IN THE COURT OF APPEALS OF IOWA
No. 19

- 0779 Filed July 1, 2020
STATE OF IOWA, Plaintiff

- Appellee,

vs. WAYNE PATRICK GIBSON , Defendant

- Appellant.

________________________________________________________________ Appeal from the Iowa District Court for Linn County, Ian K. Thornhill , Judge.

Wayne Gibson appeals the district court denial of a fair cross

- section jury challenge. AFFIRMED ON CONDITION AND REMANDED WITH DIRECTIONS.

Shawn C. McCullough of Powell & McCullough, PLC , Coralville , for appellant. Thomas J. Miller, Attorney General, and Louis S. Slov e n , Assistant Attorney General, for appellee.

Considered by Bower, C.J. , and Doyle and Schumacher, JJ.2

BOWER , Chief Judge

. Wayne Gibson appeals his convictions for second

- degree and third

- degree sexual abuse, claiming the district court erred in denying his motion challenging
t he jury ’s composition

. We conditionally affirm and re mand for further proceedings consistent with this opinion. I. Background Facts & Proceedings. On June 21, 2018 , Wayne Gibson was charged with second

- degree and
third

- degree sexual abuse. Trial was scheduled for January 7, 2019. Following jury selection but before the trial started, Gibson challenged the racial make

- up of the jury panel as a violation of his Sixth Amendment right to an impartial jury, claiming it was not a fair cross

- section of the community and citing State v. Plain , 898 N.W.2d 801 (Iow a 2017). Gibson allege d underrepresentation and systematic exclusion of African

- Americans from the jury panel

. The court and attorneys discussed the makeup of both the jury pool and the panel during the initial discussion. 1 The jury pool that week consisted of 112
persons , including one African

- American

. From the pool, a forty

- eight person panel was assigned to Gibson’s trial, which included forty

- six Caucasians, one
Asian

- American , and one Hispanic

- American. The court reserved ruling to allow th e parties to obtain relevant evidence and build a record on the jury panel question . The jury trial proceeded, and on January 11, the jury found Wilson guilty as charge d

.

1 “ Under Iowa’s j ury - selection statutes, a jury ‘pool’ (i.e., venire) consists of all persons who are summoned for jury service and who report. A jury ‘panel’ consists of ‘ those jurors drawn or assigned for service to a courtroom, judge, or trial. ’” Plain , 898 N.W.2d at 821 n.5(citing Iowa Code § 607A .3 (2015) )

.3

On April 1 7 , a post
- trial motion hearing was held addressing Gibson’s
renewed fai r cross - section challenge. Gibson produced a statistical analysis calculating representation on Gibson’s panel and nine months of Linn County jury pool s. T he author of the report testified at the hearing. The court found Gibson failed to establish two o f the three prongs to make a prima facie showing that his right to a jury drawn from a fair cross

- section of the community had been violated. Gibson appeals. II. Standard of Review “We review constitutional issues de novo.” Plain , 898 N.W.2d at 810.
I II. Analysis The Sixth Amendment to the United States Constitution provides that

“ [i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the c rime shall have been committed. ” The right to an impartial jury entitles the criminally accused to a jury drawn from a fair cross

- section of the community.
Id. at 821 (citations and footnote omitted). The United States Supreme Court articulated a three

- part test for establishing a prima facie violation of the fair cross

- section requirement in Duren v. Missouri

, 439 U.S. 357 , 364 (1979) , and our supreme court adopted the test in State v. Watkins , 463 N.W.2d 411, 414 (Iowa 1990 ). This test requires a defendant
to show : (1) that the group alleged to be excluded is a “distinctive” group in the community; (2) that the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community ; and (3) that this underrepresentation is due to systematic exclusion of the group in the jury

- selection process.4

Duren , 439 U.S. at 364. “If the defendant establishes a prima facie case, the
burden shifts to the state to justify the disproportionate representation by proving

‘ a significant state interest ’ is ‘ manifestly and primarily advanced ’ by the causes of the disproportionate exclusion. ” Plain , 898 N.W.2d at 822 (citation omitted). Shortly aft er Gibson filed his notice of appeal, the Iowa Supreme Court decided State v. Lilly

, 930 N.W.2d 293 (Iowa 2019), and State v. Veal , 930 N.W.2d 319 (Iowa 2019), whic h together clarified the second and third prongs of the fair

- cross section analysis.
For the first prong, Gibson and the State agree it is established that African

Americans are a “distinctive” group in the community. For the second prong, the Lilly court determined a standard deviation analysis was the best of three suggested statistical methods to determine underrepresentation. 930 N.W.2d at 302. 2 The court also noted, “ the district court should rely on ‘ the statistical data that best approximates the percentage of jury

eligible ’ pe rsons in the distinctive group.’” Id. at 305 (citation omitted)

. However, t he statistics in the report submitted by Gibson’s expert compare the composition of Gibson’s panel to aggregated data of jury pools in Linn County. 3 The statistical analysis should have been of Gibson’s jury pool, not the panel. S ee State v. Wilson , 941 N.W.2d 579, 593 (Iowa 2020) (noting a defendant must make

2 Lilly held underrepresentation under the Iowa Constitution occurs when representation of the specified group falls below the representation in the eligible juror population by more than one standard deviation. 930 N.W.2d at 304. In Veal , th e court held the appropriate measure under the Sixth Amendment was two standard deviations. 930 N.W.2d at 329. 3 Gibson’s expert testified African

- Americans as a distinct group were not underrepresented in the jury pool , but no related facts or analysis w ere presented

.5

a record of the racial makeup of jurors of the entire jury pool, not just the panel assigned to the defendant’s trial to support a Plain/Duren motion ).
A ddition ally , Gib son argued below that showing statistical evidence of a historical trend of underrepresentation was sufficient to establish the third prong. However, in Lilly

, the supreme court adopted the following requirements for the third prong : Litigants alleging a violation of the fair cross section

requirement would still have to demonstrate that the underrepresentation was the result of the court’s failure to practice effective jury system management. This 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. Mere speculation ab out the possible causes of underrepresentation will not substitute for a credible showing of evidence supporting those allegations. Paula Hannaford

- Agor, Systematic Negligence in Jury Operations: Why the Definition of Systematic Exclusion in Fair Cross Sec tion Claims Must Be Expanded , 59 Drake L. Rev. 761, 790

– 91 (2011). If a practice that leads to systematic underrepresentation of a distinctive group in jury pools can be identified and corrected, there is no reason to shield that practice from scrutiny ju st because it is relatively commonplace. At the same time, the defendant must prove that the practice has caused systematic underrepresentation. Id. at 307

– 08. “The defendant must identify some practice or combination of practices that led to the underr epresentation,” not just argue systematic exclusion

as inferred from aggregated data. Veal , 930 N.W.2d at 330. Because Gibson did not have the benefit of either Lilly or Veal ’s refinements at the time of trial, we remand the matter to the district court to give Gibson an opportunity to develop his constitutional claim using the new criteria

. See Lilly , 930 N.W.2d at 308; Veal , 930 N.W.2d at 330 ; State v. Williams , 929 N.W.2d 621,6

630 (Iowa 2019). I f the district court rejects the claim, Gibson’s convict ions and sentence shall stand. If the court finds a constitutional violation occurred, it shall grant Gibson a new trial. AFFIRMED ON CONDITION AND REMANDED WITH DIRECTIONS.