Respondent, who was charged with a criminal offense and held in
custody awaiting trial, asked a jail officer on the morning of
trial for his civilian clothes to wear at trial; no action was
taken. During
voir dire, his counsel expressly referred to
respondent's jail attire. At no time before or during the ensuing
jury trial was the issue raised to the trial judge concerning the
jail attire. Respondent, whose conviction was upheld on appeal,
sought federal habeas corpus. The District Court denied relief, but
the Court of Appeals reversed. Though there was evidence that, in
the county where the trial occurred, the majority of nonbailed
defendants were tried in jail clothes, there was no evidence that
such a practice was followed if timely objection was made to the
trial judge; and the practice of the particular trial judge was to
permit any accused who so desired to be tried in civilian garb.
Held: Although the State cannot, consistent with the
Fourteenth Amendment, compel an accused to stand trial before a
jury while dressed in identifiable prison clothes, the failure to
make an objection to the court as to being tried in such clothes
negates the presence of the compulsion necessary to establish a
constitutional violation. Nothing in the record here warrants a
conclusion that respondent was compelled to stand trial in jail
garb or that there was sufficient reason to excuse the failure to
raise the issue before trial. Pp.
425 U. S.
503-513.
500 F.2d 206, reversed and remanded.
BURGER, C.J., delivered the opinion of the Court, in which
STEWART, WHITE, BLACKMUN, POWELL, and REHNQUIST, JJ., joined.
POWELL, J., filed a concurring opinion, in which STEWART, J.,
joined,
post, p.
425 U. S. 513.
BRENNAN, J., filed a dissenting opinion, in which MARSHALL, J.,
joined,
post, p.
425 U. S. 515.
STEVENS, J., took no part in the consideration or decision of the
case.
Page 425 U. S. 502
MR. CHIEF JUSTICE BURGER delivered the opinion of the Court.
We granted certiorari in this case to determine whether an
accused who is compelled to wear identifiable prison clothing at
his trial by a jury is denied due process or equal protection of
the laws.
In November, 1970, respondent Williams was convicted in state
court in Harris County, Tex., for assault with intent to commit
murder with malice. The crime occurred during an altercation
between respondent and his former landlord on the latter's
property. The evidence showed that respondent returned to the
apartment complex where he had formerly resided to visit a female
tenant. While there, respondent and his former landlord became
involved in a quarrel. Heated words were exchanged, and a fight
ensued. Respondent struck the landlord with a knife in the neck,
chest, and abdomen, severely wounding him.
Unable to post bond, respondent was held in custody while
awaiting trial. When he learned that he was to go on trial,
respondent asked an officer at the jail for his civilian clothes.
This request was denied. As a result, respondent appeared at trial
in clothes that were distinctly marked as prison issue. Neither
respondent nor his counsel raised an objection to the prison attire
at any time.
Page 425 U. S. 503
A jury returned a verdict of guilty on the charge of assault
with intent to murder with malice. The Texas Court of Criminal
Appeals affirmed the conviction.
Williams v.
State, 477
S.W.2d 24 (1972). Williams then sought release in the United
States District Court on a petition for a writ of habeas corpus.
Although holding that requiring a defendant to stand trial in
prison garb was inherently unfair, the District Court denied relief
on the ground that the error was harmless.
The Court of Appeals reversed on the basis of its own prior
holding in
Hernandez v. Beto, 443 F.2d 634 (CA5),
cert. denied, 404 U.S. 897 (1971). 500 F.2d 206. The Fifth
Circuit disagreed with the District Court solely on the issue of
harmless error.
(1)
The right to a fair trial is a fundamental liberty secured by
the Fourteenth Amendment.
Drope v. Missouri, 420 U.
S. 162,
420 U. S. 172
(1975). The presumption of innocence, although not articulated in
the Constitution, is a basic component of a fair trial under our
system of criminal justice. Long ago, this Court stated:
"The principle that there is a presumption of innocence in favor
of the accused is the undoubted law, axiomatic and elementary, and
its enforcement lies at the foundation of the administration of our
criminal law."
Coffin v. United States, 156 U.
S. 432,
156 U. S. 453
(1895).
To implement the presumption, courts must be alert to factors
that may undermine the fairness of the factfinding process. In the
administration of criminal justice, courts must carefully guard
against dilution of the principle that guilt is to be established
by probative evidence and beyond a reasonable doubt.
In re
Winship, 397 U. S. 358,
397 U. S. 364
(1970).
Page 425 U. S. 504
The actual impact of a particular practice on the judgment of
jurors cannot always be fully determined. But this Court has left
no doubt that the probability of deleterious effects on fundamental
rights calls for close judicial scrutiny.
Estes v. Texas,
381 U. S. 532
(1965);
In re Murchison, 349 U. S. 133
(1955). Courts must do the best they can to evaluate the likely
effects of a particular procedure, based on reason, principle, and
common human experience.
The potential effects of presenting an accused before the jury
in prison attire need not, however, be measured in the abstract.
Courts have, with few exceptions, [
Footnote 1] determined that a accused should not be
compelled to go to trial in prison or jail clothing because of the
possible impairment of the presumption so basic to the adversary
system.
Gaito v. Brierley, 485 F.2d 86 (CA3 1973);
Hernandez v. Beto, supra; Brooks v. Texas, 381 F.2d 619
(CA5 1967);
Commonwealth v. Keeler, 216 Pa.Super.193, 264
A.2d 407 (1970);
Miller v. State, 249 Ark. 3,
457 S.W.2d 848
(1970);
People v. Shaw, 381 Mich. 467,
164 N.W.2d
7 (1969);
People v. Zapata, 220 Cal. App.
2d 903, 34 Cal. Rptr. 171 (1963),
cert. denied,
377 U. S. 406
(1964);
Eaddy v. People, 115 Colo. 488, 174 P.2d 717
(1946). The American Bar Association's Standards for Criminal
Justice also disapprove the practice. ABA Project on Standards for
Criminal Justice, Trial by Jury ยง 4.1(b), p. 91 (App.Draft 1968).
This is a recognition that the constant reminder of the accused's
condition implicit in such distinctive, identifiable
Page 425 U. S. 505
attire may affect a juror's judgment. The defendant's clothing
is so likely to be a continuing influence throughout the trial
that, not unlike placing a jury in the custody of deputy sheriffs
who were also witnesses for the prosecution, an unacceptable risk
is presented of impermissible factors coming into play.
Turner
v. Louisiana, 379 U. S. 466,
379 U. S. 473
(1965).
That such factors cannot always be avoided is manifest in
Illinois v. Allen, 397 U. S. 337
(1970), where we expressly recognized that "the sight of shackles
and gags might have a significant effect on the jury's feelings
about the defendant . . . ,"
id. at
397 U. S. 344;
yet the Court upheld the practice when necessary to control a
contumacious defendant. For that reason, the Court authorized
removal of a disruptive defendant from the courtroom or,
alternatively, binding and gagging of the accused until he agrees
to conduct himself properly in the courtroom.
Unlike physical restraints, permitted under
Allen,
supra, compelling an accused to wear jail clothing furthers no
essential state policy. That it may be more convenient for jail
administrators, a factor quite unlike the substantial need to
impose physical restraints upon contumacious defendants, [
Footnote 2] provides no justification
for the practice. Indeed, the State of Texas asserts no interest
whatever in maintaining this procedure.
Similarly troubling is the fact that compelling the accused to
stand trial in jail garb operates usually against only those who
cannot post bail prior to trial. Persons who can secure release are
not subjected to this condition. To impose the condition on one
category of defendants, over objection, would be repugnant to
the
Page 425 U. S. 506
concept of equal justice embodied in the Fourteenth Amendment.
Griffin v. Illinois, 351 U. S. 12
(1956).
(2)
The Fifth Circuit, in this as well as in prior decisions, has
not purported to adopt a
per se rule invalidating all
convictions where a defendant had appeared in identifiable prison
clothes. That court has held, for instance, that the harmless error
doctrine is applicable to this line of cases. 500 F.2d at 210-212.
See also Thomas v. Beto, 474 F.2d 981,
cert.
denied, 414 U.S. 871 (1973);
Hernandez v. Beto, supra
at 637. Other courts are in accord.
Bentley v. Crist, 469
F.2d 854, 856 (CA9 1972);
Watt v. Page, 452 F.2d 1174,
1176-1177 (CA10),
cert. denied, 405 U.S. 1070 (1972). In
this case, the Court of Appeals quoted the language of Mr. Justice
Douglas, speaking for the Court in
Harrington v.
California, 395 U. S. 250
(1969):
"We held in
Chapman v. California that, 'before a
federal constitutional error can be held harmless, the court must
be able to declare a belief that it was harmless beyond a
reasonable doubt.' We said that . . . not all 'trial errors which
violate the Constitution automatically call for reversal.'"
Id. at
395 U. S.
251-252 (citations omitted). In
Chapman v.
California, 386 U. S. 18
(1967), the Court, speaking through Mr. Justice Black, held:
"We are urged by petitioners to hold that all federal
constitutional errors, regardless of the facts and circumstances,
must always be deemed harmful. Such a holding, as petitioners
correctly point out, would require an automatic reversal of their
convictions and make further discussion unnecessary. We decline to
adopt any such rule. All 50 States have harmless error statutes or
rules, and the United
Page 425 U. S. 507
States long ago, through its Congress, established for its
courts the rule that judgments shall not be reversed for 'errors or
defects which do not affect the substantial rights of the parties.'
. . . We conclude that there may be some constitutional errors
which, in the setting of a particular case, are so unimportant and
insignificant that they may, consistent with the Federal
Constitution, be deemed harmless, not requiring the automatic
reversal of the conviction."
Id. at
386 U. S. 21-22
(citation and footnote omitted).
In other situations, when, for example, the accused is being
tried for an offense committed in confinement, or in an attempted
escape, courts have refused to find error in the practice. In
United States ex rel. Stahl v. Henderson, 472 F.2d 556
(CA5),
cert. denied, 411 U.S. 971 (1973), the Court of
Appeals declined to overturn a conviction where the defendant,
albeit tried in jail clothes, was charged with having murdered
another inmate while confined in prison. "No prejudice can result
from seeing that which is already known." 472 F.2d at 557. In the
present case, the Court of Appeals concluded:
"A different result may be appropriate where the defendant is on
trial for an offense allegedly committed while he was in prison,
because the jury would learn of his incarceration in any
event."
500 F.2d at 209 n.5.
Contra: People v. Roman, 35 N.Y.2d
978, 324 N.E.2d 885 (1975).
Consequently, the courts have refused to embrace a mechanical
rule vitiating any conviction, regardless of the circumstances,
where the accused appeared before the jury in prison garb. Instead,
they have recognized that the particular evil proscribed is
compelling a defendant, against his will, to be tried in jail
attire. The
Page 425 U. S. 508
reason for this judicial focus upon compulsion is simple;
instances frequently arise where a defendant prefers to stand trial
before his peers in prison garments. The cases show, for example,
that it is not an uncommon defense tactic to produce the defendant
in jail clothes in the hope of eliciting sympathy from the jury.
Anderson v. Watt, 475 F.2d 881, 882 (CA10 1973);
Watt
v. Page, supra, at 1176.
Cf. Garcia v. Beto, 452 F.2d
655, 656 (CA5 1971). This is apparently an accepted practice in
Texas courts,
Barber v. State, 477
S.W.2d 868,
870
(Tex.Crim.App. 1972), including the court where respondent was
tried.
Courts have therefore required an accused to object to being
tried in jail garments, just as he must invoke or abandon other
rights. [
Footnote 3] The Fifth
Circuit has held: "A defendant may not remain silent and willingly
go to trial in prison garb and thereafter claim error."
Hernandez v. Beto, 443 F.2d at 637. The essential meaning
of the
Page 425 U. S. 509
Court of Appeals' decision in
Hernandez has been
described by that court as follows:
"We held [in
Hernandez] that the defendant and his
attorney had the burden to make known that the defendant desired to
be tried in civilian clothes before the state could be accountable
for his being tried in jail clothes. . . ."
United States ex rel. Stahl v. Henderson, 472 F.2d at
557. [
Footnote 4] Similarly,
the Ninth Circuit has indicated that the courts must determine
whether an accused "was, in fact, compelled to wear prison clothing
at his state court trial."
Bentley v. Crist, 469 F.2d at
856.
See also Dennis v. Dees, 278 F.
Supp. 354, 359 (ED La.1968),
disapproved on other grounds,
United States ex rel. Stahl v. Henderson, supra at 557;
People v. Roman, 35 N.Y.2d at 978-979, 324 N.E.2d at
885-886;
People v. Shaw, 381 Mich. 467,
164 N.W.2d
7 (1969).
(3)
The record is clear that no objection was made to the
Page 425 U. S. 510
trial judge concerning the jail attire either before or at any
time during the trial. This omission plainly did not result from
any lack of appreciation of the issue, for respondent had raised
the question with the jail attendant prior to trial. At trial,
defense counsel expressly referred to respondent's attire during
voir dire. The trial judge was thus informed that
respondent's counsel was fully conscious of the situation.
[
Footnote 5]
Despite respondent's failure to raise the issue at trial, the
Court of Appeals held:
"Waiver of the objection cannot be inferred merely from failure
to object if trial in prison garb is customary in the
jurisdiction."
500 F.2d at 208. The District Court had concluded that, at the
time of respondent's trial, the majority of nonbailed defendants in
Harris County were indeed tried in jail clothes. From this, the
Court of Appeals concluded that the practice followed in
respondent's case was customary.
Ibid.
However, that analysis ignores essential facts adduced at the
evidentiary hearing. Notwithstanding the evidence as to the general
practice in Harris County, there was no finding that nonbailed
defendants were compelled to stand trial in prison garments if
timely objection was made to the trial judge. On the contrary, the
District Court concluded that the practice of the particular judge
presiding in respondent's case was to permit any accused who so
desired to change into civilian clothes:
"There is no doubt but that the [judge] had a
Page 425 U. S. 511
practice of allowing defendants to stand trial in civilian
clothing, if requested, a practice evidently followed by certain of
the other judges as well."
Williams v. Beto, 364 F.
Supp. 335, 343 (1973). [
Footnote 6] The state judge's policy was confirmed at the
evidentiary hearing by the prosecutor and by a defense attorney who
practiced in the judge's court.
Significantly, at the evidentiary hearing respondent's trial
counsel did not intimate that he feared any adverse consequences
attending an objection to the procedure. [
Footnote 7] There is nothing to suggest that there
would have been any prejudicial effect on defense counsel had he
made objection, given the decisions on this point in that
jurisdiction. Four years before respondent's trial, the United
States Court of Appeals for the Fifth Circuit had held: "It is
inherently unfair to try a defendant for crime while garbed in his
jail uniform. . . ."
Brooks v. Texas, 381 F.2d at 624.
Similarly, the Texas Court of Criminal Appeals had held: "[E]very
effort should be made to avoid trying an accused while in jail
garb."
Ring v. State, 450
S.W.2d 85, 88 (1970). [
Footnote
8] Prior Texas cases
Page 425 U. S. 512
had made it clear that an objection should be interposed.
See Wilkinson v. State, 423
S.W.2d 311, 313 (Tex.Crim.App. 198);
Ring v. State,
supra at 88.
Nothing in this record, therefore, warrants a conclusion that
respondent was compelled to stand trial in jail garb or that there
was sufficient reason to excuse the failure to raise the issue
before trial. [
Footnote 9] Nor
can the trial judge be faulted for not asking the respondent or his
counsel whether he was deliberately going to trial in jail clothes.
To impose this requirement suggests that the trial judge operates
under the same burden here as he would in the situation in
Johnson v. Zerbst, 304 U. S. 458
(1938), where the issue concerned whether the accused willingly
stood trial without the benefit of counsel. Under our adversary
system, once a defendant has the assistance of counsel, the vast
array of trial decisions, strategic and tactical, which must be
made before and during trial rests with the accused and his
attorney. Any other approach would rewrite the duties of trial
judges and counsel in our legal system.
Accordingly, although the State cannot, consistently with the
Fourteenth Amendment, compel an accused to stand trial before a
jury while dressed in identifiable prison clothes, the failure to
make an objection to the court as to being tried in such clothes,
for whatever reason,
Page 425 U. S. 513
is sufficient to negate the presence of compulsion necessary to
establish a constitutional violation. [
Footnote 10]
The judgment of the Court of Appeals is therefore reversed, and
the cause is remanded for further proceedings consistent with this
opinion.
Reversed and remanded.
MR. JUSTICE STEVENS took no part in the consideration or
decision of this case.
[
Footnote 1]
None of the authorities relied on by petitioner expressly
approves the practice. Several cases hold, however, that a showing
of actual prejudice must be made by a defendant seeking to have his
conviction overturned on this ground.
Hall v. Cox, 324 F.
Supp. 786 (WD Va.1971);
McFalls v. Peyton, 270 F.
Supp. 577 (WD Va.1967),
aff'd, 401 F.2d 890 (CA4
1968),
cert. denied, 394 U.S. 951 (1969).
[
Footnote 2]
The contumacious defendant brings his plight upon himself and
presents the court with a limited range of alternatives. Obviously,
a defendant cannot be allowed to abort a trial and frustrate the
process of justice by his own acts.
[
Footnote 3]
We are not confronted with an alleged relinquishment of a
fundamental right of the sort at issue in
Johnson v.
Zerbst, 304 U. S. 458
(1938). There, the Court understandably found it difficult to
conceive of an accused making a knowing decision to forgo the
fundamental right to the assistance of counsel, absent a showing of
conscious surrender of a known right. The Court has not, however,
engaged in this exacting analysis with respect to strategic and
tactical decisions, even those with constitutional implications, by
a counseled accused.
See, e.g., On Lee v. United States,
343 U. S. 747,
343 U. S. 749
n. 3 (1952).
Cf. Fed.Rule Crim.Proc. 11.
The Second Circuit has noted in a different context:
"Federal courts, including the Supreme Court, have declined to
notice [alleged] errors not objected to below even though such
errors involve a criminal defendant's constitutional rights."
United States v. Indiviglio, 352 F.2d 276, 280 (1965),
cert. denied, 383 U.S. 907 (1966). The reason for this
rule is clear: if the defendant has an objection, there is an
obligation to call the matter to the court's attention so the trial
judge will have an opportunity to remedy the situation.
[
Footnote 4]
Significantly, in the
Henderson case, the Fifth Circuit
interpreted
Hernandez as requiring the accused to take
affirmative steps to apprise the trial court of his desire to be
tried in civilian clothes. The
Hernandez court had simply
found, under the circumstances presented there, that the defendant
"had met his burden." 472 F.2d at 557. This interpretation is
particularly meaningful, since the author of the
Hernandez
opinion was a member of the panel in the subsequent decision in
Henderson. Moreover, the court in
Hernandez
indicated:
"We do not paint with a broad brush these types of cases. Each
case must be considered in its own factual context."
443 F.2d at 637. Moreover, there is nothing in the record in
Hernandez to suggest that the state trial judge had, as
here, a longstanding practice, known to members of the bar, to
permit any defendant to change into civilian clothes on request.
See infra at
425 U. S.
510-511.
[
Footnote 5]
The evidence showed that respondent was a Caucasian in his
sixties. At the evidentiary hearing, he testified that he felt he
had no real case to present at trial. The testimony of several
eyewitnesses was clear and consistent. Under these circumstances, a
desire to elicit jury sympathy would have been a reasonable
approach, and one which the trial judge might reasonably have
assumed was deliberately undertaken.
[
Footnote 6]
This was based on the state judge's affidavit, which stated in
part:
"I have never compelled a defendant to go to trial in jail
clothes, and, on every occasion when a defendant or his attorney
requested that he be .allowed to wear civilian clothes at his
trial, I have granted the request."
364 F. Supp. at 338.
[
Footnote 7]
Counsel testified that, on a prior occasion, a different state
judge had overruled his objection to the trial of his client in
jail clothes. He also testified that he had seen other defendants
dressed in jail garments in the courtroom where respondent was
tried.
[
Footnote 8]
The Texas courts had admittedly not established a rigid rule
invalidating the practice
per se. Instead, the courts
ordinarily looked to whether actual injury or prejudice had
resulted from the defendant's appearance in jail garb.
Garcia
v. State, 429
S.W.2d 468,
71
(Tex.Crim.App. 1968);
Xanthull v. State, 403
S.W.2d 807, 809 (Tex.Crim.App. 1966). But these cases provided
ample grounds for objection to the procedure, since they at least
implicitly recognized that reversible error could result from the
practice. Similarly, the 1970 decision in
Xanthull v.
Beto, 307 F.
Supp. 903 (SD Tex.), did not render fruitless any objection on
respondent's part. Instead, that case, like various state cases,
simply imposed a burden on federal habeas petitioners to show
actual prejudice resulting from a jury trial in jail garments.
[
Footnote 9]
It is not necessary, if indeed it were possible, for us to
decide whether this was a defense tactic or simply indifference. In
either case, respondent's silence precludes any suggestion of
compulsion.
[
Footnote 10]
Petitioner has contended in his brief and in oral argument that
the Court of Appeals' decision in
Hernandez should not be
applied retroactively. The petition for certiorari did not raise
this issue, and our disposition of the case renders it unnecessary
to decide it.
MR. JUSTICE POWELL, with whom MR. JUSTICE STEWART joins,
concurring.
I concur in the opinion of the Court. As the Court's opinion and
the dissenting opinion take such divergent views of the case, I
write separately to identify specifically the considerations I deem
controlling.
Respondent, Harry Lee Williams, was tried while clad in prison
issue. Despite differences over the relevance of "compulsion" in
this case, the Court opinion and the dissenting opinion essentially
agree that a defendant has a constitutional right not to be so
tried. The disagreement is over the significance to be attributed
to Williams' failure to object at trial.
As relevant to this case, there are two situations in which a
conviction should be left standing despite the claimed infringement
of a constitutional right. The first situation arises when it can
be shown that the substantive right in question was consensually
relinquished. The other situation arises when a defendant has made
an "inexcusable procedural default" in failing to object at a time
when a substantive right could have been protected.
Page 425 U. S. 514
Hart, Foreword: The Time Chart of the Justices, 73 Harv.L.Rev.
84, 118 (1959);
see American Bar Association Project on
Standards for Criminal Justice, Post-Conviction Remedies 35-37
(App.Draft 1968).
Williams was represented by retained, experienced counsel. It is
conceded that his counsel was fully aware of the "prison garb"
issue [
Footnote 2/1] and elected to
raise no objection simply because he thought objection would be
futile. The record also shows that the state judge who presided at
Williams' trial "had a practice of allowing defendants to stand
trial in civilian clothing, if requested. . . ."
364 F.
Supp. 335, 343 (1973). It thus is apparent that, had an
objection been interposed by Williams to trial in prison garb, the
issue here presented would not have arisen.
This case thus presents a situation that occurs frequently
during a criminal trial -- namely, a defendant's failing to object
to an incident of trial that implicates a constitutional right. As
is often the case in such situations, a timely objection would have
allowed its cure. As is also frequently the case with such
trial-type rights as that involved here, counsel's failure to
object in itself is susceptible of interpretation as a tactical
choice.
Ante at
425 U. S.
507-508.
It is my view that a tactical choice or procedural default of
the nature of that involved here ordinarily should operate,
[
Footnote 2/2] as a matter of
federal law, to preclude
Page 425 U. S. 515
the later raising of the substantive right. [
Footnote 2/3] We generally disfavor inferred
waivers of constitutional rights.
See Johnson v. Zerbst,
304 U. S. 458,
304 U. S. 464
(1939);
Barker v. Wingo, 407 U. S. 514,
407 U. S.
525-526 (1972). That policy, however, need not be
carried to the length of allowing counsel for a defendant
deliberately to forgo objection to a curable trial defect, even
though he is aware of the factual and legal basis for an objection,
simply because he thought objection would be futile. [
Footnote 2/4]
[
Footnote 2/1]
Williams' counsel did not claim, nor indeed could he have
claimed, that a new issue was involved. Both the Court of Appeals
for the Fifth Circuit and the Texas courts had recognized that
trial in prison garb could be constitutional error as an
impingement upon the presumption of innocence.
Ante at
425 U. S.
511-512.
[
Footnote 2/2]
Even when confronted by such a procedural default, discretion
might sometimes be exercised to overturn a conviction on the
familiar principles of plain error.
See United States v.
Indiviglio, 352 F.2d 276 (CA2 1965).
[
Footnote 2/3]
Previous cases of this Court make clear that a federal law bar
can be raised to the untimely presentation of constitutional
claims.
See Fay v. Noia, 372 U. S. 391,
372 U. S.
433-434 (1963);
Henry v. Mississippi,
379 U. S. 443,
379 U. S.
451-452 (1965).
[
Footnote 2/4]
The right involved here is a trial-type right. As a consequence,
an attorneys conduct may bind the client.
See Henry v.
Mississippi, supra at
379 U. S. 451-452;
cf. Brookhart v. Janis,
384 U. S. 1 (1966).
The entitlement of courts ordinarily to rely on counsel to advise a
defendant and to make timely assertion of rights even when the
validity of a guilty plea is at issue was a factor in
McMann v.
Richardson, 397 U. S. 759,
397 U. S.
766-771 (1970).
MR. JUSTICE BRENNAN, with whom MR. JUSTICE MARSHALL concurs,
dissenting.
I dissent. The Court's statement that
"[t]he defendant's clothing is so likely to be a continuing
influence throughout the trial that . . . an unacceptable risk is
presented of impermissible factors"
affecting the jurors' judgment, thus presenting the possibility
of all unjustified verdict of guilt,
ante at
425 U. S. 505,
concedes that respondent's trial in identifiable prison garb
[
Footnote 3/1] constituted a denial
of
Page 425 U. S. 516
due process of law. The judgment setting aside respondent's
conviction is nevertheless reversed on the ground that respondent
was not
compelled by the State to wear the prison garb.
The Court does not -- for on this record plainly the Court could
not -- rest the reversal on a finding that respondent knowingly,
voluntarily, and intelligently consented to be tried in such
attire, and thus had waived his due process right.
Johnson v.
Zerbst, 304 U. S. 458
(1938). Rather, for the first time, the Court confines due process
protections by
defining a right that materially affects
the fairness and accuracy of the factfinding process in terms of
state
compulsion, a concept which, although relevant in
the context of the Fifth Amendment's privilege against
self-incrimination, is simply inapposite to constitutional analysis
concerning due process in criminal proceedings. The end result of
this definitional approach is to impute the effect of waiver to the
failure of respondent or his counsel to apprise the trial judge of
respondent's objection to being tried in prison garb. This not only
results in an illogical delineation of the particular right
involved in this case, but also introduces into this Court's
jurisprudence a novel and dangerously unfair test of surrender of
basic constitutional rights to which I cannot agree. [
Footnote 3/2]
Page 425 U. S. 517
I
The Court concedes that respondent was denied due process of
law: there is a due process violation if the State denies an
accused's objection to being tried in such garb,
ante at
425 U. S.
504-505,
425 U. S. 505,
425 U. S. 512,
425 U. S.
512-513, and, as will be developed, there is no relevant
constitutional difference concerning that due process right if the
accused has not objected to the practice.
One of the essential due process safeguards that attends the
accused at his trial is the benefit of the presumption of innocence
--
"that bedrock 'axiomatic and elementary' principle whose
'enforcement lies at the foundation of the administration of our
criminal law.'"
In re Winship, 397 U. S. 358,
397 U. S. 363
(1970), quoting
Coffin v. United States, 156 U.
S. 432,
156 U. S. 453
(1895).
See also, e.g., Deutch v. United States,
367 U. S. 456,
367 U. S. 471
(1961);
Sinclair v. United States, 279 U.
S. 263,
279 U. S.
296-297 (1929).
Page 425 U. S. 518
This presumption of innocence is given concrete substance by the
due process requirement that imposes on the prosecution the burden
of proving the guilt of the accused beyond a reasonable doubt.
"The accused during a criminal prosecution has at stake
interests of immense importance, both because of the possibility
that he may lose his liberty upon conviction and because of the
certainty that he would be stigmatized by the conviction.
Accordingly, a society that values the good name and freedom of
every individual should not condemn a man for commission of a crime
when there is reasonable doubt about his guilt."
In re Winship, supra at
397 U. S.
363-364. The "prime instrument for reducing the risk of
convictions resting on factual error,"
id. at
397 U. S. 363,
is the reasonable doubt standard. When an accused is tried in
identifiable prison garb, the dangers of denial of a fair trial and
the possibility of a verdict not based on the evidence are
obvious.
Identifiable prison garb robs an accused of the respect and
dignity accorded other participants in a trial and constitutionally
due the accused as an element of the presumption of innocence, and
surely tends to brand him in the eyes of the jurors with an
unmistakable mark of guilt. Jurors may speculate that the accused's
pretrial incarceration, although often the result of his inability
to raise bail, is explained by the fact he poses a danger to the
community or has a prior criminal record; a significant danger is
thus created of corruption of the factfinding process through mere
suspicion. The prejudice may only be subtle, and jurors may not
even be conscious of its deadly impact, but, in a system in which
every person is presumed innocent until proved guilty beyond a
reasonable doubt, the Due Process Clause forbids toleration of the
risk. Jurors required by the presumption of innocence to accept the
accused as a peer, an individual like themselves who is innocent
until proved guilty, may well
Page 425 U. S. 519
see in an accused garbed in prison attire an obviously guilty
person to be recommitted by them to the place where his clothes
clearly show he belongs. It is difficult to conceive of any other
situation more fraught with risk to the presumption of innocence
and the standard of reasonable doubt.
Trial in identifiable prison garb also entails additional
dangers to the accuracy and objectiveness of the factfinding
process. For example, an accused considering whether to testify in
his own defense must weigh in his decision how jurors will react to
his being paraded before them in such attire. It is surely
reasonable to be concerned whether jurors will be less likely to
credit the testimony of an individual whose garb brands him a
criminal. And the problem will most likely confront the indigent
accused who appears in prison garb only because he was too poor to
make bail. In that circumstance, the Court's concession that no
prosecutorial interest is served by trying the accused in prison
clothes,
ante at
425 U. S. 505,
has an ironical ring. [
Footnote
3/3]
In light of the effect of trial in prison garb in denying the
accused the benefit of the presumption of innocence and
undercutting the reasonable doubt standard, it escapes me how the
Court can delineate the right established in this ease as the right
not to be compelled to wear prison garb. If, as the Court holds,
the clothes of the accused who has unsuccessfully objected to
wearing prison garb (and thus is "compelled" to wear them)
unconstitutionally disadvantages his case, obviously the prison
clothes of the nonobjecting accused are similarly
Page 425 U. S. 520
unconstitutionally disadvantageous. From the jury's perspective,
the situations of the objecting and he nonobjecting defendants are
in every respect identical; if the clothes of the accused who has
objected to the court will create improper negative inferences in
the minds of the jurors, so too must the clothes of the
nonobjecting accused. Nothing in logic or experience suggests that
jurors, who need have no knowledge that an objection was lodged
with the court, will react any differently in the two situations.
It baffles me how the Court, having conceded that trial in
identifiable prison garb denigrates the accused's presumption of
innocence, can then make the constitutional determination turn on
whether or not the accused informed the trial court that he
objected; since an objection is irrelevant to the purpose
underlying the prohibition of trial in prison garb, the Court's
delineation of the due process right in this case -- confining the
due process safeguard to situations of state "compulsion" -- is
irrational on its face. [
Footnote
3/4]
Page 425 U. S. 521
To be sure, an accused may knowingly, voluntarily, and
intelligently consent to be tried in prison garb.
Johnson v.
Zerbst, 304 U. S. 458
(1938). But the Court, without any reason for departing from this
standard, has simply subverted it by promulgating the novel and
dangerous doctrine that a basic due process safeguard, affecting
the fairness and accuracy of the factfinding procedure, is a
contingent right that does not even come into existence until it is
affirmatively asserted. Is the Court today thus signaling the
demise of the
Johnson v. Zerbst voluntary waiver test as
the standard for determination of the surrender of constitutional
protections? [
Footnote 3/5]
Page 425 U. S. 522
For certainly if failure to object to trial in prison garb, even
where the accused has not been shown to know that he might object,
surrenders so basic a constitutional
Page 425 U. S. 523
right as that securing fairness and accuracy of the factfinding
process, the Court has totally eviscerated the traditional doctrine
that loss of such rights cannot be presumed from inaction.
[
Footnote 3/6]
II
JUSTICES POWELL and STEWART concur in this evisceration of
fundamental due process rights, but on the basis of a rationale
essentially different from the rationale of the Court's opinion. In
that circumstance, their joining in the Court's opinion is
puzzling. For although the opinion of the Court, admittedly
obscure, may be interpreted either as importing the concept of
"compulsion" into areas to which it is inapposite or as diluting
the standard for waiver of fundamental constitutional rights, the
concurring opinion would prefer to reverse the Court of Appeals on
the ground that respondent -- or more properly, respondent's
attorney -- committed "an inexcusable procedural default" or
"tactical choice" that precludes his present assertion of this
substantive right.
Ante at
425 U. S. 513,
425 U. S. 514.
Because the concurring opinion obfuscates various issues, and
because the import of this statement and the true rationale of the
concurring opinion are brought into better focus by today's opinion
for the Court in
Francis v. Henderson, post, p.
425 U. S. 536,
which does properly present a question of procedural default,
it
Page 425 U. S. 524
is essential to delineate two separate concepts relating to
methods by which criminal defendants may yield or lose
constitutional rights.
One concept is that of "waiver" which, at least with respect to
constitutional rights affecting the fairness and accuracy of the
factfinding process, means that the accused has engaged in conduct
which may be characterized as "an intentional relinquishment or
abandonment of a known right or privilege."
Johnson v
Zerbst, 304 U.S. at
304 U. S. 464;
see n 6,
supra. If an accused has knowingly waived rights to which
he was otherwise entitled, he has not, on the merits of his claim,
been unconstitutionally deprived of anything. A separate concept is
that of "procedural default," which involves the manner in which an
accused may forfeit rights by not asserting them according to the
strictures of a State's procedural rules. If the accused has
committed a procedural default, there may never be an adjudication
of the underlying constitutional claim on the merits. That problem
was addressed in
Fay v. Noia, 372 U.
S. 391 (1963), which held that
"the federal habeas judge may in his discretion deny relief to
an applicant who has deliberately bypassed the orderly procedure of
the state courts and in so doing has forfeited his state court
remedies."
Id. at
372 U. S. 438.
However,
Fay was emphatic that it was to be "very clear
that this grant of discretion is not to be interpreted as a
permission to introduce legal fictions into federal habeas corpus,"
id. at
372 U. S. 439,
and unambiguously explained that the "deliberate bypass" test for
procedural defaults was the analogue of the "knowing and
intelligent" waiver standard for loss of constitutional rights in
the absence of a procedural rule concerning their assertion:
"The classic definition of waiver enunciated in
Johnson v.
Zerbst, 304 U. S. 458,
304 U. S.
46 'an intentional
Page 425 U. S. 525
relinquishment or abandonment of a known right or privilege' --
furnishes the controlling standard. If a habeas applicant, after
consultation with competent counsel or otherwise, understandingly
and knowingly forewent the privilege of seeking to vindicate his
federal claims in the state courts, whether for strategic,
tactical, or any other reasons that can fairly be described as the
deliberate bypassing of state procedures, then it is open to the
federal court on habeas to deny him all relief if the state courts
refused to entertain his federal claims on the merits -- though, of
course, only after the federal court has satisfied itself, by
holding a hearing or by some other means, of the facts bearing upon
the applicant's default. . . . At all events, we wish it clearly
understood that the standard here put forth depends on the
considered choice of the petitioner. . . . A choice made by counsel
not participated in by the petitioner does not automatically bar
relief. Nor does a state court's finding of waiver bar independent
determination of the question by the federal courts on habeas, for
waiver affecting federal rights is a federal question."
Ibid. See also Francis v. Henderson, post at
425 U. S.
543-545, and n. 2 (BRENNAN, J., dissenting). When an
accused has deliberately bypassed the State's mechanisms for
adjudicating constitutional rights, a federal court generally need
not address the merits of the underlying constitutional claim; as a
corollary, when the state courts address the constitutional claim
on the merits, the State may not seek to prohibit habeas relief on
the ground that the accused was precluded from raising the claim
due to a procedural default.
See, e.g., Lefkowitz v.
Newsome, 420 U. S. 283,
420 U. S. 292
n. 9 (1975).
With this background in mind, two glaring inadequacies
Page 425 U. S. 526
in the concurring opinion become manifest. First, the issue of
procedural default under state law is not presented by this case.
The Texas Court of Criminal Appeals did not render its decision on
state procedural grounds but on its view of federal waiver doctrine
as expounded in another Court of Appeals for the Fifth Circuit
opinion.
See Williams v. State, 477
S.W.2d 24, 227 (1972). The issue of procedural default was
never raised by the State or addressed by any court below, and it
is simply indefensible to seize this ground as a purported
justification under which to perpetuate respondent's
unconstitutional confinement.
See also n 10,
infra.
Second, and even more basic, the concurring opinion, without
reference to the holding of
Fay and without citing any
precedent, would reverse the Court of Appeals under a standard
which directly repudiates
Fay and which implicitly
undermines its precedential value with respect to the assertion in
habeas proceedings of all constitutional rights. The concurring
opinion, which converts the "deliberate bypass" test of
Fay into an "inexcusable" default test, would find an
"inexcusable" procedural default in the mere failure to object to
an unconstitutional practice, reasoning that, if there had been a
timely objection the unconstitutional action would have been
remedied. Such logic could, as a hindsight matter, probably be
invoked any time counsel inadvertently or inexplicably fails to
object contemporaneously to the deprivation of his client's
fundamental rights, and the
Fay "knowing and intelligent
bypass" test would thus be rendered a hollow shell. Indeed, the
concurring opinion would also appear to shift the
Fay
burden of proof, in a case in which an unconstitutional deprivation
of an accused's rights has been shown, by requiring the accused to
show that the default was not "inexcusable", rather than requiring
the State to show that the default was "deliberate."
Page 425 U. S. 527
Moreover,
Fay required that the decision not to assert
most constitutional rights be the informed choice of the accused
himself, rather than of his counsel. The concurring opinion would
alter this aspect of
Fay when "trial-type rights" are
involved. The concurring opinion provides no principled content,
however, to that term. [
Footnote
3/7] How is the right of a defendant to the presumption of
innocence -- as impinged when the State hales the accused, clad in
prison garb, before a judge who is supposedly charged with ensuring
the fairness of a trial -- more a "trial-type" right than is the
right to a jury trial, the requirement that the State prove every
element of the crime by proof beyond a reasonable doubt, or the
right to counsel itself? The concurring opinion would apparently
undermine settled doctrines concerning waiver or loss of these
rights without ever addressing the departure of its methodology
from the unswerving path charted by the Court's precedents.
[
Footnote 3/8] And if actions
of
Page 425 U. S. 528
counsel are to bind an accused in such "trial-type" situations,
it would seem that the Court has an obligation to elucidate the
standards by which counsels actions are to be judged, particularly
in a case, such as this, in which ineffective assistance of counsel
is alleged.
See nn.
425
U.S. 501fn3/13|>13,
425
U.S. 501fn3/15|>15,
infra.
In any event, if the concurring opinion means that my Brothers
STEWART and POWELL are forsaking the teaching of precedents such as
Fay, I respectfully suggest that they have the clear
responsibility not to do so by indirection, and to explicate at
least the contours and outer limits of the novel and dangerous
doctrines which they are formulating.
See generally Francis v.
Henderson, post, p.
425 U. S. 542
(BRENNAN, J., dissenting). It is simply unacceptable that my
Brethren, who concede that respondent was convicted in derogation
of his constitutionally secured presumption of innocence, should
nevertheless sanction his unconstitutional confinement on the basis
of "procedural default" principles which are neither articulated
nor justified in a case calling for such analysis,
see Francis
v. Henderson, and which are then conjured up as the ground for
decision in a case in which those unarticulated principles are not
even legitimately implicated. This hardly passes as reasoned
adjudication, and is a grave disservice both to this Court and to
the litigants who must come before it.
III
Even under the Court's standard of compelled appearance, the
judgment of the Court of Appeals should be affirmed. The Court's
holding relies on the per curiam statement of the Court of Appeals
for the Fifth Circuit
Page 425 U. S. 529
on petition for rehearing in
Hernandez v. Beto, 443
F.2d 634, 637,
cert. denied, 404 U.S. 897 (1971), that a
defendant may not willingly proceed to trial in prison garb and
later protest that fact.
Ante at
425 U. S.
508-509. [
Footnote 3/9]
Yet applying the standard of
Hernandez, see 364 F.
Supp. 335, 340 (1973), the District Court in this case
expressly found that respondent had
not willingly gone to
trial in identifiable prison garb, and that finding was affirmed by
the Court of Appeals. Significantly, the District Court stated,
id. at 343 (emphasis supplied):
"It is clear from the record in this case and consistent with
the evidence adduced in
Dennison, the companion case,
that, prior to
Hernandez, there did exist a common
practice in Harris County courts to try incarcerated defendants in
jail clothing unless they were able to secure some dispensation. .
. ."
"There is no doubt but that the [judge] had a practice
Page 425 U. S. 530
of allowing defendants to stand trial in civilian clothing, if
requested, a practice evidently followed by certain of the other
judges as well. . . . However, the record does not reveal that [the
judge's] practice was publicly known, or that it was known to
defendants or their counsel. More reasonably,
at times material
to the [respondent's] criminal trial, it was the standard practice
to have all defendants in custody dressed alike without any
policy such as that employed by [the judge] being uniformly adopted
by all or even a majority of the criminal district judges in Harris
County. Instead,
the evidence points to the strong likelihood
that the trial climate at that time acted as a natural deterrent to
the raising of objections to what was commonplace -- a trial
in jail clothes, even assuming that defendants or their counsel
thought about the problem and considered its legal implications. In
the absence of such consideration, it can scarcely be concluded
that either [respondent] or his trial counsel knowingly, willingly
and voluntarily waived the right to be tried in civilian
clothing."
Since the Court does not hold that that finding of the two
courts is clearly erroneous, the finding is conclusive on us for
the purpose of deciding the merits, [
Footnote 3/10] and compels affirmance of the Court of
Appeals.
Page 425 U. S. 531
Indeed, even if the Court is
sub silentio reevaluating
the factual findings concurred in by the two courts, the
reevaluation is not supported by the record. The Court states that
defense counsel had nothing to fear from an objection,
ante at
425 U. S. 511,
yet the District Court found that the prevalent trial climate
deterred the making of such objections. Further, the Court omits
mention of the significant finding of the District Court that the
practice followed in respondent's case was customary in the
jurisdiction. The Court also omits mention of the fact that there
was uncontradicted evidence that respondent's counsel failed to
object only because objection was perceived to be futile, and that
counsel had no purpose to elicit jury sympathy or otherwise
acquiesce in the practice for purposes of trial tactics. [
Footnote 3/11] More crucial, the Court
states that defense counsel was "conscious" of the problem of trial
in jail garb, since he mentioned the point at
voir dire,
and that the judge was thus "informed" of counsel's knowledge.
Ante at
425 U. S.
510.
Page 425 U. S. 532
This impliedly suggests that the trial judge is for that reason
relieved of his obligation affirmatively to inquire whether
respondent actually desired to be tried in such garb, for the trial
judge might conclude that respondent was engaging in a deliberate
trial tactic to elicit jury sympathy. The record is wholly devoid
of any basis for that analysis.
The jury's attention to respondent's jail garb was first
directed by the prosecution on
voir dire. [
Footnote 3/12] Indeed, it was done so
matter-of-factly as to highlight the prevalence of the practice in
the Harris County courts. If the trial judge was truly sensitive to
the problem and willing, as suggested, to sustain any objection
that was raised to the practice, it is curious that the comments
provoked no reaction from him. The Court suggests that it mattered
not at all, because the case against respondent was so strong that
respondent had "no real case" and the testimony of eyewitnesses was
"clear and
Page 425 U. S. 533
consistent."
Ante at
425 U. S. 510
n. 5. Even if true (and I do not share the Court's view of the
strength of the trial evidence), that would not relieve the trial
judge of his duty to inquire whether respondent was satisfied to
proceed to trial in prison garb, [
Footnote 3/13] particularly since the judge had no
knowledge at that time that respondent had "no real case." Indeed,
the judge's uncommunicated good intentions and alleged sensitivity
to prison garb are highly questionable in light of respondent's
evidence that, of the six cases involving nonbailed defendants
tried in the same judge's courtroom during the two months
surrounding respondent's case, every accused appeared in prison
garb. [
Footnote 3/14] And the
reasonableness of respondent's perception
Page 425 U. S. 534
that trial objection would be futile is accentuated by the fact
that the deputy sheriff had already denied respondent's explicit
request to wear at trial the clothes in which he was arrested. At
least, in light of the District Court's finding that there was no
knowing and voluntary waiver and that trial objections were
deterred by the then prevalent trial climate, I should think the
Court would remand for further factual development concerning the
practice in Harris County at the time of respondent's trial.
[
Footnote 3/15] But
Page 425 U. S. 535
the record before us plainly calls for an affirmance of the
Court of Appeals.
[
Footnote 3/1]
Respondent appeared at trial wearing a white T-shirt with
"Harris County Jail" stenciled across the back, oversized white
dungarees that had "Harris County Jail" stenciled down the legs,
and shower thongs. Both of the principal witnesses for the State at
respondent's trial referred to him as the person sitting in the
"uniform." Record on Appeal in Tex.Ct. of Crim.App. 108, 141
(No.73-3854).
[
Footnote 3/2]
In holding that only the "compelled" wearing of prison garb is
constitutionally proscribed, the Court understandably cites no
precedent for its startling result. For the only area in which the
concept of compulsion is relevant to the definition of a
substantive right is the Fifth Amendment privilege against.
self-incrimination.
See, e.g., Garner v. United States,
424 U. S. 648
(1976). But, by its terms, the Self-Incrimination Clause of the
Fifth Amendment speaks only to an individual's being "compelled" to
be a witness against himself; due process rights to a fair trial do
not, however, depend on the existence of state "compulsion."
Moreover, it is clear that, even in the Fifth Amendment's
self-incrimination context, where state "compulsion" is required,
steps should be taken to ensure that constitutional rights only be
knowingly and voluntarily waived.
See, e.g., Maness v.
Meyers, 419 U. S. 449,
419 U. S.
466-467 (1975).
See also nn.
425
U.S. 501fn3/5|>5,
425
U.S. 501fn3/6|>6,
infra.
The Court's reliance on
Illinois v. Allen, 397 U.
S. 337 (1970), is particularly inexplicable.
See
ante at
425 U. S. 505.
For the Court in
Allen held that
"courts must indulge every reasonable presumption against the
loss of constitutional rights,
Johnson v. Zerbst,
304 U. S.
458,
304 U. S. 464 (1938),"
and further held that the accused could only be deprived of his
right to be present at trial
"if, after he has been warned by the judge that he will be
removed if he continues his disruptive behavior, he nevertheless
insists on conducting himself in a manner so disorderly,
disruptive, and disrespectful of the court that his trial cannot be
carried on with him in the courtroom. Once lost, the right to be
present can, of course, be reclaimed as soon as the defendant is
willing to conduct himself consistently with the decorum and
respect inherent in the concept of courts and judicial
proceedings."
397 U.S. at
397 U. S. 343.
Allen thus requires knowing, voluntary, and intelligent
waiver of the constitutional right to be present at trial, the
standard that, in my view, also applies to trial in prison
garb.
[
Footnote 3/3]
The Court suggests that accused persons freely choose to wear
prison garb,
ante at
425 U. S.
505-506,
425 U. S.
507-508, but mentions no case of a person free on bail
(and thus truly able to make a voluntary choice with respect to
what to wear at trial) who asked to wear prison garb at his
trial.
[
Footnote 3/4]
The Court states that
"[t]he cases show . . . that it is not an uncommon defense
tactic to produce the defendant in jail clothes in the hope of
eliciting sympathy from the jury."
Ante at
425 U. S. 508.
Insofar as this suggests that the practice is prevalent, I am
confident that there are simply no empirical data to support the
statement. In any event, prevalence of the practice does not
explain the limitation of the acknowledged infirmity to cases of
compelled appearance in prison clothes.
In a single reported case,
Garcia v. Beto, 452 F.2d 655
(CA5 1971), a defense attorney testified that, given the particular
circumstances of the case, in which he sought to portray his client
as a drunk, he thought that, by emphasizing the difference between
the accused and the jurors, he would be aided in making that
defense. The Fifth Circuit found that this deliberate trial
strategy constituted a waiver of the right to be tried in civilian
clothes. Although the other cases cited by the Court today noted
the
Garcia opinion, none involved such a trial tactic.
See Watt v. Page, 452 F.2d 1174, 1176 (CA10 1972) (noting
that cases refer to the "possibility" that there may be a trial
strategy and remanding for an evidentiary hearing on the matter);
Anderson v. Watt, 475 F.2d 881, 882 (CA10 1973) (affirming
grant of habeas relief since no trial strategy was shown);
Barber v. State, 477
S.W.2d 868,
870
(Tex.Crim.App. 1972) (asserting that the Fifth Circuit in
Garcia noted that a defendant "often wants to be tried in
jail clothing, and that it is common for a defense counsel to prove
before the jury how long the accused has been confined in jail";
however, no demonstration was made that such was true in Barber's
case or in any case other than
Garcia, and the
Garcia case never suggested that the practice was
"common"). The single instance in which a defense attorney,
confronted with the fact his client was being tried in prison garb,
attempted to employ that fact to invoke jury sympathy and thereby
waived any right he otherwise had to trial in civilian garb, hardly
supports the Court's conclusion that defendants "frequently" hope
to benefit by this "tactic,"
ante at
425 U. S. 508,
or the concurring opinion's similarly myopic statement that
"counsel's failure to object in itself is susceptible of
interpretation as a tactical choice,"
ante at
425 U. S. 514.
See also 425
U.S. 501fn3/3|>n. 3,
supra. In any event, even if
there were situations in which trial in prison garb as deliberately
employed as a defense tactic, that would only justify a decision
that those individuals waived their rights.
Cf., e.g., Barker .
Wingo, 407 U. S. 514,
407 U. S.
525-529 (1972).
[
Footnote 3/5]
Indeed, although acknowledging that trial in prison garb
destroys the presumption of innocence, the Court proclaims that
"[w]e are not confronted with an alleged relinquishment of a
fundamental right of the sort at issue in
Johnson v.
Zerbst,"
ante at
425 U. S. 508
n. 3. It is difficult to see where such assertions, which are
flatly inconsistent with this Court's precedents,
see
425
U.S. 501fn3/6|>n. 6,
infra will cease. For example,
since an accused has the right of self-representation in criminal
trials,
see Faretta v. California, 422 U.
S. 806 (1975), will the Court now say that, unless an
indigent accused was compelled to forgo appointed counsel, he was
simply exercising the right to represent himself, even if he was
unaware of the right to court-appointed counsel?
Cf., e.g.,
Powell v. Alabama, 287 U. S. 45
(1932);
Johnson v. Zerbst, 304 U.
S. 458 (1938);
Gideon v. Wainwright,
372 U. S. 335
(1963);
Argersinger v. Hamlin, 407 U. S.
25 (1972). And has the Court signaled that, unless the
accused makes and the State rejects a motion for a speedy trial,
there is automatically no constitutional violation?
Cf., e.g.,
Barker v. Wingo, supra at
407 U. S.
523-530. Or perhaps the Court will hold that there is no
constitutional violation if an accused does not object to jury
instructions that would otherwise deny him his due process right to
be convicted only if the State proves every element of the offense
beyond a reasonable doubt, since there has not been any state
"compulsion"?
Cf., e.g., Mullaney v. Wilbur, 421 U.
S. 684 (1975).
See also, e.g., Camp v.
Arkansas, 404 U. S. 69
(1971). Such possibilities are legion, for this Court has often
recognized constitutional rights even though the accused did not
explicitly demand them during his trial. Thus, whether the Court's
decision is read as importing the privilege against
self-incrimination's "compulsion" notion into areas in which it
properly has no applicability, or as abrogating the traditional
waiver standard for rights affecting the fairness and accuracy of
the factfinding process, it is a marked and indefensible departure
from constitutional principles which have long been settled.
Moreover, such notions may have a pervasive impact on habeas corpus
proceedings. Will the Court eventually employ these principles to
overrule the "deliberate bypass" test of
Fay v. Noia,
372 U. S. 391
(1963), and the holding that an adequate state procedural ground
that precludes review by appeal does not mean that an accused
cannot
"pursue vindication of his federal claim in a federal habeas
corpus proceeding in which the procedural default will not alone
preclude consideration of his claim,"
Henry v. Mississippi, 379 U. S. 443,
379 U. S. 452
(1965)? The concurring opinion would put such a gloss on the
opinion for the Court, and the opinion today in
Francis v.
Henderson, post, p.
425 U. S. 536,
confirms that my fears are not groundless.
[
Footnote 3/6]
Certainly a basic tenet of this Court's jurisprudence has
consistently been that constitutional rights affecting the fairness
and accuracy of the factfinding process are not lost unless the
State demonstrates "an intentional relinquishment or abandonment of
a known right or privilege."
Johnson v. Zerbst, supra at
304 U. S. 464;
Barker v. Wingo, supra, at
407 U. S.
525-529.
See generally, e.g., Schneckloth v.
Bustamonte, 412 U. S. 218,
412 U. S.
235-246 (1973);
id. at
412 U. S. 276
(BRENNAN, J., dissenting);
id. at
412 U. S. 277
(MARSHALL, J., dissenting). By defining the due process right in
prison garb cases in terms of state compulsion, the Court opens the
door for the complete abandonment of this waiver doctrine.
[
Footnote 3/7]
The phrase "trial-type" rights might conceivably have some value
with reference to potential constitutional challenges -- for
example, Confrontation Clause challenges to the introduction of
hearsay evidence -- which arise spontaneously during the course of
the trial and concerning which there may be inadequate opportunity
for counsel to consult with his client. The concurrence, however,
invokes "trial-type" rights almost talismanically, with no
indication of what the term connotes.
[
Footnote 3/8]
All of these rights have been held by this Court to be violated
unless the accused himself knowingly and intelligently waived them,
and the burden of proof of demonstrating their waiver, which may
not be presumed on a silent record, rests on the State. Surely the
Court would not adulterate those standards in the context of
procedural defaults.
See Francis v. Henderson, post at
425 U. S. 553
n. 4 (BRENNAN, J., dissenting). Indeed, the "knowing and deliberate
bypass" test of
Fay has been applied as the standard for
measuring procedural defaults in such other situations affecting
fundamental rights as the failure to take a timely appeal, the
failure to challenge in a timely manner the introduction of
unconstitutionally seized evidence, and the failure to object to a
prosecutor's closing comments on a defendant's failure to testify
at trial.
See, e.g., Fay; Kaufman v. United States,
394 U. S. 217
(1969);
Camp v. Arkansas, 404 U. S.
69 (1971).
[
Footnote 3/9]
In
Hernandez, no formal objection was made to the trial
judge. 443 F.2d at 636. Although the Fifth Circuit, on petition for
rehearing, stated that a "defendant may not remain silent and
willingly go to trial in prison garb and thereafter claim error,"
id. at 637, it is clear that the court was addressing the
question from a traditional waiver perspective. The court
continued,
ibid.:
"In this case, Hernandez' counsel did not object to the jail
clothing because, from past experience, he thought that a motion
for change of attire would have been a frivolous motion. We cannot
accept this as a voluntary waiver by Hernandez."
In the present case, the factual situation as found by the
District Court is virtually identical to that found in
Hernandez. The Court would distinguish
Hernandez,
however, on the ground that there was nothing in the record of that
case to
"suggest that the state trial judge had, as here, a longstanding
practice, known to members of the bar, to permit any defendant to
change into civilian clothes on request."
Ante at
425 U. S. 509
n. 4. In addition to failing to take account of the suspect nature
of the trial judge's affidavit,
see 425
U.S. 501fn3/15|>n. 15,
infra, this statement
ignores the District Court's finding that there was no indication
that this purported practice was publicly known or known to
respondent or his counsel.
See infra at
425 U. S. 530,
425 U. S.
532-534, and n. 14.
[
Footnote 3/10]
The "two court" rule is the "long-established practice not to
reverse findings of fact concurred in by two lower courts unless
shown to be clearly erroneous."
See, e.g., Blau v. Lehman,
368 U. S. 403,
368 U. S.
408-409 (1962);
Faulkner v. Gibbs, 338 U.
S. 267,
338 U. S. 268
(1949);
United States v. Dickinson, 331 U.
S. 745,
331 U. S. 751
(1947);
United States v. Commercial Credit Co,
286 U. S. 63,
286 U. S. 67
(1932);
United States v. Chemical Foundation, 272 U. S.
1,
272 U. S. 14
(1926);
Baker v. Schofield, 243 U.
S. 114,
243 U. S. 118
(1917);
Towson v. Moore, 173 U. S. 17,
173 U. S. 24
(1899);
cf. Boulden v. Holman, 394 U.
S. 478,
394 U. S.
480-481 (1969).
Neil v. Biggers, 409 U.
S. 188,
409 U. S. 202
(1972) (BRENNAN, J., concurring in part and dissenting in part).
The Court implies that only the Court of Appeals made such findings
and that, in doing so, it failed to take account of relevant
evidence before the District Court.
Ante at
425 U. S.
510-511. The District Court, presented with all of the
data cited by the Court, nevertheless concluded that the trial
climate was such that objections to trial in prison garb were
deterred; the number of cases involving this issue, particularly
the substantial number emanating from Harris County courts, merely
reinforced that finding.
Moreover, there is no reason in this case why the Court should
reassess the finding of two courts that respondent did not
willingly proceed to trial in prison garb. Petitioner did not
challenge that holding in his petition for a writ of certiorari,
and sought resolution only of the basic question whether trial in
prison garb is so inherently prejudicial that it destroys the
presumption of innocence.
[
Footnote 3/11]
See, e.g., App. 47-49, 58 59, 62-63; Tr. 5 (concession
by petitioner here during habeas evidentiary hearing that trial
tactics were not involved in this case).
[
Footnote 3/12]
The prosecutor, addressing his remarks to a specific member of
the jury panel, stated:
"This defendant is sitting in jail clothes. I am assuming he's
been in jail to the time of this trial. You are not to take this
into consideration. The fact a man is in jail clothes shouldn't
make you feel he is guilty any more than if he were in street
clothes."
"The second thing, oftentimes evidence will come out that a
person has been in jail for seven months or eight months awaiting
trial. By the same token, this should not be taken into
consideration on your verdict, because you are supposed to go
straight down the line, guilty or not guilty, and not let how a
person is dressed influence your decision."
Exhibits, pp. 30-31.
Subsequently the prosecutor, again addressing a single juror,
stated,
id. at 33:
"You have heard the questions I asked. I have gone over
reasonable doubt, gone over the business of how the defendant was
dressed, the fact he may or may not have been in the jail all this
time."
If the jurors had ignored respondent's garb until then, these
statements surely directed their attention to it.
[
Footnote 3/13]
"In a trial by jury in a federal court, the judge is not a mere
moderator, but is the governor of the trial for the purpose of
assuring its proper conduct and of determining questions of
law."
Herron v. Southern Pacific Co., 283 U. S.
91,
283 U. S. 95
(1931). "Upon the trial judge rests the duty of seeing that the
trial is conducted with solicitude for the essential rights of the
accused."
Glasser v. United States, 315 U. S.
60,
315 U. S. 71
(1942). "If truth and fairness are not to be sacrificed, the judge
must exert substantial control over the proceedings."
Geders v.
United States, ante at
425 U. S. 87. If
the law relating to trial in prison garb was so clear,
see
ante at
425 U. S.
511-512, n. 8; concurring opinion,
ante at
425 U. S. 514
n. 1, the devastating impact of such garb on the presumption of
innocence so pervasive, and the trial judge's sensitivity so
genuine, invocation of the "adversary system,"
see ante at
425 U. S. 512;
concurring opinion,
ante at
425 U. S. 515
n. 4, cannot justify the trial judge's failure to inquire into the
matter, which certainly did not escape his attention.
"[I]f the right to counsel guaranteed by the Constitution is to
serve its purpose, defendants cannot be left to the mercies of
incompetent counsel, and . . . judges should strive to maintain
proper standards of performance by attorneys who are representing
defendants in criminal cases in their courts."
McMann v. Richardson, 397 U. S. 759,
397 U. S. 771
(1970).
See Francis v. Henderson, post at
425 U. S. 553
n. 4 (BRENNAN, J., dissenting).
[
Footnote 3/14]
See Williams' Exhibits 2-6. The cases involving
nonbailed defendants constituted 50% of the jury cases before the
trial judge during that period.
See Williams' Exhibit 7.
Respondent's trial counsel was aware that other defendants were
appearing before the same trial judge in prison garb. App.
58-59.
[
Footnote 3/15]
A remand for further factual development is particularly
appropriate if the Court believes that it has delineated the due
process contours of trial in prison garb differently than did the
District Court, since the District Court might not have analyzed
all factors relevant to state "compulsion." For example, respondent
objected to introduction of the trial judge's affidavit on the
ground that it was not taken pursuant to the Federal Rules of Civil
Procedure, and thus afforded respondent's counsel no opportunity to
cross-examine the judge and inquire into such matters as the number
of times objections had actually been made to the practice of trial
in prison garb, especially before the
Hernandez decision,
which brought about the elimination of the practice in Harris
County courts. The fact that the Court seems to have delineated the
right differently than did the lower courts is highlighted by the
fact that the petition asked "Whether a defendant's trial in jail
clothing destroys the
presumption of innocence' so as to deny
him a fair trial," Pet. for Cert. 2, while the Court states the
question presented to be
"whether an accused who is
compelled to wear
identifiable prison clothing at his trial by a jury is denied due
process or equal protection of the laws,"
ante at
425 U. S. 502
(emphasis supplied). Moreover, it is particularly incongruous, if
the Court is actually premising its holding, as the concurring
opinion suggests, on a procedural default ground never presented or
explored below, that the Court is reversing on the merits of the
prison garb issue, rather than remanding for an inquiry as to
whether the alleged procedural default forecloses an inquiry into
the merits of respondent's claims.
See supra at
425 U. S.
523-526. The Court of Appeals did not address
respondent's contention that respondent was denied effective
assistance of counsel, in light of its holding with respect to
respondent's prison garb contention. When the Court of Appeals now
addresses the issue on remand, it should, of course, do so in light
of the fact that the Court today declares that there were "ample
grounds" for an objection to trial in prison garb,
see
ante at
425 U. S. 512
n. 8, concurring opinion,
ante at
425 U. S. 514
n. 1, and the fact that trial counsel concededly had no tactical or
other reason for desiring that respondent be tried in prison garb,
see 425
U.S. 501fn3/11|>n. 11,
supra.