Gender Discrimination in Jury Selection as Ineffective Assistance of Counsel

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.

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Judge Must Explain New Sentencing Decision After Revocation of Supervised Release

As I described here and here, the Seventh Circuit has an interesting line of cases that attempt to establish some minimal standards for the way that district judges explain their sentences.  Add to that line the court’s decision last week in United States v. Robertson (No. 10-3543).  I think that Robertson is the court’s first decision to apply the explanation requirement to a resentencing that occurred after revocation of a defendant’s supervised release.

That the explanation requirement would apply here is perhaps not a given, since, as the court observed, the district judge has even more discretion in this setting than in an original sentencing.  (4)  The court ruled, however, that the district judge must indeed “say something that enables the appellate court to infer that he considered both [the recommendations of the sentencing guidelines and the statutory sentencing factors].”  (4)

In Robertson, the guidelines recommended a term of 12-18 months following the defendant’s revocation for growing marijuana, but the district judge instead imposed a sentence of 34 months.  Here is the “explanation” for the sentence that the Seventh Circuit found inadequate:

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Two Circuits Approve Use of Uncounseled Convictions Against Native Americans

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.

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