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Striking jurors based on gender is ineffective assistance

If a criminal defense attorney uses his peremptory challenges to exclude potential jurors because of race or gender, he violates the Equal Protection Clause, the Rules of Professional Responsibility and provides ineffective assistance of counsel.

But despite reaching that conclusion, the 7th Circuit on Friday declined to order a new trial for a Wisconsin state prisoner whose attorney did just that.

The court held that, at the time of the attorney’s actions and while the case was being reviewed by Wisconsin appellate courts, federal law was not yet clear that such an error was structural, and thus required automatic reversal.

In 2002, MC Winston was tried in Wisconsin state court with one count of sexual intercourse with an underage girl and one count of sexual contact with an underage girl. The jury convicted him only of the latter count.

Winston later claimed that he had received ineffective assistance of counsel, because his trial attorney intentionally used his peremptory challenges to strike men from the jury. The attorney did not dispute that he did so, believing that the female jurors would be more critical of the victim.

The Wisconsin Court of Appeals found this was a reasonable strategic decision and that Winston was not prejudiced, as evidenced by the jury’s acquittal on one of the counts.

After exhausting his state remedies, he sought habeas corpus relief in federal district court, which denied his petition. The 7th Circuit affirmed, finding that the state appeals court did not act unreasonably, given the law in effect at the time it considered the appeal.

The court first held that what Winston’s attorney did violate Winston’s rights under the Equal Protection Clause.

In Batson v. Kentucky, 476 U.S. 79 (1986), the U.S. Supreme Court held it violated equal protection for a prosecutor to strike jurors based on race. In Powers v. Ohio, 499 U.S. 400 (1991), Batson was extended to defense counsel. In J.E.B. v. Alabama, 511 U.S. 127 (1994), Batson was extended to gender-based peremptory strikes.

Accordingly, the 7th Circuit held that Winston’s right to equal protection was violated by his own attorney’s consideration of gender in using his peremptory strikes.

Turning to the appropriate remedy, the court held that the remedy for such a violation is automatic reversal. The U.S. Supreme Court held so in Rivera v. Illinois, 129 S.Ct. 1446, 1455 (2009).

Nevertheless, the court declined to order a new trial for Winston because of two procedural complications: it was his own attorney who committed the violations and the case is a federal habeas corpus action reviewing a state court conviction.

Given the procedural posture, the court concluded it must review whether Winston received ineffective assistance of counsel, even though an identical Batson violation by the prosecutor would warrant automatic reversal.

The court first held that counsel was deficient for striking jurors based on their gender, because J.E.B. was decided eight years before the trial in this case.

Judge Diane P. Wood wrote for the court, “Intentionally violating the Constitution by discriminating against jurors on account of their sex is not consistent with, or reasonable under, ‘prevailing professional norms’ (cite omitted).”

However, given the state of the law at the time, the court held that Winston could not show he was prejudiced by the deficiency.

The court noted that, in rare instances, counsel’s deficiency is so glaring that prejudice is presumed, and that, now, unconstitutional use of peremptory strikes fits into that category.

But it found, “the Supreme Court of the United States had not yet taken this step at any point while Winston’s case was before the Wisconsin courts.” Accordingly, the court held that it was not unreasonable for the Wisconsin courts to require a showing of prejudice, and affirmed the denial of Winston’s petition.

Before concluding, the court addressed an argument by the state of Wisconsin that it called “troubling”: “(d)efense lawyers often ignore, or even perpetrate, violations of their clients’ constitutional rights in the hopes of gaining a strategic advantage.”

The court responded, “We do not know where the state is getting its data from, but we hope that it is mistaken about the frequency of deliberate constitutional violations on the part of the defense bar. To the extent that such misconduct exists, we are certainly not going to give it our imprimatur.”


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