Seventh Circuit – Page 15 – 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.

Judge Must Explain New Sentencing Decision After Revocation of Supervised Release

Post author:Michael M. O'Hear
Post published:August 20, 2011
Post category:Federal Criminal Law & Process Federal Sentencing Public Seventh Circuit

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:

Farewell, Judge Terence T. Evans

Post author:Michael M. O'Hear
Post published:August 17, 2011
Post category:Marquette Law School Public Seventh Circuit

One of Marquette’s most distinguished judicial alumni passed away last week. Judge Terence T. Evans ’67 had served since 1995 on the Seventh Circuit Court of Appeals. Before that, he served as a trial judge in federal district court and Milwaukee County Circuit Court.

Judge Evans was profiled here in the Marquette Lawyer, along with his Seventh Circuit colleagues Judge John L. Coffey ’48 and Judge Diane S. Sykes ’84. Judge Evans’ Journal Sentinel obituary is here. A webcast of an “On the Issues” conversation he had with Mike Gousha and Judge Sykes is here. (The picture above comes from that exchange.)

I never had the pleasure of meeting Judge Evans in person, but I’ve read many of his opinions. They do have a distinct style and sensibility — once you’ve read a few, you are not likely to mistake an Evans opinion for that of any of his colleagues. The opinions reflect a sharp wit, an eye for the telling factual detail, and a commonsensical approach to judging. I doubt there are many judges on the federal bench whose opinions would be more accessible and engaging for the lay reader.

The Wisconsin Public Defender’s On Point website has collected some wonderful personal reminiscences of Judge Evans here. Among the many notable tributes is one from his former clerk Daniel J. O’Brien ’78, who observed:

No one – NO ONE – enjoyed life more than “The Judge.” Luckily, for those of us privileged to spend time with him, that joie de vivre (borrowed from Judge Easterbrook’s marvelous tribute) was contagious. . . .

The Judge’s skill as a jurist was surpassed only by his warmth as a person. The word “mentor” is far down the list of adjectives describing his impact on my life [Others that come to mind: Marquette recruiting analyst, legal writing tutor (“To be a good legal writer,” he’d often say, “write like a journalist, not a lawyer”), comedian, Brewer fan, role model, expert on “greasy spoon” diners, and friend].

Visitation is today from 4:00 to 8:00 at Feerick Funeral Home, 2015 E. Capitol Dr. Additional parking is across the street at Atwater School and at St. Roberts Catholic Church, which is about one block to the west.