Carey v. Musladin

The Government’s Argument (on behalf of Warden Thomas Carey)

Previous cases before the Supreme Court have established the general principle that some courtroom practices can be so inherently prejudicial to the jury as to violate the defendant’s right to a fair trial. See Brief for Petitioner at 10. The Court’s decisions in Estelle v. Williams, 425 U.S. 501 (1976) and Holbrook v. Flynn, 475 U.S. 560 (1986) addressed prejudicial courtroom practices, but neither case addressed the behavior of courtroom spectators, and the Supreme Court did not establish any guidelines to determine how prejudicial a given practice actually was. See Brief for Petitioner at 10. Therefore, since the rule at issue in this case is general and there are no Supreme Court cases directly on point, Carey argues that the state court’s decision should have been given maximum deference. See Brief for Petitioner at 11.

AEDPA requires that “clearly established federal law” under 28 U.S.C. § 2254(d)(1) be law that has been determined by the Supreme Court. Under AEDPA, the state court’s decision can only be overturned if it is contrary to or unreasonably applies that federal law. See Brief for Petitionerat 13. A strict reading of 28 U.S.C. § 2254(d)(1) leaves no place for circuit or state law to determine or shape “clearly established federal law.” See Brief for Petitioner at 14. Although the Ninth Circuit did refer to the Supreme Court’s decisions in Williams and Flynn in its opinion, it also relied heavily on another Ninth Circuit case, Norris v. Risley, 918 F.2d 828 (1990). Carey contends that Norris, as a pre-AEDPA, non-Supreme Court case, is insufficient to define federal law for purposes of habeas relief, and the Ninth Circuit’s reliance on that case therefore amounted to essentially reviewing the state judgment de novo. See Brief for Petitioner at 13. Since AEDPA was intended to substantially restrict the grounds on which a federal court could overturn a state criminal decision, such de novo review is not only contrary to AEDPA itself, but also to the legislative intent behind it. See Ninth Circuit Uses Circuit Opinions to Interpret “Clearly Established” Federal Law, 119 Harv. L. Rev. 1931 (2006).

Carey argues that the Ninth Circuit also erred in its interpretation of the state court’s decision. The state court concluded that while the wearing of victims’ photographs in the courtroom was “’an impermissible factor coming into play’... we do not believe the buttons in this case branded defendant ‘with an unmistakable mark of guilt’ in the eyes of the jurors.” See Brief for Petitioner at 31 (quoting Flynn). The Ninth Circuit interpreted this language as evidence that the state court had found not only an unacceptable risk of prejudicial courtroom practice, but also evidence that the prejudicial practice had actually occurred. See Id. In the Ninth Circuit’s opinion, this evidence implied that the state court imposed the additional requirement of branding the defendant with the “unmistakable mark of guilt,” as well as the existing requirement that the practice be inherently prejudicial. See Id.However, Carey argues, the context of the state court’s language reveals this interpretation to be false; among other reasons, the state actually contrasted Norris (which found constitutional error) with this case, and held that the buttons worn by Studer’s family members were “unlikely to have been taken as a sign of anything other than the normal grief occasioned by the loss of a family member.” See Id. at 32.

Finally, Carey notes that the Ninth Circuit’s conclusion that an inherently prejudicial practice constitutes automatic structural error is contrary to Supreme Court precedent. See Id. at 37. If a given practice carries the risk of prejudice to the jury, it is subject to review, not automatic reversal, except in a handful of specialized cases. See Id. In this case, there is no evidence that the jury even noticed the buttons, much less that they were influenced by them, or in fact even knew that the buttons depicted Studer. See Id. at 39.

Musladin’s Argument

Musladin argues that the Ninth Circuit did not exceed its authority under AEDPA by using the Norris case. Musladin interprets the Ninth Circuit’s decision as essentially based on the rule from Williams and Flynn, both Supreme Court cases, and the decision would have been the same if Norris had never been decided at all. See Brief for Respondent at 14. Norris was used as persuasive authority, not mandatory authority, to back up the Williams/Flynn rule; the Ninth Circuit states explicitly that its “decision in Norris v. Risley [citation omitted] has persuasive value in an assessment of the meaning of the federal law that was clearly-established by Williams and Flynn.” See Musladin v. Lamarque, 427 F.3d at 657 (emphasis added). Musladin claims that such use to help determine or ascertain whether courts are in agreement on the general rule is not forbidden. See Brief for Respondent at 17. AEDPA limits “clearly established federal law” to Supreme Court decisions, but state or lower federal decisions may still play some role in the analysis of what is “clearly established.” See Id. at 18.

Musladin also contends that the Ninth Circuit’s analysis of the state court decision was correct. The Supreme Court’s test for inherently prejudicial courtroom behavior, from Williams and Flynn, is that inherent prejudice is established when “an unacceptable risk is presented of impermissible factors coming into play.” See Id. at 24. Under this test, Musladin argues, the state court correctly determined that the buttons constituted inherent prejudice, and the inquiry should have ended there. See Id. However, Musladin argues that the state court’s denial of his claim on the basis that the buttons did not brand him with “an unmistakable mark of guilt in the eyes of the jurors” was an unreasonable application of federal law, because the “unmistakable mark of guilt” was unnecessary to satisfy the test for inherent prejudice. See Id. The Supreme Court has never required that a questionable courtroom behavior go above and beyond imposing the unacceptable risk in order to constitute inherent prejudice, and this extra requirement of “branding” the defendant is too high and unreasonable a burden. See Id. at 25.

Finally, Musladin argues that the Supreme Court need not undertake a harmless error analysis to determine whether the buttons actually caused the jury to be prejudiced against Musladin. The state court waived its claim that the constitutional error in this case was harmless by failing to bring up the issue of harmless error in a timely fashion. See Id. at 34. Alternatively, Musladin contends that if the Supreme Court finds that the state court did not waive its claim, then the matter should be remanded to the Ninth Circuit, which did not undertake the harmless error analysis when it originally dealt with the case. See Id. at 35. If the Supreme Court does feel the need to do the analysis itself, Musladin claims that the writ of habeas corpus must be issued, because the error in this case had a “substantial and injurious influence on the jury’s decision.” See Id. at 37. Since the basis for Musladin’s argument at trial was that he shot Studer in self-defense, the buttons worn by Studer’s family created the presumption that Musladin was the attacker and Studer the innocent victim. See Id. at 38.