Did Victim's Photo Prejudice a Jury?

Another ruling by the liberal-leaning 9th Circuit comes under Supreme Court review.
By David G. Savage
From the L.A. Times

September 18, 2006

WASHINGTON — For Jim Studer, wearing a button with a photo of his brother, Tom, was a simple way of bearing witness for him at the trial of Tom's accused killer, Mathew Musladin.

"He was my big brother, and he was very protective of me when I was a kid," Studer said.

Little did he think the buttons he and his parents wore to the trial in San Jose would nearly free the man convicted of Tom's murder — or put the killer's case before the Supreme Court. But he had not considered that Musladin would someday have a chance to bring his case before the U.S. 9th Circuit Court of Appeals.

For years, the Supreme Court has cast a critical eye on the liberal-leaning 9th Circuit, particularly in cases involving crime and the death penalty. The justices will consider two of those cases soon after they return next month.

On the first day of Musladin's trial more than a decade ago, Studer and his parents, who had traveled from Missouri, sat in the front row of the courtroom, directly behind the prosecutor. Each wore a button with a photo of Tom.

Like the jury, they heard the facts of the case: On May 13, 1994, Musladin arrived early at the home of his estranged wife, Pamela, to pick up their 3-year-old son for a weekend visit. The two exchanged angry words, and Musladin threw her to the driveway.

When she called for help, her fiance, Tom Studer, and her brother, Michael Albaugh, came running. Musladin had a .45caliber pistol in his car and began shooting. Studer was hit in the back and crawled under a truck in the garage to escape. Musladin followed him and shot again, hitting him in the head and killing him.

Musladin also followed Albaugh into the house, but he hid in a bathroom. Pamela escaped over the fence to another house. Musladin was captured after a high-speed chase on U.S. 101.

When his case came to trial, Musladin claimed self-defense, saying that Pamela and her fiance were drug users and that he had feared for his life. The jury convicted him of first-degree murder and attempted murder, and he was sentenced to 32 years to life in prison.

There matters stood until the 9th Circuit heard his appeal last year. The 26-member court hears cases — usually in three-judge panels — from California and eight other Western states. It has some decidedly liberal judges, and Musladin's case came before two of them: Stephen Reinhardt of Los Angeles and Marsha S. Berzon of San Francisco.

In a 2-1 decision, the judges reversed Musladin's conviction, saying that the buttons worn by Studer's family deprived Musladin of a fair trial.

According to Reinhardt, the photo buttons — described by the prosecutor as 2 inches in diameter and by Musladin's lawyer as 3 to 4 inches — conveyed a "specific message."

"The buttons essentially 'argue' that Studer was the innocent party and that the defendant was necessarily guilty," Reinhardt said.

He continued: "A reasonable jurist would be compelled to conclude that the buttons worn by Studer's family members conveyed the message that the defendant was guilty."

That was not the view of the trial judge or the California state courts.

When a defense lawyer objected at the start of the trial and described the buttons as "inappropriate," the judge disagreed: "There is no legend on the buttons," he said. "I see no possible prejudice to the defendant."

It was noted that the prosecutor could have held up a photo of Studer for the jury to see. Had he survived the shooting, the victim could have sat in the courtroom himself.

The state appeals court also saw no harm.

"The simple photograph of Tom Studer was unlikely to have been taken as a sign of anything other than the normal grief occasioned by the loss of a family member," its judges wrote in upholding Musladin's conviction.

Seven judges of the 9th Circuit objected to Reinhardt's opinion — seven fewer than the majority needed for the full appeals court to review it.

"Musladin shall be released unless the state elects to retry him within 90 days," Reinhardt wrote in October 2005.

State prosecutors petitioned the U.S. Supreme Court, which voted to hear the case. Oral arguments are set for Oct. 11.

It is one of two Reinhardt opinions that the justices will consider in the first days of their new term.

The second reversed a death sentence handed down in 1982 for a man who broke into the home of a 21-year-old woman in the San Joaquin Valley, beat her to death with a metal dumbbell, stole her stereo and sold it for $100.

When Fernando Belmontes was caught, his accomplices testified against him. After his conviction, prosecutors told jurors of his violent past, including a recent brutal assault on his pregnant girlfriend.

Twenty-one years after the jury sentenced Belmontes to die, his federal appeal came before a three-judge panel that included Reinhardt and Richard A. Paez of Los Angeles. In a 2-1 decision, they reversed the death sentence on the grounds that jurors might not have taken into account "the defendant's potential for a positive adjustment to life in prison."

California Atty. Gen. Bill Lockyer appealed that ruling to the Supreme Court, which set it aside in a one-line order in March 2005. The justices urged Reinhardt and Paez to reconsider their decision in light of a recent high court ruling that restored the death sentence for an Orange County murderer after it too had been reversed by the 9th Circuit.

In July 2005, the two appellate judges reaffirmed their original decision. Eight of their 9th Circuit colleagues dissented — again, short of the majority required for the full court to consider the case.

When Lockyer appealed on behalf of San Quentin State Prison Warden Steven W. Ornoski, the Supreme Court voted to hear the case of Ornoski vs. Belmontes. It will be argued Oct. 3, the first morning of oral arguments for the new term.

In the last term alone, the high court took up 18 cases from the 9th Circuit and reversed 15 of them.

In the Supreme Court, "there is almost a palpable skepticism for what comes out of the 9th Circuit," said Vikram Amar, a professor at UC Hastings College of the Law in San Francisco.

"They don't have any faith that Reinhardt calls it straight. I don't want to call him a bad judge, but a lot of these decisions are hard to understand," added Amar, who was a clerk for the 9th Circuit and the Supreme Court.

Nominated to the 9th Circuit by President Carter in 1980, Reinhardt has described himself as one of the last unabashed liberals on the federal bench. When asked once whom he most admired as a judge, he named the late Justice William J. Brennan Jr., the liberal leader of the Supreme Court during the 1970s and 1980s.

Brennan "had a broad and generous, rather than a cramped and niggardly, view of the law … and he understood that the ultimate role of the law was to serve the interests of justice," Reinhardt said in a 2004 interview on Howard J. Bashman's legal blog, "How Appealing." Asked about the current high court, Reinhardt said it was "a straight, unabashed, highly conservative institution."

Conservatives regularly point to Reinhardt, 75, as a "liberal activist" on the bench. He formed part of the 2-1 majority that ruled the words "under God" in the Pledge of Allegiance were unconstitutional. He also wrote an opinion for the full 9th Circuit ruling that dying people had a right to lethal medication supplied by a physician. The Supreme Court reversed this opinion unanimously in 1997 and said the "right to die" issue should be decided by states and their elected legislators.

Ten years ago, complaints about the 9th Circuit spurred Congress to rein in the authority of federal judges to review state criminal convictions in cases that raised constitutional issues. The Anti-Terrorism and Effective Death Penalty Act of 1996 says federal judges should defer to state courts and may not reverse a criminal conviction or prison term that has been upheld by a state court unless the decision obviously conflicts with "clearly established federal law as determined by the Supreme Court."

Backers of the law said it was aimed directly at the 9th Circuit. These days, however, its supporters admit that the change has not worked as planned.

"The deference standard has not been effective. The 9th Circuit strains and goes around it," said Kent S. Scheidegger, legal director of the Criminal Justice Legal Foundation in Sacramento. "The Musladin case is an example of just that. It reflects an egregious disregard for the limit that Congress set."

What "clearly established law" was violated when the trial judge let the Studer family wear buttons with a photo of Tom in the courtroom?

In his decision, Reinhardt pointed to the Supreme Court's 1976 ruling in Estelle vs. Williams. In that case, the justices said it would be unfair to require a criminal defendant to wear jail clothes during his trial because that could cause the jury to infer that he was guilty.

"We conclude that no significant difference exists between the circumstances of this case" involving the buttons worn by the family and putting a defendant in jail clothes, Reinhardt said.

State lawyers were quick to note a significant difference: The first involved a defendant who was on trial; the second involved spectators in a courtroom.

Victims' rights groups were disturbed when Reinhardt used quote marks around the word "victim" in his Musladin ruling. For example, he said the case posed the issue of "when spectators are permitted to wear buttons depicting the 'victim.' " (A revised version of his ruling does not include such references.)

"That was very troubling. There is no dispute that someone was shot and died," said Meg Garvin, a program director at the National Crime Victim Law Institute in Portland, Ore. "The underlying issue is the right of the crime victim to be in the court. We don't understand how the mere image of the victim can be prejudicial."

The group filed a friend-of-the-court brief urging the high court to reverse the 9th Circuit's decision.

Jim Studer, a school administrator from Reno, Nev., said he had not come to grips with the notion that wearing a button with his brother's picture could result in a reversal of the killer's conviction.

"We wore it for the first two days only," he said. After defense lawyers objected, he said, the family decided to take off the buttons.

However, Musladin's family said the buttons were worn for the entire 14-day trial, and the appellate judges accepted that.

"I couldn't believe it when I heard about the decision" of the 9th Circuit, Studer said. "It still seems unfathomable to me that you can't have a picture of the victim in the courtroom."