By James Ottavio Castagnera (Jim Castagnera is a Philadelphia lawye…

By James Ottavio Castagnera
(Jim Castagnera is a Philadelphia lawyer and writer and the Associate Provost/Associate Counsel at Rider University.)
Last week the U.S. Supreme Court heard arguments in the case of a defendant who was convicted of first-degree murder. What made the case of Mathew Musladin, who shot and killed his estranged wife’s boyfriend Tom Studer, interesting to the Supremes was the buttons. That’s right, the buttons.
For the 14 days of trial Studer’s family came to court and sat in the front row wearing buttons that bore the dead man’s picture. The trial judge overruled defense counsel’s strenuous objections. After exhausting his state-court appeals, Musladin took his case into the federal courts, where the U.S. Court of Appeals for the Ninth Circuit agreed with him that he had been denied a fair trial in violation of the U.S. Constitution. The appellate panel ordered a new trial for Musladin… this one, presumably, without the victim’s fan club displaying their regalia.
The Musladin case is on the cutting edge of a long series of courtroom reforms. A strong dissent in the Ninth Circuit complained that the appeals court ruling “effectively erased” the boundaries drawn by Congress around when the federal bench can overturn state court criminal convictions. The majority for its part relied on a long line of precedents.
To appreciate the distance our criminal justice system has come from the “bad old days” to the Musladin case, we might look back to the famous trial of Sacco and Vanzetti. In 1921 these two Italian immigrants — admittedly anarchists who favored the overthrow of the U.S. government — were charged with armed robbery and murder. Their convictions and eventual executions sent mobs into the streets at the time and have inspired many books and several movies since then. To this day, no one can prove whether the two radicals did the dirty deeds or not. What is certain is that the procedures under which they were tried and convicted left a lot to be desired.
Beyond an openly prejudiced judge and questionable chains of evidence between the alleged murder weapons, the ammunition and the defendants, the item most worth noting here is the cage. Sacco and Vanzetti sat in a wrought iron pen in the courtroom’s center throughout their trial. What message did that send the jury? How about “anarchist equals animal”? Works for me.
African-American defendants once were treated much the same, as documented by the late, great A. Leon Higginbotham, a black jurist who served on our own U.S. Court of Appeals for the Third Circuit here in Philadelphia. In the 1996 “Shades of Freedom,” His Honor reviewed criminal cases in which black defendants were tried in segregated courtrooms, such as the one depicted in the film “To Catch a Mockingbird.” A typical prosecution ploy was to call white witnesses “mister” and “missus” while referring to black witnesses and the defendant by their first names.
In the worst of cases, prosecutors attacked the credibility of defense witnesses on the basis of racial stereotypes. In a 1977 Illinois case, for instance, the D.A. got away with telling the all-white jury, “First of all, concerning the defendant’s witnesses, you have to remember that they don’t live by the same social standards that we do, that you and I do. The witnesses the defendant brought are street people — simple as that.”
None of these antics pass constitutional muster today. The Supremes have even said that bringing the defendant into court in prison garb brands him “guilty until proven innocent.” Today’s defendant gets to come to court in a suit or a dress, just like everybody else, even if the state has to do the shopping. As for the jurors themselves, while no accused minority is automatically entitled to people of her own race on the panel, the prosecutor can’t use peremptory challenges to systematically exclude blacks or Latinos.
Yes, our criminal courtrooms have come a long way since Sacco and Vanzetti sat in their cage. Whether wearing buttons into court is protected free speech under our First Amendment, or prejudicial misbehavior in violation of defendants’ Sixth Amendment right to a fair trial, looks to be a close call. What if the accused’s friends and family come to court wearing t-shirts supporting him? Does that give the defendant an unfair advantage?
It’s easy to imagine a courtroom crammed with dueling messages from both sides of the case. This form of “fan advocacy” might best be left to the World Wrestling Federation, if you ask me.

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