                    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. Sloven, Assistant Attorney

General, for appellee.




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

the jury’s composition. We conditionally affirm and remand 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 (Iowa 2017). Gibson alleged 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 the 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 charged.


1 “Under Iowa’s jury-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)).
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       On April 17, a post-trial motion hearing was held addressing Gibson’s

renewed fair cross-section challenge.         Gibson produced a statistical analysis

calculating representation on Gibson’s panel and nine months of Linn County jury

pools. The author of the report testified at the hearing. The court found Gibson

failed to establish two of 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.

       III. 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 crime 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.
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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 after 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), which 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’ persons in the distinctive group.’” Id. at 305 (citation omitted).

       However, the 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. See

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,
the 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 were presented.
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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).

       Additionally, Gibson 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
               about 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 Section
       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 just 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 underrepresentation,” 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,
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630 (Iowa 2019). If the district court rejects the claim, Gibson’s convictions 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.
