Victim Buttons in the Courtroom

The Supreme Court’s decision today in Carey v. Musladin is potentially troubling. During Musladin's state criminal trial, relatives of the victim wore buttons bearing the victim’s picture on them in the courtroom. The trial judge denied Musladin’s motion to require the buttons to be removed on the ground that they would not prejudice the trial. Musladin was convicted and his conviction was affirmed on appeal, but the 9th Circuit, reversing a district court ruling, ordered relief on habeas. The Supreme Court reversed.

Justice Thomas wrote for the majority. Applying the prohibition on the application of “new rules” in habeas cases contained in the Anti-Terrorism and Effective Death Penalty Act, the majority found inapplicable two earlier cases. In Estelle v. Williams, the Court found a constitutional violation in the state requiring the defendant to be tried wearing prison clothes. In Holbrook v. Flynn, by contrast, the Court found that the presence in the courtroom of uniformed state troopers was not so inherently prejudicial as to deny the defendant a fair trial. Neither of these cases, Justice Thomas said, involved the conduct of private parties, and so the extension of their standard to such parties would be a new rule.

That is either arguably right or obviously absurd. If Justice Thomas means to say that Williams and Flynn don’t require the exact same standard for judging the prejudicial effect of courtroom spectators as for the effect of state actors, perhaps he’s right. Among other thins, as Justice Souter points out in a concurrence in the judgment, the spectators have some free speech rights that the state lacks. But if Justice Thomas and the majority mean to say that there is no clear rule forbidding any private displays in criminal trials, this is absurd. As both Justice Kennedy and Justice Souter point out in separate concurrences in the judgment, a long line of cases forbids the trial of a defendant in a courtroom pervaded by an atmosphere of coercion or intimidation, even where—indeed especially where—the fear of mob violence or its equivalence comes from general public. Unfortunately, the terse majority opinion does not make clear that it only adopts the former, narrow approach, rather than the latter, preposterous one.