man in prison uniform in courtroom

A defendant whose attorney failed to promptly object to his appearance before a jury pool in a prison jumpsuit undermined his own ineffective assistance claim by repeatedly referring to his criminal record on the stand, a federal judge has held in a habeas corpus case.

Eastern District Judge William Kuntz II declined to follow a precedent from the U.S. Court of Appeals for the Third Circuit in deciding that Roger Jefferson was not denied effective legal assistance.

Jefferson v. LaClair, 09-cv-2782, was a Staten Island case in which a jury convicted the defendant of third-degree criminal trespass and third-degree criminal possession of a weapon.

Jefferson contended that on the first day of jury selection in 2006, a corrections officer would not allow him to change from his prison jumpsuit into the civilian clothing that his lawyer had arranged to be available.

However, neither Jefferson nor his trial counsel, Gregory Clarke of the Staten Island Legal Aid Society, made any objections until the end of the first day of jury selection. Jefferson was allowed to wear his civilian clothes for the remainder of jury selection and the entire trial before Acting Supreme Court Justice Stephen Rooney.

Jefferson’s conviction was upheld on appeal, leading to his federal court petition. He relied largely on Estelle v. Williams, 425 U.S. 501 (1976), where the U.S. Supreme Court held that a inmate cannot be compelled to appear before a jury in prison garb, and the Third Circuit’s decision in Gaitov. Brierley, 485 F.2d 86 (1973), which has never been adopted by the Second Circuit.

Magistrate Judge Steven Gold, in a report and recommendation, said Estelle was not violated because neither Jefferson nor Clarke immediately objected to the defendant’s attire. Gold said the Supreme Court has made clear that it is not the court’s obligation to ask if a defendant wants to change out of prison garb before appearing before a jury.

“In this case, it is undisputed that Jefferson’s criminal trial attorney did not object to Jefferson’s appearance in prison clothes until the end of the first day of jury selection and that, upon hearing the objection, the trial judge ensured that Jefferson appeared in civilian clothing thereafter,” Gold wrote.

On the ineffective assistance issue, Gold said Jefferson was not prejudiced by Clarke’s failure to immediately register an objection on the attire issue because the defendant himself had volunteered while testifying that he had been “remanded” and “locked up.” In addition, Gold cited the strength of the prosecution’s case and the fact that Jefferson had appeared in prison garb for just one day.

Kuntz adopted the report in its entirety, specifically declining to follow Gaito.

In Gaito, the Third Circuit said there was “no way to know why” a defendant testified about his incarceration after the jury had already seen him in prison clothing. It said that a prisoner in that circumstance may have determined there was no mileage to be gained in concealing his incarceration since the jury had already seen him in a prison uniform.

Kuntz noted that the Second Circuit, in the 40 years since Gaito was decided, has never adopted the Third Circuit’s analysis.

He also said Jefferson’s “references to his own incarceration reflect no strategic attempt to mitigate the jury’s prior observation and were made fleetingly, unnecessarily, and often unprompted during cross examination.” Further, the judge said that the trial transcript includes references to Jefferson’s prior arrest, conviction for two felonies and time in prison, “often in response to defense counsel’s questioning.”

Clarke declined to comment.

The habeas petition was argued by David Crow of the Legal Aid Society in Manhattan and Jonathan Youngblood of Simpson Thacher & Bartlett for Jefferson. Assistant District Attorney Morrie Kleinbart appeared for the prosecution.