Metropolitan News-Enterprise


Monday, October 24, 2005


Page 1


Ninth Circuit Will Not Review Ruling That Wearing of Buttons Depicting Victim in Court Requires New Trial


By KENNETH OFGANG, Staff Writer/Appellate Courts


The Ninth U.S. Circuit Court of Appeals yesterday denied en banc rehearing of a ruling granting a new trial to a convicted murderer who claimed he was denied a fair trial because relatives of the victim appeared in court wearing buttons with the deceased’s picture on them.

The denial brought a strong dissent, signed by seven judges, arguing that the panel decision “effectively erased” the statutory provision limiting the power of federal courts to overturn state convictions.

The Northern California defendant, Matthew Musladin, was convicted in the 1994 killing of Tom Studer, who was engaged to marry Musladin’s estranged wife.

Pamela Musladin testified that she and her husband, who had come to her home to pick up their son for a weekend visit, got into an argument and that Studer and her brother, with whom she shared the house, came out to assist her after she was pushed to the ground. Musladin, she said, grabbed a gun and fired two shots, killing Studer.

The defendant admitted pushing his wife to the ground. But he contended that Studer and the defendant’s brother were armed and that he shot in their direction out of fear for his own life.

Experts agreed that Studer was killed by a ricocheting bullet. Musladin claimed both self-defense and imperfect self-defense.

Members of Studer’s family, who sat in the front row of the gallery at trial, wore buttons on their shirts with the decedent’s picture on them during each of the 14 days of the trial. The trial judge overruled defense objections to the wearing of the buttons.

Convicted of first degree murder, Musladin lost his state appeals, the Court of Appeal holding that while the wearing of photographs depicting a victim “should be discouraged,” it did not brand the defendant as guilty in the context of the particular case.

Musladin sought habeas corpus relief in state and federal courts. He took his appeal to the Ninth Circuit after U.S. Magistrate Judge James Larson of the Northern District of California ruled that the state courts had not acted contrary to clearly established federal law in upholding the conviction.

Writing for the panel, Judge Stephen Reinhardt said the magistrate judge erred in his application of the Antiterrorism and Effective Death Penalty Act of 1996, which limits federal habeas corpus relief from state convictions to cases in which the final state court ruling is contrary to, or an unreasonable application of, clearly established law as determined by the U.S. Supreme Court.

Reinhardt cited a Supreme Court ruling that a defendant was deprived of due process when forced to wear prison garb in court. The judge also noted that the Ninth Circuit had applied that decision in holding that the wearing of buttons by women at a rape trial, reading “Women Against Rape,” may have impermissibly influenced the jury to convict.

But Judge Andrew Kleinfeld, dissenting from yesterday’s denial of en banc review, said the panel had, in effect, removed the “clearly established” language from AEDPA and improperly relied on Ninth Circuit, rather than Supreme Court, precedent.

Nothing in Supreme Court precedent, Kleinfeld argued, establishes a blanket rule against the wearing of buttons in court. In this case, he said, the buttons—which bore the victim’s photo, but no words—conveyed only that the victim’s family mourned his loss, not that they were trying to persuade the jury to convict.

The judge elaborated:

“There is nothing wrong with the jury knowing that people care about the case and the parties. Typically, the spectators arrange themselves like wedding guests choosing the bride’s side or the groom’s side, with those who favor a party sitting behind the lawyer for that side. In a public trial, the jury can always see that a lot of people care about one side or the other, or that no one cares except the parties and lawyers. Good lawyers often use this to their advantage, and good judges exercise prudence to avoid situations that might intimidate or prejudice the jury. Perhaps, as the California Court of

Appeal implied, the trial judge in this case should have told the family members to remove their buttons....There is no legitimate way for judges to prevent spectators in a public trial from showing that they care about the case and support one side or the other, even if only by where they sit and who they look at with sympathy or hostility. Public concern and public sympathy for one side or the other are part of what it means for a trial to be ëpublic.’”

The dissent was joined by Judges Alex Kozinski, Richard Tallman, Consuelo Callahan, Diarmuid F. O’Scannlain, Jay Bybee, and Carlos Bea. Bea, in a separate dissent joined by Kleinfeld, Kozinski, and O’Scannlain, argued that under Supreme Court precedent, the trial judge committed, at most, harmless error by allowing the buttons to be  worn because there was no showing that the verdict would have been different.

The case is Musladin v. Lamarque, 03-16653.


Copyright 2005, Metropolitan News Company