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October 12, 2006

SCOTUS -- The Button Question

Here's an interesting case before the Supreme Court.

WASHINGTON - With an 11-year-old San Jose murder conviction hanging in the balance, the U.S. Supreme Court today appeared sharply divided over how to establish courtroom rules for spectators who wish to display silent messages, such as buttons, during jury trials.

In an hour of spirited arguments, the justices sparred with lawyers -- and each other -- as they weighed a controversial federal appeals court decision last year overturning the 1995 murder conviction of Mathew Musladin. The appeals court found that Musladin's conviction had been tainted because the victim's family sat in the front row of a South Bay courtroom wearing buttons with the victim's photo.

The justices today acknowledged that the Supreme Court has never directly addressed whether such displays violate a defendant's constitutional right to a fair trial, in part because of the elusive problem of determining exactly what crosses the line into influencing a jury. [...]

During the arguments, several justices, while troubled by the buttons, wondered aloud where they would draw the line, even raising free speech issues. Justice Anthony Kennedy asked whether a court rule might prevent sobbing by a victim's family. And Justice Stephen Breyer expressed concern that banning any buttons, posters or placards might be "too broad."

While a trial is supposed to be an examination of the evidence with the jurors as triers of fact, we all accept that a certain amount of theater takes place. Attorneys will use voice inflection and gestures to "play to the jury." Defense attorneys will "clean up" their clients. Families of both defendant and victim are allowed to sit in the audience as long as they don't interrupt the proceedings. However, can they wear something that identifies them as family members? A photobutton? What about a black armband? A colored ribbon pin?

I'm not even sure myself where I fall in this question. I think a photobutton may be too much, but on the other hand, I've seen the opposite happen. I recall one contentious criminal defense attorney demand a judge order the prosecutor to remove her District Attorney lapel pin because it looked too much like an "law enforcement" pin. He argued that people are raised to put trust the police and thus this "silent appeal" to the jury was prejudicial to his client. In another case, dealing with the murder of a law enforcement officer, the judge actually had a memorial in the courthouse lobby dedicated to law enforcement killed in the line of duty covered because he believed having jurors walk by it each day was prejudicial.

Of course, wondering what was in that huge wooden box in the middle of the lobby would never cross their minds, eh?

Actually, I have less concern over emotional appeals to jurors than I am about the quality of jurors and educating them to their obligations and duties. Too many jurors think they are either judges or legislators, and when they engage in "jury nullification" they leave real, serious problems in their wake.

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Posted by Darleen at October 12, 2006 12:38 PM