No Luck in Challenging Women-Only Jury

     CHICAGO (CN) – A man convicted of sexually assaulting a 15-year-old girl cannot get habeas relief even though his defense attorney violated the Constitution by using peremptory challenges to create an all-women jury, the 7th Circuit ruled.
     “Intentional discrimination by any participant in the justice system undermines the rule of law and, by so doing, harms the parties, the people called for jury duty, and the public as a whole,” Judge Diane Wood wrote for the court. “As this case illustrates, however, discrimination in the selection of jurors has not yet been eradicated.”
     MC Winston was charged in October 2001 for having sex with a child in the back storage room of the Milwaukee candy story where he worked. Winston, 37, denied ever touching the 15-year-old girl.
     During jury selection in 2002, the prosecutor used his seven peremptory challenges to strike six women and one man. Those challenges were not alleged to be gender-motivated.
     Thinking that female jurors would be more critical of Winston’s accuser, the defendant’s attorney removed six men and one woman, leaving an all-female panel.
     Winston was acquitted of sexual intercourse but found guilty of sexual contact. He was sentenced to 20 years in state prison followed by 10 years supervision.
     Winston appealed, claiming his attorney committed a Batson violation, derived from the U.S. Supreme Court’s Batson v. Kentucky, which prevents prosecutorial use of racially motivated peremptory challenges.
     The Wisconsin Court of Appeals had determined that the strikes were discriminatory but “virtually unchallengeable” as a reasonable trial strategy. The Wisconsin Supreme Court declined to review the case.
     Winston appealed to the 7th Circuit after U.S. District Judge William Callahan Jr. rejected his petition for habeas relief.
     Writing for a three-judge panel, Wood voiced dismay that Wisconsin courts would allow discrimination by any party in a trial proceeding.
     “Troublingly, before this court Wisconsin has taken the position that ‘defense lawyers often ignore, or even perpetrate, violations of their clients’ constitutional rights in the hopes of gaining a strategic advantage,'” she wrote.
     “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,” she added. “To the extent that such misconduct exists, we are certainly not going to give it our imprimatur.”
     The appellate panel had “no trouble concluding” that Winston’s attorney had intentionally discriminated against men. Such conduct gives rise to a “structural error” that causes “defects in the constitution of the trial mechanism” and eliminates the possibility of a fair trial.
     “Deliberately choosing to engage in conduct that the Supreme Court has unequivocally banned is both professionally irresponsible and well below the standard expected of competent counsel,” Wood added.
     “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 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.”
     Despite the constitutional violation, Winston is still not eligible for habeas because he cannot prove that he was prejudiced by his lawyer’s ineffective performance.
     The U.S. Supreme Court now has an automatic reversal rule once a party proves violation of equal protection during jury selection, but this standard did not exist while Winston’s case was being reviewed by Wisconsin courts.
     Federal courts may only overturn “unreasonable” denials of habeas petitions.
     “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,” the 28-page decision states.
     Winston’s attorney is not named in the ruling, but Wisconsin court records show he was represented in the 2002 sexual-assault case by James Edgar Toran.

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