Sponsors

About a fair trial Email Print

By Georgia10
10/30/2005 06:23:59 PM EST

The Ninth Circuit yesterday refused to consider en banc a case where a murderer's conviction was overturned.  The court initially held he was denied a fair trial because the audience in his trial wore memorabilia depicting the victim's face. It's an interesting topic that isn't considered often.

Members of [the victim's] family, who sat in the front row of the gallery at trial, wore buttons on their shirts with the decedent's picture on them during each of the 14 days of the trial. The trial judge overruled defense objections to the wearing of the buttons. Convicted of first degree murder, Musladin lost his state appeals, the Court of Appeal holding that while the wearing of photographs depicting a victim should be discouraged, it did not brand the defendant as guilty in the context of the particular case.

Great protections have been afforded to defendants to prevent the jury from being unduly prejudiced. For example, the Supreme Court has held that forcing an inmate to wear prison garb in court violates his right to a fair trial, as do shackles (absent saftey reasons, of course).

What is the prejudicial effect of having a gallery full of family members, wearing shirts and buttons with the victims face? Personally, I think it is highly prejudicial. But also very fact-specific. Here, the family members merely wore buttons with the victim's face--no words. If the buttons said "Remember Tom" or "Justice for Tom" than yes, I think the prejudicial effect would be clearer. But, this was a close case, as evidenced by the close split in the majority and minority.

While cases like this about prejudice from the gallery usually deal with family members, what about when a police officer is killed and the gallery is a sea of blue and gold stars? Doesn't that have some effect on the jury? Or conversly, what if a gang member is on trial, and dozens of gang members where their colors sit there throughout the whole trial? Doesn't that affect the jury, one way or another?

It's a thoroughly interesting topic that is rarely discussed when talking about a "fair trial".

On a side note, a House Panel just approved of splitting the Ninth Circuit into two.  That's how you get those liberals, I guess. Divide and conquer.


KEYWORDS: ,

Sign up for a Complimentary Member Account... Join the community! It's fast. And it'll allow you to take advantage of all this site's great features!

Poll

Victim Memorabilia worn during a trial is...
Prejudicial, should be forbidden. 81%
Not prejudicial, and should be allowed. 9%
It depends on the memorabilia. 9%

Votes: 11
Results | Other Polls

Related Articles

Disclaimer: "Related Articles" are provided as a service to our readers (Via Google News Feeds created using this article's 'Keywords' as the search terms to generate the feed). It is important to note that if a "Related Articles" list is included with this story, the list will be updated frequently subsequent to the posting of this story and may thus contain articles with information not yet known at the time of this story's original publication.

< Get lost in the Vortex, Welcome to Cortex | Step Right Up: What Fitzy Wants to Know >
 Display:
About a fair trial | 7 comments (7 topical, editorial, 0 hidden)
That dissent... (4.50 / 2)
... written by Judge Kleinfeld, from the denial of rehearing en banc, is the kind of dissent that is often referred to as a "cert petition", because that is in effect what it is.

A petition for writ of certiorari, asking the SCOTUS to accept the appeal and decide the case, will be filed by the state, no doubt; Judge Kleinfeld's opinion is intended to persuade SCOTUS judges and their clerks to grant the state's cert petition.  That is, almost always, the only reason a judge writes a lengthy dissent from a petition for rehearing en banc.  And, because Judge Reinhardt wrote the 9th Circuit panel opinion, the odds of the Supreme Court accepting the case are high (because Reinhardt is very liberal, especially on criminal procedure).

As for breaking up the 9th Circuit -- it will probably happen eventually, maybe in the next couple of years. The wingnuts will sense that their opportunity to break up the circuit depends on GOP control of the WH and both houses of Congress, and that window may close on them in 2008 if not sooner.

The most likely form of a split is that set forth in the House bill, which would put California, Hawaii and the Pacific island territories in one circuit and all the other states from the current 9th in a new circuit.  That's the proposal least disliked by the 9th Circuit judges.  Almost all of them oppose a split; the only ones who favor a split are the ones, including O'Scannlain, who would be in line to be chief judge at some point in the new split 12th Circuit.

by socal on 10/31/2005 01:18:34 PM EST

cutting out the ca-hi 9th (none / 0)
to make an everything else 12th looks as much like a play at throwing cases of environmental and federal land use to republican judges in the west as anything else. what would the legal politics of the 12th judges look like?

by wu ming on 11/01/2005 02:01:50 AM EST

[ Parent ]
Two considerations (none / 1)
  1. Of the active 9th Circuit judges, the split would be pretty even between the two new circuits -- half the Carter and Clinton appointees would be in the new 9th and half in the 12th; 5 of the 8 active Republican appointees would be in the new 9th and 3 in the 12th.

  2. Although the split of judges would be about 50-50, about two-thirds of the caseload would go to the California-Hawaii 9th.  The new 9th would need more judges to handle the caseload.  A sticking point for Democrats is that they don't want Bush to have the opportunity to make seven to ten appointments to the new 9th.  A possible compromise would be to create those seats for the new 9th effective in January 2009 and let the next president fill those seats, but that would leave the 9th short-handed until those vacancies are filled.  The new 12th would not need more judges; it would be in line with the caseload-to-judges ratios of other circuits.

by socal on 11/01/2005 07:20:19 PM EST

[ Parent ]
Victims (none / 1)

As a criminal defense lawyer, I have some concerns about the entire "victim's rights" movement.  For one, the presence of a courtroom full of people visibly affiliated with the victim can't help but have an effect on the jury.

 

Second, most states provide specifically that the victim or his/her family may testify at sentencing.  If the victim is a pretty young white girl from a good family, the witnesses and the testimony are likely to carry far more weight than if the victim is a homeless black guy who was set on fire by some frat boys out on a lark. Is this "fair" to the poor, inarticulate or anonymous victim?  Or was it designed to favor the favored?

 

An excellent topic worthy of discussion..... 

by roxtar on 10/31/2005 07:49:50 AM EST

Glad I read this, I think (none / 0)
It brought the high of Fitzmas down a notch.

After reading the link you provided, all I can say is

Now they're worried about judicial efficiency???

All it takes to fly is to hurl yourself at the ground... and miss. (Douglas Adams)

by scoophound on 10/31/2005 04:25:57 PM EST

how will this end (none / 0)
Sooner or later, courts will have no choice but to ban all displays and images of any kind in the court room.  But it may take people showing up with pictures of the defendants children and aged mother, or grisly photos of prison rapes and executions, before they get around to doing it.

Unless of course the judicial system has to support itself with advertising.  Then the room will be filled with logos, the defense counsel will be sponsored by Red's Bail and Bond, and the prosecution will endorse his designer suit.    

All images, sounds, etc. are distracting. They should all be banned, unless introduced into the trial as evidence. Period.

"The end of all intelligent analysis is to clear the way for synthesis." H.G. Wells "It's not dark yet, but it's getting there." Bob Dylan

by Captain Future on 11/01/2005 02:52:15 AM EST

The law assumes a victim. (none / 0)

The penalties built into our criminal statutes already assume that there is a victim. (Victimless crimes are another story, but there aren't usually courtroom demonstrations in such cases.) 

 

When assuming a victim, the law (by default) assumes a value-neutral victim.  When we upset that balance by putting a thumb on the scale of justice for the nice, pretty, articulate victim, we encourage the system to assign less value to the poor, the weak and the inarticulate. 

 

Compare the outcry in the Scott Peterson case with the response to any of the thousands of other murders in California over the past few years.  Only part of that hue and cry was due to the facts of the case.  The substantial portion had to do with an extremely sympathetic victim.

 

If we're willing to accept the notion that the qualities of the victim are relevant in sentencing, mustn't judges and juries also consider the argument that a given victim wasn't worth much? Aren't both positive and negative qualities to be considered?  Many ask "Who will speak for the victim?" Shouldn't we also ask, "Who willl speak against the victim?"

 

"She drank, she smoked, she cussed and she had tattoos.  It's not like my client raped a schoolteacher or anything."  Do we really want to go there?  If we allow a value judgment of the victim's qualities to be a factor in sentencing, can we avoid going there?  Is it the proper role of the courts to provide "closure" for victims? 

 

All thoughts, reflections, critiques, etc. are welcome. 

by roxtar on 11/01/2005 05:30:25 AM EST

About a fair trial | 7 comments (7 topical, 0 editorial, 0 hidden)
 Display: