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The Supreme Court Rules that California's Upholding a Conviction, Despite Family Members' Wearing Buttons Bearing the Victim's Picture in the Courtroom, Did Not Violate Its Clearly Established Precedent


Wednesday, Dec. 20, 2006

Last week, the Supreme Court unanimously reversed the U.S. Court of Appeals for the Ninth Circuit in a case that had garnered significant media attention because of its connection to the "victims' rights" movement. The case, Carey v. Musladin, involved whether a defendant who had been convicted of murder in state court was constitutionally prejudiced, such that a federal court should order a new trial, because some family members of the victim had worn buttons bearing the victim's picture in the courtroom during some days of the trial.

The ruling, rejecting the defendant's bid, was the second time in a month that the Supreme Court unanimously reversed the Ninth Circuit, and the decision reveals some differences of opinion between the various Justices themselves, as well as between the high Court and the western court of appeals.

The opinion also leaves important questions unanswered: such as whether the defendant's constitutional rights were in fact violated when the family members were permitted to wear the buttons.

The Procedural Setting: What Happened in the Lower Courts

Mathew Musladin was convicted in California state court of killing Tom Studer in 1994. Musladin admitted the killing, but claimed it was done in self-defense. During some of the trial, several (the record doesn't reveal precisely how many) members of Studer's family, who were seated in the front row of the spectators' section of the courtroom, wore buttons between two and four inches in diameter that depicted a photograph of Studer. (There were no words on the button - only Studer's image.)

Musladin's lawyer asked the trial judge to direct that the buttons be removed during the trial, but the judge refused. The California Court of Appeal affirmed the conviction, saying that although the button-wearing introduced an "impermissible factor" into the courtroom and "should be discouraged," Mr. Musladin had not proven a violation of his constitutional right to a fair trial (under the Sixth and Fourteenth Amendments) because the presence of the buttons in the courtroom had not "branded defendant with an unmistakable mark of guilt in the eyes of the jurors" -- the standard the court found most applicable from Supreme Court precedents.

Musladin then sought habeas corpus relief in the federal courts. Although the federal trial court denied relief, the Ninth Circuit reversed, holding that a new trial was appropriate because, under the relevant federal statute governing habeas claims, the state court's decision "was contrary to, or involved an unreasonable application of, clearly established Federal law as determined by the Supreme Court."

Last week, however, the Supreme Court saw things differently, and by a 9-0 vote, it reversed the circuit court's grant of habeas relief.

How the High Court Ruled--And How The Justices Disagreed Amongst Themselves

Importantly, the Supreme Court did not rule that the trial court's decision to allow the family to wear the buttons did not violate the Constitution. Rather, the Court held only that the California court decisions were not "unreasonable applications" of "clearly established" Supreme Court precedent. But the various Justices didn't all agree as to why that was so.

Some Justices, led by Justice Thomas (who wrote for himself and five others) at times appeared to suggest there simply was no "clearly established" Supreme Court precedent, as concerns the conduct of private courtroom spectators. Justice Thomas pointed out that the major Supreme Court cases on which the Ninth Circuit had based its ruling had involved conduct by government officials, such as jailors or policemen - not private persons, as the members of the victim's family were in the Musladin case. For example, in one major case in which a constitutional violation was found, the State itself had prejudiced the defendant by forcing him to appear in the courtroom in prison garb. By contrast, said Justice Thomas, the "effect on a defendant's fair-trial rights of the spectator conduct to which Musladin objects is an open question in our jurisprudence."

But other Justices seemed to think this distinction between public- and private-sponsored courtroom practices counted for little or nothing. Justice Kennedy, for example, found that there was a "clearly established" rule against courtroom intimidation, and that the rule would apply whether the coercive pressure that a judge wrongly permits comes from "partisans" or others. For Justice Kennedy, however, it simply wasn't clear from the record whether such coercive pressure existed in Musladin's trial, which is why he believed the California courts' application of federal law wasn't necessarily unreasonable.

Making matters a bit murkier, it is not entirely clear that the members of the majority of the Court, for whom Justice Thomas wrote, really disagreed with much of what Justice Kennedy said. As noted above, the majority did seem to draw a distinction between public and private conduct, but it stopped short of saying that private conduct could never violate clearly established federal law. Rather, the majority said what was an open question was whether allowing the "private" conduct seemingly involved in the present case was unconstitutional at all.

There also seemed to be some variation among the Justices about the level of generality at which past Supreme Court cases should be examined to determine what "clearly established" federal law includes. The majority said, reiterating what had been uttered in a few earlier cases, that only the "holdings," and not the "dicta," of past Supreme Court cases counts in what is clearly established.

Justice Stevens, pointing out that these earlier statements distinguishing holdings from dicta were themselves dicta, thought that well-considered dicta from earlier decisions about the meaning of constitutional rights should count under the habeas statute's definition of clearly established federal rights.

But here, too, it's hard to know how much disagreement there really is on the Court, because it is not clear what the definitions of "holdings" and "dicta" really are that are being used. Some people think that well-considered statements by a court, even those not absolutely central to the resolution of the case at hand, are not "dicta" at all. Other jurists and academics hew to a more traditional definition, under which "holdings" are those statements or principles that were absolutely necessary to reach the result in the earlier case, and everything that was not indispensably necessary, in the sense that the decision's result would have changed without it, is considered "dicta."

I'm not sure how the various Justices are using these terms in Musladin. For example, Justice Stevens himself at one point suggests that the "reasoning" of an earlier opinion can be dicta (although he thinks it should count as clearly established law), yet at another point, he characterizes as part of the "holding" of a past case the "explanation" in that earlier decision. The line between "reasoning" (which Stevens says can be dicta), and necessary "explanation" (which is a holding) seems quite finely drawn.

A Suggested Way to Frame the Question of When Clearly-Established Precedent Has Been Unreasonably Applied

I myself might frame the "unreasonable application" of "clearly established federal law" inquiry something like this: "Is there any reasonable possibility that a Justice who wrote and believed in the opinion in the earlier case that announced the result and provided a rationale could, unless he had a subsequent change of heart, not rule as a trial judge for the criminal defendant in the present case?"

If the answer to that question is "yes," then when the state courts rejected the defendant's claim, there was no unreasonable application of clearly established Supreme Court law. Only if the answer is "no," can and should there be federal habeas relief under the current habeas statute.

In other words, in deciding whether the state courts fairly applied past Supreme Court precedent, we should try to imagine that we ourselves had written the earlier opinions, and ask what consistency and coherence, from that point of view, require.

This does not, as Justice Kennedy rightly explained, mean that courts have to find in earlier Supreme Court precedent "some nearly identical factual pattern" before granting habeas relief in a current situation. What it does mean is that we should, in respecting past Supreme Court precedents, act as someone who agreed with them, as written, would act in trying to preserve them.

What the Court Did Agree On: Rejecting the Ninth Circuit's Result

Putting aside what might have separated the Justices, what united them was a firm and definite conviction that the Ninth Circuit panel reached the wrong result. Whether it was because the federal law in this area is simply not clearly established at all, or because there are clearly established principles but reasonable people could disagree with how they play out on these facts, there was no basis under the habeas statute for upsetting the state court results.

In explaining this clear and unanimous disagreement with the Court of Appeals, most of Justices seemed to take into account that other appellate courts had reached a variety of results in deciding whether private button-wearing and similar practices violate the Constitution. In other words, because (otherwise) reasonable jurists seemed to disagree as to whether there is a constitutional violation at all here, Musladin's Sixth Amendment claim in the state courts was a question on which reasonable people can disagree, and thus one not amenable to habeas relief.

Some observers have speculated that the Justices believe that the Ninth Circuit as a court feels very independent, and often does not give a lot of weight to what other appellate courts have already done. For example, some people attribute the fact that the Court reviews cases arising out of the Ninth Circuit disproportionately often to the Court's seeming perception that the Ninth Circuit is more likely and prone to create "circuit splits" (by diverging from what other circuits have already done) more readily than other appellate courts. The opinions in Musladin, implicitly criticizing the Ninth Circuit for not attaching adequate weight to the divergence of views from other courts on the constitutionality of button-wearing, would lend some support to this view of how the Ninth Circuit is seen by the high Court.

The Bottom-Line: The Constitutional Status of Button-Wearing Is Still Up in the Air

Note that, through all this habeas mumbo jumbo and high Court's attitude about the Ninth Circuit, the Justices never decided whether and when a trial judge's decision to allow button wearing (or similar practices) by victims or their family members can run afoul of the defendant's constitutional rights.

Thus, if the law concerning such situations was not "clearly established" before last week, I'm not sure that it is clearly established today. For that, we'll have to await another case.

Vikram David Amar is a professor of law at the University of California, Hastings College of Law in San Francisco. He is a 1988 graduate of the Yale Law School, and a former clerk to Justice Harry Blackmun. He is a co-author, along with William Cohen and Jonathan Varat, of a major constitutional law casebook, and a co-author of several volumes of the Wright & Miller treatise on federal practice and procedure. Before teaching, Professor Amar spent a few years at the firm of Gibson, Dunn & Crutcher.

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