State of Iowa v. Steve Armsted

IN THE COURT OF APPEALS OF IOWA

No. 19-1883
Filed March 17, 2021

STATE OF IOWA,
Plaintiff-Appellee,

vs.

STEVE ARMSTED,
Defendant-Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Clinton County, John Telleen, Judge.

Steve Armsted appeals following his convictions for two counts of murder

in the first degree. CONDITIONALLY AFFIRMED AND REMANDED.

Scott M. Wadding of Sease & Wadding, Des Moines, for appellant.

Thomas J. Miller, Attorney General, and Linda J. Hines, Assistant Attorney

General, for appellee.

Heard by May, P.J., and Greer and Schumacher, JJ.
2

MAY, Presiding Judge.

The State accused Steve Armsted of killing Kevin Lambert and Steven Cox.

A jury convicted Armsted of two counts of murder in the first degree. On appeal,

Armsted argues: (1) there was insufficient evidence to establish the elements of

first-degree murder; (2) the district court abused its discretion by admitting autopsy

photographs; and (3) the district court erred by denying Armsted’s request for

additional time to collect and present evidence of systematic exclusion of African

Americans in the jury-selection process. We conditionally affirm and remand for

further proceedings detailed below.

I. Facts and Prior Proceedings

On March 6, 2017, Kevin Lambert and Steven Cox were discovered dead

in their home. Lambert was in a chair in the living room. Cox was on his bed in

his bedroom. It appeared that Cox’s bedroom door had been forced open.

Lambert and Cox suffered violent deaths. Autopsies revealed that each

man received a single stab wound to the heart. Both men also suffered blunt-force

injury to the left side of their heads, which could have rendered them unconscious.1

Investigators obtained security camera footage from neighbors. Based on

the footage and Lambert and Cox’s phone records, investigators believed they

were killed on the morning of March 5. Autopsy results were consistent with a time

of death between 2:00 a.m. and 3:00 a.m. on March 5.

1 Other circumstances could have been involved. Lambert’s “blood alcohol content
was over four times the legal limit and the presence of cocaine was also detected
in his system.” Cox’s “blood alcohol content was over three times the legal limit.”
3

Security camera footage showed a person leaving Lambert and Cox’s home

at approximately 3:00 a.m. on March 5. The person walked down a nearby alley.

In that same alley, investigators found a knife in a recycling bin. Lambert

and Cox’s blood was on the knife. Lambert and Cox’s stab wounds were

consistent with the type of knife found in the alley.

Investigators found Lambert and Cox’s wallets in their home. Both were

devoid of any cash.

Investigators began looking into possible suspects. They learned that Steve

Armsted was homeless but had been sleeping at Lambert and Cox’s home.

Armsted made a number of phone calls on their landline from March 2 to March 4.

During that time, Armsted asked two individuals for $25 to $30 so that he could

stay at Lambert and Cox’s home over the weekend of March 4–5.2

DNA evidence also connected Armsted to Lambert and Cox’s home. A hat

was found in the living room. Armsted’s DNA was present on the hat. Plus,

Armsted was seen wearing the hat immediately prior to the murders. Armsted’s

DNA was also found on a cigarette butt. The hat and cigarette butt were both

found next to Lambert’s deceased body.

On the morning of March 5, Latoya Coleman met Armsted in the alley

behind her home. Coleman was on her way to get drugs. Armsted joined

Coleman, giving her $50 in cash for his share. After obtaining their drugs, they

returned to Coleman’s house. Coleman later testified that, when they got back to

her house, Armsted was not acting like his usual self. She said Armsted became

2 March 4, 2017, was a Saturday.
4

“panicky, jumping up to look out the window.” And Armsted worried aloud that the

police were coming. According to Coleman, Armsted “kept running in the kitchen,

running anywhere and hiding under the couch and looking out the window, [saying]

they were out there, they were coming.” After Armsted left, Coleman noticed

bleach was missing from her laundry room.

Two days later, on March 7, Armsted called his ex-girlfriend, Alfredia

Canady, “sound[ing] terrified, crying, scared.” Armsted asked Canady if she would

give him a ride to the bus station so he could return to Mississippi, where Armsted

used to work in a meat packing plant. Armsted told Canady that he was “in trouble”

and that “he would be spending the rest of his life in jail.” He also “said he probably

wouldn’t talk to [Canady] any more” and “if he was to go to Mississippi they would

bring him back here and that’s when he would spend the rest of his life in jail.”

On March 8, police arrested Armsted on an unrelated charge. They

collected the clothing he was seen wearing on the evening of March 4. His jeans

had a hole in the left pant leg and had been stained with bleach. But neither the

hole nor the bleach stains can be seen in the footage from March 4—the day before

Lambert and Cox were murdered.

A drop of blood was also found inside Armsted’s tennis shoe. There was

not enough to make a DNA profile.

In an interview with law enforcement, Armsted was shown photographs

from the crime scene. The interviewing agent testified that after he laid one of the

photographs down, he

pointed out various items that were depicted . . . for example, there’s
a remote control, a can, a magnifying glass and, [Lambert], [but] the
5

one thing you are focusing on right now is what you left after you
killed these two guys and that’s your hat and [Armsted] replied, yeah.

After showing Armsted a photograph taken from the security camera footage

outside Lambert and Cox’s home, Armsted “looked at that picture and there was a

pause and [Armsted] said, that ain’t me.” Then, the agent showed Armsted “the

photograph of the knife to show him that [they] found the murder weapon and he

replied words to the effect, that wasn’t me that did it, I don’t care what you came

up with.” At the end of the interview, the agent told “Armsted that he wasn’t being

charged at that moment in time but eventually he would be charged with two counts

of murder” and Armsted “said, okay.”

The State charged Armsted with two counts of first-degree murder for the

deaths of Lambert and Cox.

Prior to jury selection, Armsted asked the district court to discharge the jury

panel and grant him additional time to prove “the racial makeup of this jury panel

is inadequate.” The district court denied Armsted’s request.

During trial, Armsted objected to the admission of autopsy photographs. He

argued the photographs were “duplicative” and unfairly prejudicial. The district

court overruled Armsted’s objection and admitted the photographs.

A jury found Armsted guilty as charged. Armsted now appeals.

II. Analysis

On appeal, Armsted challenges: (1) the sufficiency of the evidence; (2) the

admission of autopsy photographs; and (3) the makeup of the jury venire.
6

A. Sufficiency of the Evidence

We begin with Armsted’s challenges to the sufficiency of the evidence

supporting his convictions for murder in the first degree. He claims the evidence

is insufficient to establish his identity as the murderer, malice aforethought, and

premeditation and deliberation.3

Under Iowa law, we will “uphold a verdict if substantial evidence supports

it.” State v. Quinn, 691 N.W.2d 403, 407 (Iowa 2005); see State v. Kelso-Christy,

911 N.W.2d 663, 666 (Iowa 2018) (“We review the sufficiency of the evidence for

correction of errors at law.”). Evidence is “substantial if it would convince a rational

fact finder the defendant is guilty beyond a reasonable doubt.” State v. Meyers,

799 N.W.2d 132, 138 (Iowa 2011). “We view the evidence in the light most

3 The jury was instructed as follows:
Under [c]ount I, the State must prove all of the following
elements of [m]urder in the [f]irst [d]egree:
1. On or about the 5th day of March, 2017, the [d]efendant
stabbed Kevin Lambert.
2. Kevin Lambert died as a result of being stabbed.
3. The [d]efendant acted with malice aforethought.
4. The [d]efendant acted willfully, deliberately,
premeditatedly, and with a specific intent to kill Kevin Lambert.
If the State has proved all of the elements, the [d]efendant is
guilty of [m]urder in the [f]irst [d]egree. If the State has failed to prove
any one of the elements, the [d]efendant is not guilty of [m]urder in
the [f]irst [d]egree and you will then consider the charge of [m]urder
in the [s]econd [d]egree explained in Instruction N[umber] 27.
The jury instructions given for count II are the same as above, except they list
Steven Cox in place of Kevin Lambert. Armsted did not object to the elements of
the first-degree murder marshalling instructions. “Where, as here, the jury was
instructed without objection, the jury instruction becomes law of the case for the
purposes of reviewing the sufficiency of the evidence.” State v. Banes, 910
N.W.2d 634, 639 (Iowa Ct. App. 2018) (citing State v. Canal, 773 N.W.2d 528, 530
(Iowa 2009) (“[Defendant] did not object to the instructions given to the jury at trial.
Therefore, the jury instructions become the law of the case for purposes of our
review of the record for sufficiency of the evidence.”)).
7

favorable to the State, including all legitimate inferences and presumptions that

may fairly and reasonably be deduced from the record.” State v. Soboroff, 798

N.W.2d 1, 5 (Iowa 2011). We make no distinction between direct and

circumstantial evidence. See Kelso-Christy, 911 N.W.2d at 668 (“Direct and

circumstantial evidence are equally probative.” (citation omitted)).

1. Identity

We first address whether the State provided sufficient evidence to establish

Armsted was the killer. Armsted emphasizes the lack of (1) “DNA evidence to

establish a connection between Armsted and the victims”; (2) witnesses to the

crimes; and (3) motive. Even so, substantial evidence suggested Armsted was the

murderer. The district court summarized the record this way:

There is more than adequate circumstantial evidence that if
believed could support a reasonable jury in finding the defendant
guilty of murder in the first degree. I will not restate all of it but the
video evidence of the defendant being at the [victim’s] house
consistent with a time of death, the defendant using the victim’s
landline to call his friends and ex-girlfriend, the defendant telling
Ms. Canady that if I get caught, I’ll go to jail for the rest of my life.
The knife being found along the route that would be consistent with
defendant leaving the home. The defendant’s blue jeans with the
hole in it unexplained, that hole not being there previously in the
videos but after the time of death of the victims, the hole in [his] blue
jeans with the blue jeans smelling like bleach.
There was just a myriad, small bits of circumstantial evidence
which when considered together do—would—especially when
viewed in the light most favorable to the State justify a reasonable
jury in finding the defendant guilty of murder in the first degree.

We agree with the district court and conclude the State presented sufficient

evidence for the jury to determine Armsted killed Lambert and Cox. See Meyers,

799 N.W.2d at 138.
8

2. Malice aforethought, premeditation, and deliberation

Armsted also argues that, even if there was sufficient evidence to show his

involvement in these deaths, there was no evidence of malice aforethought,

premeditation, or deliberation. But the State contends these arguments were not

preserved below. We agree with the State.

In general, “[c]ounsel does not preserve error on a sufficiency-of-evidence

issue when counsel makes a general motion for judgment of acquittal but fails to

identify specific elements of the charge not supported by the evidence.” State v.

Albright, 925 N.W.2d 144, 150 (Iowa 2019). Here, Armsted’s motion for acquittal

focused exclusively on identity—who was the killer. His motion did not address

any other “specific elements of” the first-degree murder charges. See id. In fact,

counsel told the court that Armsted was not challenging other elements. Counsel

explained: “Specifically at issue here, your Honor, are not the individual elements

of either murder in the first degree or any of its lesser and included offenses but

the issue of identification.” (Emphasis added.) Given this record, we cannot find

Armsted preserved error as to his current arguments about the specific elements

of malice aforethought, premeditation, and deliberation.

Armsted suggests that, “[t]o the extent Armsted’s counsel failed to preserve

error, the Court should review the issue under the framework of an ineffective-

assistance-of-counsel claim.” Under Iowa Code section 814.7 (2019), however,

Armsted’s ineffective-assistance claims can only be addressed through an action

for “postconviction relief pursuant to chapter 822,” not through this direct appeal.4

4 In State v. Macke, the supreme court held this restriction does “not apply to a
direct appeal from a judgment and sentence entered before July 1, 2019.” 933
9

B. Admission of Autopsy Photographs

Next, Armsted contends the district court abused its discretion by admitting

four autopsy photographs of Lambert and six autopsy photographs of Cox. “[W]e

generally review evidentiary rulings for abuse of discretion.” State v. Helmers, 753

N.W.2d 565, 567 (Iowa 2008). “An abuse of discretion occurs when the trial court

exercises its discretion on grounds or for reasons clearly untenable or to an extent

clearly unreasonable.” State v. Tipton, 897 N.W.2d 653, 690 (Iowa 2017)

(quotation marks and citations omitted).

Armsted claims the district court should have excluded the photographs

under Iowa Rule of Evidence 5.403. It authorizes the district court to “exclude

relevant evidence if its probative value is substantially outweighed by a danger of

. . . unfair prejudice, confusing the issues, misleading the jury, undue delay,

wasting time, or needlessly presenting cumulative evidence.” Iowa R. Evid. 5.403.

This balancing of probative value against competing dangers is a classic “judgment

call on the part of the trial court.” State v. Rodriquez, 636 N.W.2d 234, 240 (Iowa

2001). As one learned treatise explains:

Analyzing and weighing the pertinent costs and benefits [of
admitting evidence] is no trivial task. Wise judges may come to
differing conclusions in similar situations (or the same conclusions in
different situations). . . . Accordingly, much leeway is given trial
judges who must fairly weigh probative value against probable
dangers. On the theory that the trial judge is best situated to make
these judgments as the case unfolds, the standard of review on
appeal—“abuse of discretion”—is highly deferential. That a different
outcome would have been more appropriate is not sufficient.

1 Robert P. Mosteller, McCormick on Evidence § 185 (8th ed. Jan. 2020 Update).

N.W.2d 226, 228 (Iowa 2019). But Armsted was sentenced in November 2019; so
section 814.7 applies to Armsted.
10

Here Armsted argues the “probative value of the autopsy photographs was

negligible [as i]t was undisputed that both Cox and Lambert died from a single stab

wound to the heart region.” Moreover, Armsted contends, these photographs “of

the decomposing lifeless bodies of the victims created substantial danger of the

jury rendering their verdict on the emotional impact of the photographs rather than

the facts.” And so, Armsted claims, the court was obliged to exclude the

photographs.

We disagree. The district court carefully considered the photographs and

the record as a whole. And the court appropriately balanced the benefits and costs

of admitting the photographs. The court explained:

The court concludes that the photographs are clearly relevant.
There may not be much dispute about the fact that the decedents
were killed by knife wounds, I think they are relevant to show malice
aforethought, I think they are relevant as to—somewhat relevant at
least in my mind that it appears from looking at the photographs that
there’s a single stab wound each into the heart. There has been
some testimony that the defendant was good with knives and the fact
that there’s a single stab wound each at least arguably goes to sort
of a planned attack, at least arguably in a way, as opposed to a knife
fight or controversy. It’s [also] consistent with, for instance, Mr.
Lambert being asleep in his chair and stabbed or something. Of
course I don’t know, that’s speculation, but I think it’s relevant to the
cause of death, malice aforethought, premeditation perhaps and in
terms of autopsy photos that I’ve seen, these are rather antiseptic, I
might call them. These are not particularly gruesome compared to
certainly other crime scene photographs I’ve seen, they are rather
antiseptic. I don’t think they are particularly inflammatory and I don’t
think there’s so many of them that the State is trying to overwhelm
the defense with many, many, many accident photos. It seems to be
a fairly limited number and so the motion—probative value is not
outweighed by the prejudicial effect, so the motion in limine is
overruled.

Based on our review of the record—including the photographs

themselves—we conclude this ruling was well within the court’s discretion. So we
11

decline to reverse. See State v. Brown, 397 N.W.2d 689, 700 (Iowa 1986) (holding

that where the pathologist “testified extensively with respect to the nature, extent,

and severity of [the victim’s] wounds,” the “autopsy photographs were relevant to

illustrate and explain [the pathologist’s] testimony” and noting “[m]urder is often a

gruesome affair giving rise to equally gruesome evidence”).

C. Fair Cross-Section Claim

Finally, we address Armsted’s claim that “the district court erred in denying

[him] a recess to meaningfully evaluate a fair cross-section claim through fact

investigation and expert testimony.” “We review constitutional questions de novo.

This includes claims of systematic exclusion of a distinctive group from the jury

pool . . . .” State v. Veal, 930 N.W.2d 319, 327 (Iowa 2019) (citation omitted). As

our supreme court explained in State v. Plain:

[A] defendant can establish a prima facie violation of the fair cross-
section requirement by showing
(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.

898 N.W.2d 801, 821–22 (Iowa 2017) (quoting Duren v. Missouri, 439 U.S. 357,

364 (1979)), holding modified by State v. Lilly, 930 N.W.2d 293 (Iowa 2019).

Armsted raised the fair cross-section issue at the beginning of voir dire. His

counsel made this record:

[I]n this particular case the defendant is African American [and] the
two victims are Caucasian or white. Of the eighty that are currently
seated as prospective jurors . . . it appears only one individual . . . is
of a minority status, he is Hispanic/Latino/Spanish origin. Of the
eighty seated[,] none . . . indicate or identify their race as African
12

American. I was advised informally before walking in here . . .
perspective juror eighty-one is . . . African American. . . . I don’t
know what the African American makeup is of Clinton County, I do
not have that information, I believe someone in charge of the jury
pool would have a better number as far as the number of African
Americans in this community. Because again there are no African
Americans listed, the only one potentially listed is [juror] eighty-one
and will not be reached by process of jury selection, I believe the
racial makeup of this jury panel is inadequate and ask that the entire
jury panel be discharged.

The State resisted, asserting Armsted failed to establish the third Plain element—

systematic exclusion of potential jurors based on their race in the jury-selection

process. Defense counsel responded:

In order for us to establish [prong] three, we would have to
show a pattern that’s revealed itself over a significant period of time.
Those resources are simply not generally made available to counsel
particularly in advance of an individual trial. In order for [prong] three
to be argued in this particular juncture we need a significant recess
in order to have Clinton County . . . run those numbers.
....
Additionally, in this supreme court’s analysis of the Duran-
Plain cases as applicable in Veal, for the defendant to prove that type
of causation we are discussing, they have held that . . . run-of-the-
mill jury management practices can under appropriate
circumstances constituting systematic exclusion and that’s what we
are arguing here today. That it is the run-of-the-mill jury
management practices, nothing above and beyond that, we are
alleging that the systematic exclusion that would meet prong three
under Duran-Plain.

The court denied Armsted’s motion, finding “that the defense has failed to establish

the third prong of the Duran test and State v. Plain.”

On appeal, Armsted asks us to remand so he can further develop the record

on the fair cross-section issue. In response, the State concedes Armsted

established the first and second prongs of his fair-cross section claim.5 Moreover,

5 We rely on the State’s appellate brief. During oral argument, the State advised
that, after reconsidering the math, it did not appear Armsted had established the
13

the State notes that if we find “Armsted[] has preserved a substantive constitutional

challenge to the district court’s refusal to grant a continuance/recess, [we] should

conditionally affirm his convictions and remand to the district court for the

development of the record.” See id. at 828 (“Defendants are entitled to access the

information needed to enforce their constitutional right to a jury trial by a

representative cross-section of the community.”); State v. Buchanan, No. 17-1713,

2018 WL 6120044, at *2 (Iowa Ct. App. Nov. 21, 2018) (holding that “[b]ecause

defendants are entitled to access the information necessary to enforce their right

to a jury drawn from a fair cross-section of the community, we conclude the district

court should have granted [defendant’s recess] request and allowed him to

investigate the matter”).

Following the State’s lead, we have considered whether Armsted

sufficiently preserved his challenge to the district court’s refusal to grant a

continuance or recess. We conclude he did. Accordingly, we conditionally affirm

Armsted’s convictions and remand to the district court so that Armstead can have

an opportunity to develop the record on his fair-cross section claim. After the

record is developed, the district court should determine whether Armsted’s

constitutional right to a representative jury was violated. If it was, the court should

grant a new trial.

III. Conclusion

Armsted’s convictions for first-degree murder are supported by sufficient

evidence. The district court did not abuse its discretion in admitting autopsy

second element. The State may raise these concerns with the district court on
remand.
14

photographs. So we conditionally affirm Armsted’s convictions. But we remand

for the district court to provide Armsted a chance to investigate and present his fair

cross-section claim.

CONDITIONALLY AFFIRMED AND REMANDED.

Schumacher, J., concurs; Greer, J., concurs specially.
15

GREER, Judge (concurring specially).
I concur in the majority opinion because of the concession by the State, but

I write to highlight the practical dilemma playing out in cases across our state where

a fair cross-section challenge is raised. Does a Plain/Duran challenge arise only

after arriving at trial and surveying the jury so that a continuance to develop the

argument becomes a matter of ordinary practice? How do trial courts resolve the

tension between continuing a criminal trial to address the Plain/Duran prongs as

opposed to requiring that the information to support the challenge be brought to

the battle? After all, our common quest is for a fair trial and we now have a

playbook to address an impartial jury challenge.

Our trial courts, prosecutors, and criminal defense litigators have struggled

with the proper process to analyze an impartial jury challenge. In 2017, with the

Plain “playbook” in hand, the case was remanded so the defendant could address

a fair cross-section claim and the door was opened to county records useful to

address the challenge. See State v. Plain, 898 N.W.2d 801, 828–29 (Iowa 2017).

The “post-Plain world” “demanded significant changes in jury selection and

management by judges, court administrators, jury managers, prosecutors and

defense lawyers . . . .”6 Russell E. Lowell II & David S. Walker, Achieving Fair

Cross-Sections on Iowa Juries in the Post-Plain World: the Lilly-Veal-Williams

6 In Plain the defendant was denied access to the county’s information necessary
to prove a prima facie case of the underrepresentation of a fair cross-section issue.
898 N.W.2d at 828 (“Defendants are entitled to access the information needed to
enforce their constitutional right to a jury trial by a representative cross-section of
the community. . . . To the extent Plain did not meet his prima facie case with
respect to the third prong of the test, we conclude he lacked the opportunity to do
so because he was not provided access to the records to which he was entitled.”).
16

Trilogy, 68 Drake L. Rev. 499, 511 (2020) (hereinafter Lowell & Walker). So, the

lessons continued after our supreme court produced the trilogy of cases on the

subject in 2019. See State v. Lilly, 930 N.W.2d 293 (Iowa 2019); State v. Veal,

930 N.W.2d 319 (Iowa 2019); State v. Williams, 929 N.W.2d 621 (Iowa 2019).7

These three cases, particularly Lilly, aid the participants in framing the tough

questions that occur in the analysis of the Plain/Duran prongs. And in Lilly, the

court noted

Because the parties did not have the benefit of these
refinements to the Duren/Plain standards, we have decided today to
follow the same course of action as in Plain. That is, we will remand
this case to give Lilly a further opportunity to develop his arguments
that his Sixth Amendment and article I, section 10 rights to an
impartial jury were violated.

930 N.W.2d at 308 (emphasis added) (citation omitted). Now that parties have the

benefit of the refinements, they arrive at the courthouse knowing the steps to prove

the more difficult second and third prongs of the Plain/Duran test. See id. at 301–

08. The proof can include considerations of other earlier jury pools. Id. at 305.

And as Lilly suggested, “[t]his would almost always require expert testimony

concerning the precise point of the juror summoning and qualification process in

which members of distinctive groups were excluded from the jury pool and a

plausible explanation of how the operation of the jury system resulted in their

exclusion.” 930 N.W.2d at 307.

7 In Lilly and Williams, defendants filed motions to challenge the jury panels in
advance of trial. Lilly, 930 N.W.2d at 297; Williams, 930 N.W.2d at 627. In Veal,
the court allowed the defendant extra time to develop the challenge. 930 N.W.2d
at 326. The defendants in all three cases compared census data with jury data.
Lilly, 930 N.W.2d at 297; Veal, 930 N.W.2d at 326 n.2; Williams, 930 N.W.2d at
625.
17

In a 2018 case by one of the panels of our court, the State voiced concern

over multiple and frequent continuances of the trial and our court said, “[T]he jury-

composition issue did not reveal itself until the morning of trial, at which time

defense counsel recognized it and raised the issue.” State v. Buchanan, No. 17-

1713, 2018 WL 6120044, at *2 (Iowa Ct. App. Nov. 21, 2018) (remanding to

address the third prong in Plain). Then in 2020, a Plain/Duran motion was denied

when the defendant failed to establish in the record the racial makeup of jurors of

the entire jury pool that day as opposed to only those jurors allocated to the

defendant’s case.8 See State v. Wilson, 941 N.W.2d 579, 593 (Iowa 2020).

Following the lead of Wilson, another panel of our court addressed a challenge to

a fair composition of the jury pool claim by denying remand because the defendant

provided no detail related to the racial makeup of the jury pool. See State v. Miller,

No. 19-0680, 2020 WL 7868232, at *2-3 (Iowa Ct. App. Dec. 16, 2020). Thus no

prima facie showing was made to address either the second or third Plain/Duren

prongs. Id. So, now in 2021, with the county census information available and law

providing guidance to address the Plain/Duran prongs going into a trial, should we

now expect a developed argument for resolution?

I do not have the answers, I just raise a practical problem for those with

“boots on the ground”—trial judges and the lawyers.9 Recognizing the importance

8 Wilson filed a motion noting two recent Polk County jury pool of 255 and 234
potential jurors contained only eleven African American jurors each and four and
seven Hispanic potential jurors respectively. Wilson suggested the court might
randomly select Black and Hispanic jurors to address the disparity. But as to the
record at trial, Wilson urged that of the one hundred potential jurors assigned to
his trial, only three identified as African American and four as Hispanic.
9As has been pointed out:
18

of an impartial jury, the process is important. Going forward, at a minimum, trial

courts should start to expect a motion raising the potential fair cross-section issue

and the county census information from which to start the discussion.

The litigation reality is that the parties and the judge will not know the
racial composition of a defendant’s own jury panel until jury service
day. If defense counsel waits until the morning of the day of trial to
determine whether there is a fair cross-section issue, it will almost
always be too late to do the necessary discovery and be prepared to
make an informed presentation. As a result, defense counsel must
prepare the merits of the fair cross-section claim as to the aggregate
date before seeing the jury panel in their client’s case.
Lowell & Walker, 68 Drake L. Rev. at 534 (footnote omitted).