Back to All Commentary

Column: Fair Trials And Courtroom Spectator Expression (New York Law Journal)

By Christopher Dunn — On October 11 the United States Supreme Court heard arguments about an issue that regularly confronts courts but that rarely has been the subject of reported decisions: the extent to which a defendant’s constitutional right to a fair trial bars courtroom spectators from engaging in expressive activity. One week earlier a federal judge in Brooklyn ruled that police officers cannot wear their NYPD uniforms while observing an upcoming murder trial arising out of the shooting death of two undercover detectives on Staten Island.

Despite this recent judicial attention to the topic, there is little case law to guide courts in this area. This is surprising, since lawyers and others routinely seek to use spectator behavior to influence jurors and judges. Given how frequently the situation arises and given the likelihood the Supreme Court may decide the case before it in a manner that will not be that useful for trial courts and attorneys, this is an appropriate time to review the sparse Supreme Court case law and the issues it raises.

The Supreme Court and Courtroom Expression

The Supreme Court has never before addressed the conflict between courtroom spectator expression and the fair trial rights of criminal defendants. Its closest precedents come from two cases decided decades ago, one dealing with clothing worn by the accused and one dealing with the presence of a uniformed security detail in the spectator section of the courtroom.

Estelle v. Williams, decided by the Court in 1976, presented the issue whether forcing a defendant to wear prison garb during a trial violated the constitutional right to a fair trial. Prior to his criminal trial, the defendant Harry Lee Williams asked a jail officer to allow him to wear his civilian clothes. This request was denied and, as a result, Williams “appeared at trial in clothes that were distinctly marked as prison issue.”

After a jury convicted him and Williams’s Texas state court appeals failed, he filed a habeas petition, which the Fifth Circuit granted. In an opinion by Chief Judge Warren Burger, the Supreme Court reversed and reinstated the conviction.

The Court’s treatment of the compelled wearing of prison garb was straightforward. As an initial matter, it noted that “[t]he presumption of innocence, although not articulated in the Constitution, is a basic component of a fair trial under our system of criminal justice.” Turning to the impact that compelled appearance in prison garb might have on that presumption, the Court noted that most lower courts had held that defendants could not be forced to appear before a jury in such garb. As the Court explained,

This is a recognition that the constant reminder of the accused’s condition implicit in such distinctive, identifiable attire may affect a juror’s judgment. The defendant’s clothing is so likely to be a continuing influence throughout the trial that . . . an unacceptable risk is presented of impermissible factors coming into play.

Notwithstanding this risk, the Court found there was no “essential state interest” that justified requiring the defendant to wear prison attire. “Indeed, the State of Texas asserts no interest whatever in maintaining this procedure.” Given all this, the Court held that a state violates the Constitution whenever it compels a defendants to wear identifiable prison attire before a jury.

Alas, none of this benefited Mr. Williams. Stating that some defendants elect to wear prison attire “in the hope of eliciting sympathy from the jury,” the Supreme Court ruled that a defendant, to establish that he or she was compelled to wear prison attire, had to object to the trial court judge about the clothing. In Mr. Williams’ case, the Court held, his counsel’s failure to have done so foreclosed his constitutional claim.

Ten years after deciding Estelle, the Court came closest to the issue of expression by spectators in its 1986 decision in Holbrook v. Flynn. Charles Flynn was one of nine people charged with a bank robbery in Providence, Rhode Island. When brought to trial, they were met with “the presence of four uniformed state troopers, sitting in the first row of the spectators’ section; the officers were not far behind, but were separated by the ‘bar’ from the seats assigned to the defendants for the duration of the trial.” The state troopers were there to guard the defendants.

Over the objections of Flynn’s counsel, the trial took place with the uniformed officers behind the defendants in full view of the jury. Flynn was convicted and unsuccessfully appealed to the Rhode Island appellate courts, but the First Circuit granted his habeas petition. In an unanimous opinion by Justice Marshall, the Court reversed the Court of Appeals and reinstated the conviction.

At the outset the Court observed that “central to the right to a fair trial . . . is the principle that one accused of a crime is entitled to have his guilt or innocence determined solely on the basis of the evidence introduced at trial, and not on the grounds of official suspicion, indictment, continued custody, or other circumstances not adduced as proof at trial.” And it was this principle, according to the Court, that explained its holding in Estelle that compelling a defendant to wear prison attire was unconstitutional.

The wearing of uniforms by officers assigned to guard defendants presented a different set of issues, according to the Court:

The chief feature that distinguishes the use of identifiable security officers from courtroom practices we might find inherently prejudicial is the wider range of inferences that a juror might reasonably draw from the officers’ presence. . . . Jurors may just as easily believe that the officers are there to guard against disruptions emanating from outside the courtroom or to ensure that tense courtroom exchanges do not erupt into violence. Indeed, it is entirely possible that jurors will not infer anything at all from the presence of the guards.

In light of this, the Court held that, unlike the per se rule concerning the forced wearing of prison garb, the constitutionality of the forced presence of uniformed officers would be subject to a “case-by-case approach.”

Turning to the case before it, the Court had little trouble concluding that the defendant’s rights had not been violated. While disclaiming any effort to “minimize the threat that a roomful of uniformed and armed officers might pose” to a fair trial, Justice Marshall wrote, “[W]e simply cannot find an unacceptable risk of prejudice in the spectacle of four such officers quietly sitting in the first row of a courtroom spectator section.” And in words that take on particular significance for the case now pending before the Court, he added, “[W]e cannot believe that the use of the four troopers tended to brand [the defendant] in [the jury’s] eyes with an unmistakable mark of guilt.”

Courtroom Buttons and “Branding” Defendants

Unlike Estelle and Flynn, the case argued two weeks ago squarely presents the Supreme Court with a conflict between the defendant’s right to a fair trial and expression by courtroom spectators. And in doing so, it may afford the Court the opportunity to determine whether courtroom expression is impermissible only if it will “brand” the defendant “with an unmistakable mark of guilt.”

The specific controversy in Carey v. Musladin arises out of the wearing of buttons by spectators to a California murder trial. During the two-week trial, the victim’s family sat in the front row of the gallery, and on each day at least three family members wore buttons on their shirts with the victim’s photograph on them. The buttons “were several inches in diameter” and “very noticeable,” and the family members “were seated in the row directly behind the prosecution and in clear view of the jury.”

Defense counsel asked the trial judge to bar the wearing of the buttons, but he declined to do so. After the defendant was convicted and had exhausted his state court appeals, he sought habeas review. The District Court denied his petition, but a divided Ninth Circuit panel reversed and found a constitutional violation. That ruling is now before the Supreme Court.

In the Ninth Circuit’s view, in an opinion by Judge Stephen Reinhardt, the Supreme Court’s rulings in Flynn and Estelle clearly established the controlling law. Quoting from those cases, the panel read them to hold that a constitutional violation occurs when “certain practices attendant to the conduct of a trial can create such an ‘unacceptable risk of impermissible factors coming into play’ as to be ‘inherently prejudicial’ to the criminal defendant.” Because the California appellate court already had ruled that the wearing of the buttons had in fact brought an “impermissible factor into play,” the Ninth Circuit ruled that allowing the buttons to be worn necessarily violated the defendant’s rights under Flynn and Estelle.

In adopting this approach, the majority rejected the contention, made by the state courts and the state in the habeas proceedings, that courtroom expression not only had to introduce “impermissible factors” but also had to “‘brand’ the defendant with an ‘unmistakable mark of guilt.'” According to the majority opinion, this language from Flynn “constituted only a descriptive element.” Instead, “[b]oth Williams and Flynnare clear as to the legal standard, and neither suggested that ‘branding’ was necessary.”

The Future of Courtroom Expression

Whether the Supreme Court will use Carey v. Musladin to spell out standards for spectator expression is unclear. Under the federal statute now governing habeas petitions, federal courts are authorized to overturn a state court conviction only if the state court ruling is “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.” Given that neither Estelle nor Flynn dealt with the specific issue of courtroom spectator expression, the Court could reverse the Ninth Circuit by focusing narrowly on what constitutes “clearly established” law by the Supreme Court without delving into the particulars of constitutional constraints on spectator expression.

Delving into those constraints, however, raises many interesting issues. First, one has to address the scope of courtroom conduct that might trigger constitutional scrutiny. If, as the Supreme Court recognized in Estelle, clothing alone can influence a jury, everything from a widow clad in black to a courtroom full of uniformed, spectator officers – a common occurrence in New York courts – implicates the Sixth Amendment. And if clothing that conveys no specific message implicates the Sixth Amendment, so does the whole range of less ambiguous expression, such buttons or t-shirts bearing specific messages (such as “Death to Pedophiles” or “Rape is Murder”).

Second, for those forms of spectator expression that trigger scrutiny, one must determine the specific doctrinal standard governing the Sixth Amendment analysis, an issue not definitively resolved by Estelle and Flynn. On one hand, requiring a showing that the expression “branded” the defendant “with an unmistakable mark of guilt” would open the door to a wide range of spectator expression that might reasonably be expected to sway jurors. On the other hand, barring all expression that brought “an impermissible factor into play” could force judges to bar all kinds of ambiguous and arguably innocuous behavior from courtrooms.

Finally, regardless of the doctrinal standard, how does one assess the impact of the spectator expression? In an interesting footnote in Flynn, the Supreme Court noted the lack of relevant social science research at that time. And though it might seem logical to survey the jurors, the Court in Flynn rejected that approach. That leaves the judgment to judges, guided by their commonsense – and idiosyncratically subjective – views about expressive activity.

How and whether the Supreme Court resolves these issues in the case pending before it remains to be seen. Regardless, judges in New York will continue to confront the dilemma presented by courtroom spectators and must be constantly vigilant about their impact on juries.

As bold as the spirit of New York, we are the NYCLU.
© 2024 New York
Civil Liberties Union