No.
IN THE
SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1999
xxxxxxx xxxxxxx,
PETITIONER,
v.
UNITED STATES OF AMERICA,
RESPONDENT.
PETITION FOR WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
PETITION FOR WRIT OF CERTIORARI
A.J. KRAMER
FEDERAL PUBLIC DEFENDER
*NEIL H. JAFFEE
Assistant Federal Public Defender
Counsel of Record
625 Indiana Avenue, N.W., Suite 550
Washington, D.C. 20004
(202) 208-7500
Attorneys for Petitioner *Counsel of Record
QUESTION PRESENTED
Whether the district court erred by compelling Mr. xxxxxxx to appear in prison clothing at trial, in violation of his constitutional right to a fair trial.
TABLE OF CONTENTS
QUESTION PRESENTED i
TABLE OF AUTHORITIES iii
OPINION BELOW
JURISDICTION
CONSTITUTIONAL PROVISION INVOLVED
STATEMENT OF THE CASE
STATEMENT OF FACTS
1. Appearance at Trial in Prison Clothes
2. The Government’s Evidence
3. The Defense Evidence
REASON FOR GRANTING THE WRIT
THIS COURT SHOULD RESOLVE THE QUESTION OF WHETHER
A DEFENDANT IS UNCONSTITUTIONALLY COMPELLED TO WEAR
PRISON CLOTHES THIS COURT SHOULD RESOLVE THE QUESTION
OF WHETHER A DEFENDANT IS UNCONSTITUTIONALLY COMPELLED
TO WEAR PRISON CLOTHES WHERE THE TRIAL COURT UNDULY
RESTRICTS THE OPPORTUNITY TO OBTAIN CIVILIAN CLOTHING.
AN IMPORTANT ISSUE OF CRIMINAL AND CONSTITUTIONAL LAW
CONCLUSION
TABLE OF AUTHORITIES
No.
IN THE
SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1999
xxxxxxx M. xxxxxxx,
PETITIONER,
v.
UNITED STATES OF AMERICA,
RESPONDENT.
PETITION FOR WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA
The petitioner, xxxxxxx M. xxxxxxx, petitions for a writ of certiorari to review the judgment of the United States Court of Appeals for the District of Columbia Circuit in this case.
OPINION BELOW
The decision of the United States Court of Appeals for the District of Columbia Circuit is reported as an unpublished judgment. (App. 1-2).
JURISDICTION
The judgment of the court of appeals was entered on February 11, 2000. The jurisdiction of this Court is invoked under 28 U.S.C. § 1254(1).
CONSTITUTIONAL PROVISION INVOLVED
The Fifth Amendment to the United States Constitution
provides in relevant part:
No person shall... be deprived of life, liberty, or property, without due process of law... .
STATEMENT OF THE CASE
On April 7, 1998, a federal grand jury sitting in
Washington, D.C. returned a one-count indictment charging xxxxxxx
M. xxxxxxx, having been previously convicted of a felony, with
receiving and possessing a firearm and ammunition, in violation
of 18 U.S.C. § 922(g)(1). [A. 9]
A jury trial commenced before the district court on June 16, 1998. After the jury was unable to reach a verdict, the court declared a mistrial on June 19, 1998. Mr. xxxxxxx's second trial began on September 22, 1998. On September 24, 1998, the jury found him guilty.
On December 3, 1998, the court sentenced Mr. xxxxxxx to forty-eight months imprisonment, three years supervised release, and a special assessment of $100.00. (12/3/98 Tr. 17-19) On February 11, 2000, the United States Court of Appeals for the District of Columbia Circuit affirmed Mr. xxxxxxx’s conviction.
In the court of appeals, Mr. xxxxxxx argued, inter alia, that the district court erred in refusing to allow additional time for his family to obtain civilian clothes for him to wear in front of the jury on the first day of trial after jury selection had been completed on the previous day. Relying on this Court’s decision in Estelle v. xxxxxxx, 425 U.S. 501 (1976), the court of appeals concluded that it was not clear from the record that xxxxxxx’s clothes were identifiable as prison garb and that the trial judge provided xxxxxxx with a reasonable opportunity to obtain civilian clothes. (App. 1)
STATEMENT OF FACTS
On March 14, 1998, at approximately 2:15 a.m., Mr. xxxxxxx was driving a 1986 Volkswagen Jetta on Benning Road, N.E., in Washington, D.C. According to a police officer who observed the car at that time, Mr. xxxxxxx was driving at an excessive speed and went through two red traffic lights. The officer pursued Mr. xxxxxxx, who pulled over and stopped the car in the 1900 block of Benning Road. After the traffic stop, the police recovered a gun from the car. The gun, which contained ammunition, formed the basis for Mr. xxxxxxx's arrest and prosecution in this case. 1. Appearance at Trial in Prison Clothes
On the first day of trial after jury selection had been
completed the previous day, defense counsel informed the court
that Mr. xxxxxxx was dressed in prison garb because his family
had not yet arrived with his civilian clothing. (9/23/98 a.m.
Tr. 3-4) The trial judge indicated that she would wait ten
minutes to commence the trial, which already was running about
thirty minutes behind schedule because the judge was handling
another matter. (Id. at 4)
After the recess, defense counsel represented to the court that a member of Mr. xxxxxxx's family had arrived and then left to obtain the street clothes. (Id. at 5-6.) The judge indicated that the trial had to proceed and that Mr. xxxxxxx could change into civilian clothes during the lunch recess if they arrived by then. The trial judge called in the jury and proceeded with the trial while Mr. xxxxxxx was wearing prison clothing. (Id. at 6) 2.The Government's Evidence
The government presented its case through two police officers involved in the traffic stop, a crime scene search officer, a firearms expert, and the individual who was riding in the front passenger seat of the car when Mr. xxxxxxx was stopped and ultimately arrested.
Metropolitan Police Department (“MPD”) Officer Christopher Avery testified that on March 14, 1998, at approximately 2:15 a.m., he was on routine patrol in his police car at the intersection of Oklahoma Avenue and Benning Road, N.E., Washington, D.C. (9/23/98 a.m. Tr. 27-28) At that time, Avery observed a red, four-door 1986 Volkswagen Jetta traveling westbound on Benning Road at a high rate of speed and weaving in and out of traffic. (Id. at 28) According to Avery, the Volkswagen went through two red traffic lights. (Id.) Avery, whose cruiser was facing eastbound, activated his emergency equipment, made a U-turn, advised the police dispatcher of the situation and began to pursue the car, which was about four or five blocks ahead of him at that point. (Id. at 28-33) As Avery was driving behind the Jetta, he did not see its driver attempt to throw anything out of the car window or to look back over his shoulder at the police cruiser. (9/23/98 p.m. Tr. 15-16) Avery did not observe the driver bend over as if to place something under the seat or take any other evasive action. (Id. at 35)
Avery lost sight of the car for a few seconds when it went over a hill in the area of Benning Road and 21st Street. (9/23/98 a.m. Tr. 33) As the officer followed over the hill, he saw illuminated brake lights on the side of the road between some cars and realized that the Jetta had pulled over and stopped in the 1900 block of Benning Road. (Id. at 33-34) Avery parked behind the car and asked the dispatcher to send additional back-up units. (Id. at 34-36)
Although the rear window of the Jetta was not tinted, Avery was not able to clearly see the occupants of the car until it stopped and he pulled up behind it. (9/23/98 p.m. Tr. 16) Avery observed two occupants in the car. (9/23/98 a.m. Tr. 36-37) Avery identified Mr. xxxxxxx as the driver of the car. (Id. at 37) Avery stayed in his cruiser for about twenty seconds and advised the dispatcher of the tag number and number of occupants in the car. (9/23/98 p.m. 17) During that time, Avery did not see the driver make any movements with his arms or shoulders. (Id.) The driver did not attempt to flee or to throw anything out of the car. (Id. at 34, 58-59) At that point, MPD Lieutenant Roland Hoyle, who had monitored Avery's initial radio run and had actually observed Avery's cruiser pursuing on Benning Road, pulled over and stopped behind Avery's parked cruiser. (9/23/98 p.m. Tr. 42-46)
Avery and Hoyle exited their vehicles and approached the parked car. (9/23/98 a.m. Tr. 37) Avery walked toward the driver's side and Hoyle approached on the passenger's side. (Id.) Avery unsnapped his holster as he approached. (9/23/98 p.m. Tr. 18) Standing in front of the left rear door, Avery shined his flashlight first into the empty back seat of the car and then into the driver's lap. (Id. at 19-20) Avery and Hoyle ordered the occupants of the car to show their hands. (9/23/98 a.m. Tr. 38; 9/23/98 p.m. Tr. 19, 47) Although Avery testified that the driver did put his hands up, (9/23/98 p.m. Tr. 19-20), Hoyle testified that the driver was bent over with his hands reaching down. (Id. at 47-48)
Avery then asked Mr. xxxxxxx for his license and registration. (9/23/98 a.m. Tr. 38; 9/23/98 p.m. Tr. 21) As xxxxxxx looked around the car for the requested documents, Avery asked him to turn down the volume of the radio. (9/23/98 a.m. Tr. 38) According to Avery, xxxxxxx “fumbl[ed] around” and had difficulty adjusting the radio. (Id.) During this time, Avery shined his flashlight around the inside of the car but was unable to see the driver's floorboard. (9/23/98 p.m. Tr. 21-23)
Avery suspected that xxxxxxx was intoxicated or under the influence. (9/23/98 a.m. Tr. 38) When Avery asked xxxxxxx to turn off the car, xxxxxxx fumbled around again and started reaching along the side of the seats. (Id.) After xxxxxxx turned off the ignition, Avery asked him if he had been drinking and xxxxxxx responded that he had drunk one beer. (Id. at 38-39) Avery ordered xxxxxxx to put his hands back up and he complied. (9/23/98 a.m. Tr. 39) When Avery told xxxxxxx to step out of the car, xxxxxxx said “huh or something like that,” but did not do anything. (Id.) At that point, Hoyle walked around to the driver's side and instructed Avery to open the driver's door. (9/23/98 p.m. Tr. 48) Avery opened the door and saw a gun lying on the floorboard by one of Mr. xxxxxxx's feet. (9/23/98 a.m. Tr. 39) Avery pulled out his gun and put it to his side and again ordered xxxxxxx to keep his hands up and come out of the car. (Id.) According to Avery, xxxxxxx refused and started to reach down toward the floor. (Id.) When xxxxxxx continued reaching down even after Avery repeated his order to come out of the car, Avery held his gun in both hands and came right up on xxxxxxx. (Id. at 39-40) Avery took the slack out of his trigger and prepared to fire. (Id. at 39-40) xxxxxxx reached down within inches of the gun on the floorboard and looked up at Avery for five to ten seconds. (Id. at 43) Avery told xxxxxxx that if he touched the gun, Avery would shoot and kill him. (Id.) xxxxxxx sat in the same position for another five or ten seconds and then finally sat up in his seat. (Id.)
After xxxxxxx sat up, Avery grabbed him and pulled him out of the car. (9/23/98 p.m. Tr. 7) It took Avery between thirty to sixty seconds to remove xxxxxxx from the car after Avery opened the driver's door. Id. at 28-29) When xxxxxxx was out of the car, Avery and Hoyle pushed him against it and placed his hands on the car. Id. at 7, 51) Avery frisked xxxxxxx, handcuffed him, and placed him on the ground. Id. at Tr. 7) At that point, Hoyle ran back around to the other side of the car and removed the passenger. (Id. at 52) Hoyle did not see the gun lying on the floorboard until both occupants had been removed from the car. (Id. at 53)
After xxxxxxx was arrested, Avery issued traffic citations for speeding and running two red lights. (Id. at 8-9) The police obtained the passenger's name, address, and phone number, and then released him. (Id. at 53-54) Avery found xxxxxxx’s registration inside the car. (Id. at 10-12)
After Mr. xxxxxxx was arrested, MPD Officer William Hyatt, assigned to the Fifth District Crime Scene Search Unit, arrived on the scene. (9/23/98 p.m. Tr. 61-62) Hyatt took photographs of the gun, a .22 caliber revolver, laying on the floorboard of the Jetta and then removed the gun from the car. (Id. at 62-65) Hyatt processed the gun for fingerprints, unloaded six rounds of .22 caliber ammunition from the cylinder of the pistol, and transported it to the Fifth District. (Id. at 62, 64-66) He found no useable fingerprints on the gun. (Id. at 66)
Special Agent Michael Mund of the Bureau of Alcohol, Tobacco, and Firearms, testified as an expert witness concerning the origin and manufacture of firearms. (Id. at 77-80) According to Agent Mund, the gun recovered from the car was manufactured by General Precision Corporation in Watertown, Connecticut. (Id. at 84-85) Therefore, in Mund's opinion, the gun had traveled in interstate commerce in order to arrive in the District of Columbia. (Id. at 86) The ammunition removed from the gun also was manufactured outside the District of Columbia. (Id. at 86-87) Therefore, in Mund's opinion, the ammunition also had traveled in interstate commerce before arriving in the District of Columbia. (Id. at 87) The government's final witness was Michael Mitchell, who was the front-seat passenger in the car at the time of Mr. xxxxxxx's arrest. (Id. at 95-96) Mitchell was not aware that there was a gun in the car. (Id.) On cross-examination, Mitchell testified that he never saw xxxxxxx with a gun. (Id. at 97) He and xxxxxxx were together that night from around 8:00 or 9:00 p.m. until the time of xxxxxxx's arrest. (Id. at 98) When they got into the car that night, Mitchell did not see xxxxxxx put a gun under the car seat, hide it, or do anything of that nature. (Id. at 98-99)
After Mitchell's testimony, the prosecutor read to the jury a stipulation entered into by the parties that Mr. xxxxxxx previously had been convicted of a criminal offense punishable by a term of imprisonment exceeding one year in the Superior Court for the District of Columbia. (Id. at 103-104) The government then rested its case. (Id. at 104)
3. The Defense Evidence
Because the district court restricted the scope of defense counsel's cross-examination of Michael Mitchell (9/23/98 p.m. Tr. 97-100), the defense called Mr. Mitchell to testify in its case. On March 13, 1998, at about 10:00 p.m., Mitchell and Mr. xxxxxxx went to the Skylark Club. (9/24/98 a.m. Tr. 12-13) They stayed together at the club until sometime after midnight. (Id. at 14) Mitchell did not observe anything unusual about xxxxxxx while they were at the club. (Id. at 13) They left the club together in the Jetta and dropped off two other people on the way home in the area of East Capitol Street, N.E. (Id. at 13-14) As xxxxxxx drove down Benning Road to drop off Mitchell at his home, the police stopped them. (Id. at 14) At that time Mitchell did not see xxxxxxx do anything in particular with his hands and did not see a gun on the floorboard of the car. (Id. at 14-15)
Mitchell was in the front passenger seat and xxxxxxx was in the driver's seat. (Id. at 15) As the police approached the car, the officers told Mitchell and xxxxxxx to put up their hands and they complied. (Id. at 15-16) In accordance with the officers’ orders, Mitchell and xxxxxxx immediately got out of the car. (Id. at 16) Mitchell did not see or hear any object being kicked in the car and did not see xxxxxxx's hands go down below the car seat. (Id.) Mitchell also did not see xxxxxxx take a gun from his waistband or from any other place and put it on the floorboard. (Id. at 16-17)
On cross-examination, Mitchell testified that while he was riding in the Jetta that night he did not look under the driver's seat. (Id. at 17) He did not personally know the two men who xxxxxxx drove home from the club and did not see either one of them carrying a weapon. (Id.) Mitchell did not see xxxxxxx drop his head and pause when the officers ordered him out of the car after they both had their hands raised. (Id. at 18) Mitchell indicated that he watched xxxxxxx during that entire time. (Id.)
Mr. xxxxxxx testified in his own behalf. xxxxxxx, who was thirty-one-years-old at the time of this incident, resided at 22 Quincy Place, N.W. (Id. at 19) Although he did not graduate high school, he earned a GED (Id.) He had been employed as a construction worker. (Id. at 19-20)
On March 13, 1998, about 10:00 p.m., xxxxxxx went to the Skylark Night Club on New York Avenue and Bladensburg Road. (Id. at 20) He went to the club with some friends to celebrate an opportunity he had to work for Metro in New Carrollton. (Id. at 31) He drove to the club in a 1986 Volkswagen Jetta which he had purchased used the previous January. (Id. at 20) Earlier that evening, he dropped off his wife and son at a relative's house. (Id. at 21) Mr. Mitchell was with him at that time. (Id.) Thereafter, xxxxxxx and Mitchell returned to xxxxxxx's neighborhood and stayed there for a while before deciding to go to the club. (Id.)
At the club, xxxxxxx and Mitchell met two of xxxxxxx's other friends, “Howard” and “Tubb.” (Id. at 22-31) They were all together at the club from the time they met there that evening until they left together about three to three and a half hours later. (Id. at 20-22, 31) During the time they were at the club, they socialized and had a couple of drinks. (Id. at 21)
When the four of them left the club about 2:00 a.m., xxxxxxx was running behind schedule as he had agreed to pick up his wife and her cousin at another club. (Id. at 21-22) xxxxxxx intended to first drop off Howard and Tubb and then take Mitchell home before picking up his wife and her cousin. (Id. at 22) xxxxxxx dropped off Howard and Tubb in the area of Minnesota Avenue and South Capitol Street. (Id. at 22-23) xxxxxxx did not see either one of them with a gun at any time that night. (Id. at 31-32)
After dropping them off, xxxxxxx made a U-turn to take Mitchell home. Because he was running late, he was driving rather fast, about 45 to 50 m.p.h. (Id. at 23, 33) Less than a minute after he went through a yellow traffic light on Minnesota Avenue, xxxxxxx noticed emergency lights in his rear view mirror and immediately pulled over to the side of the street and stopped. (Id. at 23-24, 34-36) A police car pulled up behind him and the officer sat in the car for about five seconds before getting out. (Id. at 24)
The officer then approached on the driver's side and shined his flashlight into the car. (Id.) The officer asked xxxxxxx for his driver's license and registration. (Id.) After xxxxxxx pressed the mute button on the radio because the volume control did not work, he took the key out of the ignition and put it in the glove box to obtain his registration. (Id. at 24-25) The registration was in the glove box and xxxxxxx also had his driver's license. (Id. at 29) xxxxxxx told the officer that the car was registered in his name and that it was not stolen. (Id. at 25)
At that point, the officer asked xxxxxxx to step out of the car. (Id.) With his hands resting on the steering wheel, xxxxxxx remained seated in the car thinking that the officer had smelled beer on his breath and was removing him from the car to give him a breathalyser test. (Id. at 25, 38) xxxxxxx had drunk two sixteen-ounce beers at the club that evening. (Id. at 29-30, 37) xxxxxxx sat in the car and thought about the trouble he was in with the police and with his wife, who was waiting for him to pick her up. (Id. at 25, 38) As the officer repeated his order for xxxxxxx to get out of the car, xxxxxxx “zoned out,” thinking and worrying about his predicament. (Id. at 25, 38, 41-42) Finally, after several more seconds, xxxxxxx lifted his head up and got out of the car. (Id. at 25)
xxxxxxx did not see a gun on the floorboard of the car at any time that night. (Id. at 26) When he got out of the car, he did not notice anything on the floorboard and did not feel himself kick anything as he exited the car. (Id.) When xxxxxxx got out of the car, he complied with the officer's order to go to the back of the car and put his hands on the trunk. (Id.) When the officer asked xxxxxxx whose pistol was in the car, xxxxxxx responded, “[w]hat pistol?” (Id.) xxxxxxx then explained to the officer that he had dropped off two friends after leaving the club and that there was no gun in his car before that time. (Id. at 27) xxxxxxx indicated that he was not aware that there was a gun in his car. (Id. at 27-28) The officer then placed handcuffs on xxxxxxx and took him into custody.
REASON FOR GRANTING THE WRIT
THIS COURT SHOULD RESOLVE THE QUESTION OF WHETHER
A DEFENDANT IS UNCONSTITUTIONALLY COMPELLED TO WEAR
THIS COURT SHOULD RESOLVE THE QUESTION OF WHETHER A
DEFENDANT IS UNCONSTITUTIONALLY COMPELLED TO WEAR
PRISON CLOTHES WHERE THE TRIAL COURT UNDULY RESTRICTS
THE OPPORTUNITY TO OBTAIN CIVILIAN CLOTHING, AN
IMPORTANT ISSUE OF CRIMINAL AND CONSTITUTIONAL LAW.
In Estelle v. xxxxxxx, 425 U.S. 501, 504-06 (1976), this Court recognized that a defendant’s appearance in prison clothes introduces an impermissible and prejudicial factor into a trial. The Estelle Court reaffirmed the principal that a defendant “should not be compelled to go to trial in prison or jail clothing because the possible impairment” of the presumption of innocence guaranteed as part of the defendant’s due process right to a fair trial. Id. at 504. The Court noted “that the constant reminder of the accused’s, condition implicit in such distinctive, identifiable attire may affect a juror’s judgment. The defendant’s clothing is so likely to be a continuing influence throughout the trial that, not unlike placing a jury in the custody of deputy sheriffs who are also witnesses for the prosecution, an unacceptable risk is presented of impermissible factors coming into play.” Id. at 504-05 (additional citation omitted).
Because “compelling an accused to wear jail clothing furthers no essential state policy [,]” id. at 505, and because appearance in prison garb is so inherently prejudicial, appellate courts must carefully examine instances where defendants wear prison clothing at trial. Id. at 504. This Court has acknowledged the difficulty reviewing courts have in determining the actual effect on a particular jury of viewing a defendant in prison garb:
The actual impact of a particular practice on the judgment of jurors cannot always be fully determined. But this Court has left no doubt that the probability of deleterious effects on fundamental rights calls for close judicial scrutiny. (Citation omitted) Courts must do the best they can to evaluate the likely effects of a particular procedure, based on reason, principle, and common human experience.
Id. at504.
An accused’s appearance before the jury in prison clothes does not constitute a per se constitutional due process violation. This Court has indicated that “the particular evil proscribed is compelling the defendant, against his will, to be tried in jail attire.” Id. at 507. Concerned that some defendants could make a tactical decision to wear prison clothes to elicit sympathy from the jury, the Estelle court held that a defendant’s constitutional rights are violated only where the government compels the defendant to wear prison clothes at trial. Id. at 507-08. Moreover, courts will not find that a defendant was unconstitutionally compelled to wear prison garb unless the defendant raises the issue with the trial court through a proper objection. Id. at 508-09.
In Estelle, the defendant asked for his civilian clothes at the jail on the morning of his trial but no action was taken. Id. at 501. However, the defendant failed to raise the issue with the trial judge and did not object to his jail attire or request an opportunity to obtain his civilian clothes. Id. Therefore, in concluding that the defendant was not compelled to wear his prison clothes at trial, this Court did not determine whether a defendant is unconstitutionally compelled to wear prison garb when the trial judge restricts the defendant’s opportunity to secure civilian clothing. Because the law in the circuits appears to be somewhat unsettled concerning this issue, this Court should grant review in this case to provide the lower courts with guidance in applying the constitutional principle discussed in Estelle.
The record in this case indicates that Mr. xxxxxxx was compelled to wear prison clothes on the first day of trial after jury selection. When Mr. xxxxxxx arrived in court wearing prisons clothes, his counsel immediately brought the situation to the district court’s attention before the jury was called into the courtroom:
DEFENSE COUNSEL: I have a problem now, Your Honor.
THE COURT: What's your problem?
DEFENSE COUNSEL: The clothes haven't arrived for my client. I've sent my paralegals out to find his clothes.
THE COURT: Well, sir, what's he dressed in?
DEFENSE COUNSEL: Prison garb. I've got three people looking for his clothes.
THE COURT: I mean you should keep an outfit with you.
DEFENSE COUNSEL: I thought they left one here last night but they didn't.
THE COURT: Well, you know, these are his
people.
DEFENSE COUNSEL: I understand that, Your Honor.
THE COURT: Good morning, Mr. xxxxxxx. I
understand your family hasn't come with your
clothing.
Let me ask the marshals. do you
keep an outfit of clothing that defendants
could use on occasions like this?
THE MARSHAL: No. We don't have anything.
THE COURT: I don't want to tie up this trial
for clothing, sir. I mean we're already
half an hour later than we were going to
be and they still haven't brought it.
DEFENSE COUNSEL: I understand that, Your Honor.
THE COURT: And they never bring it. So I
tell you what. I'll wait another 10 minutes.
If they haven't come, they haven't come.
Then we'll go.
I do want to accommodate you,
and I'm willing to do that, but you've
already been accommodated just by the
passage of time. I will tell you that it
was a very fruitful passage of time. I've
just saved myself six months of trial.
So that having been done, yes, I
had to take 10 minutes just to ventilate
afterwards, but, other than that–all right.
I'll take 10 minutes.
But please, sir, if they haven't
come, I just will have to come out, and I don't
know whether he can button it up or tighten
it up and make it look just a little better.
It doesn't look bad.
DEFENSE COUNSEL: No.
THE COURT: I mean it isn't an orange suit.
I thought it might be an orange suit and
that would be a little more glaring.
DEFENSE COUNSEL: Can we ask for about 10
minutes, please?
THE COURT: Yeah, I'm willing to give you
10 more. But sir, then we do have to go.
DEFENSE COUNSEL: I understand.
THE COURT: And then I'll make some
preliminaries and then we'll hear the
opening and we'll try to move this along.
All right. Ten minutes.
The Court stands in a 10-minute recess.
(Recess)
THE CLERK: All rise.
THE COURT: Okay. Joe, do you want to go
ahead and see if the jury is all ready to--
line them up and bring them in.
I'm going to bring in the jury. We'll
have Mr. xxxxxxx here–sorry, I got involved
in some call that was longer than I expected,
but it had to be done today.
Well, I see it hasn't arrived yet.
DEFENSE COUNSEL: A family member was here and
wentto get the clothing I understand.
THE COURT: I can't wait any longer, sir.
For the record, it's 25 after 11:00, and we
were supposed to start at 10:30 today, which
was later than usual, and it isn't here yet.
So we're going ahead now. If it comes
in later over lunchtime, by all means change,
but I don't want to delay the trial any longer.
DEFENSE COUNSEL: I understand.
THE COURT: Let's go ahead. Let's bring the
jury in and we'll administer the oath the
first thing.
DEFENSE COUNSEL: I just wanted the record to reflect
that I did what I could do.
THE COURT: I'm sure you did. I would suggest
in the future you hold on to it somehow maybe
in a closet back there, whatever.
(Jury in at 11:28 a.m.)
(9/23/98 a.m. Tr. 3-7)
It is clear from this record that Mr. xxxxxxx attempted to obtain the street clothes he wore during jury selection the previous day. Therefore, it is apparent that neither he nor his counsel had made a tactical decision to wear prison clothing to elicit sympathy from the jury. Although the district court was willing to permit Mr. xxxxxxx to wear civilian clothing, the judge ordered that the trial resume when the clothing had not yet arrived some fifty-five minutes after the trial was scheduled to commence that morning. In affirming the trial court’s ruling, the court of appeals held that Mr. xxxxxxx was not compelled to wear prison clothes because the trial judge gave him a “reasonable opportunity to obtain civilian clothing” and “he simply failed to do so.” (App. 1)
In contrast, the Second Circuit held in United States v. Hurtado, 47 F.3d 577, 580-82 (2d Cir. 1995), that the defendant was compelled to wear prison clothes on the first day of trial when the district court denied a recess to allow the defendant’s family to obtain clothing for him. In that case, the defendant requested a recess to allow his family to buy him civilian clothes to wear. Id. at 581. The trial judge denied the request and ruled that there was no reason to delay the proceedings. Id. Finding that the district court had erred in its ruling, the court of appeals stated, “although we understand the district court’s desire to proceed with the trial, we believe that [defendant] should have been afforded a reasonable opportunity to procure street clothes in light of the potential prejudicial impact of his appearance in prison clothes.” Id. Thus, the court of appeals held that the denial of a reasonable continuance to obtain civilian clothing constituted unconstitutional compulsion.
In the instant case, Mr. xxxxxxx’s family already was in the process of obtaining street clothes for him to wear before he was required to appear in front of the jury. Although the trial judge’s interest in proceeding with the trial is understandable, the district court should have afforded Mr. xxxxxxx a further opportunity to procure civilian clothing in light of the danger of denial of a fair trial when an accused is tried in prison garb. As Eleventh Circuit noted:
Clearly identifiable prison garb does more than clothe a defendant with suitable raiment -- it also clothes him with an unmistakable mark of guilt. Forcing a defendant to appear at trial so dressed not only is demeaning; it reinforces the fact that the defendant has been arrested and projects to the jury the mark of guilt, thus eroding the principle that the defendant is presumed innocence until proven guilty. This subliminal advertising has no place in our system of criminal justice; a defendant is entitled to appear free of this mark of guilt. That the jury will learn of his arrest during the course of the trial does not mitigate the harm occasioned by parading the defendant clothed in a shroud of guilt.
United States v. Harris, 703 F.2d 508, 511-12 (11th Cir. 1983).
The record in this case suggests that a short additional delay in the trial proceedings would have enabled Mr. xxxxxxx to secure street clothes before his trial resumed. The reasonableness of the trial judge’s denial of an additional continuance to obtain civilian clothing must be viewed in light of the record evidence that xxxxxxx’s family was in the process of obtaining clothing for him to wear. Therefore, contrary to the court of appeals’s ruling, the district court failed to afford xxxxxxx a “reasonable opportunity” to obtain his clothing. Because appearance in prison clothing seriously compromises a defendant’s right to the presumption of innocence so basic to the adversary system, this Court should require trial judges to take every reasonable precaution before requiring a defendant to wear prison garb in front of a jury. As Justice Brennan stated in Estelle:
When an accused is tried in identifiable prison garb, the dangers of denial of a fair trial and the possibility of a verdict not based on the evidence are obvious.
Identifiable prison garb robs an accused of the respect and dignity accorded other participants in a trial and constitutionally due the accused as an element of the presumption of innocence, and surely tends to brand him in the eyes of the jurors with an unmistakable mark of guilt. Jurors may speculate that the accused’s, pretrial incarceration, although often the result of his inability to raise bail, is explained by the fact that he poses a danger to the community or has a prior criminal record; a significant danger is thus created of corruption of the factfinding process through mere suspicion. The prejudice may only be subtle and jurors may not even be conscious of its deadly impact, but in a system in which every person is presumed innocent until proved guilty beyond a reasonable doubt, the Due Process Clause forbids toleration of the risk. Jurors required by the presumption of innocence to accept the accused as a peer, an individual like themselves who is innocent until proved guilty, may well see in an accused garbed in prison attire an obviously guilty person to be recommitted by them to the place where his clothes clearly show he belongs. It is difficult to conceive of any other situation more fraught with risk to the presumption of innocence and the standard of reasonable doubt.
425 U.S. at 518-19 (Brennan, J., dissenting).
The question relating to a trial court’s denial of a reasonable continuance to obtain civilian clothing is significant in light of the devastating effect that a defendant’s appearance in prison garb has on the defendant’s right to the presumption of innocence and to a fair trial. Federal appellate courts have not applied a uniform standard in determining the reasonableness of an opportunity afforded by a trial court to a defendant to obtain civilian clothing before the defendant can be compelled to wear prison garb in front of the jury. Therefore, this Court should grant certiorari to decide this important question of criminal and constitutional law and to correct the erroneous decision of the court of appeals in this case.
CONCLUSION
For the foregoing reasons, the petitioner respectfully requests that certiorari be granted in this case.
Respectfully submitted,
A.J. KRAMER
FEDERAL PUBLIC DEFENDER
*NEIL H. JAFFEE
Assistant Federal Public Defender
Counsel of Record
625 Indiana Avenue, N.W., #550
Washington, D.C. 20004
(202) 208-7500
Attorneys for Petitioner
*Counsel of Record
No.
IN THE
SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1999
xxxxxxx M. xxxxxxx,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.
CERTIFICATE OF SERVICE
Neil H. Jaffee, a member of the bar of this Court, certifies that pursuant to Rule 29 of this Court, that on May , 2000 he served the within MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATE COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT on counsel for respondent by depositing three copies of said motion and petition in the United States mail at Washington, D.C., first-class, postage prepaid, addressed to: Honorable Seth Waxman, Solicitor General of the United States, U.S. Department of Justice, Room 614, 905 Pennsylvania Avenue, N.W., Washington, D.C. 20530. All parties required to be served have been served.
Neil H. Jaffee
No. - ______
IN THE SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1999
xxxxxxx M. xxxxxxx,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.
MOTION FOR LEAVE TO PROCEED
IN FORMA PAUPERIS
Petitioner xxxxxxx M. xxxxxxx, pursuant to Supreme Court Rule 39, moves for leave to file the attached Petition for a Writ of Certiorari to the United States Court of Appeals for the District of Columbia Circuit without payment of fees, and to proceed in forma pauperis.
Petitioner xxxxxxx was appointed counsel in the United States Court of Appeals for the District of Columbia Circuit under the Criminal Justice Act of 1964.
Respectfully submitted,
A. J. KRAMER
FEDERAL PUBLIC DEFENDER
*NEIL H. JAFFEE
Assistant Federal Public Defender
625 Indiana Avenue, N.W., Suite 550
Washington, D.C. 20004
(202) 208-7500
*Counsel of Record for Petitioner xxxxxxx