Criminal Law & Process – Page 89 – Marquette University Law School Faculty Blog

Gender Discrimination in Jury Selection as Ineffective Assistance of Counsel

Post author:Michael M. O'Hear
Post published:August 23, 2011
Post category: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.

Two Circuits Approve Use of Uncounseled Convictions Against Native Americans

Post author:Michael M. O'Hear
Post published:August 18, 2011
Post category:Circuit Splits Criminal Law & Process Federal Criminal Law & Process Public

In Burgett v. Texas, 389 U.S. 109 (1967), the Supreme Court held that a prior conviction cannot be used to enhance a defendant’s sentence under a recidivism statute if the prior conviction was obtained in violation of the defendant’s constitutional right to counsel. Native Americans, however, must deal with an apparent loophole in the Burgett rule: the Sixth Amendment right to counsel applies to proceedings in federal and state courts, but not tribal courts. If an uncounseled prior conviction in tribal court does not violate the Constitution, it may arguably fall outside the Burgett prohibition and be used against the defendant in a later case.

By some apparent coincidence, the Eighth and Tenth Circuits last month both addressed the use of uncounseled tribal-court convictions under 18 U.S.C. § 117(a), which makes domestic assault by a habitual offender a federal crime. Both courts approved use of such convictions to satisfy the criminal-history element of the offense.

The Eighth Circuit decision, which actually drew a dissent, seems the more carefully reasoned.

When the Witness Woofs

Post author:Judith G. McMullen
Post published:August 10, 2011
Post category:Criminal Law & Process Family Law Judges & Judicial Process Public

When a New York teenager had to testify against her father, claiming he raped and impregnated her, she shared the witness box with a helper. According to The New York Times, that helper was Rosie, a specially trained golden retriever who comforts and encourages traumatized or stressed individuals. Rosie has a highly developed sense of empathy, and will nuzzle, snuggle or lean against someone who is experiencing stress or trauma. Psychologists sing the praises of service dogs like her, and courts in several states have ruled that witnesses who are especially vulnerable, such as children in sexual abuse cases, may be accompanied by canine helpers.

As you might imagine, approval of Rosie and dogs like her is not universal. Everyone agrees that Rosie is adorable, but therein lies part of the alleged problem. Defense attorneys fear that Rosie gives credibility to the child witness that may or may not be justified. One of the public defenders in the case, David S. Martin, protested that each time the child witness stroked the dog’s fur, “it sent an unconscious message to the jury that she was under stress because she was telling the truth,” adding “There is no way for me to cross-examine the dog.” Although the lawyer for the prosecution in this case refused to comment about Rosie for the article, Ellen O’Neill-Stephens, a Seattle prosecutor who is a proponent of dog-helpers in court, said “Sometimes the dog means the difference between a conviction and an acquittal.”

The past several decades have seen a great deal of discussion about the difficulty of dealing with child witnesses in a criminal trial, and there have been many judicial experiments – some effective and some not.