United States v. Juana Espericueta De Gross , 960 F.2d 1433 ( 1992 )

WIGGINS, Circuit Judge:

A jury convicted Juana Espericueta De Gross of aiding and abetting the transportation of an alien within the United States. De Gross appealed her conviction. A panel of this court reversed her conviction. 913 F.2d 1417. The panel’s judgment was vacated, however, by our decision to rehear this case en banc. 930 F.2d 695. Now, after supplemental briefing and argument by the parties and by amicus curiae, we once again determine to reverse the judgment of the district court.

BACKGROUND

De Gross pled not guilty to three counts of aiding and abetting the transportation of an alien within the United States. During voir dire, the government objected to De Gross’ peremptory challenge of Wendell Tiffany, a male venireperson. At that point, De Gross had peremptorily struck¹ seven male venirepersons. The government argued that this pattern of striking males established De Gross’ discriminatory intent to exclude male venirepersons in violation of their constitutional rights to equal protection of the laws. The district court ruled that the government had established a prima facie case of purposeful discrimination, and required De Gross to justify her challenge. De Gross offered no explanation. The court then disallowed her peremptory challenge of Tiffany.

De Gross also made an equal protection objection during voir dire. De Gross objected to the government’s challenge of Herminia Tellez, a Hispanic woman. Tellez was then the only Hispanic on the venire.² The district court ruled that De Gross established a prima facie case of discrimination, and required the government to justify its challenge. Government counsel responded that his main reason for challenging Tellez was to achieve “a more representative community of men and women on the jury.”³ The court accepted the government’s explanation and struck Tellez.

The impaneled jury, consisting of three men, including Tiffany, and nine women, convicted De Gross of the crimes charged. De Gross timely appealed.

STANDARD OF REVIEW

Whether equal protection principles prohibit a party from peremptorily striking venirepersons on the basis of gender is a question of law that we review de novo. United States v. McConney, 728 F.2d 1195, 1201 (9th Cir.) (en banc), cert. denied, 469 U.S. 824, 105 S.Ct. 101, 83 L.Ed.2d 46 (1984).

DISCUSSION

1. De Gross’ Challenge of Tiffany

De Gross argues that the district court erred in denying her peremptory challenge of Tiffany, a male venireperson. At trial, the government had objected to De Gross’ challenge on the ground that De Gross exercised it with discriminatory intent, and therefore, if the district court struck Tiffany, it would violate Tiffany’s equal protection rights. We first must decide whether the government has standing to make this objection. If so, we must decide whether equal protection principles prohibit a criminal defendant from peremptorily striking a venireperson on the basis of gender. If equal protection principles do prohibit such conduct, we must decide finally whether De Gross did exercise her peremptory challenge with discriminatory intent.

A. The Government’s Standing to Object to De Gross’ Peremptory Challenge

De Gross argues that the government lacks standing to object to her use of peremptory challenges. The government argues that it has standing based on its own injury and the injury to the venirepersons challenged. We find both of the government’s arguments persuasive.

Discriminatory practices in jury selection "castEs] doubt on the integrity of the whole judicial process. They create the appearance of bias in the decision of individual cases, and they increase the risk of actual bias as well." Peters v. Kiff, 407 U.S. 493, 502-503, 92 S.Ct. 2163, 2168, 33 L.Ed.2d 83 (1972). The exclusion of cognizable groups from jury service limits community participation in the administration of the criminal justice system-participation which is "critical to public confidence in the fairness" of the system. Taylor v. Louisiana, 419 U.S. 522, 530, 95 S.Ct. 692, 698, 42 L.Ed.2d 690 (1975).

As administrator of the criminal justice system, the government has an interest in having its criminal prosecutions tried before a tribunal most likely to produce a fair result. Singer v. United States, 380 U.S. 24, 36, 85 S.Ct. 783, 790, 13 L.Ed.2d 630 (1965). Thus, when a criminal defendant attempts to achieve a jury partial to her through discriminatory peremptory strikes, the government suffers injury. We view this injury as sufficient to confer standing upon the government to object to the defendant’s challenge.

Furthermore, the government has standing to object to a defendant’s discriminatory peremptory challenge by asserting the equal protection rights of the venire-person sought to be excluded. Ordinarily, a party does not have standing to assert the legal rights or interests of another. Powers v. Ohio, — U.S. -, 111 S.Ct. 1364, 1370, 113 L.Ed.2d 411 (1991). There are, however, limited exceptions. A party may raise a third party’s rights or interests when (1) the party asserting the rights has suffered an injury in fact, giving him a sufficiently concrete interest in the outcome of the litigation, (2) there is a sufficiently close relationship between the litigant and the person whose rights are being asserted so that the litigant will be an effective proponent of the rights being litigated, and (3) there is some hindrance to the third party’s ability to protect his own interests. Id. Ill S.Ct. at 1370-1372. Using these three criteria, Powers established that a criminal defendant has standing to raise the equal protection rights of a juror who was improperly excluded even if the defendant is not of the same racial group as the juror. Id. at 1373.

In Powers, the Court held that the defendant had standing because the defendant is actually injured by the improper exclusion. Racial discrimination in the jury selection process casts doubt on the integrity of the judicial process and the fairness of the criminal proceeding. Id. at 1371. Second, the defendant will be as effective at advocating the juror’s rights as the juror himself would be because both have a common goal in eliminating racism, and the defendant will be motivated by the possibility of reversal of a conviction. Id. at 1372. Finally, the excluded juror is unlikely to have the opportunity or incentive to vindicate his or her own rights. Id. at 1372-73.

This reasoning is equally applicable when the government asserts standing to raise the equal protection rights of improperly excluded jurors. First, as we have stated above, violation of the venireperson’s rights injures the government by impugning the jury system.

Second, the government’s relationship to the venireperson is sufficient to ensure that it will vigorously defend his rights. See Singleton v. Wulff, 428 U.S. 106, 114-15, 96 S.Ct. 2868, 2874, 49 L.Ed.2d 826 (1976). The government has a direct interest in protecting the rights of its citizens, including potential jurors. Additionally, the government has an interest in a venire-person’s perception of the fairness and impartiality of the criminal justice system.

Finally, several obstacles hinder an excluded venireperson from asserting his own rights. See id. at 115-16, 96 S.Ct. at 2874-75. The venireperson may not be aware that he has been discriminated against. Such discrimination may not become apparent until a number of similarly situated venirepersons have been struck. Also, although the racially excluded juror may bring a challenge on his or her own behalf,⁴ the reality is that such suits are rarely brought. Powers, 111 S.Ct. at 1372. “The barriers to a suit by an excluded juror are daunting.” Id. at 1373. There are numerous procedural difficulties. Additionally, there is little incentive because of the small financial stakes and the expense of litigation. Id. Thus, the improperly excluded juror effectively lacks a remedy for his unconstitutional exclusion from the trial.

We therefore conclude that the government has standing to object to De Gross’ peremptory challenge of Tiffany under these circumstances.

B. Gender-Based Peremptory Challenges

In Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), the Supreme Court held that the Equal Protection Clause of the Fourteenth Amendment prohibits a prosecutor from peremptorily striking a venireperson on the basis of his race. Equal protection principles forbid racially discriminatory peremptory strikes, in part because racial discrimination during jury selection (1) harms the excluded veni-repersons, (2) undermines public confidence in the judicial system, and (3) stimulates community prejudice. Id. at 87, 106 S.Ct. at 1718. Because all of these evils also result from peremptory strikes based on gender, the Fifth Amendment’s équal protection principles⁵ compel us to prohibit peremptory strikes on the basis of gender.⁶

A prosecutor’s sexually discriminatory peremptory strike also violates the defendant’s right to equal protection of the laws because the defendant is entitled to be tried by a jury chosen pursuant to nondiscriminatory criteria. Batson, 476 U.S. at 86-87, 106 S.Ct. at 1717-18.⁷

First, just as racial discrimination in the judicial system is a stimulant to community prejudice which impedes equal justice for racial minorities, Id. at 87-88, 106 S.Ct. at 1718, so too is gender discrimination in the judicial system a stimulant to community prejudice which impedes equal justice for women. See Personnel Administrator v. Feeney, 442 U.S. 256, 273, 99 S.Ct. 2282, 2293, 60 L.Ed.2d 870 (1979) (like classifications based on race, gender classifications traditionally have been the touchstone for pervasive and often subtle gender discrimination).

The history of juries in the United States is one of pervasive, government sanctioned exclusion of women. At common law, women were excluded from juries based on the doctrine of propter defectum sexus, literally, the “defect of sex.” 2 William Blackstone, Commentaries * 362. In 1880, the Supreme Court declared the exclusion of blacks from jury service to be unconstitutional, but noted that such service might be limited to men. Strauder v. West Virginia, 100 U.S. 303, 310, 25 L.Ed. 664 (1880). In Hoyt v. Florida, 368 U.S. 57, 82 S.Ct. 159, 7 L.Ed.2d 118 (1961), the Supreme Court held that excluding women from jury service was neither a due process nor an equal protection violation because there was a sufficient rational basis for it—that women are “still regarded as the center of home and family life.” Id. at 62, 82 S.Ct. at 162. It was not until 1975 that the Supreme Court held that systematically excluding women from juries violates defendants’ Sixth Amendment rights. See Taylor, 419 U.S. at 536, 95 S.Ct. at 700. Permitting gender-based peremptory challenges would simply affirm an erroneous and unconstitutional presumption that women are less qualified than men to serve as jurors.

Furthermore, gender discrimination, like racial discrimination, violates the defendant’s equal protection rights. Under Batson, a defendant is entitled to be tried by a jury chosen in a nondiscriminatory manner.⁸

Peremptory strikes based on gender, like those based on race, harm the excluded venireperson because discriminatory strikes are not based upon an individual’s qualifications. Id. Just as “[a] person’s race simply ‘is unrelated to his fitness as a juror,’ ” id. 476 U.S. at 87, 106 S.Ct. at 1718 (quoting Thiel v. Southern Pac. Co., 328 U.S. 217, 227, 66 S.Ct. 984, 989, 90 L.Ed. 1181 (1946) (Frankfurter, J., dissenting)), so too is a person’s gender unrelated to her ability to serve as a juror. Taylor, 419 U.S. at 637, 95 S.Ct. at 701. Gender bears no relationship to an individual’s ability to perform or contribute to society. See Frontiero v. Richardson, 411 U.S. 677, 686, 93 S.Ct. 1764, 1770, 36 L.Ed.2d 583 (1973) (Brennan, J., announcing the judgment of the Court).

Additionally, full community participation in the administration of the criminal justice system, whether measured by race or gender, is critical to public confidence in the system’s fairness. See Taylor, 419 U.S. at 530, 95 S.Ct. at 697. A jury is not truly representative of the community unless both sexes have an equal opportunity to serve. See Ballard v. United States, 329 U.S. 187, 193-194, 67 S.Ct. 261, 264, 91 L.Ed. 181 (1946). The exclusion of men, or of women, is as incongruous with traditional notions of the jury as a representative body “ ‘composed of the peers or equals of the person whose rights it is selected or summoned to determine,’ ” as exclusion of a racial minority. Batson, 476 U.S. at 86, 106 S.Ct. at 1717 (quoting Strauder v. West Virginia, 100 U.S. 303, 308, 25 L.Ed. 664 (1880), overruled by Taylor v. Louisiana, 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975)).

It is true that the constitution tolerates gender discrimination if it is substantially related to the achievement of important governmental objectives. Craig v. Boren, 429 U.S. 190, 197, 97 S.Ct. 451, 456, 50 L.Ed.2d 397 (1976). Peremptory strikes are a necessary means for achieving the important governmental objective of impaneling a fair and impartial jury. See Swain v. Alabama, 380 U.S. 202, 211-12, 85 S.Ct. 824, 831, 13 L.Ed.2d 759 (1965); Batson, 476 U.S. at 123, 106 S.Ct. at 1737 (Burger, C.J., dissenting). A party is not always able to justify his sudden and immediate impression that a particular venireperson will be partial. See Batson, 476 U.S. at 123, 106 S.Ct. at 1737; Lewis v. United States, 146 U.S. 370, 376, 13 S.Ct. 136, 138, 36 L.Ed. 1011 (1892).

But challenges explained solely by a ven-ireperson’s gender are not based on a party’s sudden impression of a particular veni-reperson’s ability to be impartial. Rather, like racial challenges, they are based either on the false assumption that members of a certain group are unqualified to serve as jurors, Batson, 476 U.S. at 86, 106 S.Ct. at 1717 (citing Norris v. Alabama, 294 U.S. 587, 599, 55 S.Ct. 579, 584, 79 L.Ed. 1074 (1935)), or on the false assumption that members of certain groups are unable to consider impartially the case against a member or a nonmember of their group. Cf. Batson, 476 U.S. at 89, 106 S.Ct. at 1719 (assumption that members of a certain group are unable to consider a case against a member of their group is false). If the decision to exclude a juror is based solely on the sex of the juror, the decision to exclude must necessarily be based on these false assumptions and does not aid in achieving an impartial jury. See id. at 98-99, 106 S.Ct. at 1724 (prohibiting discriminatory peremptory challenges will not undermine the contribution of peremptory challenges to the administration of justice).

We conclude, therefore, that equal protection principles prohibit striking venire-persons on the basis of their gender.

C. Equal Protection Limits on Criminal Defendants’ Peremptory Challenges

Our conclusion that equal protection principles prohibit discriminatory strikes of venirepersons based on gender clearly applies to prosecutors. Id. at 89, 106 S.Ct. at 1719. Batson, however, explicitly left open the question whether equal protection principles limit a criminal defendant’s peremptory strikes. Id. at 89 n. 12, 106 S.Ct. at 1719 n. 12. A more recent Supreme Court decision, however, has set-tied the issue. See Edmonson v. Leesville Concrete Co., — U.S. -, 111 S.Ct. 2077, 114 L.Ed.2d 660 (1991). We hold that because the evils of discriminatory peremptory strikes result from the misuse of peremptory challenges, regardless of which party strikes the venireperson, the Fifth Amendment similarly limits a federal criminal defendant’s peremptory strikes.

Whether the prosecutor or the defendant exercises the strike, the excluded venire-persons are harmed because discriminatory strikes are based on group membership whereas juror competence depends upon an individual’s qualifications. And whether the prosecutor or the defendant exercises the strike, public confidence in the judicial system’s fairness is undermined by discriminatory strikes. Thus, public respect for our criminal justice system and the rule of law will be strengthened if we ensure that no citizen is disqualified from jury service because of his membership in a constitutionally cognizable group.⁹

De Gross argues, however, that even if Batson’s rationale logically applies to a criminal defendant’s peremptory strikes, such conduct is not fairly attributable to the state, and therefore, the Constitution’s guarantee of equal protection does not limit it. We are convinced, however, that a criminal defendant’s peremptory strike is state action. We believe that the Supreme Court has mandated such a conclusion in its recent Edmonson v. Leesville Concrete Co. decision.

Though Edmonson is a civil case, the reasoning is applicable to criminal cases. In Edmonson,¹⁰ the Court said that although the conduct of private parties usually is beyond the scope of the Constitution, the defendant’s use of peremptory challenges was pursuant to a course of state action and thus subject to constitutional limits. The defendant concrete company used two of its three peremptories to challenge blacks on the panel. When Ed-monson, citing Batson, asked for a race neutral reason for striking the jurors, the district court denied the request, stating that Batson does not apply to civil proceedings.

The Supreme Court determined that the exercise of peremptories was pursuant to a course of state action; thus, Batson and the Equal Protection Clause apply to civil litigants. The logic of the decision makes the holding applicable to criminal defendants exercising peremptories. The Court began by noting that “our cases have found state action when private parties make extensive use of state procedures with ‘the overt, significant assistance of state officials.’ ” Id. 111 S.Ct. at 2084 (quoting Tulsa Professional Collection Services, Inc. v. Pope, 485 U.S. 478, 486, 108 S.Ct. 1340,1345, 99 L.Ed.2d 565 (1988)). Without the overt, significant participation of the government, the Court said, the entire jury system, including peremptories,¹¹ could not exist or operate. The government sets up the panel selection procedures. Id. 111 S.Ct. at 2084-85. Peremptory challenges are not self-executing. A party seeking to exercise discriminatory peremptory challenges must necessarily rely upon the court to call citizens to serve as jurors, to begin the voir dire in a judicial proceeding, and to excuse challenged veni-repersons. We conclude, as the Supreme Court did, that a party could not exercise its peremptories without significant government assistance. “The party who exercises a challenge invokes the formal authority of the court_” Id. at 2085. This is true whether the party is a civil defendant or a criminal defendant like De Gross.

The next part of the state actor status inquiry, the Edmonson Court said, is whether the act involves the performance of a traditional government function. Id. The Court concluded that the exercise of peremptories does involve a traditional governmental function. We believe this is so in a criminal case as well. The jury is a governmental body, selected to carry out governmental functions. Its selection is also governmental; it is in part delegated to private parties but carefully supervised and controlled by the court. “The fact that the government delegates some portion of this power to private litigants does not change the governmental character of the power exercised.” Id. at 2086.

Thus, the Court said, the selection of jurors through the use of peremptories constitutes state action. “The selection of jurors represents a unique governmental function delegated to private litigants by the government and attributable to the government for purposes of invoking constitutional protections against discrimina-tion_” Id. at 2086.. This reasoning applies to all jury selection — including criminal defendants such as De Gross. The basic function of the jury and the manner of its selection do not change fundamentally simply because the case is criminal instead of civil. While it is true that De Gross has not voluntarily availed herself of the jury system, this is not grounds for distinguishing Edmonson. The defendant in Edmonson had no more chosen to be in court selecting a jury and exercising per-emptories than De Gross. The fact is that De Gross, just like the concrete company in Edmonson, used her peremptories in an improperly discriminatory manner. Such use is impermissible because she is exercising her government delegated responsibility of selecting a governmental body.

Finally, the Edmonson Court noted that injury caused by discriminatory perempto-ries is exacerbated by the fact that the government allows it to occur in the courthouse — a traditional symbol of governmental authority. Id. at 2087. Such injury occurs whether the case involved is civil or criminal.

Here, peremptory challenges are exercised in a public federal building operated in the public interest. And if the trial judge were to accept a peremptory challenge without considering whether the challenge was exercised with discriminatory intent, the trial judge would effectively be abdicating his duty not to discriminate.

The concurrence notes a potential conflict in the logic of considering a defendant a state actor when the defendant is actually an adversary of the state. We find this conflict to be conceptual only. The “state” which the defendant opposes is not the same state actor whose powers he invokes in exercising a peremptory challenge. When exercising a peremptory challenge, the defendant has become a state actor for that limited purpose. If we saw no distinction between the state as the prosecutor and the state as the administrator of the system, we would always see a conflict in criminal cases between the courts and the prosecutor. But we do not see such a problem. While both are state actors, they are distinct entities with distinct and different roles.

The defendant exercising a peremptory challenge invokes the authority of the state as justice administrator. In so doing, the defendant becomes a state actor. But the defendant is still distinct from the state actor that compelled his presence in court and which opposes him. In a criminal prosecution such as this case, both sides may invoke state power and both may therefore be state actors. While it is true that a criminal defendant seeks to “thwart [the state’s] power at every stage of the pro-ceédings”, see concurring opinion at 1445, it is the prosecutor’s power, not the court’s power, that he seeks to thwart. Here, it is the court’s power that the defendant invokes. The concurrence fails to note the distinction between the state as prosecutor and the state as court administrator. It is not true, as the concurrence asserts, that the “criminal defendant’s interests are diametrically opposed to those of the government.” See concurring opinion at 1446. The defendant’s interests are diametrically opposed to those of the prosecutor. The interests of the state actor administering the trial is to see that justice is done, an interest not at odds with the defendant's position. Hence, we conclude that the Constitution limits a criminal defendant’s peremptory strikes because the defendant’s action in striking venirepersons is fairly attributable to the state.¹²

D. De Gross’ Challenge of Tiffany was Gender-Based

A litigant establishes a prima facie case of purposeful discrimination first by showing that a peremptory challenge was exercised against a member of a constitutionally cognizable group. Batson, 476 U.S. at 96, 106 S.Ct. at 1723. Second, the litigant must demonstrate that this fact “and any other relevant circumstances raise an inference” that the offending party challenged the venireperson from the jury on account of their group membership. Id. The burden then shifts to the party exercising the peremptory challenge to articulate a nondiscriminatory reason related to the case at bar for challenging the veni-reperson. Id. at 97-98, 106 S.Ct. at 1723-24.¹³ The district court’s findings regarding purposeful discrimination in the jury selection process are findings which we will not set aside unless clearly erroneous. Id. at 98 n. 21, 106 S.Ct. at 1724 n. 21; United States v. Power, 881 F.2d 733, 739 (9th Cir.1989).

Here, we cannot say that the district court’s inference that De Gross challenged Tiffany on account of his gender was clearly erroneous. The challenged venireperson, Tiffany, is a male. Males are a constitutionally cognizable group. See Craig, 429 U.S. at 197-99, 97 S.Ct. at 457-58; Reed v. Reed, 404 U.S. 71, 75, 92 S.Ct. 251, 253, 30 L.Ed.2d 225 (1971). DeGross used seven of her eight peremptory challenges against males. At the time De Gross challenged Tiffany, ten women and two men were seated in the jury box, and only one man remained in the venire.

Because the prosecutor established a pri-ma facie case of gender discrimination, the burden shifted to De Gross to justify her challenge of Tiffany on neutral grounds. De Gross failed to carry her burden because she refused to explain her challenge. Thus, the district court properly disallowed De Gross’ challenge of Tiffany.

II. Prosecution’s Challenge of Tellez

De Gross also argues that the district court erred in allowing the prosecution’s peremptory challenge of Tellez, the only Hispanic on the venire. The district court found that DeGross established a pri-ma facie case of race discrimination.

When the district court required the prosecutor to justify his challenge of Tel-lez, the prosecutor stated that he sought to exclude Tellez because she is a woman and he desired more men on the jury.¹⁴ We find that the prosecutor’s justification established a prima facie case of gender discrimination.¹⁵ See United States v. Lewis, 837 F.2d 415, 417 (9th Cir.), cert. denied, 488 U.S. 923, 109 S.Ct. 304,102 L.Ed.2d 323 (1988) (a prosecutor’s justifications can constitute part of a defendant’s prima facie case). It also constitutes an admission of purposeful gender discrimination which, under our holding above, violates De Gross’ Fifth Amendment right to the equal protection of the laws. See Batson, 476 U.S. at 86-87, 106 S.Ct. at 1717-18 (a prosecutor’s discriminatory peremptory challenge violates the defendant’s right to equal protection of the laws because the defendant is entitled to be tried by a jury chosen pursuant to nondiscriminatory criteria). The district court, therefore, improperly struck Tellez from the jury.

CONCLUSION

The district court properly refused to excuse Tiffany when De Gross challenged him because to have done so would have violated the Constitution. However, the district court’s acceptance of the government’s challenge of Tellez violated De Gross’ Fifth Amendment. right. We REVERSE De Gross’ conviction and REMAND the case for new trial.

REVERSED and REMANDED.

1 . For purposes of clarity, we refer to a party's attempt to excuse a venireperson as a peremptory challenge. Where the district court accepts the party's challenge and excuses the venireper-son, we call that a peremptory strike or a successful peremptory challenge.

2 . The record indicates that there may have been another Hispanic on the venire, but the judge excused her earlier for cause.

3 . At that point, ten women and two men were seated in the jury box, and the remainder of the venire contained six women and one man.

4 . Carter v. Jury Comm’n of Greene County, 396 U.S. 320, 90 S.Ct. 518, 24 L.Ed.2d 549 (1970).

5 . Batson involved a state defendant and thus engaged in equal protection analysis pursuant to the Fourteenth Amendment. This case involves a federal defendant, and thus our equal protection analysis is based on the Due Process Clause of the Fifth Amendment.

6 . We note that the Fourth Circuit did not come to this conclusion. See United States v. Hamilton, 850 F.2d 1038, 1042 (4th Cir.1988) (prosecutor's gender related explanation for striking ven-irepersons was a neutral one because "no authority ... supported] an extension of Batson to instances other than racial discrimination”), cert, dismissed, sub nom. Washington v. United States, 489 U.S. 1094, 109 S.Ct. 1564, 103 L.Ed.2d 931 (1989), cert denied, 493 U.S. 1069, 110 S.Ct. 1109, 1110, 107 L.Ed.2d 1017 (1990). In so holding, Hamilton relied upon the fact that the Court’s language was couched in racial terms. We believe that there is no more significance to that language than the fact that the case involved peremptory strikes against black venirepersons. Batson’s rationale applies equally well to gender-based peremptory strikes.

7 . See section I.C. of this opinion for a discussion of the harms to the potential juror and the government of the defendant’s sexually discriminatory exercise of peremptories.

8 . The fact that gender-based discrimination is an equal protection violation is critical to our analysis. It distinguishes race and gender from other factors that are not improper bases for exclusion from juries, for example, one’s occupation.

9 .Three vivid examples of a defendant's discriminatory use of peremptory strikes harming the system and public confidence are provided in Pizzi, Batson v. Kentucky: Curing the Disease But Killing the Patient, 104 S.Ct. Rev. 97, 153 (1987) (discussing race riots and public outrage over three Florida cases involving white or Hispanic defendants acquitted by all white juries after the defendants peremptorily struck all black venirepersons).

10 . Edmonson was a construction worker injured in a job site accident. He sued the concrete company on the theory that an employee caused his injuries.

11 . The authorization for peremptories in a criminal case may be found at U.S.C.S. Rule of Criminal Procedure 24 (1991).

12 . This reasoning is also consistent with the Supreme Court’s decision in Polk County v. Dodson, 454 U.S. 312, 102 S.Ct. 445, 70 L.Ed.2d 509 (1981). In Polk County, the Court reaffirmed that "a person acts under color of state law only when exercising power ‘possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law.’ ’’ Id. at 317-18, 102 S.Ct. at 449 (quoting United States v. Classic, 313 U.S. 299, 326, 61 S.Ct. 1031, 1043, 85 L.Ed. 1368 (1941)). The Court found that a public defender appointed to represent a criminal defendant in the appeal of his conviction was not acting under color of state law. Representing a client, the Court said, "is essentially a private function ... for which state office and authority are not needed.” Id. 454 U.S. at 319, 102 S.Ct. at 450. Key to the decision, however, is that the public defender may act under color of state law while performing some official duties, but not while performing others. Ultimately, an attorney receives his or her authority to represent a client from the client herself, normally making the attorney a private actor. Whether an attorney is selected by an individual or appointed by the state, the ultimate authority to proceed comes from the client. The client always has the right to fire his or her attorney. On the other hand, when a defendant exercises a peremptory challenge, the ultimate authority to exercise the challenge and exclude a juror comes from the state. Thus the Supreme Court has found state action when a private civil litigant uses the authority of the courts to remove persons from the jury, see Edmonson, and we likewise find state action when a private criminal defendant exercises a peremptory challenge.

13 . Batson also required defendants who allege that a prosecutor violated their equal protection rights by discriminatory peremptory strikes to show that they are members of the same cognizable group as the excluded venireperson to establish a prima facie case. Batson, 476 U.S. at 96, 106 S.Ct. at 1723. However, when complaining parties rely on the equal protection rights of the venirepersons and the interests of the general public, it is unnecessary for them to show that they are members of the same cognizable group as the challenged venireperson. See Powers; see also discussion in section I.A. of this opinion.

14 . We sympathize with the prosecutor’s predicament in this case. Faced with a female defendant who was systematically excluding males from the jury, the prosecutor made an understandable effort to balance the gender composition of the jury. However, under our holding in section I of this opinion, we cannot find that the prosecutor’s admission constituted a neutral explanation. Hopefully, the prosecutor will find some solace in the realization that upon retrial Dé Gross’ peremptory challenges will not escape constitutional scrutiny.

15 . Because we find a prima facie case of gender discrimination, we need not determine whether the district court’s determination that De Gross had made a prima facie case of race discrimination was proper.