Why the Public/Private Distinction Should Not Govern the Courtroom: The Supreme Court's Flawed Decision in Carey v. Musladin

By SHERRY F. COLB

Wednesday, Dec. 27, 2006

Earlier this month, in Carey v. Musladin, the U.S. Supreme Court rejected the habeas corpus petition of convicted murderer Mathew Musladin. On appeal, Musladin had claimed, unsuccessfully, that he was deprived of a fair trial because family members of the victim, Tom Struder, had worn buttons to court bearing a picture of the victim. Though the defendant had asked the judge to order the family to remove the buttons, the judge refused to do so.

After his appeal failed, Musladin brought a federal habeas corpus petition challenging the fairness of his trial and conviction on the same grounds as he had raised on appeal. Under the Anti-terrorism and Effective Death Penalty Act (AEDPA), the standard by which a federal court must review a habeas petition is this: Was the state courts' ruling (rejecting the defendant's claim on appeal) contrary to, or an unreasonable application of, clearly established federal law, as determined by the U.S. Supreme Court?

In reviewing Musladin's habeas petition, in other words, the job of the federal courts was not to decide whether the victim buttons deprived Musladin of a fair trial. It was to decide whether the state courts' decision - that the buttons did not deprive Musladin of a fair trial - was clearly a mistake under existing Supreme Court precedents. A majority of the Supreme Court held that it was not.

The Merits: Did the Judge's Refusal to Ban the Buttons Deprive Musladin of a Fair Trial?

Even if one were deciding the issue purely on the merits, the Musladin facts would present an arguably difficult case. One could argue, on the one hand, that when jurors observe the grief and solidarity of a victim's family members - evident in the buttons they wear - each day of a trial, the jurors are likely to feel obligated to do something to acknowledge and ameliorate that grief. Because the only avenue open to jurors for comforting the victim's family is to bring back a guilty verdict, the jurors could feel motivated to convict, even if the evidence does not convince them of the defendant's guilt beyond a reasonable doubt.

One could respond, on the other hand, that the only likely effect of victim buttons is to emphasize for jurors the gravity of the crime of which the defendant stands accused. Like testimony detailing facts of a murder that are not in dispute (and to which a defendant might wish - but has no right - to stipulate), it is not unfairly prejudicial for the jury to realize, in a visceral way, that a real person died because of the crime in question. In the absence of dramatic displays (and arguably "unnecessary" testimony), the jury could easily forget that the case is not an abstract meditation on hypothetical facts but a review of how a living and breathing person came to his untimely demise.

The Habeas Standard

The Supreme Court's job, as described above, was to show more deference to the state court finding than a direct consideration of the issue would have involved. As noted, the Supreme Court was charged with examining its own precedents, as they existed at the time the decision was made, and determining whether the state courts' finding that the victim buttons did not undermine the fairness of Musladin's trial clearly contradicted or misapplied such precedents.

Given this posture, it would have been relatively easy for the Court to write a respectable opinion ruling against the habeas petitioner. Instead, the Court managed to decide the case in a manner that proves both unpersuasive and troubling, for reasons having little to do with the fairness of Mathew Musladin's trial.

The State Action Doctrine

For a defendant (or habeas petitioner) to register a constitutional objection to the way in which he was treated as a criminal suspect, he must ordinarily allege "state action" of some kind. State action is conduct by a government official or agent.

For a concrete example, assume that you, acting entirely on your own, broke into your neighbor's house and retrieved a bloody knife. Your actions would not constitute a violation of your neighbor's Fourth Amendment right against unreasonable searches. Only the government (and its agents) can be said to violate the Fourth Amendment. Therefore, a prosecutor could offer your testimony about the bloody knife - and the knife itself - in evidence against your neighbor at his criminal trial.

Similarly, if - while at his house - you tortured your neighbor until he confessed to murder, the prosecutor could offer your testimony about the neighbor's confession into evidence at his criminal trial without violating the Fifth Amendment right against compelled self-incrimination. There might, of course, be other bases for excluding such testimony, but neither the Fourth nor the Fifth Amendment would require exclusion.

"Private" Wearing of Victim Buttons

The Supreme Court appealed to an analogue of the state action doctrine in the trial context when it rejected Musladin's fair trial claims. The Court examined existing case law governing prejudicial displays that undermine the fairness of a trial. In particular, it considered its own prior decision in Estelle v. Williams. There, the Supreme Court announced that if a defendant raises an objection, "the State cannot, consistently with the Fourteenth Amendment, compel an accused to stand trial before a jury while dressed in identifiable prison clothes."

The Court rejected the application of Williams to Musladin's petition. A majority of the Justices said that the state courts' decision to uphold the wearing of victim buttons could not be contrary to - or represent a misapplication of - Williams, because it was the State that the Court announced in Williams could not compel a defendant to wear identifiable prison clothes, whereas it was private actors - family members of the victim - who wore the victim buttons in question in Musladin.

This distinction, however, should not carry much force in the context of a trial. A judge controls a courtroom, so once a defendant has specifically asked the judge to order that some display be stopped, the judge's refusal to grant the defendant's request qualifies as state action.

It is state action, moreover, that has the potential to affect the fairness of a defendant's trial. Though the impact might conceivably be greater if the government were the author of the offending conduct, this distinction goes to the question of whether the victim buttons truly were likely to undermine the jurors' ability to consider the evidence in an unbiased and appropriate manner. It does not go to the question of whether Estelle v. Williams has any bearing on the constitutionality of judge-authorized courtroom conduct that is prejudicial when the author of the conduct happens to be a private actor.

Consider another example. Assume that instead of wearing victim buttons, the victim's family members wore T-shirts that said, "We know Mathew Musladin killed Tom. You must convict him or a killer will go free." On the Supreme Court's approach, Estelle v. Williams would not have anything to say about the question of whether a judge's refusal to order the family members to stop wearing such T-shirts might deprive the defendant of a fair trial.

To see the consequences of this approach more clearly, consider one last example.

Imagine that the victim's family members raced over to the defendant each morning, before the jury arrived in the courtroom, and stripped him of his outerwear, replacing his suit with prison clothes that they had manufactured on their own. Assume, too, that despite the defendant's objections and pleas, no one stopped the family members from dressing him in this way, and the judge did not permit him to change prior to the arrival of the jury. Under the Court's reasoning in Musladin, a state court could hold that the defendant in this case had not been deprived of a fair trial, and this holding would not represent a misapplication of clearly established law.

This result would be incoherent. The reason that compelling a defendant to wear prison clothes unconstitutionally prejudices the trial is that it communicates to jurors that the defendant is guilty, by making him appear as he would once convicted. Even without such clothing, most jurors know that a murder defendant is unlikely to be free (and therefore know as well that the defendant probably wears prison clothes during much of his daily life). Nonetheless, seeing him that way has a visceral effect that the Court has found is likely to undermine the fairness of the proceeding.

This effect is exactly the same in the hypothetical example that I posed above. No matter who has dressed the defendant in prison clothes, if the judge compels him to face trial without changing, the image for the jury is equally destructive of objectivity.

There must, of course, be state action or else the Constitution simply does not apply. For that reason, though the experience of being convicted with a compelled confession might be identical regardless of whether or not the torturer is an agent of the state, a majority of the Court has not held the Constitution to bar the admission of statements compelled by private actors. In the case of events occurring in front of the jury, however, much that would not be state action outside the courtroom becomes state action within it.

The Court has held, for example, that even when a defense attorney - the opponent of the government - exercises a racially-motivated peremptory challenge to exclude a person from her client's jury, such conduct violates the Equal Protection Clause of the Fourteenth Amendment (another constitutional provision that requires governmental action). This is because events in a courtroom - overseen and approved by a judge - acquire a state action status that they would not otherwise have. And once the Court acknowledges that this is so, there is no reason to treat a "private" act in the courtroom as falling outside the scope of precedents that govern displays in the courtroom that undermine the fairness of a criminal trial.

The Result Versus the Rationale

The Supreme Court was unanimous in support of the bottom-line outcome in Musladin - that the petitioner was not entitled to have his habeas petition granted. Fortunately, however, the majority opinion itself was not unanimous. Several Justices expressly rejected the faulty reasoning of the majority and made their focus the atmosphere in the courtroom rather than the fact that the victim's family members wearing buttons were private actors.

Though the reasoning may make little difference to convicted murderer Mathew Musladin, concurring Justices Stevens, Kennedy, and Souter provide hope to the rest of us that at least some members of the Court are able to keep their eye on the ball.


Sherry F. Colb, a FindLaw columnist, is Professor and Frederick B. Lacey Scholar at Rutgers Law School in Newark. Her book, When Sex Counts: Making Babies and Making Law, will be published by Rowman & Littlefield in early 2007.

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