.” Id.

On remand, the district court heard additional evidence on Trotter’s claim.

This included testimony from Iowa Judicial Branch director of information

technologies, Mark Headlee; Bremer County jury manager, Elizabeth Hamm;

director of the Center for Jury Studies at the National Center for State Courts,

Paula Hannaford-Agor4; and private statistical consultant, Grace Zalenski.5 The

district court readily found that African American, Hispanic and Latino American,

Asian American, and mixed-race persons are all distinctive groups in the

community that satisfy the first prong of the Duren/Plain test. While noting that in

counties with “large percentages of white populations . . . it would be unlikely, or

even impossible, to satisfy” the statistical criteria set out in Lilly I to determine

underrepresentation, the court “accept[ed] the State’s view that

Trotter . . . satisfied the second prong” of the Duren/Plain test.

Focusing on the third prong, which requires proof of systematic exclusion

of a distinctive group, in a thorough decision the district court found Trotter did not

meet his burden:

Neither Hannaford-Agor nor Zalenski offered any opinion that
the State of Iowa and Bremer County’s method of selecting jurors led
to any underrepresentation of any population group. Hannaford-
Agor concluded that the steps used by the court system, with each
successive step used to identify, contact, and acquire the presence
of jurors for a trial, resulted in jury pools and jury panels consistent
with the composition of the jury-eligible population in Bremer County.

4 A court-appointed expert witness.
5 Trotter’s expert witness.
4

Hamm’s testimony does suggest a systematic exclusion of
non-English-speaking or noncitizens who may later be qualified to
serve on the jury. However, there is no evidence that any such
exclusions resulted in any significant numbers of
underrepresentation for later jury pools or jury panels. Trotter has
not shown, if such practice existed, that it would result in any
“statistically significant disparity” in later years. Trotter did not
present evidence that there is a causal link between these practices
and underrepresentations of Hispanics/Latin Americans.

(Citation omitted). To the extent that Trotter used specific incidents to support his

claim of systematic exclusion, the court found “these incidents do not show

exclusions of members of population groups.” Trotter appeals.

II. Standard of review

Our review of this constitutional challenge is de novo.6 See State v.

Williams, 972 N.W.2d 720, 723–24 (Iowa 2022).

III. Analysis

A. Error Preservation

The State contends Trotter failed to preserve error on his arguments of

underrepresentation of any distinctive group other than African Americans by

failing to raise them before the trial court before remand, even though the district

court ruled on them following remand. We choose to address those arguments on

appeal.

B. Jury Cross-Section Challenge

Trotter contends the district court erroneously denied his fair-cross-section

challenge under the Sixth Amendment of the United States Constitution and the

Iowa Constitution article I, section 10. Both the Sixth Amendment and article I,

6 Trotter and the State agree the court has jurisdiction to hear the appeal from a

final order of the district court. See Iowa R. App. P. 6.103(1).
5

section 10 guarantee the right to trial by an impartial jury. U.S. Const. amend VI;

Iowa Const. art. I, § 10. To be impartial, a jury must be “drawn from a fair cross-

section of the community.” Williams, 972 N.W.2d at 723 (citation omitted).

To prove a prima facie violation of the fair-cross-section requirement, an

accused must show that (1) the group alleged to be excluded is a “distinctive”

group in the community; (2) representation of this group in the jury venire is not fair

and reasonable compared to the number of such persons in the community; and

(3) this underrepresentation arises from systematic exclusion of the group in the

jury-selection process. Plain, 898 N.W.2d at 821–22 (quoting Duren, 439 U.S. at

364).

The State concedes prongs one and two. The only issue on appeal is prong

three—whether the underrepresentation of the distinctive groups is due to

systematic exclusion in the jury-selection process. This requires Trotter to

“establish the exclusion is ‘inherent in the particular jury-selection process utilized’”

in Bremer County and that such process “caused the systematic exclusion of the

distinctive group[s] in the jury selection process.” Williams, 972 N.W.2d at 724

(quoting Plain, 898 N.W.2d at 824). In State v. Lilly (Lilly II), the supreme court

found the defendant “failed to deliver on his burden under the third prong” because

he was unable to “pinpoint[] the procedural step in which African-Americans were

excluded and offer[] a plausible explanation for how the summoning and

qualification process brought it about.” 969 N.W.2d 794, 799–800 (Iowa 2022).7

7 Trotter urged the supreme court to retain this case and reconsider how it applies

the third prong of the Duren/Plain test. Under the court’s jurisprudence, the Sixth
Amendment is not offended by “‘run-of-the-mill’ jury management practices.”
Plain, 969 N.W.2d at 297. But under the Iowa Constitution, article I, section 10,
6

On remand, the court received databases of jury and demographic records

from Trotter and the State and listened to testimony from Headlee, Hamm,

Hannaford-Agor, and Zalenski. Headlee explained the process implemented to

compile the jury master list for each Iowa county and the jury selection software

program used by the Iowa Judicial Branch. In 2016, the Branch removed the

option for potential jurors to opt out of reporting their race on the online

questionnaire. The Juror for Windows software was used until December 2018,

when the Branch switched to Clearview software, which had a mandatory answer

field for race in the questionnaire. He also explained that when different jury lists

are merged, it may leave duplicate entries for the same person.8

Hamm explained that jury managers do not have access to the master jury

lists; instead, managers enter how many jurors they need into Clearview, and that

program generates the list. In Bremer County, they typically draw seventy-five to

eighty people a month to serve on juries. Postcards are then sent out, requesting

the potential jurors go to an online juror management program to fill out paperwork

and the questionnaire. When postcards come back undeliverable, Hamm looks at

the Iowa Department of Transportation and Iowa Courts Online docketing

such “run-of-the-mill jury management practices can support a systemic exclusion
claim.” Lilly II, 969 N.W.2d at 799 (citing Lilly I, 930 N.W.2d at 308). Trotter argues
that the application of Duren/Plain in Lilly II undermines the functioning of the jury.
He asks the supreme court to reconsider Lilly II and hold under Article I, section 10
of the Iowa Constitution that courts should presume that jury management
procedures cause underrepresentation. But the supreme court transferred his
appeal to us, and we are not at liberty to overturn its precedents. See State v.
Dewbre, 987 N.W.2d 861, 866 (Iowa Ct. App. 2022).
8 The master list is developed from the Iowa Department of Transportation motor

vehicle licenses and non-license identification cards and the voter registration list.
This may produce duplications.
7

databases to see if there is an updated address. If there is no alternative address,

the potential juror is labeled “undeliverable.” Hamm was unaware what happened

with that entry after being labeled “undeliverable.” When Hamm finds duplicates—

typically one or two each month—she deletes the extra record so each eligible

individual has only one account in the jury system. She also testified that once the

juror has completed their service, she processes the payment for their time and

mileage and removes them from the system for two years.9

When potential jurors do not respond to the initial postcard, the system

generates a “non-responded” letter which is sent to them. If they still do not

respond, the name stays in the pool until they respond or are able to serve. If the

potential juror responds to the mailed correspondence but does not appear at the

courthouse when they are called, they remain on the service list through the

following month. If they fail to appear a second time, the court can keep them on

the list for another month or initiate contempt. In counties where the percentage

of jury trials is low, Hamm found that contempt actions were rare. She stated most

people respond when they get a failure-to-appear notice. Jury managers also

handle some dismissals of potential jurors before trial, for example if the person is

a noncitizen or non-English-speaking, medical reasons, or if the person now lives

in a different county or state. Some are excused and some have their service

postponed for another time. Excuses like financial burdens or childcare obligations

are handled by the judge during jury selection. Hamm also testified that when

potential jurors are disqualified for citizenship or language reasons, “[t]he system

9 See Iowa Code § 607A.29 (2016).
8

permanently disqualifies them.” At that time, she believed it was mandatory for

potential jurors to fill in their race on the online questionnaire or she would have

clarified it with them when they checked-in for the trial.

Hannaford-Agor, the court appointed expert, both testified and submitted a

written report of her analysis. She testified that research on jury management

procedures in the 1970s and 1980s showed reliance on source lists such as voting

rolls and driver licenses led to underrepresentation of people of color, younger

people, and people of lower socioeconomic means. This prompted a move toward

using multiple lists, even if that resulted in duplicate entries. This led to the

substantial overcounting, or “overinclusive” lists with “ghosts” and “shadows.”

“Shadows” is a “tongue-in-cheek” term for duplicates. And “ghosts” are entries

with stale addresses for people who no longer live in the jurisdiction. Both

“undermin[e] the effectiveness of the lists” by increasing the chance of “a

fundamental violation of random selection,” meaning individuals should appear

only once, or they are twice as likely to be selected as someone who appears only

once. Depending on the state, white potential jurors can have more duplicates,

increasing the chance of being called to serve on a jury disproportionately often.

Hannaford-Agor now recommends focusing on the quality of the master jury list,

not including more lists or types of lists. She also recommends that the master

jury list should reflect at least 85% of the adult population of the jurisdiction and no

more than 110% to avoid over-inclusiveness distortions.

Hannaford-Agor also testified about the use of suppression lists—

suppressing names of people who have died or have done their required jury

service is common. But, she explained, “where I have seen courts get into trouble
9

with suppression files is basically suppressing factors that can change” such as

age, with seventeen-year-olds becoming eligible for jury service at eighteen;

people with felony convictions having their civil rights restored; and non-English

speakers learning English. She testified that suppression on the latter two bases

is more likely to exclude Hispanic or Latino American and Asian American potential

jurors than African American or Native American potential jurors. She also testified

that permanent exclusion of noncitizens and non-English speakers would qualify

as a systematic exclusion of that group.

On her read of the data, the last time there was an African American

potential juror in Bremer County was February 2016, but that included the period

when reporting race was optional. But the population of jury-eligible African

Americans in the county was 1.4%. In her report, Hannaford-Agor gave the opinion

that the most accurate method of documenting the race of jurors is to ask them to

self-report, but she used a “geocoding” method to infer the race of prospective

jurors for whom that data was missing. Because Bremer County is

“overwhelmingly white,” the sample size was too small to detect

underrepresentation of African American potential jurors in the jury pools. She

concluded:

The geographic and demographic composition of prospective
jurors through each successive step in the summoning and
qualification process is consistent with the composition of the jury-
eligible population in Bremer County. Factors that tend to correlate
with underrepresentation of people of color in the jury pool, such as
nonresponse, undeliverable, disqualification, and excusal rates,
were proportionately consistent with geographic representation
across [zip code tabulation areas], including 50677. This
consistency across the successive stages of the jury selection
process suggests that these factors are not causally related to
10

representation of non-Whites in the jury pool, especially
Blacks/African-Americans, even if such was statistically measurable.

Zalenski, the statistical consultant, testified that there is “weak statistical

evidence that there is underrepresentation” of African American potential jurors in

the jury pools in Bremer County. And her report concluded there was

underrepresentation of Asian American, Hispanic and Latino American, and

mixed-race potential jurors in the jury pools and overrepresentation of white

potential jurors. But when asked to pinpoint “any evidence that the process that

was used to form the jury panels” in Bremer County in April 2019 “systematically

excluded any minority groups,” Zalenski commented, “I have no knowledge or

expertise in the process of jury selection. I’ve picked up a bit about it but . . . all I

do is the statistical analysis. . . . [A]s far as the process of jury selection, I can’t

really comment on it.”

In Lilly II, the supreme court placed the burden on the defendant challenging

the jury pool composition to “identify ‘the precise point of the juror summoning and

qualification process in which members of distinctive groups were excluded from

the jury pool’” and then “offer ‘a plausible explanation of how the operation of the

jury system resulted in their exclusion.’” 969 N.W.2d at 799 (quoting Lilly I, 930

N.W.2d at 307).

On remand, Trotter produced no evidence of the point in the process where

African American potential jurors were excluded from the jury pool. Hamm testified

that during Trotter’s 2019 trial, new policies had been implemented to ensure the

collection of racial data for jury pools. And Hannaford-Agor included in her

statistical analysis that 1.4% of the jury-eligible population of Bremer County was
11

African American but estimated only 0.66% of the master jury list was African

American. Still, Hannaford-Agor reported that African Americans were not

underrepresented in jury pools, even when using geocoding to infer the race of

prospective jurors. She also reported that nonresponse, undeliverable addresses,

disqualification, and excusals were proportionately consistent across geographic

areas. Her conclusion was that those factors were not causally related to the

underrepresentation of non-white groups in the jury pools in Bremer County since

2016. And Trotter’s expert, Zalenski, had “no knowledge” about the process of

jury selection and expressed no opinions that the process used in Bremer County

contributed to underrepresentation of any distinctive group there.

Trotter points to two members of his jury pool that he argues show an unfair

cross-section. Both jurors had served on juries recently and were called again,

even though Hamm testified jurors who have served are not called again for two

years. Both jurors were white, which Trotter argues shows the prevalence of white-

leaning duplicates in the jury list, thus, evidence of a systematic exclusion of non-

white potential jurors. Juror J.B. had a duplicate record in the master jury list. The

trial court explained how this occurs.

Trotter argues there is proof of systematic disparity by failure
to excuse jurors after trial service. Several jurors on Trotter’s panel
said they had served on a previous jury two weeks before Trotter’s
trial. Iowa Code section 607A.29 limits a person’s jury service to no
more than a term of service not to exceed three months in any two-
year period. Here the jurors were called for different trials within their
term. Once a jury panel has been compiled, any individual person
might have to appear for multiple trials during that term. If these
jurors were excused, no new jurors would be added to the panel for
that term. Excusing these jurors could not result in the possible
addition of non-White jurors, as once the panel has been selected
for the term, generally no more prospective jurors are added to the
12

panel during the remainder of the term. There is no proof of any
systematic practice that causes disproportionate representation.
Trotter contends that juror JB was drawn for Trotter’s panel
despite him completing jury service within two years. This was due
to JB having a duplicate record. The system errs on including more
people when it is unclear and avoids excluding someone who should
not be excluded. It is possible by including JB on Trotter’s panel, it
reduced the chance that a non-White would have been selected in
JB’s place. Given the percentage of the White population in Bremer,
the far greater likelihood is that another White person would have
replaced JB. The chances of a non-White replacing JB is so small
that this does not constitute proof that having JB on the panel
resulted in the exclusion of a non-White juror. It would not have any
“statistically significant disparity.” Lilly, 930 N.W.2d at 307.

The State argues, and we agree, that Trotter failed to show from these

limited examples that any process utilized by the court resulted in systematic

exclusion of any distinctive group. Hamm testified she was aware of duplicates in

the system and worked to eliminate them. Trotter also failed to present any

evidence that the duplicates on the jury list were disproportionately white

individuals. Hannaford-Agor testified that factor varied by state, but she had no

data for the master jury list she analyzed in Trotter’s case. She said the best

practice was focusing on the quality of the list, including eliminating “ghosts” and

“shadows,” which Hamm testified she does. Overall, Trotter did not produce

evidence of any step in the process that plausibly resulted in the exclusion of a

distinctive group.

In an unusual twist, eleven days after the hearing on remand, the court filed

a “notice to the parties” regarding Hamm and Hannaford-Agor’s testimonies on

permanent exclusion of noncitizens and non-English speakers. The court said:

After inquiry, the Court was informed by court administration
that such persons are not permanently disqualified. Such persons
could potentially be called again to serve on the jury in two years.
13

Accordingly, the current policy and current practice does not have to
be modified.
The information that I received through my inquiry was
contrary to the testimony of Liz Hamm. The Court’s review of this
matter is limited to the testimony and evidence presented during the
October 27, 2022, hearing. However, I believe that it is appropriate
to disclose the information that I have received from other sources.

Then in its April 26, 2023 ruling, the court wrote:

Hamm was asked about what happens if a person who does
not speak English or who is not a United States citizen appears on a
jury pool. She explained that those persons were disqualified. She
was asked whether they were permanently disqualified, and she
replied that the system permanently disqualifies such persons. This
would have the risk of excluding persons who were not able to
communicate in English or were not United States citizens and who
later obtained the necessary language skills or later became a United
States citizen which would then allow them to serve as a juror. By
permanently disqualifying these persons, there is potential that there
could be an underrepresentation of such population groups. Over
time, Hispanic/Latin Americans, as an example, could become
underrepresented on jury pools.
As noted in the Court’s notice to the parties filed November 7,
2022, Hamm’s testimony does not accurately describe court
procedures. Persons who are disqualified due to inability to speak
English or because they are not citizens are not permanently
disqualified and may be called as jurors again after two years.
Since evidence was not introduced at the October 27, 2022,
trial to contradict Hamm’s testimony, the Court relies upon Hamm’s
testimony that persons not speaking English or persons who are not
citizens are permanently disqualified from serving on future juries.
There was no evidence presented that any of the methods
used by the court system resulted in disparate results among
different groups of the community. There was no evidence
presented that there was any significant numbers of non-English-
speaking persons or noncitizens in Bremer County who later became
eligible to serve on a jury, resulting in an underrepresentation of
those persons

We agree with the court that information provided to it after the record has

been closed in a case is not to be considered in the ruling. See Ranes v. Adams

Labs., Inc., 778 N.W.2d 677, 697 n.4 (Iowa 2010) (excluding from discussion

evidentiary facts outside the record). But, even if we assume that Hamm and
14

Hannaford-Agor testified correctly and permanently disqualifying noncitizens and

non-English speakers from jury pools has the effect of excluding Hispanic and

Latino American or Asian American potential jurors, we have no data in the record

showing any of the small number of those distinctive groups in Bremer County are

noncitizens or non-English speakers. Trotter produced no evidence that members

of those distinctive groups would be excluded from jury pools as a result of this

policy in Bremer County.10

Because Trotter has failed to produce evidence to support the existence of

systematic exclusion in his trial, we affirm the ruling of the district court.

AFFIRMED.

10 In an order on Trotter’s motion to clarify the ruling, the court said:

Defendant seeks clarification of the Court’s order at pages 10
and 11 discussing Elizabeth Hamm’s testimony that non-English-
speaking or noncitizens are excluded from jury service even though
they may later be qualified to serve on a jury. The Court recognizes
that Paula Hannaford-Agor did testify that permanently excluding
such persons from the jury would cause underrepresentation of such
persons. However, there was not sufficient evidence presented that
if such practice existed, it would result in any “statistically significant
disparity” in later years. See State v. Lilly, 930 N.W.2d 293, 307
(Iowa 2019). Hannaford-Agor’s testimony was a general statement
without any statistical analysis. The Court finds that her general
statement does not constitute sufficient evidence that there is a
causal link between the court practices and underrepresentations of
persons who might be removed from the population of persons who
might be contacted to serve on a jury.
(Footnote omitted).