Irvin D. Rose made a choice to represent himself at trial, but he didn’t choose to appear before a jury in shackles and a yellow jumpsuit that identified him as an inmate of the Bridgeport Correctional Center. After Rose was found guilty of assaulting a corrections officer, he appealed with the help of Southbury attorney Deborah G. Stevenson, who argued he couldn’t possibly get a fair shake dressed in prison garb.

Now after six years of appeals and counter appeals, Rose has completed his prison term. And, finally, he has won his argument.

The state’s highest court recently ruled that future defendants must not be forced to wear prison garb during their trials. If they are forced to do so, the justices made clear that their convictions will be overturned, no other questions asked. The only exception are those defendants who actually prefer to wear their prison garb in the courtroom.

“A rule of per se reversibility will serve to put trial courts on notice that compelling a defendant to stand trial in identifiable prison clothing simply cannot be sanctioned,” Justice Richard N. Palmer wrote in the majority opinion. “Unlike a prosecutor who makes improper remarks during closing argument or a judge who makes an erroneous evidentiary ruling, the judge who compels a defendant to stand trial in identifiable prison clothing does not commit an error that plausibly could be excused as occurring in the heat of battle.”

Stevenson, Rose’s lawyer for the Supreme Court appeal, said the justices made the right decision. “Their job, as any judge’s job, is to ensure the fairness and integrity of the trial system,” said Stevenson. “That fairness and integrity cannot be protected and preserved when for no valid reason one is forced to sit through an entire trial in prison garb and shackles.”

Palmer said the decision sends “a strong message” to the public.

“If we did not always reverse the convictions of defendants who are compelled to stand trial in identifiable prison clothing, we would convey a most damaging message, namely, that we place less value on basic fairness and the presumption of innocence than on sparing the trial court the minimal inconvenience of ensuring that a needy criminal defendant will be provided with civilian clothing,” wrote Palmer.

Justice Peter T. Zarella dissented. “Although the trial court improperly compelled the defendant to appear before the jury in prison attire, that impropriety was rendered harmless by the overwhelming evidence presented by the state and by virtue of the elements of the charged crime,” wrote Zarella.

‘Bozo’ Suit

On Jan. 15, 2006, while Rose was a pre-trial detainee in a Bridgeport Correctional Center hospital unit, he removed his hospital gown and pushed it and his blanket under the cell door. He then removed the stuffing from his mattress and crawled inside. A correction officer instructed Rose to get out of the mattress and sit on the bunk frame. Rose complied, and two officers entered the cell.

One carried the damaged mattress out of the cell. The other, who was keeping an eye on the inmate, was spat on by Rose. Saliva struck the officer’s face and chest. Rose was charged with assault of public safety personnel.

At the time, Rose was awaiting trial on a 2005 arrest for larceny in the sixth degree. His bond for the assault charge was $100,000 and he remained incarcerated until his July 2006 trial. Prior to jury selection, Judge Bellis said to Rose, “I don’t know anything about you… but based on the charges that I see I’m concerned and inclined probably to keep the shackles on.”

Rose responded that he was not an escape risk and objected to being tried in shackles. He added: “Also, my attire, your Honor. This Bozo the Clown suit is not sufficient.”

Bellis replied: “I do feel that the ankle shackles are required, and the attire, sir, based on the nature of the charges, they are going to know you are incarcerated anyway. That’s how that stands.”

Prior to the jurors’ deliberations, Bellis instructed them not to consider Rose’s attire in assessing the evidence. Still, Rose was found guilty and sentenced to 10 years incarceration, suspended after six years, followed by five years probation.

Rose appealed, saying that his attire at trial violated his 14th Amendment due process rights. The state Appellate Court agreed. Prosecutors challenged the ruling on grounds that the judges decision to keep Rose in his prison outfit was a harmless error, a point Zarella echoed in his dissent.

Assistant State’s Attorney Timothy Costello explained that the ultimate state Supreme Court ruling was made “under the court’s supervisory authority” to oversee operations of the Judicial Branch. “It wasn’t a constitutional ruling,” said Costello. “It’s a very narrow, Connecticut-only opinion the way it comes out.”

Costello said case law on the issue is “scant,” but he noted that the U.S. Supreme Court ruled in the 1970s that jurisdictions could not have rules that required all defendants to wear prison attire at trial.

Families Help

To be sure, there are no statistics on how often inmates appear in Connecticut courts wearing prison garb. Leonard M. Crone, a Waterbury trial lawyer who is president of the Connecticut Criminal Defense Lawyers Association, said he’s never been involved in such as case.

“I think as part of your due diligence, a lawyer representing someone should make sure they are appropriately dressed,” Crone said. “I make arrangements ahead of time, so the [defendant's] family will show up ahead of time with clothes. Usually they bring a shirt and a tie. Sometimes a suit.”

When there’s no family member available, defense lawyers will either provide them for clients or borrow clothes set aside for that purpose from other lawyers. The Public Defender’s Office keeps assorted court-appropriate clothing on hand, including shirts and ties, which are loaned out to private lawyers, Crone said.

And what about imprisoned defendants who are representing themselves pro se, as did Irvin Rose? Spokesman Brian Garnett said the Department of Correction does not buy civilian outfits for court use, and has no plans to start doing so. “Typically, clothing for [inmates] to wear to court comes from one of two places. One, the family provides it. Or, depending on the facility, there may be a surplus of surplus civilian clothing they can use, if they so choose.”

As for Rose, it’s unclear whether he’ll be back in court in any garment. He’s out of prison, and is on probation now. Officially, the Supreme Court sent his case back to Superior Court for a new trial. Prosecutor Costello said he “can’t say at this point whether or not this [case] would go forward.”

Defense attorney Stevenson said since Rose already served his six years in prison, there’s no need to retry the case. “What value would it be for anyone to retry the case at this point?” said Stevenson. “The state got what it wanted, even though it unfairly obtained it.”•