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Habeas – Jury Selection – Ineffective Assistance –

MC Winston v. Boatwright, 7th Cir No. 10-1156, 8/19/11

seventh circuit court of appeals decision, denying habeas relief on review of unpublished decision in 2003AP3412 and 2005AP1255

Habeas – Jury Selection – Ineffective Assistance – Defense Counsel’s Discriminatory Use of Peremptories

In a nutshell, this case presents the question whether the constitutional rights of the petitioner, MC Winston, were violated when his lawyer used peremptory challenges systematically to eliminate all men from the jury in his trial for second-degree sexual assault. …

Although our role in federal habeas corpus proceedings is limited, it has not vanished altogether. We conclude here that a defense lawyer’s intentional violation of the Equal Protection Clause falls below the performance standard established by Strickland. The more difficult issue is whether Winston can show prejudice. Resolution of that part of the Strickland inquiry requires us to choose between two competing lines of authority from the U.S. Supreme Court. Because the Court itself did not signal how it would make that choice until well after the state courts acted in Winston’s case, we have no basis for finding that the state courts disregarded any “clearly established” precedents. We therefore affirm the judgment of the district court denying Winston’s petition.

Interesting issue, very deftly handled by the court. Hard to say how recurrent the problem is, but its resolution is one you’ll want to absorb.

Winston was convicted by an all-female jury, after peremptory strikes were used to strike seven males. As you well know, Batson v. Kentucky, 476 U.S. 79 (1986) bars prosecutorial use of racially motivated peremptory challenges, and J.E.B. v. Alabama, 511 U.S. 127 (1994) applies that bar to gender-based removals. What makes Winston’s case striking is that it was defense counsel, not the prosecutor, whose jury-selection tactics were discriminatory. Counsel, that is, struck 6 of the 7 males based on a “strategic” assessment that females jurors would be more critical of the victim than male jurors would be. Had the prosecutor done this, Winston’s entitlement to relief would be plain. But, can defense counsel violate Batson where the prosecutor can’t? Our state court of appeals in effect said yes, holding that counsel’s strategy here was reasonable, and therefore “virtually unchallengeable.” The Seventh Circuit sees it otherwise. Batson, the court stresses, safeguards more than the individual on trial: “Like a prosecutor, the criminal defense lawyer upsets the fairness of, and public confidence in, the criminal justice system by discriminating in the selection of the jury.” Discriminatory selection, that is, harms the litigants, the community, and the discriminated against jurors, no matter which side discriminates.

That’s the background, at least with respect to operative law. (Omitted: the court’s technical discussion about habeas, which certainly should be read by anyone practicing in the field. But as an aside, this is one instance where elimination of the possibility for evidentiary hearing in federal court may have helped the petitioner.) Did counsel perform deficiently in making gender-based strikes? A resounding yes:

… Calling the lawyer’s actions “strategic” does not help: as the Court has repeatedly stated, the Batson rule exists not only to protect the criminal defendant, but also to protect the prosecutor’s interests, the interests of the prospective jurors, and society’s interest in an unbiased system of justice. We may assume that defense counsel can waive the rights of his client, but he has no authority to waive the other rights implicated by Batson.

Intentionally violating the Constitution by discriminating against jurors on account of their sex is not consistent with, or reasonable under, “prevailing professional norms.” Strickland, 466 U.S. at 688. To the contrary, Wisconsin forbids lawyers from engaging in unlawful representation. See WIS. RULES OF PROF’L CONDUCT, at Preamble (“A lawyer’s conduct should conform to the requirements of the law.”); id. at R. 3.1(a) (“In representing a client, a lawyer shall not . . . knowingly advance a claim or defense that is unwarranted under existing law.”). Professional rules typically prohibit lawyers from engaging in conduct prejudicial to the administration of justice. See, e.g., MODEL RULES OF PROF’L CONDUCT R. 8.4(d) cmt.; ILL. RULES OF PROF’L CONDUCT R. 8.4(a)(5); MINN. RULES OF PROF’L CONDUCT R. 8.4(d); WASH. RULES OF PROF’L CONDUCT R. 8.4(d). Some states’ provisions explicitly forbid lawyers from engaging in discrimination on the basis of race, sex, national origin, age, sexual orientation or socioeconomic status, and they specify that this prohibition applies to jurors. See, e.g., FLA. RULES OF PROF’L CONDUCT R. 4-8.4(d); ILL. RULES OF PROF’L CONDUCT R. 8.4(a)(5); MINN. OF RULES OF PROF’L CONDUCT R. 8.4(g); N.J. RULES OF PROF’L CONDUCT R. 8.4(g); WASH. RULES OF PROF’L CONDUCT R. 8.4(g). Racist or sexist con- duct can be the basis for professional sanction, censure, or even disbarment. See STEPHEN GILLERS, REGULATION OF LAWYERS: PROBLEMS OF LAW AND ETHICS 792-799 (8th ed. 2009). In light of these well-established professional norms, we have no trouble concluding that trial counsel’s decision to strike jurors based solely upon their gender constituted deficient performance.

The message couldn’t be clearer: the court isn’t going to allow what it terms defense “misconduct” in jury selection to be hidden from scrutiny under a cloak of “strategy.” Note, as well, the court’s ensuing analogies to “a defense lawyer who tried to gain an advantage for her client by bribing the judge, or by suborning perjury, or in any other plainly unlawful way.” The court’s assessment might be unfair, not to say highly polemical, but you ignore it only at your peril. Tactical rein at jury selection may remain very free, but it’s not limitless.

Counsel’s deficient  performance resulted in a tainted jury; the error in a tainted jury is “structural,” that is, automatically reversible without regard to harmless error analysis; so, Winston necessarily wins, then, right? No, because of the nature of habeas review. An IAC claim, of course, must satisfy both component parts, deficient performance and prejudice. Our state court of appeals held that the all-female jury’s partial acquittal (not guilty verdict on one count) showed that Winston wasn’t prejudiced by the jury selection process, 2005AP1255, ¶13. Importantly, the Seventh Circuit says that the state court’s analysis was erroneous, because just as with structural error, “(p)rejudice … is automatically present when the selection of a petit jury has been infected with a violation of Batson or J.E.B.”  Problem is, this idea wasn’t clearly established until Rivera v. Illinois, 129 S. Ct. 1446, 1455 (2009), which “clarified” that a Batson-type error requires automatic reversal – and a habeas litigant can’t take advantage of a principle not clearly established at the time of his direct appeal. And so, Winston comes to grief:

… While we are persuaded that prejudice automatically flows from a deliberate Batson violation, we recognize that 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. …

… But Rivera lay in the future at the time the Wisconsin courts acted. It was not outside the boundaries of reasonable differences of opinion, given the state of the law at the time, for those courts to predict that the Supreme Court would apply a harmless-error standard even to intentional Batson violations like the one committed by Winston’s lawyer. We therefore AFFIRM the judgment of the district court denying Winston’s section 2254 petition.

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