On petition for writ of certiorari to the Court of Appeal of
California for the Second Appellate District.
The petition for a writ of certiorari is denied.
Mr. Justice MARSHALL, with whom Mr. Justice BRENNAN joins,
dissenting.
At the beginning of his trial for manslaughter, petitioner, who
acted as his own counsel throughout the trial, asked the judge to
provide him with civilian clothes. He represented that he had been
in jail for five years and had no suitable civilian clothing.
Although there is some suggestion that petitioner might have been
able to obtain suitable clothes, 1 the trial court did not reject
his request for that reason. [
Footnote 2] Rather, it held that petitioner's appearance
before the jury in clothes labeled "L. A. CO. JAIL" was "proper."
Petitioner objected.
Page 429 U.S.
900 , 901
Only five months ago, this Court unanimously recognized that an
accused's appearance before a jury in identifiable jail clothes
could deprive him of his fundamental right to a fair trial by
undermining the presumption of innocence:
"(T)he constant reminder of the
accused's condition implicit in such distinctive, identifiable
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." Estelle v.
Williams,
425 U.S.
501, 504-505 (1976).
Under Estelle, the trial court's ruling that clean jail clothes
are " proper" attire for trial is clearly wrong.
That petitioner asked that the State supply him with clothes,
rather than that he be allowed to wear clothes of his own, cannot
justify the trial court's ruling. In a system aspiring toward the
ideal of equal justice under law, indigence cannot be allowed to
deprive an accused of that presumption of innocence which "lies at
the foundation of the administration of our criminal law." Id., at
503, quoting Coffin v. United States,
156 U.S.
432, 453 ( 1895). "There can be no equal justice where the kind
of trial a man gets depends on the amount of money he has." Griffin
v. Illinois,
351 U.S.
12, 19 (1956).
The California Court of Appeal correctly assumed that the trial
court's ruling was erroneous. It held, however, that the error was
" harmless beyond a reasonable doubt." Chapman v. California,
386 U.S.
18, 24 (1967). In essence, the appellate court reasoned that
petitioner was not harmed by his appearance in jail clothing
because he was also deprived of the presumption of innocence by
other actions taken by the trial court. Specifically, the Court of
Appeal recognized that the California procedure of permitting a
manslaughter
Page 429 U.S.
900 , 902
defendant 3 to be tried on an information alleging murder,
allowing the prosecutor to argue to the jury that a murder was
committed, and instructing the jury on the elements of first- and
second-degree murder, inevitably taints the defendant in the eyes
of the jury. The appellate court felt constrained to approve this
procedure because of California Supreme Court precedent: 4
"By following the California Supreme
Court mandate and permitting defendant to be tried on an
information alleging murder, by receiving evidence of murder, and
by its instructions to the jury, the trial court informed the jury
that this was not the run-of-the-mill defendant. The damage done by
defendant's appearance in jail clothing was accomplished by a
procedure held valid by our Supreme Court. Any error in denying
defendant's motion for civilian clothing thus did not further
prejudice him."
This reasoning transforms the harmless error rule of Chapman
into the legal equivalent of the doctrine that two wrongs make a
right.
This Court has never passed on the prejudicial and unnecessary 5
procedure that the appellate court thought rendered
Page 429 U.S.
900 , 903
the error here harmless. But in Price v. Georgia,
398 U.S. 323 (1970), we
did reject a harmlessness claim in a case almost identical to
petitioner's. In Price, the defendant's first trial had ended in an
acquittal on a murder charge and a conviction on a manslaughter
charge; the conviction was reversed on appeal. The defendant then
was retried on the murder charge and again convicted only of
manslaughter. The State argued that any error in retrying the
defendant for murder was harmless in light of the fact that he was
acquitted of the murder charge at the second trial. That argument
was rejected, in part because the defendant had improperly been
made to suffer the trauma and risk of a second murder trial. But
the Court considered "perhaps of more importance" the fact that it
could "not determine whether or not the murder charge against
petitioner induced the jury to find him guilty of the less serious
offense of voluntary manslaughter rather than to continue to debate
his innocence. See United States ex rel. Hetenyi v. Wilkins,
348 F.2d
844 (C.A.
2 1965), cert.
denied, 383 U.S. 913d 667 (1966)." 398 U.S., at 331-332. Although
there is no possibility here that the jury compromised on the
manslaughter conviction since it was instructed that it could
return no verdict higher than manslaughter, a similar flaw inheres
in the California procedure. It is simply impossible to say that
submitting to the jury a heinous crime for which petitioner was not
on trial and of which he could not have been convicted might not
have "induced the jury to find him guilty of the less serious
offense of voluntary manslaughter rather than to continue to debate
his innocence."
I would grant the writ of certiorari.
Footnotes
Footnote 1 Brief of
Respondent, at 27-28. Petitioner's mother was in the courtroom and
other relatives resided in the community. Their presence cannot
excuse the State from meeting its responsibility to petitioner, who
was over 21 and had been a prisoner for five years. Cf.
Administrative Office of the United States Courts, Guidelines for
the Administration of the Criminal Justice Act, c. 2, at 8 (1975)
(determination of eligibility for appointed counsel to be made
without reference to resources of defendant's family).
Footnote 2 The trial court
also did not find, as the appellate court suggested, see Brief of
Petitioner, Ex. A, at 31-32, that petitioner had available civilian
clothes which he considered unsuitable.
Footnote 3 Petitioner's
first trial for murder resulted in a conviction of second-degree
murder. That conviction was reversed on appeal. His second trial
resulted in a voluntary manslaughter conviction, which was also
reversed. His third trial ended with another voluntary manslaughter
conviction. The appellate court reduced that conviction to
involuntary manslaughter because of an error in jury instructions.
The judgment of guilty of involuntary manslaughter is before us on
the present petition.
Footnote 4 See People v.
McFarlane, 138 Cal. 481, 71 P. 568 (1903), cited in In re
McCartney,
64 Cal. 2d
830, 51 Cal. Rptr. 894, 415 P.2d 782 (1966). McCartney relied
on McFarlane for the proposition that a defendant whose
manslaughter conviction on a murder information had been reversed
could be retried for manslaughter despite the running of the
statute of limitations for that crime.
Footnote 5 The California
Court of Appeal noted that
"(t)he result sought by the awkward
approach is obtainable without the confusion and prejudice flowing
from it. Where there is a reversed conviction of an offense
included in a greater charge, the information can be amended
accordingly and the jury instructed that for the purposes of the
particular case the lesser offense is defined to include the
ultimate facts which constitute the definition of the greater crime
originally alleged."
