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In Carey v. Musladin, 05-785 (2006), four separate opinions were required for the U.S. Supreme Court justices to communicate their unanimous judgment that Mathew Musladin’s first-degree murder conviction in California for shooting and killing Tom Studer outside the home of Musladin’s estranged wife, Pamela, was not error. The issue provoking all this paperwork was whether Musladin’s conviction was unfair because at trial members of Studer’s family were permitted to sit in the front row wearing buttons displaying a photograph of the victim. For Justice Clarence Thomas, delivering the opinion of the court, Musladin’s claim provided the occasion for furthering a multipronged agenda inherited from late Chief Justice William Rehnquist: furthering states’ rights, reining in the federal judiciary and impairing the court’s ability to fashion new constitutional rules in criminal cases. Since Musladin had found its way into the federal system on an application for a writ of habeas corpus from a prisoner in custody pursuant to a state court judgment, relief, Thomas insisted, could, consistent with the Antiterrorism and Effective Death Penalty Act of 1996, be afforded only if the state court judgment was “contrary to, or involved, an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States” at the time the state court rendered its decision. See 28 U.S.C. � 2254(d)(1). Relying on former Justice Sandra Day O’Connor’s earlier and controversial assertion that “clearly established Federal law” within the meaning of the 1996 act “refers to the holdings rather than the dicta” of the court’s decisions (See Williams v. Taylor, 529 U.S. 362, 412 (2000)), Thomas insisted that since the court had “never addressed” a claim that “private-actor courtroom conduct was so inherently prejudicial that it deprived a defendant of a fair trial,” it was impossible to say that the state court in Musladin’s case “unreasonably applied clearly established Federal law” by permitting the victim’s relatives to wear buttons at Musladin’s trial. Justice John Paul Stevens wrote separately to express his view that “Justice O’Connor’s dictum about dicta represents an incorrect interpretation of the statute’s text.” Stevens pointed out that “virtually every one of the court’s opinions announcing a new application of a constitutional principle contains some explanatory language,” and that “[i]t is quite wrong to invite state court judges to discount the importance of such guidance on the ground that it may not have been strictly necessary as an explanation of the Court’s specific holding in the case.” By so “placing a judicial thumb on the warden’s side of the scales,” Justice Thomas’ reading of the act had gone too far, and was “wholly unnecessary.” Having thus registered his objections, Stevens compliantly concurred.
Souter went on to assert that ‘one could not seriously deny that allowing spectators at a criminal trial to wear visible buttons with the victim’s photo can raise a risk of improper considerations. … The only debatable question is whether the risk in a given case reaches the “unacceptable” level.’

In his separate concurrence Justice Anthony Kennedy also showed uneasiness with Justice Thomas’ approach, but declined to contradict Justice O’Connor’s narrow reading of the act as a matter of law. Limiting himself to the case at hand, Kennedy asserted that the power of the federal courts to provide habeas relief cannot plausibly be limited to factually identical repetitions of instances of unfairness previously identified and rectified by the Supreme Court. Rather, all “[t]rials must be free from a coercive or intimidating atmosphere.” If “in a given case” the “taint” condemned in the court’s previous decisions about unacceptable courtroom atmospherics was actually “brought about by the wearing of buttons,” relief “would likely be available even in the absence of a Supreme Court case addressing the wearing of buttons.” Although Kennedy found that Musladin’s case presented no such example of severe coercion or intimidation, he asserted that it “does call for a new rule” prohibiting “buttons proclaiming a message relevant to the case � as much as a preventative measure as by the urgent needs of the situation.” But, he added, any such rule would have to be “explored in the court system and then established in this Court” before it could become effective. Since in his view this groundwork had not yet been laid, Kennedy concurred in the court’s judgment. Justice David Souter wrote to express his understanding that the standard clearly established by the court in cases of alleged courtroom unfairness is whether the challenged “practice or condition presents ‘an unacceptable risk � of impermissible factors coming into play’ in the jury’s consideration of the case.” Nothing should be made to turn on Thomas’ wooden distinction between government-sponsored practices (for which there is prior Supreme Court precedent) and the behavior of spectators (for which such precedent is lacking). “Either way the trial judge has an affirmative obligation to control the courtroom and keep it free of improper influence.” Souter went on to assert that “one could not seriously deny that allowing spectators at a criminal trial to wear visible buttons with the victim’s photo can raise a risk of improper considerations. � The only debatable question is whether the risk in a given case reaches the ‘unacceptable’ level.” While tempted to decide that “any level of risk from wearing buttons in a courtroom is unacceptable,” and so vote grant to afford Musladin relief, Souter refrained in deference to the majority of state courts that, after “consider[ing] the influence of spectator buttons,” have “left convictions standing.” Souter evinced a wariness to conclude that all these judges were “unreasonable as well as mistaken.” Souter was further troubled by the possibility that spectators might have a First Amendment right to wear buttons. While finding this argument to have little intuitive appeal, and despite Justice Stevens’ categorical rejection of the notion that the “First 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,” Souter concluded that before a per se prohibition of spectator buttons could be judicially endorsed, the First Amendment issues, which were not the focus of Musladin’s case, would have to be fully developed in argument in an appropriate case and given “careful attention.” So he, too, concurred in the judgment sustaining Musladin’s first-degree murder conviction. Virtually everything in Musladin is bedeviling: How did Justice Thomas elicit six votes, including the votes of Justices Ruth Bader Ginsburg and Stephen Breyer, for a further endorsement of a standard of habeas review which precludes the federal courts from providing relief in state court cases unless the Supreme Court had already decided a case directly on point at the time the state court rendered its decision? While this strict construction of the act as announced by Justice O’Connor has since been repeated three times by a bare majority of the court, Justices Ginsberg and Breyer were dissenters in each of those cases. Why did they elect to take the occasion of Musladin’s first-degree murder conviction to change their minds and embrace a rule that not only ties the hands of the lower federal courts, but also impairs the Supreme Court from developing new principles of constitutional law in state court criminal cases? And what of Justice Kennedy’s impotent lobbying activities for a new rule to be developed by the court system and announced by the Supreme Court that would prohibit courtroom displays by spectators? While that sounds nice, Justice Kennedy fails to explain why the numerous state courts which have already passed on the question and the Supreme Court’s discretionary decision to review Musladin’s case did not provide a sufficient basis to fashion this rule. Nor does he explain how the court system is going to be able fully to develop the issue now that the federal courts are effectively precluded from participating. Finally, what is one to make of Justice Souter’s refusal to devise a new rule out of regard for the majority of state court judges who have not been offended by courtroom buttons, and the hypothetical First Amendment rights of spectators to advance their viewpoints during the course of a criminal trial? Souter’s ad hoc respect for the collective wisdom of state court judges differs from Thomas’ rule of per se deference only to the extent that it arbitrarily rests in the unfettered discretion of the individual justice and is therefore a worse alternative. One further wonders how the sketchy First Amendment right of a spectator to express his views of guilt or innocence to a judge and jury during a trial can be weighed to tip the scales against the very real right of Musladin to a fair trial. That nebulous theories of free speech should be interposed to contravene the gravity of a first-degree murder conviction is alarming. More alarming still is the perception that the court has reduced Musladin to an expandable pawn in some grand game the justices have elected to play amongst themselves at the expense of all the people. By all appearances, Musladin’s conviction has been upheld despite the fact that a majority of the justices may actually believe that there should be a constitutional rule prohibiting spectators from campaigning in the courtroom by means of buttons. The six-member court assembled by Justice Thomas neatly avoided the issue by ruling it out of bounds. Since the Supreme Court had never addressed it, neither might any lower federal court. The three concurring justices all came out in favor of a prophylactic rule but found other excuses, as convenient as they were improbable, for not casting their votes to implement it. Michael Halley, a land use litigator by training, is currently preparing a series of articles on the Rule of Law, the first of which � Breaking the Law in America � should be forthcoming in “Law and Literature” (University of California Press). He is based in Cambridge, Mass. � Practice Center articles inform readers on developments in substantive law, practice issues or law firm management. Contact Sheela Kamath with submissions or questions at [email protected].

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