Gender Discrimination in Jury Selection as Ineffective Assistance of Counsel

Posted on Categories Criminal Law & Process, Public, Race & Law, Seventh Circuit

A defendant’s right to reasonably competent legal representation is violated when the defendant’s lawyer discriminates on the basis of gender during jury selection, the Seventh Circuit ruled last week inWinston v. Boatwright (No. 10-1156).  The court’s reasoning would presumably apply equally to racial discrimination.  However, because of the peculiarities of federal habeas law, the particular defendant who presented the claim in Winston was unable to obtain any relief.

Here’s what happened.  Winston was charged with sexual assault of a fifteen-year-old girl and convicted by an all-woman jury.  His lawyer had used his seven peremptory strikes to remove six men and one woman from the jury.  As Winston’s post-conviction counsel later discovered, the trial lawyer struck the male jurors because he thought that females would be more critical of the victim.

Apart from the fact that such gender discrimination is illegal, trial counsel’s strategy may actually have been a good one.  Indeed, the jury acquitted Winston of an intercourse charge.

No matter, the Seventh Circuit ruled.  Competent counsel (in the constitutional sense) does not discriminate against men in the exercise of peremptory strikes.  Period.

Because Winston’s claim arose in a habeas challenge to his state-court conviction, the Seventh Circuit had to sort out the complex interaction between the Batson line of cases on discriminatory use of peremptory strikes, the Strickland line of cases on ineffective assistance of counsel, and the limitations on habeas relief imposed by the Antiterrorism and Effective Death Penalty Act.

In order to establish a Sixth Amendment violation, Strickland requires that a defendant show both that his lawyer provided unreasonably poor performance and that he was prejduced by that poor performance.  The court had little difficulty concluding that Winston satisfied the performance prong:

Intentionally violating the Constitution by discriminating against jurors on account of their sex is not consistent with, or reasonable under, “prevailing professional norms.” Strickland, 466 U.S. at 688. To the contrary, Wisconsin forbids lawyers from engaging in unlawful representation. See WIS. RULES OF PROF’L CONDUCT, at Preamble (“A lawyer’s conduct should conform to the requirements of the law.”); id. at R. 3.1(a) (“In representing a client, a lawyer shall not . . . knowingly advance a claim or defense that is unwarranted under existing law.”). . . . In light of these well-established professional norms, we have no trouble concluding that trial counsel’s decision to strike jurors based solely upon their gender constituted deficient performance.  (21-22)

The prejudice prong was the more difficult one, for prejudice is not normally required for a defendant to obtain relief on a Batson-type claim.  Here’s how the court resolved the tension:

[W]hile a direct Batson claim would be viewed as a structural error and thus not subject to a harmless-error rule, a Strickland argument requires an examination of prejudice. But the Supreme Court has said that structural errors fall within “a limited class of fundamental constitutional errors that defy analysis by harmless error standards.” Neder, 527 U.S. at 7 (internal quotation marks deleted). If, therefore, analysis is impossible for harmless-error purposes, then it is hard to see how it would be possible for purposes of Strickland prejudice—after all, prejudice is the central inquiry in a harmless error inquiry. But a closer look at Neder reveals that the Court was not so much dispensing with harmless error as it was finding that structural errors “are so intrinsically harmful as to require automatic reversal.” Id. Translated into Strickland’s terms, it was saying that such errors inevitably “undermine[] confidence in the outcome” of a proceeding. 466 U.S. at 694.  (24)

But this finding of per se prejudice did not end the matter, for AEDPA limits relief to cases in which a state court has unreasonably applied a clearly established Supreme Court precedent.  The problem for Winston, as the Seventh Circuit saw things, is that the Supreme Court did not clearly establish the principle of automatic reversal for Batson violations until Rivera v. Illinois, 129 S. Ct. 1446, 1455 (2009) — two years after the state courts had rejected Winston’s Strickland claim.  Thus, although we can now see in hindsight that the state courts made a mistake in failing to give relief to Winston, he is precluded from getting a remedy for that error in federal court.

Cross posted at Life Sentences Blog.

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