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When Mathew Musladin went on trial in Santa Clara, Calif., for the 1994 murder of Tom Studer, his estranged wife’s fianc�, the victim’s family showed support for Studer in an unusual way. Sitting silently near the jury, family members wore buttons bearing a photo of Studer’s face every day of the trial. Musladin’s lawyer asked the trial judge to order the buttons removed, asserting they would prejudice the jury against his client. The judge denied the motion. On Monday the Supreme Court ruled in Carey v. Musladin that the Studer family’s actions did not violate any firmly established federal rule and there was thus no reason to reverse Musladin’s conviction. The unanimous ruling did not endorse the practice, and Justice David Souter wrote separately that spectators wearing buttons “can raise a risk of improper considerations.” But under federal habeas corpus rules, a state conviction can be reversed only if the state court’s ruling upholding the conviction misapplies “clearly established federal law as determined by the Supreme Court.” Justice Clarence Thomas, writing for the Court, said it is clearly established by Court precedent that certain actions by the state at trial — such as forcing a defendant to wear prison garb or surrounding the defendant with uniformed state troopers — are inherently prejudicial enough to cause the reversal of convictions. But, Thomas said, the conduct at issue in Musladin’s case was “spectator conduct” that is not covered by those precedents. “The Court has never addressed a claim that such private-actor courtroom conduct was so inherently prejudicial that it deprived a defendant of a fair trial,” wrote Thomas. Justice Anthony Kennedy wrote separately in disagreement with Thomas, noting that some Court precedents — such as those that discouraged cameras in the courtroom — cover prejudicial actions by nonstate actors. The U.S. Court of Appeals for the 9th Circuit, which was reversed Monday, had also found that high court precedent created a clear rule about spectators’ courtroom conduct. Kennedy said that someday, he could envision a general rule against wearing buttons “to preserve the calm and dignity of a court.” But because no such rule exists, and because there was no showing that damage to Musladin’s fair-trial rights was “severe,” Kennedy agreed that his conviction should not be reversed. Souter also pointed toward further development of rules on the issue, suggesting that the First Amendment rights of victims’ families might also be involved. Justice John Paul Stevens countered in a separate writing that “there is no merit whatsoever” to Souter’s suggestion that spectators might have a First Amendment right to engage in “actual or symbolic speech” during a trial. Jonathan Hacker, who wrote a brief against the button display for the National Association of Criminal Defense Lawyers, said the decision should not be read as a license for trial judges to allow jurors to wear buttons or make other displays in support of victims in the future. “There are no expressed votes endorsing this practice,” said Hacker, a partner at O’Melveny & Myers in D.C. “The justices want the lower courts to look closely at the issue and establish a rule.” Hacker also criticized the high court decision for making a distinction between conduct by the state and by spectators that might affect the fairness of a trial. “The state provides the courtroom and is responsible for establishing the conditions of the trial,” said Hacker. “I hope the lower courts will quickly realize that is not a valid distinction.”
Tony Mauro can be contacted at [email protected].

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