Buttons' Influence on Jury at Issue for Justices

By Charles Lane
Washington Post Staff Writer
Thursday, October 12, 2006

Tom Studer's family made a silent but powerful statement 11 years ago at the trial of the man accused of murdering him. They appeared in a California courtroom wearing lapel buttons emblazoned with photographs of him, wearing his Navy uniform and smiling.

Though the defense objected, the judge allowed the buttons. Matthew Musladin was convicted and sentenced to at least 32 years in prison; he says the buttons may have swayed the jury's emotions, depriving him of his constitutional right to a fair trial.

Last year, the San Francisco-based U.S. Court of Appeals for the 9th Circuit agreed with Musladin and overturned his conviction. Prosecutors appealed to the Supreme Court. Yesterday, the justices heard oral arguments in a case about legal due process and the proper relationship between state and federal courts.

Gregory A. Ott, representing the state of California, told the court that, even if the buttons may have influenced the jury, the state court's ruling was entitled to be upheld by the federal courts.

A 1996 federal law says that federal judges should defer to state courts' interpretations of the federal Constitution in criminal cases unless they clash with "clearly established" Supreme Court precedent. But the Supreme Court has never ruled before on buttons worn by courtroom spectators, so there was no such precedent, Ott said.

"It was certainly reasonable for the state court here to conclude that three simple buttons bearing only a photo did not convey any message of blame, guilt, anything other than the grief of this family," he said.

Justice David H. Souter seemed to disagree, citing a 1986 ruling written by Justice Thurgood Marshall that suggested that courtroom practices "inherently prejudicial" to the defendant would violate the Constitution.

"What if the button had said . . . 'Hang Musladin'?" Souter asked Ott. "Is there any question in your mind that allowing the family members to display this message to a jury throughout the trial . . . is raising a risk, an unacceptable risk, that the jury will consider improper influences in reaching its verdict?"

It may, Ott conceded, "but it might still be reasonable for a state court to conclude otherwise."

Several members of the court also seemed troubled by the potential harm that such displays could cause in court. But, given the lack of a clearly applicable Supreme Court precedent, few seemed to think that Musladin's conviction should have been overturned.

David W. Fermino, Musladin's attorney, argued that the 9th Circuit ruling fit a framework outlined by the Marshall opinion and others, including a 1976 case in which the court said the government may not ordinarily require a defendant to appear in prison garb during trial.

"This wearing of the button in a sense branded the defendant in the eyes of the jurors," Fermino said.

But Justice Ruth Bader Ginsburg noted that the cases Fermino cited involved government rules, rather than the conduct of private citizen spectators. Fermino's argument, she observed, "certainly goes beyond where our precedent left off."

Justice Antonin Scalia said that "there is a First Amendment problem when you're dealing with people other than the prosecution."

The case is Carey v. Musladin , No. 05-785. A decision is expected by July.

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