485 F.2d 86 (3rd Cir. 1973), 72-1977, Gaito v. Brierley

Docket Nº:72-1977.
Citation:485 F.2d 86
Party Name:Frank M. GAITO, C-7482, Appellant, v. Joseph R. BRIERLEY, Appellee.
Case Date:September 21, 1973
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit
 
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Page 86

485 F.2d 86 (3rd Cir. 1973)

Frank M. GAITO, C-7482, Appellant,

v.

Joseph R. BRIERLEY, Appellee.

No. 72-1977.

United States Court of Appeals, Third Circuit.

Sept. 21, 1973

Page 87

Errol S. Miller, Pittsburgh, Pa., for appellant.

Robert W. Duggan, Dist. Atty., Robert L. Eberhardt, J. Kent Culley, Asst. Dist. Attys., Pittsburgh, Pa., for appellee.

Submitted Under Third Circuit Rule 12(6) on July 2, 1973.

Before GIBBONS and HUNTER, Circuit Judges. Resubmitted Under Third Circuit Rule 12(6) on Sept. 4, 1973.

Before ALDISERT, GIBBONS and HUNTER, Circuit Judges.

OPINION

JAMES HUNTER, III, Circuit Judge:

Frank Gaito appeals from an order of the United States District Court for the Western District of Pennsylvania denying, after an evidentiary hearing, his petition for a writ of habeas corpus. Gaito's sole contention is that two required appearances before a jury in his prison clothes deprived him of his fourteenth amendment right to due process of law.

Gaito was convicted in 1959 in the criminal courts of Allegheny County, Pennsylvania, on charges of burglary, assault with intent to kill, and a violation of the Pennsylvania Uniform Firearms Act of 1939. A series of appeals and petitions culminated in the granting of a new trial by the Supreme Court of Pennsylvania because it found that an oral confession which the prosecution had introduced in the first trial was involuntary. Commonwealth ex rel. Gaito v. Maroney, 422 Pa. 171, 220 A.2d 628 (1966).

At his second trial, it is undisputed that Gaito was transported from the State Correctional Institution at Pittsburgh to the jury selection in his prison garb. This prison garb consisted of matching brown denim shirt and pants,

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work shoes, and a heavy dark brown corduroy coat. According to the affidavit of Edward Anent, a prison official, it was standard policy to take men to court in prison garb unless the court order specified that they were being sent for trial, in which event a suit would normally be furnished. Since Gaito's court order "only stated [that] he was to be brought to court," he was not provided with a suit. Consequently, while the jury was being chosen, appellant sat in the courtroom in his prison clothes. No objection to this procedure was made on that day by either appellant or his court-appointed attorney.

The next morning, according to Gaito's testimony at the evidentiary hearing, his sister brought his civilian clothes to the prison, but a guard refused to permit him to return to his cell to put them on. Then, while he was waiting for his trial to start, appellant says that another prisoner told him about a recent decision from the Eastern District of Pennsylvania which purportedly held that it was prejudicial error to try a man in his prison clothes. 1 Based on this information, Gaito himself asked the trial judge to declare a mistrial so that a new jury could be picked. This motion was denied, and appellant's trial began with him dressed in his prison garb in full view of the jury. Several witnesses testified during the morning, and at the lunch recess Gaito obtained his civilian clothes which he wore for the rest of the trial. He was again found guilty and, after exhausting his state remedies, he filed the present habeas corpus petition.

In refusing to grant a writ of habeas corpus, the district court stated:

"Assuming, without deciding, the law...

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