Carey, Thomas (Warden) v. Musladin, Mathew (12/11/2006)

Question presented: In the absence of controlling Supreme Court law, did the 9th Circuit exceed its authority under 28 U.S.C. sec. 2254(d)(1) by overturning Musladin's state conviction of murder on the ground that the courtroom spectators indluced three family members of the victim who wore buttons depicting the decesaed?

BY YUXING ZHENG, MEDILL NEWS SERVICE

An unusual legal battle began brewing the moment Tom Studer's family stepped into a courtroom in 1995, wearing buttons.

For each of the next 14 days, at least three members of Studer's family sat in the front row wearing the buttons in clear sight of jurors during the trial of Mathew Musladin, who was convicted of Studer's murder.

Before opening statements, Musladin's lawyers asked the trial judge to instruct Studer's family members not to wear the buttons to court, saying the buttons would influence the jury and prejudice the defense. The buttons, which had no words, showed a smiling Studer in his Navy uniform. They were two to four inches in diameter and "very noticeable," according to Musladin's lawyers. The judge denied the motion.

Musladin was subsequently convicted of first-degree murder and sentenced to 32 years to life in prison.

Evidence showed that on May 13, 1994, Musladin went to pick up his 3-year-old son from his estranged wife, Pamela, for a scheduled weekend visit. Pamela and the son were living in San Jose, California, with Studer, her fiancé, and Michael Albaugh, her brother.

During the trial, Pamela testified that she got into an argument with Musladin and that he pushed her to the ground. When Studer and Albaugh emerged from the house to help her, Musladin reached into his car for a gun, shot twice at Studer and killed him, she said.

But Musladin said that after Pamela fell to the ground, Studer appeared with a gun and Albaugh with a machete, both threatening to kill him.

Musladin said that after he saw the weapons, he shot in Studer's general direction in self-defense. Studer died from a ricochet shot, according to experts on both sides.

Musladin appealed his conviction in state court, arguing that the buttons prejudiced the jury.

"The simple photograph of Tom Studer was unlikely to have been taken as a sign of anything other than the normal grief occasioned by the loss of a family member," the state appellate court wrote in affirming the conviction and sentence. "While we consider the wearing of photographs of victims in a courtroom to be an ‘impermissible factor coming into play,' the practice of which should be discouraged, we do not believe the buttons in this case branded defendant ‘with an unmistakable mark of guilt' in the eyes of the jurors."

After exhausting state avenues for post-conviction relief, Musladin filed a petition for habeas corpus in the federal District Court for the Northern District of California. Musladin argued that the state court unreasonably applied clearly-established federal laws in deciding his constitutional right to a fair trial was not violated by the wearing of the buttons. The district court denied his petition.

He then appealed to the 9th Circuit Court of Appeals. In April 2005, by a vote of 2-1, a 9th Circuit panel reversed and remanded the case to the district court.

In its decision, the 9th Circuit majority relied on two precedents, Estelle v. Williams and Norris v. Risley.

In Williams, the U.S. Supreme Court in 1976 found that compelling a prisoner to wear prison garb and shackles during a trial impairs the defendant's presumption of innocence and "constitutes an impermissible reminder to the jury of the defendant's condition: an accused in custody who is unable to post bail."

Norris concerned female spectators who wore "Women Against Rape" buttons during a rape trial. The 9th Circuit ruled in 1990 that the anti-rape buttons "constituted a continuing reminder that various spectators believed Norris's guilt before it was proven, eroding the presumption of innocence."

The 9th Circuit ruled there were no significant differences between Musladin's case and the Williams and Norris cases.

Although the district court's decision had cited the same cases, the 9th Circuit said it had incorrectly interpreted and applied them.

Based on standards established in the Supreme Court's 1986 decision in Holbrook v. Flynn, when the consequence of a courtroom practice is that an "unacceptable risk is presented of impermissible factors coming into play," there is "inherent prejudice" to a defendant's right to a fair trial.

Using this standard, the 9th Circuit also ruled that the state court had "unreasonably imposed an additional and unduly burdensome requirement – demanding that the challenged practice cause the ‘brand[ing]" of the defendant with an ‘unmistakable mark of guilty ‘ – even though the Williams test for finding ‘inherent prejudice' had already been met," Judge Stephen Reinhardt wrote in the majority opinion.

Judge David Thompson dissented and said the buttons "conveyed no message."

"It is difficult to distinguish this case from the routine situation of a deceased victim's family members, without buttons, sitting as a group in a courtroom during a trial," Thompson wrote. "Jurors in such a trial surely would recognize the group for what it is. The addition of buttons worn by them showing only the victim's photograph would add little if anything to any possible risk of impermissibly prejudicing the jury."

On Oct. 21, 2005, the full 9th Circuit Court of Appeals declined to rehear the case. Seven – an unusually high number – of the court's judges dissented, saying the court overstepped its powers and disregarded federal law.

At issue is not only whether Musladin's constitutional right to a fair trial was violated by the wearing of the buttons, but also to what extent courts should rely on Supreme Court rulings as opposed to subsequent lower federal circuit court decisions in granting habeas relief.

Under the 1996 Anti-Terrorism and Effective Death Penalty Act (AEDPA), a circuit court cannot grant habeas relief unless a state court decision is "contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States," Judge Andrew Kleinfeld wrote in his dissent. "Our decision in this case has the practical effect of erasing the statutory phrase ‘as determined by the Supreme Court of the United States.'"

Kleinfeld wrote that the state appellate court, in accordance with statutes, properly based its denial of Musladin's petition on Supreme Court rulings and federal law.

"The only question for us is whether there is any Supreme Court authority that holds that silent signals of affiliation by spectators in a courtroom deny a defendant due process by eroding his presumption of innocence," he wrote. "The answer is that there is no such case. That should be the end of our inquiry."

Lawyers on behalf of the warden and the state appealed to the U.S. Supreme Court, which accepted the case on April 17, 2006, for review during its 2006-2007 term.

The Supreme Court case is filed as Warden Thomas L. Carey v. Mathew Musladin. Carey in 2005 replaced retired warden Anthony Lamarque, who was named in previous cases, including the 9th Circuit's decision.

"If the 9th Circuit's opinion were allowed to stand, it virtually guts the deference requirement of the AEDPA by allowing a circuit court to simply point to its own case law regardless of other case law to the contrary," said Gregory A. Ott, deputy attorney general for the State of California. "The importance of the case will hopefully set some guidelines, either what is a reasonable application or what you can look to to support a conclusion that a state court opinion is reasonable or unreasonable."

David W. Fermino, the federal public defender arguing for Musladin, said such a narrow reading of the act usurps judicial power.

"If you believe what the State of California is saying, then you are essentially throwing out judicial review in this area, that a Court of Appeals can't look to its own case law in interpreting Supreme Court law and come to a conclusion," he said. "It's stripping power from a court and that's wrong."

Vikram Amar, a professor at Hastings College of the Law in San Francisco, said that few cases involve spectators wearing buttons, t-shirts, or other articles that might influence a trial. The Musladin case hinges on a very narrow interpretation of the habeas statute, he said.

"Under the habeas statute, unless a state has done something that violates clearly established Supreme Court precedent, then you're not supposed to grant habeas relief," Amar said. "So even if the state court shouldn't have done what it did, that's a different question from whether the button wearing violated some clearly established Supreme Court doctrine."

On Dec. 11, 2006, the Supreme Court unanimously reversed, holding that the 9th Circuit improperly concluded that the California state courts was contrary to the U.S. Supreme Court's applicable holdings on due process.

In writing the lead opinion for the Court, Justice Clarence Thomas distinguished earlier Supreme Court cases in which the potentially prejudicial in-court activities were government-sponsored actions, not spectator conduct.

Justices John Paul Stevens, Anthony Kennedy and David Souter concurred in the judgment, but each wrote a concurring opinion.

Stevens noted that in his opinion, "there is no merit whatsoever to the suggestion that the 1st Amendment may provide some measure of protection to spectators in a courtroom who engage in actual or symbolic speech to express any point of view about an ongoing proceeding."

Kennedy was concerned about future cases, suggesting that it may be time to consider a new rule about spectator conduct "as a preventative measure."

Souter conceded that there is a "fair argument that any level of risk from wearing buttons in a courtroom is unacceptable." Yet he was also concerned about "an interest in protected expression on the part of the spectators wearing mourners' buttons.

"Although I do not find such a 1st Amendment interest intuitively strong here," he continued, "in the absence of developed argument it would be preferable not to decide whether protection of speech could require acceptance of some risk raised by spectators' buttons."