The Supreme Court has heard arguments in Carey v. Musladin, a case which deals with what information can enter the tightly controlled atmosphere of a courtroom during a trial. Mathew Musladin was convicted of killing his former wife’s fiance. During the trial, members of the victim’s family sat in the audience and wore photographic buttons with his picture. Musladin, worried about the potentially prejudicial effect on jurors, asked the judge to ban the buttons. The judge decided they did not prejudice Musladin’s trial and refused. (Musladin claimed he killed the fiance in self-defense; his worry was that the buttons would lead jurors to view the fiance as victim rather than as aggressor.) After his appeals in the California court system failed, Musladin filed a habeas corpus petition in federal court – in essence, challenging the judge’s decision as violating his constitutional right to a fair trial. The Ninth Circuit Court of Appeals agreed with him.
Trials are closely controlled information environments. Information is permitted or excluded for a variety of reasons – accuracy (one reason why confessions extracted by torture are banned), relevance (information about the defendant’s political views would rarely be admitted), and undue influence (prior criminal convictions are generally not allowed into evidence), among others. I’m interested in why this information – pictures of the slain fiance, worn by his family – was blocked. After all, regardless of Musladin’s guilt, the fiance is still dead, and his family misses him. Moreover, it probably doesn’t surprise jurors that the family regards Musladin as guilty – the point of a trial is to test that belief. So, why keep the buttons out?
I’m not a criminal procedure expert, so I asked one.
David Moran is Associate Dean here at Wayne, and he’s argued a half-dozen cases in front of the Supreme Court on criminal procedure (most recently Hudson v. Michigan, where the Supreme Court wiped out the centuries-old “knock and announce” rule from Fourth Amendment protections). Dave noted that a prudent judge would have banned the buttons: courtroom displays can easily sway a jury. (Imagine T-shirts reading “Convict Murderer Musladin!”) He points out, though, the difficult line-drawing problems in this area: could the family wear black? Could they weep as the pathologist described the fiance’s injuries? Could they scowl at Musladin while he testified? Would it be sufficient remediation for the judge to instruct the jury to disregard anything they see or learn from the audience gallery? (I’m highly skeptical of remedial instructions – in a recent article, I touch on numerous studies that show they’re completely ineffective.) (Also, please note I’ve cribbed all of this from Dave’s detailed explanation to me.)
Another challenge, Dave states, is that appellate courts are poorly positioned to evaluate whether information influenced a jury improperly – our legal system relies heavily on the trial judge to make these determinations. On the merits, he argues, a reviewing court should reverse and overturn a conviction if jurors are exposed to outside information that could reasonably have affected how they considered the evidence.
Most of the analysis of Musladin has focused on judicial politics: commentators think the Supreme Court will overturn the Ninth Circuit’s ruling, at least in part because the judge who wrote it (Stephen Reinhardt) is one of the leading liberal jurists, and the Supreme Court has become more conservative with the recent appointments of Justices John Roberts and Samuel Alito. I like political foodfights myself, but I’m interested in the informational questions.
There are, I think, two approaches to the buttons. First, we could analyze the likely informational content and effect on jurors. What conclusions, if any, do jurors draw by seeing the (alleged) victim’s family wearing photos of him? Do the buttons convey more than Dave Moran’s hypotheticals of weeping, wearing black, or glaring at Masludin? (Are those out of bounds too?) I’m skeptical here, which makes me lean towards the California courts that found no constitutional violation.
Second, we could emphasize risk. What are the risks of allowing the buttons, versus banning them? Blocking the buttons forecloses any constitutional challenge. It does limit the fiance’s family from expressing their love for their son / brother, and their grief. (However, if it insulates a conviction from being overturned, it also serves their interests, albeit indirectly.) This vein of analysis moves towards Dave Moran’s views about the prudent judge: the cautious course is to keep audience displays under wraps. In part, this raises issues about how much of a voice victims’ families should have during the trial process, and the (strong) countervailing protections we provide for criminal defendants in order to ensure a fair, accurate, just result. Here, I lean towards the Ninth Circuit’s view: whatever the line-drawing problems, finding a violation here presses judges to make the risk-minimizing decision.
In the end, I’m not sure what to think. The courtroom is perhaps society’s most artificially-controlled information environment: there are rules, arguments by trained advocates, and careful appellate review to standardize and, hopefully, optimize the data that jurors receive. While the buttons may not be likely to cause prejudice to defendants, it may well be the course of least risk – and the one most likely to serve the interests of both society and victims’ families – to keep them off audience lapels during trials.
Addendum: I’ve just re-read the Ninth Circuit opinion (the first one, not the denial of re-hearing) and want to add two points.
First, intent plays a bizarre role in the majority’s reasoning. The family’s intent to “send a message” via wearing the buttons plays a role, as the court shows in its treatment of relevant precedent. Having uniformed officers sit in the courtroom to provide security does not prejudice the defendant’s trial (Holbrook v. Flynn); having uniformed officers sit in the courtroom to “show solidarity” with the murder victim does prejudice the trial (Woods v. Dugger). (While Flynn is a Supreme Court case, and Dugger is an 11th Circuit case, note that the 11th Circuit wrote with the aid of the Flynn opinion.) So, the information conveyed to the jury depends on the officers’ intent? How? Similarly, how is it that the family’s intent in wearing the photos matters? Isn’t the issue what message is received rather than what message is sent? This strikes me as bizarre. (Of course, it’s equally odd that courts decide on what information is conveyed to jurors in these cases without any empirical evidence or analysis to back them up, but that’s a topic for another time.)
Second, the dissent – which may have the better of the argument after the Supreme Court rules – is overly minimalist. Judge Thompson writes, for example, that the California courts were not “objectively unreasonable,” but doesn’t bother to adduce any evidence to support this conclusion. I like concise opinions, but I do prefer that judges offer some sort of basis for their reasoning.