In the newspaper business, a truism teaches that one picture is often worth a thousand words. In a case now pending in the Supreme Court on a petition for review, one picture may be worth a new trial for a man convicted of murder. Then again, maybe not.
The story goes back to an afternoon in May 1994, when Mathew Musladin came to the home of his estranged wife, Pamela, in San Jose, Calif. His purpose was to pick up their 3-year-old son under a visitation agreement. According to court records, they quarreled outside the house. He shoved her to the ground. Her brother Mike and her fiance, Tom Studer, raced from the house to help her. Musladin retrieved a handgun from his car. He shot at Studer, hitting him in the shoulder and knocking him down. Studer crawled to the garage. Musladin fired again. The bullet ricocheted off the floor and struck Studer in the head, killing him.
Musladin fled, but was soon captured and charged with murder. He pleaded self-defense -- Studer had a gun, her brother had a machete -- but after a 14-day trial a jury found him guilty. The sentence was 32 years to life in prison. California's state courts affirmed that sentence, but Musladin did better before a panel of the U.S. Court of Appeals for the 9th Circuit. Last October, Judge Stephen Reinhardt ordered him released unless the state promptly grants a retrial.
What led to Reinhardt's ruling? You will never guess.
Studer's mother, father, and Pamela's brother Mike came every day to the trial. They sat in the front row of the visitors' gallery, just behind the prosecution. Each of them wore a lapel button. The buttons, 2 to 4 inches in diameter, had no legend, but they bore a photograph of the victim. Defense counsel objected before the trial began, but the trial judge refused to order the buttons' removal: The judge saw "no possible prejudice to the defendant."
In the U.S. Circuit Court, Judge Reinhardt (joined by Judge Marsha Berzon) strongly disagreed: "Under clearly established Supreme Court law such a practice interferes with the right to a fair trial by an impartial jury free from outside influences." The buttons presented "an unacceptable risk of impermissible factors coming into play." They created an "inherent prejudice to the defendant's right to a fair trial."
Reinhardt dwelled especially upon the Supreme Court's 1976 opinion in the case of Harry Lee Williams. The case arose from a run-of-the-mill conviction for assault with intent to commit murder. Williams, an indigent, was unable to post bail. He thus appeared in prison garb for his jury trial. His court-appointed attorney mildly objected, but the trial continued, and eventually the issue reached the Supreme Court.
Chief Justice Warren Earl Burger wrote a remarkably mushy opinion upholding the conviction. Burger first agreed that the prison fatigues were "so likely to be a continuing influence throughout the trial that an unacceptable risk was presented of impermissible factors affecting the jurors' judgment." Burger then accepted the unacceptable, and concluded that, after all, Williams had not been really compelled to wear the prison uniform.
Justice William Brennan, dissenting, found Burger's opinion -- as he so frequently found Burger's opinions -- both "baffling" and "puzzling." To compel Williams to go to trial in his prison uniform "robbed the accused of the respect and dignity" accorded to better-heeled defendants. This was vintage Brennan, but the outcome belonged to Burger.
Getting back to Reinhardt's opinion in the case at hand: California's attorney general moved for a rehearing by the entire 9th Circuit, but on a close vote his motion was denied. Seven judges, speaking through Judge Andrew Kleinfeld, refused to be shushed. The California courts, in their view, had "carefully and reasonably applied the relevant precedents" established by the Supreme Court.
Under a 1996 act of Congress, federal judges have limited authority over state criminal convictions. They may grant writs of habeas corpus only if a state decision involves an unreasonable departure from clearly established Supreme Court precedent. The Williams case turned on the defendant's prison clothing: The prison fatigues sent a clear message that Williams belonged in jail. By contrast, the spectators' buttons conveyed only an ambiguous message -- perhaps a message that the spectators cared. Expressions of public concern are part of a "public" trial.
My own feeling is that the Studer buttons had an insignificant effect -- indeed, none at all -- upon the jurors who convicted Musladin. I would reverse Judge Reinhardt. What else is new?