Petition for Writ of Certiorari — Irving Alexander Ramirez, Petitioner v. California

No.

IN THE SUPREME COURT OF THE UNITED STATES

IRVING ALEXANDER RAMIREZ., Petitioner

Vv.

STATE OF CALIFORNIA, Respondent.

ON A PETITION FOR WRIT OF CERTIORARI

TO THE CALIFORNIA SUPREME COURT

(DEATH PENALTY CASE)

MARY K. MCCOMB

State Public Defender for the State of

California

MARIA MORGA

Supervising Deputy State Public Defender

Counsel of Record

OFFICE OF THE STATE PUBLIC

DEFENDER

1111 Broadway, Suite 1000

Oakland, CA 94607

Maria.Morga@ospd.ca.gov

Tel: (510) 267-3300

Fax: (510) 452-8712

Counsel for Petitioner

CAPITAL CASE

QUESTION PRESENTED

Whether as a rule, to keep the courtroom free from improper influences on the

jury, spectator displays relevant to the case such as uniforms, buttons, and signs should

be prohibited from a criminal jury trial as inherently prejudicial.

What rule should apply to relevant spectator displays in determining whether a

defendant’s constitutional rights to a fair trial and due process have been violated.

ii

STATEMENT OF RELATED PROCEEDINGS

People v. Irving Alexander Ramirez, Case No. 151080

Superior Court of Alameda County (California).

(Trial judgment entered August 3, 2007)

People v. Irving Alexander Ramirez, Case No. 8155160

Supreme Court of California

(Direct appeal, decision issued January 28, 2021)

People v. Irving Alexander Ramirez, Case No. $155160

Supreme Court of California

(Petition for rehearing denied April 14, 2021)

run

TABLE OF CONTENTS

Page

QUESTION PRESENTED ..........ccccssscessessseeseeeeseeeessensesesecseneeateaesseecacessereaesessaracensatsesecnesees ii

STATEMENT OF RELATED PROCEEDINGS ...........cccsssssessseseesessesneeseeseseasenesaesasenenas iii

TABLE OF AUTHORITIABG.............+.. sdaqsnsavaasyausccsnieawcssssuss ba teasaanzesaisbactenseclunegestastvasvadsscosskes Vv

PARTIES TO THE PROCEEDINGS ............cccsscsscccscsscesscessesscdenestensucvsssieesesssseesnstescossesecseaes 1

OPINION BELOW Gississitcscsisscnsssiscsvssavs sas ccccsusatiesunavantunsbuainussananvasavsacsusnsceaosvancsacenuniabenssvtaakasebasanns 1

JURISDICTION cc. sscasrumsscsscanennssssmeswasctenscssanase na: hiic0 Sse ena GOIGERA NAGI Aiea AIDE re NE RENNOREORACONNEES 2

CONSTITUTIONAL PROVISIONS AND STATUTES INVOLVED .......ceececeseeseeeeeeeeees 2

STATEMENT OF THE CASE o......cccccesscsssesscesseseeeseeseenseeseeaceeneeseeeaseaseaeseaeeneseeeaeeasensseeteaseas 3

I. Trial Court Proceedings..........scsssssscssssssssessersssscersssebsdessesssvassonesssasendeonecebasenes 3

Il. California Supreme Court DeCision...........cccccccesesecesesseesseesenssesseseesceneeteeeeeees 6

REASONS FOR GRANTING THE PETITION .. cassssssssisnsssssvevensscssccnacoeconassuczosnenssanonseeencenss 7

CERTIORARI SHOULD BE GRANTED TO DECIDE WHAT RULE

SHOULD APPLY TO SPECTATOR DISPLAYS IN THE COURTROOM... eee 7

I, This Court Has Held That the Right to a Fair Trial Includes

the Right to Be Tried Undisturbed by Public Passion ............scsesssseseeseeeeeees 8

II. This Court Has Not Directly Addressed the Issue of Spectator

Disp lay Sasacerasyarconsisunnceniesvisnsnaaiaioiccansitssnsesoyeslie toiebesevsspasscaciurnsctnanenteeaemuaareamerace )

Il. Various Courts Have Applied Different Tests to Spectator Displays

in the Aftermath of MUSLIN .......ccccccscccsencceeseeesneseenecesaceesessesseesnaeseseeseeneens 10

IV. Spectator Displays Influence the Jury... cesessssessseseesesessssesesseeeereees 13

V. Spectator Displays Relevant to the Case Should Be Prohibited................ 14

CONCLUSION . wssissssssssuseswesssuranssanacsaresssucccccnsmsensuiavaancnetsusnccuscunmaucausiseckshavmanveutessecsasas 18

APPENDICES .......... .sssssscsnssascasisnnsnanexeuntiaitexsnnsnnss cant stisaincan nieenernioaennpaNntensuNa NaN REASRD KETONE. 19

A. People v. Irving Alexander Ramirez, 10 Cal.5th 983 (2021),

California Supreme Court Opinion, January 28, 2021... eeeesereeseeees 19

B. People v. Irving Alexander Ramirez, No. 8155160, California

Supreme Court Order Modifying Opinion and Denying Petition

for Rehearing, April 14, 2021 oo... ee eccssseceseeseeeeeeeseeeeeeseeessneenseeeeeeees 108

C. Cited Portions of the Clerk’s Transcript and the Reporter’s

IE Fans C1 fb .o-cosmeceae ee neveenanmeamenennndn enarennnneseiies ERNE eebenNmeReteEsNnCCeN CIRCE 110

iv

TABLE OF AUTHORITIES

Page(s)

Federal Cases

Billings v. Polk

441 F.3d 238 (4th Cir. 2006) ssssisscsssvenseesssasscacsarccnccscusvancnnvensssvasasiemeassiauwiseanwens 11

Carey v. Musladin

549 U.S. 70 (2006) sccsssacsvensvaessonevapensrece pecetsteanestonsestnavsssinnensvacesepasiousarscvoess 7,9, 10, 15

Drope v. Missouri

420 U.S. 162 (1975) .nconvnvseacarsnensonnenenenensnessepttesuesonsephinpadin heaped ieiaandeenaperetan séemagassen one’ 8

Duncan v. Louisiana

391 U.S. 145 (1968) oc cccceececcesssseeeeesseeeeeeenaeereeeaeesteaaeeeseseeceeseaeecesaeeeenseeeeseeeeeesenees 8

Estelle v. Williams

425 U.S. 501 (1976) scascnexswcaveccssaxsannensaansnunannavnceranencensseenuntevexcerennanmereaenreasaumenserenssenens 9

Frank v. Magnum

237 U.S. 809 (1915) ccscssscsicaavuenusewsnswascrrccanamscnranseanseannesneessreversicannonsasaencnnenneanannoentonse 8

Holbrook v. Flynn

475 U.S. 560 (1986) ccsssersersecncssccsescunvvassscacvanscsscaarassenstssncccssstennosemnemeaeecenveneasins 9, 10

In re Murchison

349 U.S. 133 (1955) sccsscrssaccnsavasopaustinwstnsctbsnestesssessitveriveceanarcsoennccatrcctaccuenesseeentes 15, 16

Irwin v. Dowd

366 U.S. 717 (1961). coscscosansetesenssancoanspudicrenanawanaas rouaie paceta ieauestincdisbencsnvndss cisavenuaiesauaas 15

Musladin v. Lamarque

427 F.3d 653 (Oth Cir. 2005) .... cccsmresseanssenensqeesesnepensnencncsessinannewsnapesssneeuessgnessaseacsnsees 8

Nebraska Press Ass’n v. Stuart

427 U.S. 589 (1976) ......cecccceeceeeeeeeceeeeenseeessesereesseseeeecnseceeseeeseeaeeeeeeseeensneneeeneeeseeeeeeeers 9

Norris v. Risley

918 F.2d 828 (Oth Cir. 1990) sssmssncacmcccenaunncennensnnnniansaniaenamenneinnnncenttenentetvencenmvuneners 8

Sheppard v. Maxwell

384 U.S. 338 (1966) sscsisccsssrcsscevanssanccnssnonstcusuaervansaneaveasuansswcancsamenmemncmssonmnvacteseasoe 15)

Smith v. Farley

59 F.3d 659 (7th Cir.1995) sasevsssrecsssyesancas ceswacwsnnncnaccancnncesnineanaiceasisnecueuvansssssausaaaien 16

Taylor v. Kentucky

A36 U.S. 478 (1978) ...cceccccccsssssseccessecceceneceseseceeeeeecsseeesesssssasesessseceesseseeeessssesseaeeesenaes 8

United States v. Farmer

583 F.3d 131 (2d Cir. 2009).......--comeensspassassvnesas onsen detvisaserascsnieucantsaedimadcenmedesbachseviecs 11

Allen v. Commonwealth

286 S.W.3d 221 Ky. 2009) .........sccsssessceeceeccercones ssiscasaiisasiich duubunsiuavanieesusavesssmasnenaaiton 11

Buckner v. State

714 So. 2d 384 (Fla. 1998).............-------«iaaaesnnshupbaaneueubisseusiuaneeutbinwieetecemnman 12

Davis v. State

223 S.W.3d 466 (Tex. App. 2006) ..........cc ee cscceceeecceessnsecseceevossssseeesescereseeeeesseeeestenses 11

Johnson v. Commonwealth

529 S.B.2d 769 (Va. 2000) 2.0... cecseseesesseeeeseeeeeeseeeeensneeeeeeeseeeececeeseeeeeeneseeeceeeeeseeeeseeses 11

Overstreet v. State

877 N.E.2d 144 Und. 2007) scccemnsncressnnasncunsoxansne sencnavennessienmecnnnrmsessuneunnnsernemenneaeeeneess 11

People v. Ramirez

10 Cal. 5th 983 (2021) ssccsssssssavevensanasmnxensaserannccecevenaressormoveonvensansonenseneskbenenseancnnecens 1,6

State v. Franklin

327 S.B.2d 449 (W. Va. 198D)..........---sssssscsscdssvencauesaawusonnsncenvataneaawennedemmansacavenasanie 12

State v. Iromuanya

806 N.W.2d 404 (Neb. 2011) scccscsssissvesvnsnpiusssscavavianiearansivicccssccccescasctccanvesseeeites 11, 13

State v. Speed

961 P.2d 13 Kan. 1998) ,....csossrrestssvansinnns tessdecpedacspestnnnelanbua) consagesvsivasedenseecdedabiecséits 12

Federal Statutes

18 U.S.C, sessorsssnewarnvavazseconnserssranrennenesnensannsesenrosesooeeosonestsnsnauaacatiag opveeacemedcacpegaapncseseued eats 10

21 U.S.C. sissscsisssisaiseinecenctaverevonsausitus cpateccrectercccuucesvesccavnmeanmansiccaunnuananencesmancimnuaueensesnns 10

71 OSB OR en ee 10

28 U.S.C.

§ 1257 (a).............0-cesewuannsenanscenwnanenenananenwenetnensenten esexenumneseensnsenenicenererenntmrenceserenneerenes 2

727) Os ©) ieee GP OB od on coccon or onescnenococ00 00100000000 o 000000 oco SCC COUU gg oaPcqEraron aos 10

v1

Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. No.

104-132, 110 Stat. 1214.............. sssssmaeasnuda cspaeaassbinecaupeussorsdannssrveodeanea teens

Constitutional Provisions

U.S. Const.

6th Amend. ssekesssccccsescancsecccecscaswsaccncasectvescasisesausensstaaenvarwaevermenentmuuneerseeenses

L4th Amend. ...cccccccecccccecececceccceccecececeucsseceeccecseccnccssceeeeeeceneseceeeceesecneceeecaees

Other Authorities

Barbara F. Reskin & Christy A. Visher, The Impacts of Evidence and

Extralegal Factors in Jurors’ Decisions,

20 Law & Soc’y Rev. 423 (1986) ssssccviuswsssveesananccmacncarsasanceomiesssssencssononanoien

Meghan E. Lind, Hearts on Their Sleeves: Symbolic Displays of

Emotion by Spectators in Criminal Trials,

98 J. Crim. L. & Criminology 1147 (2008)... eseceesssneeeeeeseenereeseeetees

Motion for Leave to File Amicus Curiae Brief in Support of Appellants

David Dager, et al., by Amicus Curiae Peace Officers Research

Association of California Legal Defense Fund, Dager v. City of

Phoenix, 380 F. App’x 688 (9th Cir. 2010) (No. 09-15356) 2009 WL

DA4ADTD............coossacnneesaseceveeoneneeregseguevererenesenesenecenersecnenecererconseccssoageseseneaens

Neal Feigenson & Jaihyun Park, Emotions and Attributions of Legal

Responsibility and Blame: A Research Review,

30 Law & Hum. Behav. 143 (2006) sssssscssscssessrssssnssccsncevssstpatnnnmauwsveruwnniiaes

Stuart Fischoff, Influence of Victim Reminders on Public Perception of

Guilt or Non-Guilt in a Celebrity Murder Trial,

2 J. Media Psychol. 4 (1996) sscissssscssocccsssccosnnvsnnenastscsanvawpesveacsnsseusswanennnmnane

vil

2, 6, 7, 8

2, 6, 7, 8

STURT 16

No.

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 2021

IRVING ALEXANDER RAMIREZ, Petitioner,

v.

STATE OF CALIFORNIA, Respondent.

ON A PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF THE STATE OF CALIFORNIA

(DEATH PENALTY CASE)

Petitioner Irving Alexander Ramirez respectfully petitions for a writ of certiorari

to review the judgement of the Supreme Court of the State of California affirming his

conviction of murder and sentence of death.

PARTIES TO THE PROCEEDINGS

The parties to the proceedings below were Petitioner, Irving Alexander Ramirez,

and Respondent, the People of the State of California.

OPINION BELOW

The California Supreme Court issued an opinion in this case on January 28,

2021, reported as People v. Irving Alexander Ramirez, 10 Cal. 5th 983 (2021) (hereafter

“Ramirez’). A copy of the published opinion is attached as Appendix A. On April 14,

2021, the California Supreme Court modified its opinion and denied the petition for

rehearing. A copy of the order modifying the opinion and denying the petition for

rehearing is attached as Appendix B.

JURISDICTION

The California Supreme Court entered its judgment on January 28, 2021 and

denied a timely filed petition for rehearing on April 14, 2021. Pursuant to this Court’s

order dated March 19, 2020, due to disruptions related to Covid-19, the time within

which to file a petition for certiorari was extended 150 days from the date of the order

denying a timely filed petition for rehearing.! As such, the time to file a petition for

certiorari in this case was extended to September 11, 2021. This Court has jurisdiction

under 28 U.S.C. section 1257(a).

CONSTITUTIONAL PROVISIONS AND STATUTES INVOLVED

The Sixth Amendment to the United States Constitution provides in relevant

part: “In all criminal prosecutions, the accused shall enjoy the right to a speedy and

public trial, by an impartial jury... .”

Section 1 of the Fourteenth Amendment to the United States Constitution

provides in pertinent part: “No state shall... deprive any person of life, liberty, or

”

property, without due process of law....

1 This order was rescinded on July 19, 2021.

2

STATEMENT OF THE CASE

I, Trial Court Proceedings

Petitioner, Irving Alexander Ramirez, was convicted and sentenced to death for

the murder of San Leandro Police Officer Nels Daniel Niemi. On July 25, 2005,

petitioner had been drinking and celebrating his 23rd birthday. Officer Niemi,

responding to a complaint about a group of juveniles loitering on the street, was

checking the group’s identification documents when, suddenly and without warning,

petitioner shot him. Officer Niemi died at the scene.

Petitioneyr’s responsibility for the shooting was not disputed at trial. The

prosecution’s theory was that he committed willful, deliberate, and premeditated firstdegree murder. The defense theory was that he, in a heightened emotional and

intoxicated state, vulnerable to rash impulse, committed second degree murder; without

the cold calculation and careful and thoughtful weighing of consequences that

deliberation demands.

Prior to the commencement of trial, defense counsel filed a motion requesting an

order prohibiting police officers in uniform as spectators in the courtroom during trial.

(3 CT 614-618.)2 Defense counsel asserted that several San Leandro police officers had

been attending pretrial hearings and that their continued presence in uniform during

the trial when jurors or potential jurors were present would affect appellant's right to a

2“CT” refers to the Clerk’s Transcript. “RT” refers to the Reporter’s Transcript.

The cited portions of the Clerk’s Transcript and the Reporter’s Transcript are attached

as Appendix C.

fair trial. (3 CT 614.) Additionally, defense counsel argued that there was a substantial

likelihood that jurors would view the presence of uniformed police officers as implicit

support for the prosecution and victim, and as “implicit advocacy for the jury to convict

the defendant and condemn him to death,” which would violate appellant’s federal

constitutional rights to a fair trial, the presumption of innocence, and the right to

confront and cross-examine witnesses. (3 CT 614-615.) Defense counsel moved “that any

police officer who attends as a spectator at any stage of the trial when a juror or

prospective juror is present be ordered to wear civilian clothing and no visible badge or

other sign of his or her occupation, and to refrain from exhibiting any support for or

animus toward either party.” (8 CT: 615.)

At a brief hearing on the issue, the trial court denied the motion. (2 RT 37-38.)

The trial court reasoned that such an order would not be necessary because the jurors

would know immediately that the trial was about the murder of a police officer. (2 RT

38.)3 The trial court indicated that the parties could re-raise the issue if it became a

problem at trial. (2 RT 39.)

At the conclusion of the guilt phase, before the trial court read jury instructions

and before closing arguments by the parties, defense counsel again raised the issue of

uniformed police officers as spectators in the courtroom. (12 RT 2610.) The uniformed

3 This was the first killing of a San Leandro police officer in 34 years. (13 RT

2774.) The elected District Attorney for Alameda County, Tom Orloff, personally

prosecuted the case. (2 RT 66, 78, 109, 144, 196; 3 RT 245, 339.) There was extensive

publicity surrounding the case. (2 RT 78.)

police officers had been present in the gallery throughout the morning session. (12 RT

2611.)

The record demonstrated that during initial jury instructions and closing

arguments, the gallery was full of people and included 17 or 18 uniformed San Leandro

police officers. (12 RT 2610.) One juror was unable to use the stairs to get to the jury

room and had to go through the gallery of spectators. (12 RT 2610.) The trial court

stated that it did not observe any undue prejudice and that it was well known that the

case involved the murder of a police officer. (12 RT 2611.) The front row on the defense

side of the courtroom had a “fair amount” of uniformed police officers. (12 RT 2611.) The

row directly behind the bailiff was fully occupied by uniformed police officers, but there

was nobody in the front row behind the alternate jurors. (12 RT 2612.) The trial court

altered the arrangement and placed petitioner’s family in the front row behind the

bailiff and put non-uniformed people in the front row which had been vacant behind the

jurors. (12 RT 2612.)

The trial court noted that it had witnessed no conduct which the court would

consider “to be in any way intimidating . .. or being intended to or having an effect of

drawing attention to the uniforms in the courtroom.” (12 RT 2612.) The trial court found

that the 17 or 18 uniformed police officers had simply been present. (12 RT 2612.)

At the conclusion of deliberations, the jury found petitioner guilty of first-degree

murder and at the conclusion of the penalty phase, sentenced petitioner to death.

II. California Supreme Court Decision

On automatic appeal to the California Supreme Court, petitioner challenged the

trial court’s ruling that 17 or 18 uniformed police officers present at the trial as

spectators did not deprive him of a fair trial as guaranteed by the Sixth and Fourteenth

Amendments to the United States Constitution. The California Supreme Court held

that although the United States Supreme Court “ ‘has never addressed a claim that...

private-actor courtroom conduct was so inherently prejudicial that it deprived a

defendant of a fair trial’ or applied the test for inherent prejudice in Williams and Flynn

to spectators’ conduct|,]” in petitioner’s case, the presence of 17 or 18 uniformed police

officers in the courtroom was not inherently prejudicial because petitioner had not

demonstrated on the record that there was an unacceptable risk of impermissible

factors coming into play. Ramirez, 10 Cal.5th at 1016. Although the California Supreme

Court acknowledged that jurors may have been influenced by the mere presence of the

officers, even if they did not believe that the officers were conducting themselves in a

way to intimidate them, the California Supreme Court nevertheless concluded that the

mere possibility of influence from the presence of the officers was not enough to render

the officers’ attendance inherently prejudicial. Thus, the California Supreme Court held

that the presence of 17 or 18 uniformed police officers as spectators did not violate

petitioner’s constitutional right to a fair trial. Id. at 1018.

REASONS FOR GRANTING THE PETITION

CERTIORARI SHOULD BE GRANTED TO DECIDE WHAT RULE SHOULD

APPLY TO SPECTATOR DISPLAYS IN THE COURTROOM

The issue of spectator displays during criminal jury trials regularly arises in

court proceedings and is of fundamental societal and legal significance.4 This issue

raises important questions about the constitutional limitations of spectator influence at

trial. On one side of the balance are the Sixth and Fourteenth Amendments and the

right to a fair trial free from outside influences. On the other side are the Sixth

Amendment’s guarantee of a public trial and the First Amendment’s protection of free

expression. Scholars and courts alike are divided on the proper solution, and this Court

should bring clarity to this area by articulating guidelines for trial judges. To date, this

Court has not squarely addressed the issue. Carey v. Musladin, 549 U.S. 70, 76 (2006)

(“Musladin’).

By not ruling on the issue, this Court allows state and federal courts to continue

to apply their own varying standards in analyzing the effect of spectator displays in the

courtroom on a criminal defendant’s constitutional right to a fair trial—and reaching

unacceptably divergent outcomes. This unsettled legal situation does not sufficiently

protect a criminal defendant's rights to a fair trial. State courts ruling on the issue have

underestimated the influence of photos, buttons, and other displays by spectators in the

4 Pyivate-actor courtroom conduct, be it uniforms, t-shirts, buttons, signs, or

other displays of influence.

courtroom during a criminal trial. The resulting conflicts arising from this Court’s lack

of guidance will not resolve themselves and further percolation in the lower courts is

unnecessary.

In addressing this issue, this Court should establish a per se rule prohibiting

spectators from displaying buttons, photos, uniforms, or other case relevant displays in

the courtroom during a criminal jury trial.

I, This Court Has Held That the Right to a Fair Trial Includes the

Right to Be Tried Undisturbed by Public Passion

The right to a fair trial in a criminal case is a fundamental liberty secured by the

Sixth and Fourteenth Amendments. Drope v. Missouri, 420 U.S. 162 (1975); Taylor v.

Kentucky, 436 U.S. 478, 485 (1978); Nebraska Press Ass'n v. Stuart, 427 U.S. 539 (1976);

Duncan. v. Louisiana, 391 U.S. 145 (1968). As this Court declared, this right applies

with full force and power regardless of the heinousness of the crime charged, the

apparent guilt of the offender or the station in life which he occupies.” Irwin v. Dowd,

366 U.S. 717, 722 (1961). Critical to this fundamental guarantee is protection of the

trial process from contamination by irrelevant, prejudicial, outside-the-record factors. A

criminal defendant thus has the right to be tried in an atmosphere undisturbed by

public passion. Id. at 722-28. And as “. . . [alny judge who has sat with juries knows

that, in spite of forms, they are extremely likely to be impregnated by the environing

atmosphere.” Frank v. Magnum, 237 U.S. 309, 349 (1915) (Holmes, J., dissenting).

II, This Court Has Not Directly Addressed the Issue of Spectator

Displays

Despite this Court’s defense of the integrity of the criminal trial process, this

Court has not addressed the issue of spectator displays in the courtroom. When

presented with the issue, this Court overruled the Ninth Circuit’s decision in Musladin

v. Lamarque, 427 F.3d 653, 654, 656-57 (th Cir. 2005) on the ground that no “clearly

established” Supreme Court precedent governed displays by trial spectators. Musladin,

549 U.S. at 77. This Court acknowledged that “the effect on a defendant’s fair-trial

rights of the spectator conduct to which [defendant] objects is an open question in our

jurisprudence.” Id. at 76.

Prior to Musladin, in Estelle v. Williams, 425 U.S. 501, 505 (1976) ( Williams’),

this Court ruled that the State could not compel an accused defendant to stand trial

before a jury while dressed in identifiable prison clothes. This Court held that a

courtroom practice creating an “unacceptable risk ... of impermissible factors coming

into play” violates due process and the defendant’s right to a fair trial. Id. at 512.

Subsequently, in Holbrook v. Flynn, 475 U.S. 560, 562 (1986) (“Flynn”), this Court

considered whether a defendant’s due process rights were violated “when, at his trial

with five codefendants, the customary courtroom security force was supplemented by

four uniformed state troopers sitting in the first row of the spectator’s section.” Jd. at

562. Applying the inherent prejudice standard articulated in Williams, “whether there

was an unacceptable risk of impermissible factors coming into play,” the Court stated

that the standard for determining whether something is inherently prejudicial does not

depend on “whether jurors actually articulated a consciousness of some prejudicial

effect,” but whether there is a risk that external factors could influence the verdict. Id.

at 570-72. Ultimately, the Court held that the augmented presence of police in Flynn

was not “inherently prejudicial.” Id.

In Musladin, this Court reasoned that Williams and Flynn reached their result

because both involved “state-sponsored courtroom practices,” id. at 76, and that the

Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104—132, 110 Stat.

1214 (codified in scattered sections of 18 U.S.C., 21 U.S.C., 28 U.S.C., and 42 U.S.C.),

precluded extending those precedents—on habeas review of a state-court judgment—to

displays by private actors. Musladin, 549 U.S. at 77. Thus, the Court did not address

the effect of spectator displays but observed that the Fourth and Ninth Circuits (and

state courts) were divided as to whether spectator displays can be “inherently

prejudicial.” Id. at 76-77.

In his concurrence in Musladin, Justice Kennedy recognized the need to

establish a new rule dealing with whether “buttons proclaiming a message relevant to

the case ought to be prohibited as a matter of course.” Musladin, 549 U.S. at 80-81

(Kennedy, J., concurring). Despite the clear recognition of the problem, as it relates to

spectator displays, this Court has not taken up the issue.

III. Various Courts Have Applied Different Tests to Spectator

Displays in the Aftermath of Musladin

Musladin, in effect, left it to lower courts to address spectator display claims. As

the Supreme Court recognized in Musladin, “[r]eflecting the lack of guidance from this

Court, lower courts have diverged widely in their treatment of defendants’ spectator-

conduct claims.” Jd. at 76.

10

For example, some courts have applied the Williams and Flynn inherent

prejudice test to claims that spectator displays deprived the defendant of a fair trial.

See, e.g., United States v. Farmer, 583 F.3d 131, 149 (2d Cir. 2009), cert. denied 559 US.

1058 (2010) (applying inherent prejudice test to spectators wearing t-shirts with picture

of victim); Norris v. Risley, 918 F.2d 828, 830-34 (9th Cir. 1990) (applying inherent

prejudice test to spectators wearing “Women Against Rape” buttons); Overstreet v.

State, 877 N.E.2d 144, 158-59 (Ind. 2007), cert. denied (2008) 555 U.S. 972 (applying

inherent prejudice test to spectators wearing buttons with photograph of victim).

Other courts have applied the test of whether the spectator displays caused the

defendant to suffer actual prejudice. See, e.g., Johnson v. Commonwealth, 529 S.E.2d

769, 781-82 (Va. 2000) (applying actual prejudice test to spectators wearing buttons

with photograph of victim); State v. Iromuanya, 806 N.W.2d 404, 431-33 (Neb. 2011)

(applying actual prejudice test to spectators wearing victim memorial buttons); Allen v.

Commonwealth, 286 S.W.3d.221, 229-30 Ky. 2009) (applying actual prejudice test to tshirts with picture of victim worn by victim’s family).

Finally, some courts have rejected spectator display claims because of a lack of

guidance. See, e.g., Billings v. Polk, 441 F.3d 238, 247 (4th Cir. 2006) declaring that

existing precedent “do[es] not clearly establish that a defendant’s right to a fair jury

trial is violated whenever an article of clothing worn at trial arguably conveys a

message about the matter before the jury”), cert. denied, 549 U.S. 1119 (2007); Davis v.

State, 223 S.W.3d 466, 474-75 (Tex. App. 2006) (“Appellant does not cite any authority

11

holding the display of [medallions bearing the victim’s picture] by spectators creates

inherent prejudice.”).

Many courts applying the actual prejudice test to spectator display claims have

nevertheless acknowledged the inherent problem of spectator displays or influence in

the courtroom and its impact on the fairness of the trial. The Buckner court, like others,

recognized that “[u]nder certain circumstances, prejudicial exhibition of emotion may

deprive a defendant of a fair trial.” Buckner v. State, 714 So. 2d 384, 389 (Fla. 1998). In

State v. Speed, 961 P.2d 13 (Kan. 1998), the court also observed, “it would seem that the

wearing of [pictures by the spectators] is not a good idea because of the possibility of

prejudice which might result.” Id. at 30.

Law enforcement spectators pose an enhanced problem because they elicit both

an emotional response and a deference to authority. For example, in State v. Franklin,

327 S.E.2d 449 (W. Va. 1985), the high court held in a DUI case that resulted in death

that spectators wearing MADD buttons “were clearly distinguishable from other

visitors in the courtroom and, led by the sheriff, they constituted a formidable, albeit

passive, influence on the jury” and that the court “quite simply cannot state that the

mere presence of the spectators wearing MADD buttons and the pressure and activities

of the uniformed sheriff leading them did not do irreparable damage to the defendant’s

right to a fair trial by an impartial jury. Indeed, it constitutes reversible error.” Id. at

455.

12

IV. Spectator Displays Influence the Jury

Even if trial judges take careful measures to preserve the neutrality of the

courtroom, the influence of photos, buttons, and other displays by spectators in the

courtroom during a criminal trial cannot be overstated. Spectator displays in a

courtroom go beyond an ordinary show of emotion by the spectators. Displays such as

uniforms, buttons, signs, or pictures serve as a means of eliciting sympathy from the

jurors and encourage them to reach a verdict on grounds other than the evidence

presented at trial. Although state courts have left it to trial courts to evaluate the likely

effects of spectator displays in the courtroom, scientific research shows that such

displays may influence a juror’s decision regarding the guilt or innocence of the

defendant. Foundationally, emotions, including sympathy, influence juror decision

making. See generally Barbara F. Reskin & Christy A. Visher, The Impacts of Evidence

and Extralegal Factors in Jurors’ Decisions, 20 Law & Soc’y Rev. 423 (1986) (the impact

of extralegal variables, including the jury’s perception of the victim, on the jury’s

decision making). Spectator displays, be they victim photographs, uniforms, or buttons,

serve as a constant reminder that the victim was a real person, someone’s friend or

family, and the loss of the victim occasions sympathy from the jurors. Although some

courts have found these displays to be nothing more than expressions of grief (see, e.g.,

Tromuanya, 806 N.W.2d at 482), these emotional displays make the jurors more likely

to view the defendant as guilty, in part because they feel the need to do something to

vindicate the suffering of the spectators and the loss of the victim. A study by Stuart

Fischoff showed that victim reminders, including photographs of the victim, displayed

13

during a criminal jury trial had a statistically significant impact on the public’s

perception of the defendant’s guilt. Fischoff found that such reminders serve to remind

the public that “real persons, not vague abstractions, were victimized,” and increased

the public’s perception of the defendant’s guilt. Although Fischoffs study deals with the

public in general, it lends support to the contention that victim photographs elicit

sympathy above and beyond what would normally occur at the trial. Stuart Fischoff,

Influence of Victim Reminders on Public Perception of Guilt or Non-Guilt in a Celebrity

Murder Trial, 2 J. Media Psychol. 4 (1996). Relatedly, research by Neal Feigenson and

Jaihyun Park indicates that greater sympathy for the injured party made the jurors

more likely to find the defendant guilty. See generally Neal Feigenson & Jaihyun Park,

Emotions and Attributions of Legal Responsibility and Blame: A Research Review, 30

Law & Hum. Behav. 143 (2006). The study also found that “the research suggests that

the affective influences on judgments of legal responsibility and blame are likely to

persist in real legal settings.” Id.

Based on this research, even where courts instruct the jury to disregard

spectator displays in the courtroom in assessing the guilt or innocence of the defendant,

it is unlikely that such instructions will be effective.

V. Spectator Displays Relevant to the Case Should Be Prohibited

Be it private or state conduct, to keep the emotional neutrality of the courtroom,

free from improper influences on the jury, spectator displays such as uniforms, buttons,

and signs relevant to the case should be prohibited as inherently prejudicial. In the

words of Justice Souter in his concurrence in Musladin, the standard for dealing with

14

threats to the fundamental fairness of a criminal trial posed by conditions in the

courtroom applies to private spectators and state actors:

As for the applicability of this standard, there is no serious question that it

reaches the behavior of spectators. The focus of the later cases is on

appearances within the courtroom open to the jurors’ observation. There is

no suggestion in the opinions, and no reason to think now, that it should

matter whether the State or an individual may be to blame for some

objectionable sight; either way, the trial judge has an affirmative

obligation to control the courtroom and keep it free of improper influence.

[Citation] And since the Williams-Flynn standard is a guide for trial

judges, not for laypersons without schooling in threats to the fairness of

trials, its general formulation is enough to tell trial judges that it applies

to the behavior of courtroom visitors.

Musladin, 549 U.S. at 82 (citing Sheppard v. Maxwell, 384 U.S. 333, 363 (1966)).

In addressing the buttons at issue in Musladin, Justice Souter observed that one

could not seriously deny that allowing spectators at a criminal trial to wear visible

buttons with the victim’s photo can raise a risk of improper considerations and that the

display is no part of the evidence going to guilt or innocence: “the buttons are at once an

appeal for sympathy for the victim (and perhaps for those who wear the buttons) and a

call for some response from those who see them. On the jurors’ part, that expected

response could well seem to be a verdict of guilty, and a sympathetic urge to assuage

the grief or rage of survivors with a conviction would be the paradigm of improper

consideration.” Musladin, 549 U.S. at 82-83.

Justice Souter characterized the ultimate question as whether “the risk in a

given case reaches the ‘unacceptable’ level.” Musladin, 549 U.S. at 83. But any level of

risk from spectator displays in a courtroom is unacceptable where social science and

common-sense demonstrate that the impact of these appeals to emotion is great — above

the low threshold for prejudice articulated in In re Murchison, 349 U.S. 133, 136 (1955).

15

There, the Court made explicit: “[O]ur system of law has always endeavored to prevent

even the probability of unfairness.” Id.

In this case, 17 or 18 police officers attended petitioner’s trial as spectators

dressed in their police uniforms. Although, police are expected to be present during the

trial of one accused of murdering a fellow officer, see Smith v. Farley, 59 F.3d 659, 664

(7th Cir.1995) (noting that “if you kill a policemen [sic] and are put on trial for the

crime, you must expect the courtroom audience to include policemen’), jurors are

extremely likely to be influenced by their presence. This influence is heightened by

police in uniform:

The police uniform establishes its wearer as an official. Due to a number

of conventions, regardless of jurisdiction, the uniform is immediately

recognizable as belonging to a law enforcement officer. . . With this

recognition comes “command presence” and safety. Command presence is

defined as the peremptory authority imputed from image and carriage.

Command presence is often listed as the lowest ring on the ladder of the

force continuum. That is, command presence (or, put simply, uniformed

bearing) is so crucial that it metaphysically goes beyond mere appearance

to become a force or power. In fact, the vast majority of citizens will obey

the directions of uniformed officers without need for resort to physical

means.

Motion for Leave to File Amicus Curiae Brief in Support of Appellants David Dager, et

al., by Amicus Curiae Peace Officers Research Association of California Legal Defense

Fund, Dager v. City of Phoenix, 380 F. App’x 688 (9th Cir. 2010) (No. 09-15356) 2009

WL 2444973. A courtroom gallery filled with 17 or 18 uniformed police officers at the

guilt phase during jury instructions and closing arguments in a case involving a slain

active-duty police officer thus inevitably exerted an impermissible outside influence on

the jury.

16

There is no conceivable version of a just and fair trial that includes the injection

of such a powerful outside influence into the trial process and juror deliberations. A

spectator display is at once highly prejudicial to the disfavored party and utterly

irrelevant to the trial’s truth-seeking function. It is also unnecessary.® There is no

acceptable justification for allowing spectators to convey their emotions, either directly

or passively, before a jury seeking to ascertain the facts involved in the events and

adjudicate guilt or innocence based on those facts. Meghan E. Lind, Hearts on Their

Sleeves: Symbolic Displays of Emotion by Spectators in Criminal Trials, 98 J. Crim. L.

& Criminology 1147, 1155-1157 (2008).

The importance of fairness in the criminal system thus demands that even

potentially prejudicial factors be removed from the process. Applied here, the real

chance that the uniformed officers’ symbolic displays of emotion could have influenced

the jurors in their decision between degrees of murder required the exclusion of

uniformed police spectators from the courtroom. But, in the absence of clear guidance

from this Court, the trial court allowed 17 or 18 of them to remain in the courtroom and

exert their authority and emotional influence on the jury. And the California Supreme

Count affirmed.

5 Family members and others affected by the crime are provided the opportunity

in most jurisdictions to express their emotions and opinions in the criminal justice

process itself, in the context of victim impact statements during sentencing, or victim

impact testimony during the penalty phase of a capital trial, after the facts have been

found and guilt has been determined.

17

Thus, certiorari is necessary to set a uniform standard for spectator displays that

resolves conflicts among the courts and eliminates the potential for prejudice inherent

in all such actual or symbolic expressions of spectator emotions and opinions.

CONCLUSION

Wherefore, petitioner respectfully requests that this Court grant the petition for

a writ of certiorari, establish a standard for spectator displays and reverse the judgment

of the Supreme Court of California affirming the judgment in petitioner’s case.

Dated: September 138, 2021

Respectfully submitted,

MARY K. McCOMB

STATE PUBLIC DEFENDER

FOR THE STATE OF CALIFORNIA

Li-fyy

MARIA RGA

Superviging Deputy Zot Public Defender

Counsel-of Record

18

APPENDIX A:

People v. Irving Alexander Ramirez, 10 Cal.5th 983 (2021)

California Supreme Court Opinion

January 28, 2021

19

SUPREME COURT

IN THE SUPREME CouRTOF FILED

CALIFORNIA Jan 2 82021

Jorge Navarrete Clerk

THE PEOPLE,

Plaintiff and Respondent, Deputy

OY,

IRVING ALEXANDER RAMIREZ,

Defendant and Appellant.

§155160

Alameda County Superior Court

151080

January 28, 2021

Chief Justice Cantil-Sakauye authored the opinion of the

Court, in which Justices Corrigan, Liu, Cuéllar, Kruger,

Groban and Huffman” concurred.

Associate Justice of the Court of Appeal, Fourth Appellate

District, Division One, assigned by the Chief Justice pursuant

to article VI, section 6 of the California Constitution.

PEOPLE v, RAMIREZ

S155160

Opinion of the Court by Cantil-Sakauye, C. J.

A jury convicted defendant Irving Alexander Ramirez of

the first degree murder of San Leandro Police Officer Nels

Niemi. (Pen. Code §§ 187, subd. (a), 189; all subsequent

statutory references are to the Penal Code unless otherwise

specified.) The jury also found true the charged firearm

enhancements and_ special circumstance allegations.

Specifically, it found true the allegations that (1) defendant

murdered Niemi to prevent or avoid a lawful arrest (§ 190.2,

subd. (a)(5)), and (2) defendant intentionally killed Niemi, a

peace officer engaged in the lawful performance of his duties,

and defendant knew, or reasonably should have known, that

Niemi was such an officer (§ 190.2, subd. (a)(7)). The jury

returned a verdict of death.

The trial court sentenced defendant accordingly. In

conjunction with the death judgment, the court ordered

defendant to pay a restitution fine of $10,000. (§ 1202.4, subd.

(b).) This automatic appeal followed. We affirm the judgment

in its entirety.

I. BACKGROUND

A. Evidence at the Guilt Phase

Defendant did not contest that he shot and killed Niemi.

He did dispute, however, that he committed the killing with the

requisite mental state to be guilty of first degree murder.

Because of the thrust of defendant’s argument, both the

PEOPLE v. RAMIREZ

Opinion of the Court by Cantil-Sakauye, C. J.

prosecution and defense introduced extensive evidence of

defendant’s activities preceding, immediately surrounding, and

following the murder.

1. Prosecution case

The prosecution’s theory of the crime was that defendant

killed Niemi to avoid arrest. To demonstrate that defendant had

reason to fear arrest, the prosecution introduced the testimony

of Mark Sheldon, a police officer with the City of Pleasanton.

Sheldon related that in December 2004 — about seven months

before defendant had the fatal interaction with Niemi —

Sheldon pulled over defendant's vehicle. Sheldon asked

defendant for his identification, much like Niemi did seven

months later. Instead of producing his driver’s license,

defendant gave Sheldon his California identification card. This

caused Sheldon to suspect that defendant’s license was

suspended and defendant was on probation. Sheldon “did a

records check,” which confirmed that defendant “was on

probation with[] ...a four-way search and seizure,” which gave

Sheldon the ability “to search [defendant’s] person, property,

vehicle and the home.” Sheldon searched defendant and

discovered suspected methamphetamine and cocaine in his front

pocket. Sheldon arrested defendant, who subsequently spent 45

days in jail. Relying in part on Sheldon’s testimony, the

prosecution argued that defendant shot Niemi after Niemi

requested his identification because defendant thought “[t]he

officer had my ID, he was going to run it. I was subject to search

and seizure, I was going to go to jail, so I killed him.”

To establish what transpired on the day of the murder, the

prosecution introduced testimony of the four individuals who

were with defendant when he shot Niemi. Those present at the

PEOPLE v. RAMIREZ

Opinion of the Court by Cantil-Sakauye, C. J.

crime scene were Vincente Heredia, Frank Gonzales, Miguel

Rangel, and Jose Luis Arteaga. Heredia testified that on the

day of the murder, he called defendant, requesting to borrow a

gun. Defendant dropped off a gun for Heredia at the home of

Heredia’s mother, which was located on Doolittle Drive in San

Leandro. Later that day, Heredia discharged the firearm, but

after firing once, the gun jammed. MHeredia then called

defendant to inform him that the gun had jammed and

defendant should pick it up.

After receiving the call from Heredia about the jammed

gun, defendant drove to Doolittle Drive. Along the way, he

picked up a friend, Arteaga. Arteaga testified that because

defendant had been drinking “since earlier that day,” his driving

was “very erratic.” Arteaga asked defendant to pull over so he

could drive instead. Defendant complied and gave Arteaga turnby-turn directions to Heredia’s place. According to Arteaga,

defendant had multiple firearms in the cay, including a shotgun,

a “dark color handgun,” and a box of ammunition for the

shotgun. A subsequent search of defendant’s vehicle confirmed

Arteaga’s report of the shotgun and ammunition.

When defendant and Arteaga arrived at Doolittle Drive,

they entered the home with Heredia. Heredia handed the gun

to defendant, who “took it apart,” “looked at it,” and explained

why the gun jammed. Defendant then put the gun away on his

person. The three men went back outside.

Once outdoors, Heredia, Arteaga, and defendant were

joined by Gonzales (Heredia’s half brother) and Rangel

(Gonzales’s cousin). Defendant had brought a bottle of

Hennessy cognac with him, and the group drank from the bottle.

As the men were standing about, a neighbor called the police

[OCR skipped on page(s) 31-136]

[Read from a scan; the first 30 pages.]