State v. Lord

¶53 (concurring in majority) — Although I substantially agree with the majority, I agree with the dissent that exclusion of the dog handler’s testimony was error. However, since that evidence was of marginal relevance, I agree with the majority that the error was harmless.

Madsen, J.

¶54 (concurring in part/dissenting in part) — I join Justice Sanders in dissent. But while I concur with *298 the majority's resolution of the jury taint issue, I write separately to set forth my reasons.

*297 Chambers, J.

*298 ¶55 Atrial is not a sporting event where fans wave signs, logos, and photographs declaring their allegiance for one team or another. I would hold that when a court effectively permits spectators to participate in a trial, prejudice will be presumed. Because I find the thought of courtroom spectators wearing buttons communicating their views on a central issue before the court abhorrent to a fair and impartial trial, I cannot join the majority.

¶56 Courts have a constitutional obligation to ensure a fair and impartial trial. Spectators help ensure that courts are fulfilling their constitutional role by being the eyes and ears of the public, watching justice be done. The decision makers in our trials must be impartial. Const. art. I, § 22. Constitutionally, spectators, especially those who support one side or another, may not participate in the trial. Cf. Patterson v. Colorado, 205 U.S. 454, 462 , 27 S. Ct. 556 , 51 L. Ed. 879 (1907) (“The theory of our system is that the conclusions to be reached in a case will be induced only by evidence and argument in open court, and not by any outside influence, whether of private talk or public print.”). When spectators become participants, fairness and impartiality are jeopardized and the constitutional promise of due process under law is undermined. Cf. Const. art. I, §§ 3, 21, 22.

¶57 “Justice in all cases shall be administered openly ....” Const. art. I, § 10. This prevents secret trials, ensures that judges perform their constitutional role, and fosters public confidence in the administration of justice. Justice must be administered openly Though in the courtroom, the right of the accused to a fair and impartial trial is paramount and the expressive right of spectators is subordinate. Seattle Times Co. v. Rhinehart, 467 U.S. 20, 32-33 , 104 S. Ct. 2199 , 81 L. Ed. 2d 17 (1984). The constitutional role of the spectator is to be an observer and nothing more. Any effort on the part of the spectators to communicate with the jury should be scrupulously prevented by the judge.

*299 ¶58 Brian Lord was on trial for murder. For the first three days of his trial, many spectators, over Lord’s objection, wore large buttons bearing photographs of the murder victim, Tracy Parker. The buttons carried no message other than the message implicit in the presence of the photograph. On the third day, the able trial judge must have begun having second thoughts about allowing the buttons. She knew by then that jurors could see the buttons and was rightly concerned that the buttons might evoke undue sympathy from the jury, compromising Lord’s right to an impartial process. On the fourth day, the judge excluded the buttons from the courtroom.

¶59 We have found the wearing of black and orange remembrance ribbons by trial spectators permissible because the ribbons did not advocate a finding of guilt or innocence. In re Pers. Restraint of Woods, 154 Wn.2d 400, 416 , 114 P.3d 607 (2005). But in Norris, spectators wore buttons with the phrase ‘Woman Against Rape,” and the court rightly held the communications were inherently prejudicial. 20 Norris v. Risley, 918 F.2d 828, 830 (9th Cir. 1990). The majority concludes that wearing buttons bearing Tracy Parker’s picture is more like wearing black and orange ribbons than buttons saying, Woman Against Rape.” Certainly, wearing buttons condemning rape during a rape trial is more pointed but wearing the victim’s image in a trial for the rape and murder of that victim is fairly pointed itself. Allowing either is to allow courtroom spectators to present a planned, organized effort to communicate *300 with — and sway — the jury. In my view, signs, logos, and buttons with photographs have no place in a courtroom during a trial. Accord Carey v. Musladin, 549 U.S 70, 79, 127 S. Ct. 649 , 166 L. Ed. 2d 482 (2006) (Stevens, J., concurring). As the Supreme Court said more than half a century ago, “[d]ue process requires that the accused receive a trial by an impartial jury free from outside influences.” Sheppard v. Maxwell, 384 U.S. 333, 362 , 86 S. Ct. 1507 , 16 L. Ed. 2d 600 (1966). In my view, judges should not permit spectators to communicate to the jury in any overt, organized, and concerted fashion. 21

¶60 However, law is often an exercise in balancing. While I would begin from the assumption that such buttons cause undue prejudice, I would allow the presumption to be rebutted. In this case, I am satisfied that the prejudice was constrained by the trial court’s decision to order the buttons removed 4 days into a 31-day trial. Further, counsel made no motion for mistrial or request for a curative instruction. Since this appears to be a reasonable strategic decision, I cannot say the omissions rise to ineffective assistance of counsel. Thus, I concur with the majority insofar as it holds that Lord is not entitled to relief on this ground.

I recognize that after our oral argument, the United States Supreme Court denied habeas relief to a petitioner whose case bears a striking similarity to this one, notwithstanding Woods and Norris. See Carey v. Musladin, 549 U.S. 70, 77 , 127 S. Ct. 649 , 166 L. Ed. 2d 482 (2006). Id. Musladin, the United States Supreme Court denied habeas relief because the wearing of buttons with the victim’s image did not violate “ ‘clearly established Federal law, as determined by the Supreme Court of the United States,’ ” as required by the Antiterrorism and Effective Death Penalty Act of 1996 before a state court’s ruling could be overruled. Musladin, 549 U.S. at 74 (quoting 28 U.S.C. § 2254 (d)(1)). Whether or not clearly established federal constitutional minimums have been violated, of course, does not answer whether our own state constitutional standards have been met. For those reasons, I also respectfully disagree with the majority’s characterization of the holding in Musladin. Cf. majority at 285 n.9, 287-88.

Signs, logos, buttons, and the like are forms of expression and communication. I agree that some spectator “communication” is inherent in the constitutional guaranty of a public trial and thus part of the constitutional landscape. Cf. Musladin, 549 U.S. at 76-77 . For example, the quiet presence of a person sharing traits with the defendant or the victim sitting behind the prosecutor or the defense attorney may play an acceptable, if subtle, role in a trial.