Spectator conduct is fair trial issue

The Baltimore Sun

WASHINGTON -- The Supreme Court for the first time took up the question yesterday of whether the conduct of spectators might deprive a defendant of a fair trial and require that a criminal conviction be overturned.

The justices heard arguments in a San Jose, Calif., murder case in which three members of the victim's family had worn buttons with small photos of him during part of the trial.

In 1995, a jury convicted Mathew Musladin of shooting and killing Tom Studer, the fiance of his estranged wife, Pamela, in the driveway of her home. Last year, however, the U.S. Court of Appeals for the 9th Circuit overturned the conviction on the grounds that the photos of the victim might have unfairly influenced jurors.

During arguments yesterday, several justices said they thought trial judges should bar spectators from displaying photos, badges and messages in the courtroom. However, most said they were reluctant to reverse a murder conviction for that reason alone.

At one level, the case poses a clash between the victim's rights and the rights of a criminal defendant. On another level, it tests the power of federal judges to reverse convictions in state courts.

Ten years ago, Congress amended the law to say that federal judges should not second-guess the decisions of state judges in criminal cases. Federal judges are empowered to reverse state convictions only for violations of "clearly established law" as set by the Supreme Court, the law said.

Lawyers for the state of California argued that the San Francisco-based 9th Circuit ignored that rule in this case, and they got some unexpected help from Justice Ruth Bader Ginsburg.

"We haven't had a case, have we, where it is spectator conduct as opposed to government conduct that's being attacked?" she asked the lawyer who represented Musladin.

"That is correct," said David W. Fermino of San Francisco.

"That certainly goes beyond where our precedent leaves off," she said.

Her point was clear: How could the 9th Circuit conclude that the California court's handling of the case violated "clearly established law," as set by the Supreme Court, when the high court had yet to decide such a case?

Gregory A. Ott, a deputy attorney general from San Francisco, urged the justices to reverse the appeals court's decision and to rule that the photos did not prejudice the jury.

"The three simple buttons bearing only a photo did not convey any message of blame [or] guilt, anything other than grief of this family," Ott said.

He ran into sharp questioning from Justices David H. Souter and Stephen G. Breyer.

It is "quite a bad idea to have buttons being worn in a courtroom, which is not a place for demonstrations," Breyer said.

"What if three buttons had said 'Hang Musladin'?" Souter asked. "Wouldn't that call for overturning the conviction?"

Maybe so, Ott replied, since that would send an explicit message to the jury.

By contrast, the photo of Studer did not convey a specific message, Ott said. The state judge who presided over the trial said he saw "no possible prejudice" to the defendant.

Fermino said the justices should prohibit the display of photos by spectators because it creates an "impermissible risk" of influencing the jury.

He ran into skeptical questions from Chief Justice John G. Roberts Jr. and Justices Antonin Scalia and Anthony M. Kennedy.

A ruling in the case, Carey v. Musladin, is expected in several months.

David G. Savage writes for the Los Angeles Times.

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