Tuesday, December 12, 2006

If victim buttons are okay, how about stop snitching t-shirts?

Via SCOTUS Blog, the US Supreme Court yesterday overruled a federal appeals court in Carey vs. Musladin to declare there is no constitutional justification to prohibit family members of murder victims from wearing buttons at trial with the victim's picture on them. Wrote Clarence Thomas in the majority opinion, "This Court has never addressed a claim that such private-actor courtroom conduct was so inherently prejudicial that it deprvied a defendant of a fair trial."

(See the opinion of the Court in Musladin here. Justice Stevens' concurrence is here, Justice Kennedy's is here, and Justice Souter's is here. The syllabus is here.)

My question: Wouldn't the high court's ruling imply the same deference must be granted to free speech in the courtroom regarding "stop snitching" t-shirts some gang members have worn into court to intimidate witnesses? It seems to me what's good for the goose is good for the gander.


elvez1975 said...

It's not entirely surprising that Thomas wrote this opinion; he's never found anything the government does to be harmful to a criminal defendant (in any opinion I've ever read). The more frustrating part is that this is a unanimous opinion (we miss you Thurgood Marshall).

While witness intimidation is a crime and there is no doubt those folks would be quickly arrested in a courtroom, I don't know how any judge could say that this sort of behavior isn't prejudicial, especially where elected judges and juries are concerned. Would the SCOTUS look the same way if the spectators held up signs? How far does this go?

(BTW, this sort of tactic is not limited to murder trials. MADD is notorious around here for identifying certain drunk driving defendants and putting at least one person in the front row. FWIW, I've never seen a judge grant a motion to suppress when those ladies are in attendance.)

Gritsforbreakfast said...

elvez1975: That doesn't surprise me about MADD. But all these precedents cut both ways, and I think you may be wrong anti-snitch folks would be "quickly arrested." E.g., in Pittsburgh a person who wore such t-shirts into court was ejected from court, but not arrested. After all, wearing a t-shirt that says "stop snitching" is no more intimidating to a specific witness than wearing a button would be prejudicial to a specific defendant, especially after this ruling.

elvez1975 said...

I witnessed a man arrested in court in the summer of 2005 for wearing a Stop Snitching shirt to his brother's domestic violence court date. I heard from other attorneys that they had witnessed other defendants similarly arrested/removed from court that summer. The removal serves the same function: "You can't say that in here." I doubt any judge is throwing people out for wearing victim buttons.

But I think you're turning this ruling on its head. I don't see any court holding that snitching shirts constitute protected speech, since it's arguably criminal behavior (pretty damn hard to prove unless you had other evidence that this person had previously threatened a specific witness). Courts would likely respond to your comparison: one is protected speech which "only" arguably violates the Constitution and the other is a criminal act.

Gritsforbreakfast said...

Like I said, what's good for the goose is good for the gander. The stop snitching shirts are no more specific to any given witness than the buttons are to the defendant. Though IANAL, I think Thomas' logical argument applies precisely the same to both instances.

Gritsforbreakfast said...

BTW, elvez - I'd be curious to hear more Texas stories involving stop snitching shirts that you've heard. Most have been on the East Coast.

elvez1975 said...

My stories are from the East Coast PD Office I used to work at, so unfortunately I can't provide a Texas tale. I did see one down here earlier this year; no news on what happened to that guy. (Now if it was my client wearing that shirt , you better believe that we would have a bit of a discussion out in the hallway about how smart it would be to put that shit on.)

I agree with you; it's a ridiculous double standard, one of many that prejudice juries against criminal defendants. I'm more than a little bit shocked that not a single Justice thought it was reversible error.