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.