Petition for Writ of Certiorari — Amando Martinez Montealvo, Petitioner v. Iowa

No. ___________

In the Supreme Court of the United States

____________________

AMANDO MONTEALVO MARTINEZ,

Petitioner,

vs.

STATE OF IOWA,

Respondent.

____________________

On Petition for a Writ of Certiorari to

The Supreme Court of Iowa

____________________

PETITION FOR A WRIT OF CERTIORARI

____________________

PARRISH KRUIDENIER DUNN GENTRY

BROWN BERGMANN & MESSAMER L.L.P.

Benjamin D. Bergmann

Counsel of Record

2910 Grand Avenue

Des Moines, Iowa 50312

Telephone: (515) 284-5737

Facsimile: (515) 284-1704

Email: bbergmann@parrishlaw.com

i

Question Presented for Review

Does the presumed bias doctrine require a new trial when a juror who was a

victim of sex abuse lies during voir dire to serve in a criminal sex abuse case?

ii

Table of Contents

Question Presented For Review ..................................................................................... i

Table of Authorities ...................................................................................................... iv

Opinions Below .............................................................................................................. 1

Jurisdiction .................................................................................................................... 1

Statement of the Case ................................................................................................... 1

Reasons Relied On for Allowance of the Writ ............................................................... 4

I.

The Distinct Applications of the Presumed Bias Doctrine Represents an

Impassable Circuit Split That Only the Supreme Court Can Resolve ............. 4

A.

The Actual and Presumed Bias Doctrines...................................................... 5

B.

At Least Four Circuits Have Called Into Question the Presumed Bias

Doctrine’s Limited Scope ................................................................................. 7

II.

i.

The Second, Fifth, Sixth, and Ninth Circuits Have Expansive

Interpretations of the Presumed Bias Doctrine......................................... 9

ii.

The First, Eighth, and Tenth Circuits Have Strict Interpretations of the

Presumed Bias Doctrine ........................................................................... 13

The Trial Court Erred in Denying Mr. Montealvo’s Motion for New Trial

Based on Both Presumed and Actual Juror Bias ............................................ 15

A.

The Juror Lied to the Court .......................................................................... 15

B.

The Juror’s Lying Deprived Mr. Montealvo of His Opportunity to Strike

Her for Cause ................................................................................................. 18

C.

The Juror’s Bias Is Grounds for New Trial Under the McDonough Test ... 21

D.

The Standard Set by the Iowa Courts for Proving Juror Bias Is Impossibly

High................................................................................................................ 23

E.

The Court’s Erroneous Reasoning Demonstrates the Importance of the

Presumed Bias Doctrine................................................................................ 26

III.

This Case Decisively Resolves the Circuit Split .......................................... 27

Conclusion .................................................................................................................... 29

iii

Appendix

District Court Ruling ............................................................................................ 1

Iowa Court of Appeals Opinion .............................................................................5

Iowa Supreme Court Denial of Further Review .................................................. 16

Trial Transcript .....................................................................................................19

Jury Selection ........................................................................................................41

Sentencing Transcript ...........................................................................................47

iv

Table of Authorities

Cases

Amirault v. Fair, 968 F.2d 1404 (1st Cir. 1992). ........................................................ 12

Conaway v. Polk, 453 F.3d 567 (4th Cir. 2006). ........................................................... 8

Conner v. Polk, 407 F.3d 198 (4th Cir. 2005). .............................................................. 8

Dennis v. U.S., 339 U.S. 162 (1950). ............................................................................. 5

Duncan v. Lousiana, 391 U.S. 145, 153-54 (1968)........................................................ 3

Dyer v. Calderon, 151 F.3d 970 (9th Cir. 1998). ......................................................... 11

English v. Berghuis, 900 F.3d 804 (6th Cir. 2018). ................................................ 8, 21

Gonzalez v. Thomas, 99 F.3d 978 (10th Cir. 1996)..................................................... 13

Gray v. Mississippi, 481. U.S. 648 (1987). .................................................................. 19

Irvin v. Dowd, 366 U.S. 717, 722 (1961) ....................................................................... 3

Johnson v. Luoma, 425 F.3d 318 (6th Cir. 2005). ........................................................ 8

McDonough Power Equip., Inc. v. Greenwood. 464 U.S. 548 (1984) ......................... 20

Parker v. Gladden, 385 U.S. 363 (1966). .................................................................... 19

Patton v. Yount, 467 U.S. 1025 (1984). ................................................................... 4, 26

Pena-Rodriguez v. Colorado, 137 S. Ct. 855 (2017). ................................................... 17

Porter v. Zook, 898 F.3d 408 (4th Cir. 2018). ............................................................. 20

Ross v. Oklahoma, 487 U.S. 81 (1988). ....................................................................... 19

Sampson v. U.S., 724 F.3d 150 (1st Cir. 2013). .......................................................... 10

Smith v. Phillips, 455 U.S. 209 (1982). ..................................................................... 4, 6

Solis v. Cockrell, 342 F.3d 392 (5th Cir. 2003). .......................................................... 10

State v. Montealvo, 2021 WL 590110 (2021). ........................................... 16, 17, 22, 23

v

State v. Webster, 865 N.W.2d 223 (Iowa 2015). ........................................................... 4

Stilson v. U.S., 250 U.S. 583 (1919). ........................................................................... 18

Swain v. Alabama, 380 U.S. 202 (1965). ....................................................................... 4

Treesh v. Bagley, 612 F.3d 424 (6th Cir. 2010). ........................................................... 8

U.S. v. Haynes, 398 F.2d 980 (2d Cir. 1968). ................................................................ 6

U.S. v. Martinez-Salazar, 528 U.S. 304 (2000). .......................................................... 19

U.S. v. Torres, 128 F.3d 38 (2d Cir. 1997) .................................................................... 6

U.S. v. Wood, 299 U.S. 123 (1936)................................................................................ 5

Wainwright v. Witt, 469 U.S. 412 (1985). ..................................................................... 5

Statutes

Iowa R. Crim. P. § 2.18(5)(k). ...................................................................................... 22

Constitutional Provisions

U.S. Const. amend. VI ................................................................................................... 3

1

Opinions Below

On February 3, 2021, the Iowa Court of Appeals affirmed the district court’s

ruling. On April 1, 2021, the Iowa Supreme Court denied petition for further review.

Jurisdiction

On February 3, 2021, the Iowa Court of Appeals affirmed the district court’s

ruling. On February 23, 2021, Mr. Montealvo timely filed a notice of appeal with the

Iowa Supreme Court. On April 1, 2021, the Iowa Supreme Court denied petition for

further review. Jurisdiction for the Iowa Supreme Court was pursuant to Iowa Code

§ 602.4102. Jurisdiction for the United States Supreme Court is pursuant to 28

U.S.C § 1257(a).

Statement of the Case

Amando Montealvo was tried on one count of Sexual Abuse in the Second

Degree and one count of Assault with Intent to Commit Sex Abuse. The complaining

witnesses—two sisters—reported that Mr. Montealvo, their stepfather, sexually

abused them when they were under the age of 12. Because of late reporting, trial

took place nearly 14 years after the alleged events, and there was no physical

evidence corroborating the allegations. As there were also no corroborating

witnesses, the case rested entirely upon the testimony of the two sisters.

Due to the nature of the accusation, the Court took care to examine the jurors

for potential biases and asked the venire if anyone among them had ever been a

victim of sexual abuse or had a close friend or family member who had been a victim

of sexual abuse. (Trial Tr. 36:8-18). Juror H.B. was part of the initial group of jurors

2

that the court questioned. (Trial Tr. 20:16-21:24). The Court informed the jurors

that they would question the jurors if they had experience with a sex offense or

sexual abuse in order to determine how that would affect their ability to serve.

(Trial Tr. 40:22-41:4). The Court asked individual potential jurors if they would be

more comfortable speaking in private with just the attorneys and the court, rather

than in front of the rest of the potential jurors, and met with jurors individually if

that was more comfortable for them. (Trial Tr. 36:22-37:7). The defense motioned to

strike for cause five members of the jury that had prior experiences with sex abuse

and had already formed opinions as to guilt or innocence, with the State often

making the motion first. (Trial Tr. 57:1-60:25; 68:1-69:13; 71:1-73:25; 75:2-78:4).

The defense also exercised a peremptory strike on another juror who had previously

been a victim of sex abuse. The process of individually examining the potential

jurors about this question took up the entire first day of trial. (Trial Tr. 97:1-9).

At trial, the younger sister, L.W., who was the first to come forward with

these allegations, completely recanted her prior accusations and the jury found Mr.

Montealvo not guilty on that count, Assault with Intent to Commit Sexual Abuse.

The older sister maintained her allegations, and the jury found Mr. Montealvo

guilty of Sexual Abuse in the Second Degree, in violation of Iowa Code §§ 709.1,

709.3(1)(b), and 903B.1, a Class B Felony.

At the conclusion of proceedings, Mr. Montealvo timely filed a motion for new

trial after it was discovered that one of the jurors, H.B., had concealed material

information during voir dire. The Court granted a hearing on the motion for new

3

trial, and Mr. Montealvo called D.M. (Sentencing Tr. 7:14-16). She testified that her

sister was H.B. and that H.B. had served on the jury at the trial. (Sentencing Tr.

7:23-8:3). D.M. personally witnessed H.B. be the victim of sex abuse. (Sentencing

Tr. 12:1-13:14; 19:16-21:23). At other times, H.B. admitted to D.M. that she had

been sexually abused. (Sentencing Tr. 13:21-17:17; 19:16-21:23). H.B. told D.M. that

she had been serving on a jury for a case involving child sex abuse, and D.M. asked

how H.B. could be a juror when H.B. had been sexually abused. (Sentencing Tr.

18:25-19:12; 19:16-21:23). H.B. responded that she was “over it.” (Sentencing Tr.

18:25-19:12; 19:16-21:23).

The Court denied the motion for new trial, stating that the court could not be

certain that H.B. was lying when she did not disclose that she was a victim of sex

abuse. (Sentencing Tr. 45:22-55:20). As will be explained below, the Court extended

H.B. the utmost leniency at every turn in reaching this decision, and the reasoning

employed by the Court in reaching its decision often bordered on the absurd. The

Court refused to find that H.B. was lying because, even though at the evidentiary

hearing H.B. admitted to being a victim of sexual abuse, the Court could not be sure

that she perceived herself as such during voir dire. (Sentencing Tr. 46:22). The

Court also refused to presume bias because at the evidentiary hearing H.B. claimed

she was “over” the incident. (Sentencing Tr. 47:21). This erroneous reasoning denied

Mr. Montealvo his constitutional right to an impartial jury and underscores the

need for further guidance in the application of juror bias doctrine.

4

Reasons Relied On for Allowance of the Writ

I.

The Distinct Applications of the Presumed Bias Doctrine Represents an

Impassable Circuit Split That Only the Supreme Court Can Resolve

Although axiomatic, the Sixth and Fourteenth Amendments of the United

States Constitution guarantee a defendant the right to trial by an impartial jury.

U.S. Const. amend. VI; Irvin v. Dowd, 366 U.S. 717, 722 (1961). The Supreme Court

has declared the right to jury trial in criminal cases “fundamental to our system of

justice.” Duncan v. Lousiana, 391 U.S. 145, 153-54 (1968). The primary safeguard

of this right is the voir dire process. Patton v. Yount, 467 U.S. 1025, 1038 (1984).

Voir dire allows the court to evaluate jurors for the presence of potential biases, and

truthful disclosures during voir dire sets up a challenge for cause. Cause challenges

are traditionally based on either actual or presumed bias, and a judge has broad

discretion in granting a cause challenge as long as it is based on “provable and

legally cognizable bas[es] of partiality”. Swain v. Alabama, 380 U.S. 202, 220 (1965).

In Iowa, actual bias occurs when the evidence shows that a juror is unable to

lay prejudice aside a judge a case on the merits. State v. Webster, 865 N.W.2d 223,

236 (Iowa 2015). The remedy for an allegation of actual bias is an evidentiary

hearing where the defendant can offer proof of the juror’s partiality. Smith v.

Phillips, 455 U.S. 209, 215 (1982).

Presumed bias, on the other hand, results when a juror’s relationship to the

case is such that an evidentiary hearing may be inadequate to establish the

existence of bias. Id. at 222. Presumed bias has a long history in our common law

tradition, but in recent decades the precise circumstances in which it applies has

5

become the subject of uncertainty. Some courts have adopted a narrow

understanding of the doctrine, only presuming bias in a limited set of

circumstances. Others have advocated for a more expansive approach and have

recognized additional circumstances where a presumption of bias is appropriate.

This division is untenable. The presumed bias doctrine is an essential tool in

assuring the impartiality of the jury at trial, and for this reason, further guidance is

needed from the Supreme Court on this issue.

A. The Actual and Presumed Bias Doctrines

As noted above, there are two traditional categories of challenges for cause:

those based on actual bias and those based on presumed bias. Actual bias is “bias in

fact”—it refers to the existence of a particular state of mind in a juror which renders

them impartial in their decision-making. See U.S. v. Wood, 299 U.S. 123, 133-34

(1936). Actual bias must be established from objective facts in the record and

usually takes the form of an express admission during voir dire. See Dennis v. U.S.,

339 U.S. 162, 168 (1950). Therefore, truthful responses during voir dire are

essential, as a judge cannot properly make a finding of actual bias without a record

to support it. Once a record is established, however, the trial judge is afforded

considerable discretion with regard to actual bias and the judge’s determination on

this point is granted broad deference. See Wainwright v. Witt, 469 U.S. 412, 428

(1985) (noting that a finding of actual bias “is based upon determinations of

demeanor and credibility that are peculiarly within a trial judge's province”).

6

The presumed bias doctrine applies when the risk of juror partiality is simply

too great to leave to the discretion of the judge. Presumed bias, sometimes referred

to as “implied bias,” is “bias conclusively presumed as a matter of law.” U.S. v.

Wood, 299 U.S. 123, 133 (1936). Presumed bias is attributed to a juror regardless of

actual partiality. Id. This doctrine recognizes that certain classes of jurors—because

of particular characteristics or life experiences—are highly unlikely to be able to

render an impartial decision, despite assurances to the contrary. A finding of

presumed bias ensures the impartiality of the jury when a particular juror’s

relationship to the facts of the case is so troubling that the juror must be excused as

a matter of law. In her concurrence in Smith v. Phillips, Justice O’Connor outlined

three circumstances that warrant a finding of presumed bias: “a revelation that the

juror is an actual employee of the prosecuting agency, that the juror is a close

relative of one of the participants in the trial or the criminal transaction, or that the

juror was a witness or somehow involved in the criminal transaction.” 455 U.S. 209,

222 (1982) (O’ Connor, J., concurring). In determining the existence of presumed

bias, admissions made during voir dire are entirely irrelevant—a potential juror

admitting to harboring bias or, conversely, assuring the court that they will remain

impartial has no bearing on the decision. U.S. v. Haynes, 398 F.2d 980, 984 (2d Cir.

1968). Instead, the relevant inquiry is whether the average person in the position of

the juror in controversy would be prejudiced or not. Id. The judge therefore has no

discretion in making a determination of presumed bias, and disqualification of the

juror is mandatory. Smith, 455 U.S. at 222 (O’ Connor, J., concurring); see also U.S.

7

v. Torres, 128 F.3d 38, 45 (2d Cir. 1997) (recognizing the category of implied bias

and holding that “if a prospective juror falls within this category, that juror must be

excused.”).

B. At Least Four Circuits Have Called Into Question the Presumed Bias

Doctrine’s Limited Scope

The doctrine of presumed bias has a long history in the common law tradition

but has become the subject of considerable uncertainty in the wake of the court’s

holding in Smith v. Phillips. That case dealt with a juror who had submitted an

application for employment with the District Attorney’s Office during trial. Smith,

455 U.S. at 212. Following conviction, the defendant sought federal habeas relief on

the grounds of juror partiality related to the application for employment. Id. The

defendant argued that the appeals court could not rely on the juror’s assurances of

impartiality because of the “human propensity for self-justification” and that bias

should have been imputed to the juror as a matter of law. Id. at 215. The Court

disagreed, observing that “due process does not require a new trial every time a

juror has been placed in a potentially compromising situation,” before holding that a

post-trial evidentiary hearing was sufficient to deal with any concerns surrounding

juror bias. Id. at 217. While not making any explicit pronouncement on the validity

of the presumed bias doctrine, the Court’s opinion seemed to hold it in disfavor.

Justice O’Connor, concerned about the status of the doctrine, wrote

separately to “express [her] view that the opinion does not foreclose the use of

‘implied bias’ in appropriate circumstances.” Id. at 221 (O’Connor, J., concurring).

O’Connor worried that “in certain instances a hearing may be inadequate for

8

uncovering a juror's biases” and observed that “[n]one of our previous cases preclude

the use of the conclusive presumption of implied bias in appropriate circumstances.”

Id. at 221-22. She listed several “extreme” circumstances, mentioned in Part A

above, in which a finding of presumed bias would be appropriate: if the juror was

employed by the prosecuting agency, if the juror is a close relative of one of the

participants at trial, and if the juror was somehow involved in the criminal

transaction. Id. at 222. She concluded that “it is important for the Court to retain

the doctrine of implied bias to preserve Sixth Amendment rights.” Id. at 224.

In the wake of Smith, some courts questioned whether the implied bias

doctrine was still viable. See, e.g., Johnson v. Luoma, 425 F.3d 318, 326 (6th Cir.

2005) (“the implied-bias doctrine may not even be viable after Smith”); Conner v.

Polk, 407 F.3d 198, 206 n. 4 (4th Cir. 2005) (“There may be some question as to

whether implied bias remains a viable doctrine following the Supreme Court's

majority opinion in Smith”). Today, however, nearly all courts have affirmed that

the presumed bias doctrine remains relevant. See Treesh v. Bagley, 612 F.3d 424,

437 (6th Cir. 2010); Conaway v. Polk, 453 F.3d 567, 586–87 (4th Cir. 2006).

However, while courts agree that presumed bias has retained its vitality, the

circumstances in which a finding of presumed bias are appropriate remains the

subject of considerable debate. Some courts, noting that the language in O’Connor’s

concurrence is more illustrative than limiting (“Some examples might include…”),

have adopted a flexible view and expanded the doctrine to encompass situations in

which the juror has been a victim of the same crime as that charged against the

9

defendant. See English v. Berghuis, 900 F.3d 804 (6th Cir. 2018). Others have stuck

with a more rigid understanding of O’Connor’s concurrence and only allow for a

finding of automatically presumed bias in the examples she explicitly listed. See

U.S. v. Tucker, 243 F.3d 499, 509 (8th Cir. 2001).

i.

The Second, Fifth, Sixth, and Ninth Circuits Have Expansive Interpretations

of the Presumed Bias Doctrine

In the decades following Smith, the Second, Fifth, Sixth, and Ninth Circuits

have embraced a more expansive understanding of the presumed bias doctrine. The

Second Circuit, for example, upheld an expanded understanding of the doctrine in

U.S. v. Torres, affirming that a juror who has been a victim of a similar crime as

that charged should be subject to mandatory excusal. 128 F.3d 38 (2d Cir. 1997).

The Court first observed that there are several situations in which a juror discloses

such information that the judge “must presume bias.” Id. at 41 (emphasis original).

The Court then provided several examples of circumstances in which a juror must

be excused: “prospective jurors who are related to one of the parties or who have

been victims of the alleged crime itself must be excused. They cannot be impaneled

even if they state that they could faithfully uphold the law.” Id. This determination

is made by employing an “average man” test, which recognizes that, even when a

juror declares that they harbor no prejudice in a case, bias must be imputed

because, generally speaking, the average person similarly situated to the juror

would be prejudiced. Id. at 45-6.

The Torres decision, while recognizing that a presumption of bias is

appropriate when a juror has been a victim of the same crime, maintained that the

10

doctrine is only applicable in a highly limited set of circumstances. Id. at 46. The

Court sought a way around this rigid framework and landed on a novel solution. It

expanded its conception of bias and added a new category: in addition to actual and

presumed bias, the Court also recognized inferred bias, which gives the trial judge

broad discretion to find a juror biased even when the juror does not fit neatly into

the categories of actual or presumed bias. Id. at 46-47. The Court seemed to

interpret the new category of inferred bias as a complement to presumed bias,

granting the judge discretion for instances when the conditions of presumed bias

are not precisely met. Id. at 46 (“But while the situations in which a trial judge

must find implied bias are strictly limited…it does not follow that the trial judge is

without discretion to infer bias outside of this narrow category of cases”). Few other

circuits have followed this new framework, and some have expressly rejected it. See,

e.g., Sampson v. U.S., 724 F.3d 150, 165 (1st Cir. 2013) (“we think attempting to

classify biases in sub-categories is likely to do more harm than good”).

In Solis v. Cockrell, the Fifth Circuit recognized a more flexible framework.

In that case, the Court held that the touchstone of the inquiry into presumed bias

was whether there existed circumstances that created “substantial emotional

involvement” in the juror. 342 F.3d 392, 399 (5th Cir. 2003). The Court wrote that

in most prior cases resulting in a finding of presumed bias, the finding was made

“because the juror had a close relationship with one of the important actors in the

case or was otherwise emotionally involved in the case, usually because the juror

was the victim of a similar crime.” Id. at 398-99. In such situations, the trial court’s

11

attempts at evaluating a juror for bias are often inadequate “because the allegedly

prejudicial circumstances may be affecting the juror in ways the juror may not

realize.” Id. at 399. For this reason, bias should be presumed and the juror excused

for cause whenever factors creating a substantial emotional involvement are

present.

In English v. Berghuis, the Sixth Circuit imputed bias to a juror on facts

remarkably similar to the present case. 900 F.3d 804 (6th Cir. 2018). After trial on

charges of sexual abuse of a child, it was revealed that one of the jurors had been

molested by her father as a child. Id. at 808. Even though the incident was decades

prior, and the juror claimed to have reconciled with her father, the Court still found

a presumption of bias appropriate. Id. at 817-18. The Court began by noting that

the “continued vitality” of the presumed bias doctrine has been “called into

question” since Smith, but also that “Smith is not decisive ‘one way or the other’ on

whether juror bias may still be implied.” Id. at 816 (citations omitted). The Court

then recounted situations in which a finding of presumed bias may be appropriate.

It expressly held that O’Connor’s examples in Smith were “illustrative more than

limiting,” and further held that the threshold for a finding of presumed bias is lower

when there is evidence that the juror intentionally concealed information at voir

dire. Id. at 816-17. In making its determination of presumed bias, the Court

referred to the “broadly phrased questions” during voir dire and the excusal for

cause of a juror who, in open court, recounted an experience broadly similar to that

of the juror in controversy. Id. at 817. The Court dismissed the juror’s assurances of

12

impartiality, finding that, despite her assertion that her prior experience did not

bias her in this case, it still may do so subconsciously. Id.

In Dyer v. Calderon, the Ninth Circuit ordered a new trial after it held that a

juror in a murder case was biased for failing to disclose that her brother was a

homicide victim. 151 F.3d 970 (9th Cir. 1998). Even though the trial court did not

think there was a sufficient basis to find that the juror was lying, the Ninth Circuit,

as the Sixth Circuit did in English, looked on the circumstances with considerably

more suspicion. Id. at 982. The Court found it significant that, in the presence of the

juror in controversy, numerous other members of the venire came forward to share

their experiences regarding them or someone they know being the victim of a crime.

Id. That the juror in controversy did not come forward with information regarding

her brother’s murder at this time strongly supported an inference that the juror was

lying. Id. The Court stressed the need for caution in this type of circumstance: “[i]f a

juror treats with contempt the court's admonition to answer voir dire questions

truthfully, she can be expected to treat her responsibilities as a juror…with equal

scorn.” Id. at 983. Highlighting the multiple deficiencies in the post-trial bias

hearing, in which the trial judge gave considerable weight to the juror’s assurance

that she could judge the case impartially, the Court asserted that no inquiry should

have been made into the juror’s actual bias, for the facts surrounding her selection

to the jury should have been sufficiently dispositive for a finding of presumed bias.

Id. at 985 (holding that, when certain facts exist that point to a juror’s emotional

13

involvement with the case, such a juror should be struck “without stopping to

inquire into their subjective state of mind”).

ii.

The First, Eighth, and Tenth Circuits Have Strict Interpretations of the

Presumed Bias Doctrine

The First, Eighth, and Tenth Circuits, however, have refused to recognize

presumed bias outside of the three examples listed by Justice O’Connor in her

concurrence in Smith. In Amirault v. Fair, for example, the First Circuit held that a

juror who had been a victim of rape years before was not impliedly biased in

prosecution for the rape of a child and was able to serve on the jury. 968 F.2d 1404

(1st Cir. 1992). In that case, the jurors were asked during voir dire if they or any of

their family members had ever been involved in a criminal case, and the juror in

controversy neglected to inform the Court that she had been a victim of rape 40

years earlier, had brought charges against her abuser, and had testified at trial. Id.

at 1405. After an evidentiary hearing, the trial court concluded that the juror had

genuinely “blocked” the memory. Id. The First Circuit affirmed, finding that

situation presented did not “rise to the level of ‘exceptional’ or ‘extreme’

circumstances which may permit a finding of implied bias.” Id. at 1406.

In U.S. v. Tucker the Eighth Circuit cautioned that “the idea of presumed

bias is reserved for extreme cases.” Tucker, 243 F.3d at 509. In that case,

accusations of juror bias arose when it was revealed that the defendant, the former

governor of Arkansas, had denied clemency to a juror’s husband. Id. at 501. The

court refused to deviate from the examples listed by Justice O’Connor and, finding

14

that none of the three applied to the case at hand, held that the defendant failed to

establish his right to a new trial. Id. at 509.

The Tenth Circuit has imposed a similarly strict understanding of the

presumed bias doctrine. In Gonzalez v. Thomas, defense counsel challenged the

impartiality of a juror who had been a victim of date rape in a trial on sexual

assault charges. 99 F.3d 978 (10th Cir. 1996). During voir dire, the juror was

informed that the defendant was being charged with sexual abuse and was asked if

she or anyone in her family had ever experienced a similar incident, to which she

responded in the negative. Id. at 982. It was eventually uncovered that she had

been a victim of a date rape about 25 years prior. Id. After an evidentiary hearing,

however, the trial court refused to presume bias on her behalf, and the Tenth

Circuit affirmed its ruling. Id. at 983. The Tenth Circuit began by asserting that the

“implied bias doctrine should not be invoked lightly.” Id. at 987. The Court then

asked: “is a rape victim as a matter of law incapable of being impartial in the trial

of an accused rapist?” Id. The Court thought not. Id. at 989 “To hold that no rape

victim could ever be an impartial juror in a rape trial would, we think, insult not

only all rape victims but also our entire jury system, which is built upon the

assumption that jurors will honestly try ‘to live up to the sanctity of [their] oath.’”

Id. at 989-90. The Court went on to observe that they “prefer an approach that

focuses more closely on the juror’s experience,” in essence requiring a showing of

actual bias. Id.

15

As is evident, the law pertaining to the presumed bias doctrine is clearly

unsettled. By ruling on this case, the United States Supreme Court will resolve an

impassable circuit split and affirm the importance of due process in our judicial

process.

II.

The Trial Court Erred in Denying Mr. Montealvo’s Motion for New Trial

Based on Both Presumed and Actual Juror Bias

After a post-trial evidentiary hearing, the trial court denied the motion for

new trial, preposterously finding that juror H.B. was not biased against Mr.

Montealvo. This was a monumental error. First, a presumption of bias should have

been imputed to H.B. as a matter of law because she was a victim of the same crime

as that alleged against Mr. Montealvo. Failing that, the court should have found

H.B. to be actually biased based off the findings at the evidentiary hearing. The

court’s tortured logic in evaluating H.B. for actual bias recalls Justice O’Connor’s

concern that sometimes a hearing may be inadequate to uncover juror bias and

underscores the continued need for the presumed bias doctrine. At every turn, the

court extended the most charitable explanation possible to H.B.’s conduct and set an

impossibly high threshold for Mr. Montealvo to prevail on his claim. The court’s

illogic in making this determination resulted in Mr. Montealvo being denied the

right to trial by an impartial jury and demonstrates why further guidance is needed

on this issue.

A. The Juror Lied to the Court

The juror lied to the Court by failing to disclose her past experience with

sexual abuse during voir dire. Prior to voir dire, all potential jurors swore an oath to

16

tell the truth. The Court engaged in its own voir dire examination prior to the

parties’ examination.1 The Court asked the venire if any among them had been a

“victim themselves of a sex—a sex offense or is close friends or has a close family

member who has been a victim?” (Trial Tr. 36:13). Seven people raised their hands.

The Court then asked those who responded in the affirmative if they would like to

discuss the matter privately or if they felt comfortable speaking about their

experience in the presence of the other jurors. Several of the potential jurors spoke

up publicly, while for others the voir dire examination was paused so they could

share their experience privately. Of the seven who raised their hand, five were

excused. The potential jurors who replaced the excused were also questioned about

personal experience with sexual abuse, and some of these replacements were also

excused based on their affirmative answers. After the Court conducted its own

examination, defense counsel also probed the potential jurors for biases related to

sexual abuse. All but one of the jurors that had personally been victims of sexual

abuse were excused for cause. Mr. Montealvo struck the remaining juror using a

peremptory strike.

This process took the entire first day of trial. Juror H.B. sat silent for the

entire time. She heard the Court’s questions about sexual abuse, she saw other

members of the venire raise their hands in response, she watched as some of them

were pulled aside and questioned privately about their experience. Not once did she

1 Though not unheard of, voir dire of jurors of any kind by a trial judge is very uncommon in Iowa

District Courts.

17

make any indication that her personal history was implicated in the Court’s

examination.

The Iowa Court of Appeals, in denying Mr. Montealvo’s motion for new trial,

refused to find that H.B. lied during voir dire. The Court stated that it was

impossible to determine whether H.B. actually remembered her personal history

with sexual abuse at the time of the voir dire examination. State v. Montealvo, 2021

WL 590110, 3 (2021). It further stated that, without terms like “sexual offense” and

“victim” being defined for her legally, it is impossible to know whether H.B.

perceived herself as belonging to this category. Id.

The Court extended a truly extraordinary degree of leniency in interpreting

H.B.’s behavior. The standard applied by both the Iowa District Court and the Iowa

Court of Appeals is untenable. Under this standard, it would be virtually impossible

to establish a juror lied during voir dire, absent some sort of mind-reading device.

What’s more, the the Court’s preposterous factual finding that H.B. did not

knowingly withhold information during voir dire is undermined by several factors in

the record. First, in response to the Court’s question about being a victim of a

sexual offense, seven potential jurors initially raised their hand, and several of their

replacements did as well. These were laypeople—neither judges nor advocates—and

they did not seem to have any trouble comprehending the meaning of terms like

“sexual offense” and “victim.” And the various affirmative responses covered a wide

range of experience, from jurors who had personally been victims of abuse to those

with more attenuated connections like cousins or friends who had been victims. No

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one requested clarification on the question and none of the jurors subjected to

further questioning on the matter indicated any trouble understanding what was

being asked. Second, when H.B. was confronted about her personal history by her

sister, she responded affirmatively, before qualifying that she was “over it.”

Montealvo, 2021 WL 590110 at 2. Nothing in the record indicates that H.B. was

befuddled by her sister’s query or in some way needed her memory refreshed. H.B.

did not respond to her sister with “What are you talking about?” She responded

promptly and affirmatively. If H.B. easily recalled these past events when

questioned directly by her sister, it simply strains credulity to assert that she may

not have remembered them when the same question was the subject of a day-long

inquiry by the Court. H.B. lied to the Court.

B. The Juror’s Lying Deprived Mr. Montealvo of His Opportunity to Strike Her

for Cause

H.B.’s obfuscation denied Mr. Montealvo the opportunity to strike her for

cause. A challenge for cause is traditionally based on a claim of either actual or

presumed bias. Of course, for a challenge to be granted, a record must be developed

showing factors that indicate the presence of either actual or presumed bias. Voir

dire is the means by which such a record is developed and is the primary safeguard

against juror partiality. Pena-Rodriguez v. Colorado, 137 S. Ct. 855, 866 (2017).

When the juror conceals information during voir dire, the defendant is denied the

ability to develop a record on which a challenge for cause may be based.

It is evident here that, had H.B. been more forthcoming during voir dire, Mr.

Montealvo would have challenged her for cause, and the challenge would have been

19

granted. We know this because five other jurors were excused for cause based on

their admission that they or a family member had been a victim of sexual abuse.

(Trial Tr. 57:1-60:25; 68:1-69:13; 71:1-73:25; 75:2-78:4). And of those excused,

several admitted to experiences much more attenuated than that of H.B, such as

the juror whose best friend’s younger sister had been a victim of sexual abuse. (Trial

Tr. 56:7). While the trial judge failed to find H.B. biased during the post-trial

evidentiary hearing—when the determination formed the basis for a motion for new

trial—it is obvious, based on the excusals of the other jurors, that the judge would

have excused H.B. for cause had the record been properly developed during voir

dire.

H.B.’s lying also denied Mr. Montealvo the opportunity to use a peremptory

strike on her. After examining the venire at voir dire, the defendant may then

exercise a complement of peremptory challenges on any juror the defendant feels

will not be able to hear the case fairly based on the evidence before them. While it is

true that “there is nothing in the Constitution of the United States which requires

Congress (or the States) to grant peremptory challenges,” Stilson v. U.S., 250 U.S.

583, 586 (1919), the Court has also repeatedly recognized that the peremptory

challenge is one of the most important rights afforded to the accused. Swain v.

Alabama, 380 U.S. 202, 219 (1965).

Mr. Montealvo would have used a peremptory challenge on H.B. if she had

been forthcoming during voir dire. This is evident because Mr. Montealvo exercised

a peremptory strike on a different juror, T.C., who had similar experiences as H.B.

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(07.17.2019 Jury Selection). Obviously, Mr. Montealvo was unable to use a

peremptory strike on H.B because of her obfuscation. Therefore, in deliberately

concealing material information during voir dire, H.B. denied Mr. Montealvo his full

complement of peremptory strikes under Iowa law. While the right to a peremptory

challenge is not of a federal Constitutional dimension, reversal is still required

when the denial of a peremptory challenge results in “a reasonable doubt that the

composition of the venire would have been different as a result.” Ross v. Oklahoma,

487 U.S. 81, 95 (1988) (quoting Gray v. Mississippi, 481. U.S. 648, 670 (1987)). In

this instance, the composition of the jury would have clearly been different had Mr.

Montealvo been allowed to exercise a peremptory challenge against H.B. This is

evident because of the number of jurors with similar experiences to H.B. who were

either removed for cause or by a peremptory strike.

What matters most here is that H.B. ultimately sat on the jury. The Court

has consistently maintained that reversal is required when a biased juror is

empaneled on the jury. See Ross, 487 U.S. at 85 (“Had [the biased juror] sat on the

jury that ultimately sentenced petitioner to death, and had petitioner properly

preserved his right to challenge the court’s failure to remove [the juror] for cause,

the sentence would have to be overturned.”); see also Parker v. Gladden, 385 U.S.

363, 366 (1966) (a defendant is “entitled to be tried by 12, not 9 or even 10,

impartial and unprejudiced jurors.”). As explained by this Court in U.S. v.

Martinez-Salazar, “[w]hen a juror is seated who deliberately conceals bias that

would have required he or she be dismissed for cause, reversal of any subsequent

21

conviction is required.” 528 U.S. 304, 316 (2000). Mr. Montealvo was denied his

right to an impartial jury when H.B. deliberately concealed her bias yet managed to

sit on the jury anyway. In circumstances such as this, the Supreme Court has been

clear and consistent: reversal is required.

C. The Juror’s Bias Is Grounds for New Trial Under the McDonough Test

Mr. Montealvo should have been granted a new trial because H.B. concealed

material information during voir dire. The legal framework for a new trial based on

concealment during voir dire is found in McDonough Power Equip., Inc. v.

Greenwood. 464 U.S. 548 (1984). McDonough was a products liability case in which

one of the jurors had a son who had been injured in a similar incident. Id. at 550.

The juror kept quiet during the voir dire process, and the information was not

brought to light until after a verdict had been reached. Id. In making its ruling, the

Supreme Court established a two-part test for a new trial when a juror concealed

information during voir dire. In order to obtain a new trial, “a party must first

demonstrate that a juror failed to answer honestly a material question on voir dire,

and then further show that a correct response would have provided a valid basis for

a challenge for cause.” Id. at 556.

As to the first prong, and as discussed above, it is evident that H.B. failed to

answer honestly a material question on voir dire. In the years since McDonough

was decided, many of the courts applying its two-pronged test have found

circumstances similar to those of H.B. as sufficient to satisfy the first prong. In

Porter v. Zook, the court held that a juror’s silence with regard to matters of

22

importance to trial can suggest an unwillingness to come forth, which in turn bears

on the juror’s veracity. 898 F.3d 408 (4th Cir. 2018). In deciding that a juror was

biased for failing to disclose that his relative was a law enforcement officer, the

court wrote that “we have viewed the ‘honesty’ aspect of the first McDonough prong

as encompassing not just straight lies, but also failures to disclose.” 898 F.3d at 431.

As explained above, H.B. stayed silent during an entire day of voir dire while nearly

a dozen of the other venire were questioned about their personal experiences with

sexual abuse. The Sixth Circuit has found lesser circumstances sufficient to find

that the juror in controversy deliberately withheld information on voir dire.

English, 900 F.3d at 814. In that case, the Court observed: “[c]ritically, in the

presence of the jury pool, one prospective juror informed the trial court that she and

her sister had been molested by her stepfather.” Id. After this prospective juror’s

admission, the court then conducted a private interview in a separate room. Id. In

finding that the first prong of McDonough was met, the Court found it significant

that in a post-trial evidentiary hearing the juror in controversy admitted to

remembering the other prospective juror coming forth during voir dire. Id. In the

present case, ten prospective jurors informed the trial court that they had

experiences relating to sexual abuse, and the interviews with these jurors lasted the

entire first day of trial. That is sufficient to satisfy the first prong of the McDonough

test.

The circumstances of the present case also satisfy the second prong of the

McDonough test—a truthful response by H.B. would have served as a valid basis for

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challenge for cause. The Supreme Court has previously explained that “[a]s a

general rule, a defendant may excuse a juror for cause if ‘the juror's views would

prevent or substantially impair the performance of his duties as a juror in

accordance with his instructions and his oath.’” Wainwright, 469 U.S. at 424. The

grounds for for-cause challenges enumerated in the Iowa Rules of Criminal

Procedure include: “[h]aving formed or expressed such an opinion as to the guilt or

innocence of the defendant as would prevent the juror from rendering a true verdict

upon the evidence submitted on the trial.” Iowa R. Crim. P. § 2.18(5)(k). It is not

necessary to speculate whether H.B.’s admission would have provided a basis for a

challenge for cause because we know what the trial court did with respect to other

jurors. All but one of the jurors who came forward to discuss their experience with

sexual abuse were removed for cause, usually at the acquiescence of both parties.

(Trial Tr. 57:1-60:25; 68:1-69:13; 71:1-73:25; 75:2-78:4). The juror who was not

challenged for cause was removed with a peremptory challenge by Mr. Montealvo.

Having satisfied the two prongs of the test articulated in McDonough, the court

erred in denying Mr. Montealvo’s motion for a new trial.

D. The Standard Set by the Iowa Courts for Proving Juror Bias Is Impossibly

High

In denying Mr. Montealvo’s motion for new trial, the Iowa Court of Appeals

imposes an impossible burden for establishing juror bias. The Court held that there

was insufficient evidence in the record to show conclusively that H.B. lied during

voir dire. In making this determination, the Court turned to three factors.

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First, the Court was hesitant to accept that the events as related by H.B.’s

sister actually occurred. Montealvo, 2021 WL 590110 at 3. As the court explained,

“what a four- to six-year old might have said about the incident, how a six- to eightyear-old sister interpreted what was being told about the incident" does not

establish the two incidents occurred as the sister described. Id. Initially, it is

important to point out that no question of the interpretative powers of a six- to

eight-year-old factors into this discussion, as H.B.’s sister was present for, and also

a victim of, the same incident of sexual abuse as H.B. (Sentencing Transcript 12:16).

Secondly, it is unclear why the Court had such doubts as to whether the event

occurred when H.B. confirmed as much in her conversation with her sister. In

response to her sister’s question, H.B. replied that she was “over it,” implicitly

acknowledging that the event did take place. H.B. did not respond with doubts

about the accuracy of her sister’s recollection—she stated only that the incident did

occur but that it would not affect her judgment. The reliability of small child’s

testimony is immaterial to the present consideration because both women, now a

half-century older, admit that the incident took place.

Next, the Court writes that even assuming that the incident did occur,

“nothing in the record shows Juror H still perceived these incidents the same way or

even remembered these incidents when the district court asked about sex offenses.”

Montealvo, 2021 WL 590110 at 3. This assertion simply strains reason. There is

evidence in the record showing that, when questioned about the incident by her

sister, H.B. remembered the event quickly and with little effort. To then assert that

25

she may not have remembered the incident during an entire day of voir dire on the

subject borders on the absurd.

This gets at the underlying problem with the Court’s reasoning—it is unclear

how, absent H.B.’s own admission, Mr. Montealvo could have established that H.B.

perceived the incidents in the same way. We do not possess mind-reading devices. If

a showing that she remembered the incident later, and in close temporal proximity

to voir dire, is insufficient to establish that she remembered the incident during voir

dire, then the burden the Court imposes on Mr. Montealvo is impossible to meet.

Finally, the Court notes that “nothing in the record shows Juror H perceived

either incident as a ‘sex offense’ or herself or her sister a ‘victim,’ especially

considering no one defined these terms during voir dire.” Id. This statement is

ridiculous on its face. The trial court phrased the questions about sexual abuse

broadly so as to encompass a wide array of potentially prejudicial experience.

“Sexual offense” and “victim” are not esoteric terms of art employed only by those

initiated into the legal profession. Their meaning is plain and readily apprehended

by the average juror. This is evidenced by the fact that 10 jurors affirmatively

raised their hand in response to the Court’s questions about sexual abuse, and not a

single prospective juror expressed confusion or asked for clarification regarding the

Court’s questioning. If a defendant is required to provide a definition for the word

“victim” before the Court can decide whether a juror deliberately concealed

information, then the defendant may as well provide a definition for every noun

uttered during voir dire. The standard applied by the Court is untenable.

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E. The Court’s Erroneous Reasoning Demonstrates the Importance of the

Presumed Bias Doctrine

The standard set by the Court underlines Justice O’Connor’s contention that

sometimes an evidentiary hearing will be insufficient to uncover instances of juror

bias. It is worth considering what would be required to establish juror bias if the

showing made by Mr. Montealvo is insufficient. First, a juror who had concealed

material information during voir dire would have to be subject to a sudden wave of

contrition. The juror would have to alert the trial court of their own volition and

request an evidentiary hearing in which to come clean. The juror would then have

to admit under oath in the presence of the judge and counsel that they had

committed perjury during voir dire when they failed to come forward in response to

the questioning. The juror, in addition to being incredibly charitable, would also

need to possess considerable fortitude to walk into such a situation. Of course, if the

juror sought legal representation in this matter, any competent attorney would

advise the juror not to testify and plead the Fifth. So, even if the juror had a change

of heart, was sufficiently resolute, and possessed the will to do so, the likelihood of

such an event ever taking place is basically zero. Not only does this set an

impossibly high bar for Mr. Montealvo, it sets an impossibly high bar for the juror,

who should not be expected to bear the burden of resolving procedural deficiencies

at trial.

Instead, H.B.’s bias should have been presumed as a matter of law and her

excusal mandatory. As discussed above, many courts recognize that a presumption

of bias is appropriate when a juror has been a victim of the same offense as that

27

alleged against the defendant. See Torres, supra, at 41; English, supra, at 817; see

also Solis v. Cockrell, supra, at 399. H.B. was a victim of the same crime as that

alleged against Mr. Montealvo. Because of the similarity of experience between H.B.

and the alleged victim, the risk of impartiality was considerable, and bias should

have been presumed automatically. As noted above in the discussion of the

presumed bias doctrine, H.B’s demeanor, her admissions to the Court, and the

judge’s appraisal of her credibility have no bearing on this determination. Thus, her

assurances that she was “over it” are entirely irrelevant to the inquiry. Indeed, past

courts have cautioned against the uncritical acceptance of a juror’s promises of

impartiality. Patton v. Yount, 467 U.S. 1025, 1036 (1984) (noting that the key

question is “should the juror’s protestations of impartiality have been believed”).

Therefore, the Appeals Court’s reliance on H.B.’s statements regarding her

experience is misguided. The correct focus is not on the credibility of her statements

but rather the similarity of her experience with that alleged against Mr. Montealvo.

Given the close parallels between the two—and the emotional toll inherent in

sexual abuse cases—the risk of impartiality was simply too great to allow H.B. to sit

on the jury.

III.

This Case Decisively Resolves the Circuit Split

This case neatly resolves the issue that has divided the various circuit courts.

U.S. v. Torres, 128 F.3d 38 (2d Cir. 1997), Solis v. Cockrell, 342 F.3d 392 (5th Cir.

2003), English v. Berghuis, 900 F.3d 804 (6th Cir. 2018), and Dyer v. Calderon, 151

F.3d 970 (9th Cir. 1998), explicitly hold that when a juror has been the victim of the

28

same offense as that alleged against the defendant, the presumed bias doctrine

requires automatic exclusion of that juror. In contrast, Amirault v. Fair, 968 F.2d

1404 (1st Cir. 1992), U.S. v. Tucker, 243 F.3d 499 (8th Cir. 2001), and Gonzalez v.

Thomas, 99 F.3d 978 (10th Cir. 1996), clearly hold that the presumed bias doctrine

only applies in the three circumstances listed by Justice O’Connor in her

concurrence in Smith. The Second and Sixth Circuits have squarely decided the

question presented, but the Eighth Circuit has declined to follow suit.

This circuit split must be resolved. A decision by this Court affirming the

judgment of the 8th Circuit would result in the denial of Mr. Montealvo’s

constitutional right to trial by an impartial jury. Had Mr. Montealvo’s case been

brought in either the Second or Sixth Circuits, revelation of H.B.’s concealment

during voir dire would have resulted in a new trial with little controversy. The

confusion among the circuits surrounding the presumed bias doctrine is further

evident when one considers that even those courts that would have found

mandatory excusal proper vary in the way they apply the framework. See, e.g., U.S.

v. Torres, 128 F.3d 38, 46 (2d Cir. 1997) (establishing category of inferred bias). Mr.

Montealvo should not be denied his constitutional rights based solely on the

randomness of geography, especially in light of the evident confusion among the

courts on this issue. The question presented can only be resolved by the Supreme

Court and doing so would guarantee that the right to trial by an impartial jury

remains uncompromised.

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Conclusion

Mr. Montealvo respectfully requests that the Supreme Court grant his

petition for a writ of certiorari for all the reasons stated herein.

PARRISH KRUIDENIER DUNN GENTRY

BROWN BERGMANN & MESSAMER L.L.P.

BY:

/s/ Benjamin D. Bergmann

Benjamin D. Bergmann

Counsel of Record

2910 Grand Avenue

Des Moines, Iowa 50312

Telephone: (515) 284-5737

Facsimile: (515) 284-1704

Email: bbergmann@parrishlaw.com