Column: Police Uniforms in the Courtroom: Unconstitutional Intimidation? (New York Law Journal)
To the surprise of many, a Brooklyn jury last month acquitted a New York City police officer in the shooting death of an unarmed man who had approached the off-duty officer’s personal car in what may have been a road-rage incident. Beyond its notoriety, the case was notable because it was the first instance in which the New York State Attorney General’s office had prosecuted an officer under a special grant of authority allowing the Attorney General to assume responsibility for cases where police officers cause the death of unarmed civilians.
During the trial, a dispute arose over a courtroom spectator who wore a shirt emblazoned with a large “Black Lives Matter” graphic, with the presiding judge directing that the spectator turn the shirt inside out. Meanwhile, NYPD officers attended the trial as spectators in full NYPD uniform without interference from the court. The police-officer defendant, Wayne Isaacs, and the victim, Delrawn Small, both were Black.
The United States Supreme Court long ago recognized that the attire of those in the courtroom can unfairly influence juries, and the New York Court of Appeals just last year confronted this issue. Neither Court, however, has addressed whether police officers attending trials as spectators should be allowed to wear their uniforms. Given the common practice of uniformed police officers flooding courtrooms during the criminal trials of fellow officers and the fact that spectator officers undoubtedly appear in uniform for the express goal of influencing juries and judges, it is important to consider whether this display violates a defendant’s right to a fair trial.
The Supreme Court and Courtroom Attire
The Supreme Court has decided three cases involving courtroom attire worn during criminal trials. Its first ruling came in 1976 in Estelle v. Williams, a case in which a defendant convicted of murder in Texas had sought to vacate his conviction because he was tried before a jury while wearing “identifiable prison clothing.”
In assessing the extent to which the forced wearing of prison attire undermined the fundamental constitutional right to a fair trial, the Court in Estelle noted at the outset that “courts must carefully guard against dilution of the principle that guilt is to be established by probative evidence and beyond a reasonable doubt.” In light of this concern, the Court unanimously recognized that the forced appearance of a defendant in prison garb would seriously jeopardize the trial’s fairness, a concern compounded by the fact that the only defendants who would suffer this were those who had not been released on bail:
[T]he 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.
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Similarly troubling is the fact that compelling the accused to stand trial in jail garb operates usually against only those who cannot post bail prior to trial. Persons who can secure release are not subjected to this condition. To impose the condition on one category of defendants, over objection, would be repugnant to the concept of equal justice embodied in the Fourteenth Amendment.
Nonetheless, the Supreme Court refused to adopt a per se rule invalidating convictions in such situations. Rather, it reasoned that defense counsel in some circumstances may choose to have the defendant appear in prison attire for strategic reasons. Because Mr. Williams’ counsel had not objected to his client’s being tried in prison attire and was aware of Texas rulings entitling defendants to wear civilian clothing, the Court rejected Williams’ request to vacate his conviction.
Ten years later the Supreme Court decided its second courtroom-attire case, and this one perhaps comes closest to the fair-trial dilemma presented by uniformed, police-officer spectators. At issue in Holbrook v. Flynn was the conviction of Charles Flynn for a gun-point robbery in Providence, Rhode Island. Flynn was tried with five other defendants, and during the trial four uniformed state troopers supplementing the short-handed courtroom security detail sat behind the defendants in the first row of seating normally reserved for spectators.
In an opinion by Justice Marshall, the Court first rejected the claim that the “conspicuous, or at least noticeable,” presence of uniformed security personnel in the courtroom was so inherently prejudicial as to require in all cases an “essential” state interest to justify it. According to the Court, jurors could assign a wide range of meanings to such a presence having nothing to do with any sense of dangerousness or guilt of the defendant:
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. If they are placed at some distance from the accused, security officers may well be perceived more as elements of an impressive drama than as reminders of the defendant's special status. Our society has become inured to the presence of armed guards in most public places; they are doubtless taken for granted so long as their numbers or weaponry do not suggest particular official concern or alarm.
In lieu of a per se rule, the Supreme Court held that courts were to take a case-by-case approach and thus turned to whether the specific officer deployment in Flynn’s case prejudiced him. On this point, the Court first held that the actual perception of jurors was not dispositive because “jurors will not necessarily be fully conscious of the effect [a courtroom practice] may have on their attitude toward the accused.” Thus, “the question must be not whether jurors actually articulated a consciousness of some prejudicial effect, but rather whether an unacceptable risk is presented of impermissible factors coming into play.”
Having adopted this “unacceptable risk” legal standard, the Court readily rejected the notion that the presence of the four uniformed state troopers created such a risk:
We do not minimize the threat that a roomful of uniformed and armed policemen might pose to a defendant's chances of receiving a fair trial. But we simply cannot find an unacceptable risk of prejudice in the spectacle of four such officers quietly sitting in the first row of a courtroom's spectator section. Even had the jurors been aware that the deployment of troopers was not common practice in Rhode Island, we cannot believe that the use of the four troopers tended to brand respondent in their eyes “with an unmistakable mark of guilt.” Four troopers are unlikely to have been taken as a sign of anything other than a normal official concern for the safety and order of the proceedings. Indeed, any juror who for some other reason believed defendants particularly dangerous might well have wondered why there were only four armed troopers for the six defendants.
The Supreme Court’s third and most recent courtroom attire decision came in 2006 in Carey v. Musladin. During the defendant’s murder trial in California, some members of the victim’s family wore buttons bearing a photograph of the victim. Following his conviction, the defendant sought habeas relief in federal court, arguing that the buttons unfairly prejudiced him.
Because of changes to the federal habeas statute enacted after the Supreme Court decided Estelle and Flynn, the issue before the Court in the 2006 case was not just whether the wearing of the buttons violated the due process right to a fair trial but instead was whether the wearing of the buttons violated “clearly established Federal law.” In an opinion by Justice Thomas, the Court held that it did not violate clearly established law because, in the Court’s view, the Carey case presented a situation fundamentally different from the ones in Estelle and Flynn. Specifically, Justice Thomas distinguished those cases on the ground that they involved “state-sponsored courtroom practices” whereas the button-wearing at issue in Carey involved a spectator practice: “In contrast to state-sponsored courtroom practices, the effect on a defendant's fair-trial rights of the spectator conduct to which Musladin objects is an open question in our jurisprudence. This Court has never addressed a claim that such private-actor courtroom conduct was so inherently prejudicial that it deprived a defendant of a fair trial.” And this was fatal to the defendant’s claim under the amended habeas statute since there was no clearly established federal law from the Supreme Court about fair-trial prejudice caused by spectator conduct.
The New York Court of Appeals and Victim Shirts
The Supreme Court has not returned to the issue of courtroom attire since the Carey button case, but the New York Court of Appeals took up the issue just last year in a case in which it applied Estelle, Flynn, and Carey. In People v. Nelson the Court of Appeals faced a direct appeal from a defendant convicted of murder who argued that his right to a fair trial was violated because during the trial some members of victim Leo Walton’s family wore shirts “bearing Walton’s photograph and the phrase ‘Remembering Leo Walton.’” On the last day of trial, defense counsel objected for the first time and requested that the judge order the shirts removed from the courtroom, a request the judge denied.
In light of the Carey button case, the Court of Appeals opened its analysis by observing that the Supreme Court “has declined to create a federal standard for evaluation of spectator conduct claims” and therefore “left resolution of spectator conduct to the state courts.” The Court then took up that resolution aggressively, holding that images of a deceased victim displayed by spectators in the courtroom were always inappropriate and that judges should always bar them:
We have held that portraits or photographs of a deceased victim, taken while the victim was alive, are generally inadmissible at trial unless “relevant to a material fact to be proved at trial.” A similar risk is presented by images of a deceased victim displayed by spectators in the courtroom, either on their clothing or by some other method. Such depictions may be viewed by the jury as an appeal to sympathy for the deceased victim and the spectators wearing the display, and perhaps as a request to hold the defendant responsible for their loss. We therefore conclude that spectator displays of a deceased victim's portrait or photograph should be prohibited in the courtroom during trial.
The Court of Appeals, however, did not vacate the conviction. That remedy, the Court held, was inappropriate if the display of the victim’s image was “harmless error” in that it could not be shown that the display did not likely affect the verdict. And in this particular case, the Court held that the minimal display during trial and the overwhelming proof of the defendant’s guilt made the display harmless error.
When police officers in uniform appear as spectators for criminal trials of fellow officers, it sends a powerful message to juries and judges of law-enforcement support for the defendant. In the eyes of many, that message of support goes even further and amounts to intimidation, both in effect and purpose.
By distinguishing the officer-uniform decision in Flynn (and the prison garb case in Estelle) as involving state-sponsored practices and not spectator practices, the Supreme Court plainly has left the door open to claims that spectator officers in uniform unconstitutionally jeopardize the right to a fair trial. And the recent ruling from the New York Court of Appeals about the spectator display of victim images sends a strong signal that courts in New York must be extremely vigilant in keeping out of the courtroom attire that may influence juries. Police uniforms worn by spectator officers certainly appear to fall into that category.
*Christopher Dunn is the associate legal director of the New York Civil Liberties Union. He can be reached at firstname.lastname@example.org