Wednesday, October 14, 2009
Picture (Im)Perfect?: Second Circuit Finds Wearing Of T-Shirts With Victim's Photograph Not Inherently Prejudicial In Murder Appeal
A defendant is on trial for murdering a victim. During trial, the victim's relatives wear t-shirts displaying the victim's photograph. If the defendant is convicted of murder, should he be awarded a new trial based upon the t-shirts being inherently prejudicial? According to the Second Circuit in its recent opinion in United States v. Farmer, 2009 WL 3200690 (2nd Cir. 2009), the answer is "no," at least based upon the particular factual context with which it was presented.
In Farmer, Laval Farmer was convicted by a jury of murdering Jose Angel White and attempting to murder Jacquel Patterson “for the purpose of...maintaining or increasing [Farmer's] position” within the Bloods street gang as well as conspiring to assault with a dangerous weapon and discharging firearms during the murder and the attempted murder.
On the fourth day of trial, defense counsel requested “that nobody be permitted in this courtroom with T-shirts with a picture of Jose White for the jury to see.” Counsel explained that he had not noticed the shirts [on White's relatives] during the first three days of trial, but that he found out when his wife read about them in the newspaper.
Judge Platt responded that he had seen several spectators “[o]ne of the first days” and that it appeared “there was a picture.” But he was not sure if jurors had sufficiently good eyesight to see the photographs or if “they would be affected by the picture,” because he “couldn't recognize that they had a picture, even with [his] glasses on.” As to Farmer's request, Judge Platt opined that “[p]eople are free to walk into a courtroom with whatever they want on their clothing, and I'm reluctant to adopt a different rule.” Nonetheless, he “urge[d] the prosecutors to urge them not to come into this courtroom with shirts with pictures.
After he was convicted, Farmer appealed, claiming, inter alia, that, pursuant to the Supreme Court's opinions in Estelle v. Williams, 425 U.S. 501, 505 (1976) and Holbrook v. Flynn, 475 U.S. 560, 562 (1986), the t-shirts were so inherently prejudicial as to pose an unacceptable threat to his right to a fair trial, necessitating a new trial. In particular, Farmer relied upon two Ninth Circuit cases, including Musladin v. Lamarque, 427 F.3d 653, 657-58, 661 (9th Cir. 2005), which held that a defendant was inherently prejudiced when the victim's family members sat in the front row at trial wearing buttons with the victim's photograph.
The problem for Farmer, according to the Second Circuit, was that the Supreme Court overruled Lamarque in Carey v. Musladin, 549 U.S. 70, 72 (2006), in which it noted that both Estelle v. Williams and Holbrook v. Flynn involved "state-sponsored courtroom practices" and identified but did not resolve a circuit split over whether courtroom displays by private spectators can ever be "inherently prejudicial." According to the Second Circuit,
Carey v. Musladin, in effect, wiped the slate clean and left it to lower courts to address claims such as Farmer's in the first instance. However, the circumstances of this case do not require us to decide whether courtroom displays by private actors can ever be “inherently prejudicial.” Defense counsel did not observe the relatives' T-shirts for three days, the trial judge could not make out the picture, and the imagery and its import only became known because a reporter providing daily coverage of the trial interviewed White's relatives for his story....On these facts, we cannot conclude that “what [the jurors] saw was so inherently prejudicial as to pose an unacceptable threat to [the] defendant's right to a fair trial.”...
Moreover, once defense counsel called the T-shirts to the district court's attention, the court instructed the government “to urge [Farmer's family] not to come into this courtroom with shirts with the picture.” There was no further objection from defense counsel, and there is no indication in the record that the government or Farmer's family ignored the court's request. This intervention fulfilled the obligation of trial judges to “take careful measures to preserve the decorum of courtrooms."