December 11, 2006

"Given the lack of holdings from this Court regarding the potentially prejudicial effect of spectators’ courtroom conduct..."

The Supreme Court issued its opinion today in Carey v. Musladin, the case about spectators at a murder trial who wore buttons showing the photograph of the victim. Here's our discussion of the case from back at the time of the cert grant. Many of the commenters thought the defendant's rights were violated, but I said that under the standard applicable on habeas -- whether the state court's decision was "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States" -- the Supreme Court would have to leave the state court's decision intact.

Justice Thomas writes the unsurprising opinion:
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 although the Court articulated the test for inherent prejudice that applies to state conduct in Williams and Flynn, we have never applied that test to spectators’ conduct. Indeed, part of the legal test of Williams and Flynn—asking whether the practices furthered an essential state interest—suggests that those cases apply only to state-sponsored practices....

Given the lack of holdings from this Court regarding the potentially prejudicial effect of spectators’ courtroom conduct of the kind involved here, it cannot be said that the state court “unreasonabl[y] appli[ed] clearly established Federal law.” §2254(d)(1). No holding of this Court required the California Court of Appeal to apply the test of Williams and Flynn to the spectators’ conduct here. Therefore, the state court’s decision was not contrary to or an unreasonable application of clearly established federal law.
There are no dissenting opinions, but there are three concurrences, from Stevens, Kennedy, and Souter. From Souter's opinion:
[O]ne could not seriously deny that allowing spectators at a criminal trial to wear visible buttons with the victim’s photo can raise a risk of improper considerations. The display is no part of the evidence going to guilt or innocence, and the buttons are at once an appeal for sympathy for the victim (and perhaps for those who wear the buttons) and a call for some response from those who see them. On the jurors’ part, that expected response could well seem to be a verdict of guilty, and a sympathetic urge to assuage the grief or rage of survivors with a conviction would be the paradigm of improper consideration.

The only debatable question is whether the risk in a given case reaches the “unacceptable” level. While there is a fair argument that any level of risk from wearing buttons in a courtroom is unacceptable, two considerations keep me from concluding that the state court acted unreasonably in failing to see the issue this way and reverse the conviction. First, of the several courts that have considered the influence of spectators’ buttons, the majority have left convictions standing. See, e.g., State v. Speed, 265 Kan. 26, 47–48, 961 P. 2d 13, 29–30 (1998); State v. Braxton, 344 N. C. 702, 709–710, 477 S. E. 2d 172, 176–177 (1996); State v. Lord, 128 Wash. App. 216, 219–223, 114 P. 3d 1241, 1243–1245 (2005); Nguyen v. State, 977 S. W. 2d 450, 457 (Tex. App. 1998). I am wary of assuming that every trial and reviewing judge in those cases was unreasonable as well as mistaken in failing to embrace a no-risk standard, and so I would find it hard to say the state judges were unreasonable in this case, given the lack of detail about the buttons’ display. Second, an interest in protected expression on the part of the spectators wearing mourners’ buttons has been raised, but not given focus or careful attention in this or any other case that has come to our notice. Although I do not find such a First Amendment interest intuitively strong here, in the absence of developed argument it would be preferable not to decide whether protection of speech could require acceptance of some risk raised by spectators’ buttons.
Does this mean the case might have been better litigated? The First Amendment argument could have been developed. (Justice Stevens makes a point of saying that argument is obviously meritless.) And there could have been more concrete information about what these buttons were like. Justice Thomas had something to say about that too:
The record contains little concrete information about the buttons. The buttons were apparently two to four inches in diameter and displayed only a photograph of [the victim] Studer. It is not clear how many family members wore the buttons or how many days of the trial they wore them.
But perhaps the buttons were small and rarely worn, in which case, it wasn't a bad decision to leave out the details.


Simon said...

Since the ruling will almost inevitably be misreported (I've already seen posts in the blogosphere suggesting that "[t]he issue before the Court was whether or not buttons worn family and friends of a murder victim during the trial prejudiced the jury"), I have some commentary parsing what the case is and isn't about here. To synopsize, the issue before the court was whether it was whether the Judge's decision to refuse counsel's request was "contrary to, or [was] an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States," per 28 U.S.C. §2254(d)(1). This case is not about whether the actions of the family were actually prejudicial, nor whether a court of appeals has ever held it to be so, nor even whether the Supreme Court has implied it to be so (insofar as "the phrase 'clearly established Federal law, as determined by the Supreme Court of the United States' [in §2254(d)(1)] ... refers to the holdings, as opposed to the dicta, of [the Supreme] Court's decisions as of the time of the relevant state-court decision," Williams v. Taylor, 529 U.S. 362, 412 (2000)) This case isn't even about whether it is clearly established federal law today that "buttons worn family and friends of a murder victim during the trial [are] prejudi[cial]." What this case is about is whether it was clearly-established federal law in the mid-1990s that buttons worn family and friends of a murder victim during the trial prejudiced the jury, and therefore, that the judge's ruling was erroneous.

corporate law drudge said...

Apart from the utterly misleading headline: "Buttons at Trial Didn’t Bias Jury, Justices Say," the Times on-line seems to have gotten it right.

Anonymous said...

The most interesting thing about this to me is the sharp disagreement between Souter and Stevens regarding the relevance of the First Amendment rights of button wearers. As Ann points out, Souter worries about whether there might be some importance to this issue that could/should have been argued, whereas Stevens summarily dismisses any such argument as preposterous.

I think Stevens goes too far. Let's assume that there is no First Amendment right of a spectator to engage in speech in the jury's presence. Probably a correct assumption. But if the trial judge decides to allow such speech, I think there would then be a First Amendment requirement of viewpoint neutrality. Surely the judge cannot allow spectators to wear buttons that say "Innocent" but ban ones that say "Guilty."

And what about speech that as a matter of law does not impact the jury's consideration of the merits of the case? Suppose, for instance, a group of spectators decided to show their disrespect for the court by facing the back of the courtroom during the trial or parts of it. Does the trial judge have so much leeway in controlling speech in the courtroom that he or she could ban speech that is merely disrespectful without being disruptive or prejudicial to either side?

I know this is a tangent, but I'm really curious as to why Stevens felt compelled to make such a sweeping pronouncement when it has no bearing on the decision.

Chris said...

"Does this mean the case might have been better litigated? The First Amendment argument could have been developed."

But the 1A argument would only have helped the side that won--the state. No sense investing a lot more work on a superfluous additional ground for the same result, no?

Kevin T. Keith said...

Leaving aside the issues raised in the concurring opinions, the holding on the central issue seems very strange - or, perhaps better, it seems to me the established test on that issue seems strange.

If the issue was whether the state court's decision conflicted with established Supreme Court holdings, not the substantive issue of whether the buttons were improper, and the decision was that it did not conflict with prior SCOTUS holdings because there never had been any such holdings, does this not suggest that:

(1) the SCOTUS ruling would have been the same even if the lower-court ruling had been the opposite?; and

(2) SCOTUS, apparently, can never rule on the substantive issue, because the relevant test is purely precedential?; and

(3) therefore lower courts will always be free to rule any way they like on this issue, with SCOTUS never interfering even when the various rulings conflict with each other, because none of them conflict with SCOTUS's own ruling on substance, since it has never been given and never can be because SCOTUS's self-defined standard of judgment evades the actual substantive issue at hand?

And, (4) shouldn't this have been obvious to the Court, and shouldn't that fact - that their standard of judgment seems to leave the issue in limbo forever - have been grounds for a decision touching the substantive issue in the case so we could get this all worked out once and for all?

Either the buttons are prejudicial or they aren't - as that term is understood within the context of relevant federal law at the time . . . etc. - but at any rate there has to be a factually correct answer to the question. And this case did not apparently hinge on any difficulties of discerning the factually correct answer - on any ambiguities of sociology or psychology or the like. The Court simply refused to give a definitive ruling on whether the lower court's determination of that answer was correct - on the grounds that they had not done so previously and so could not do so now! Does this not seem absurd?

For what possible reason should they not simply answer the question everyone wants an answer to, and which only they can provide? It's not a question of "judicial activism" or any such nonsensical shibboleth - whether or not you like whatever answer they might have given (and thus whether or not you call that answer "activist"), no one could object to actually having an answer, surely?

Neither is this some sort of textual Constitutional issue: the standard in question is one the Court itself erected, apparently thinking it was necessitated by some notion of separation of powers. Clearly that standard is inadequate, because it allows the law not to go unenforced, but in fact uninterpreted - in seeking to defer to the meaning of the federal law, they have robbed that law of its meaning by refusing to say what it is! I presume this was not the product of some sort of nefarious obstructive design, but if it were you could not find a more cynical and effective way for the Court to nullify the law! If they would simply step up to the plate and say what the proper test or limits on spectators were, we could all get on with it. What purpose is served by not saying?

Greg D said...

Keith asks good questions. So I'd like to address the question "are the buttons prejudicial?" I'd say no. If you think the defendant is guilty, then the buttons call on you to find him guilty.

But you're supposed to do that anyway.

If you think he's innocent, all the buttons will do is push you to find him not guilty, so the police can be told they need to find the guilty person.

Kevin T. Keith said...

Thanks, Greg.

But I take it the buttons are intended to influence whether you think the defendant is guilty or innocent (and to do so by the unfair process of creating sympathy for the victim, which is irrelevant to the factual question of whether that particular defendant is the one who killed him, but may create feelings of resentment or vengefulness in the jury that make them more likely to convict the only person they have in their power).

If the buttons have any influence at all, it can only be an improper influence, because:

(1) by design, they do not communicate factual information relevant to the question of guilt but instead play upon the jurors' emotions and attempt to sway their decisionmaking by non-rational means; and

(2) they introduce elements into the jury's deliberations outside of the due-process structure of the trial itself, in a way that the defendant cannot reasonably counter.

Note that the above does not necessarily require banning the buttons. One could argue that, while they are improper on the face, their impact is similar to that of, for instance, seeing the victim's family and colleagues packing the courtroom, which is a common tactic that is allowed by the courts, and thus does not rise to the level of undue influence.

But at any rate, I think it's unlikely that their effect is neutral.

Ann Althouse said...

Kevin: The Court didn't make up the standard. It was imposed by the Antiterrorism and Effective Death Penalty Act. On habeas, the federal courts cannot just go to the constitutional question.

Anonymous said...


Ann's right. There's a huge difference in criminal cases on direct appeal, in which all of your concerns are addressed, and on habeas corpus under 28 usc 2254, which is how Musladin's case was before the Supreme Court. Kennedy's concurring opinion reflects the difference by suggesting that, if Musladin had requested Supreme Court intervention immediately after the California Supreme Court rejected his argument, the results might have been different.

Instead, though, Musladin chose to take his issue to a lower federal court and then the defendant-friendly Ninth Circuit. When he won there, the state's lawyers, in the name of warden Carey, took the case to the Supremes. Musladin's case has been heard by six different courts: three state courts, and three federal courts. A shorthand way to recognize habeas cases comes from the title: if it's defendant v. state (like Miranda v. Arizona), it's a direct appeal. If it's defendant v. warden, then it's habeas.

Habeas, concerning state-court convictions (the Gitmo thing is another story entirely), is essentially a "do over" of the merits of the appeal that has already been decided by a state court of appeal. The policy reasons that support allowing inmates to seek further relief are counterbalanced by the recognition that they, necessarily (see 2254(b) re: exhaustion), have already lost their issues in state court. The standard applied by Thomas reflects these appropriate additional hurdles.