500 F.2d 206 (5th Cir. 1974), 73-3854, Williams v. Estelle

Docket Nº:73-3854.
Citation:500 F.2d 206
Party Name:Harry Lee WILLIAMS, Petitioner-Appellant, v. W. J. ESTELLE, Director, Texas Department of Corrections, and C. V. Kern, Sheriff, Respondents-Appellees.
Case Date:September 06, 1974
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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500 F.2d 206 (5th Cir. 1974)

Harry Lee WILLIAMS, Petitioner-Appellant,

v.

W. J. ESTELLE, Director, Texas Department of Corrections, and C. V. Kern, Sheriff, Respondents-Appellees.

No. 73-3854.

United States Court of Appeals, Fifth Circuit.

Sept. 6, 1974

Page 207

Ben Aderholt, Houston, Tex. (Court-appointed), for petitioner-appellant.

Joe Moss, Asst. Dist. Atty., Houston, Tex., for C. V. Kern.

Dunklin Sullivan, Sarah Shirley, Asst. Attys. Gen., Austin, Tex., for W. J. Estelle.

Before TUTTLE, COLEMAN and AINSWORTH, Circuit Judges.

AINSWORTH, Circuit Judge:

Petitioner Harry Lee Williams appeals from denial of habeas corpus by the district court. He was convicted of assault with intent to kill with malice aforethought in a Texas state court in November 1970. The principal contention in this proceeding is that petitioner's right to due process of law was violated when he was compelled to wear a prison uniform 1 at his jury trial, 2 despite his request for his readily available civilian clothes. We reverse and remand for a new trial.

I. The Due Process Implications of Trial in Prison Garb

In Brooks v. Texas, 5 Cir., 1967, 381 F.2d 619, 624, this Court characterized trial in prison garb as 'inherently unfair.' Four years later, in Hernandez v. Beto, 5 Cir., 1971, 443 F.2d 634, we reaffirmed this language in Brooks and held the practice to be constitutional error-- an impingement upon the presumption of innocence. 3 We added, however,

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that '(a) defendant may not remain silent and willingly go to trial in prison garb and thereafter claim error.' 443 F.2d at 637.

Waiver of the objection cannot be inferred merely from failure to object if trial in prison garb is customary in the jurisdiction. It must be shown that the practice was not customary and might not be insisted upon if objected to, or that the defendant hoped to elicit sympathy by his appearance in such clothing. See Hernandez v. Beto, supra, 443 F.2d at 636-637; Hollins v. Beto, 5 Cir. 1972, 467 F.2d 951, 952; Goodspeed v. Beto, 5 Cir., 1972, 460 F.2d 398, 400. In the present case, as in Hernandez, the practice was customary, and there was no evidence that counsel used Williams' appearance to evoke sympathy from the jury. Therefore, the district court correctly found there was no waiver, though no formal objection to prison garb was made by Williams' counsel at trial. 364 F.Supp. at 343.

II. Retroactive Application of Hernandez

Williams' trial occurred before our decision in Hernandez, and so we must determine whether Hernandez is to be applied retroactively. 4 In recent years the courts have abandoned the traditional practice of automatically giving retroactive effect to judicial decisions. See Norton v. County of Shelby, 118 U.S. 425, 6 S.Ct. 1121, 30 L.Ed. 178 (1886). In Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965), the Supreme Court consulted three criteria in holding that Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961) (applying the Fourth Amendment exclusionary rule to the states) was not to apply retroactively: (1) the purpose of the newly announced rule; (2) the extent of reliance on the old rule by law enforcement officials; and (3) the probable effect of retroactive application on the administration of justice. See also Pruett v. State of Texas, 5 Cir., 1973, 470 F.2d 1182, 1184.

If a new rule serves a broad social policy-- such as deterrence of unconstitutional actions by law enforcement officials-- the courts have been reluctant to invoke retroactivity. See Williams v. United States, 401 U.S. 646, 91 S.Ct. 1148, 28 L.Ed.2d 388 (1971); Desist v. United States, 394 U.S. 244, 89 S.Ct. 1030, 22 L.Ed.2d 248 (1969); Tehan v. Shott, 382 U.S. 406, 86 S.Ct. 459, 15 L.Ed.2d 453 (1966); Linkletter v. Walker, supra; Mackey v. United States, 401 U.S. 667, 91 S.Ct. 1160, 28 L.Ed.2d 404 (1971); Fuller v. Alaska, 393 U.S. 80, 89 S.Ct. 61, 21 L.Ed.2d 212 (1968); Lyon v. United States, 5 Cir., 1969, 416 F.2d 91; Monroe v. United States, 5 Cir., 1970, 435 F.2d 160. On the other hand, rules designed to enhance the reliability of determinations of guilt or innocence are usually applied retroactively. See Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968); Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964); Eskridge v. Washington State Prison Board, 357 U.S. 214, 78 S.Ct. 1061, 2 L.Ed.2d 1269 (1958); Arsenault v. Massachusetts, 393 U.S. 5, 89 S.Ct. 35, 21 L.Ed.2d 5 (1968); McConnell v. Rhay, 393 U.S. 2, 89 S.Ct. 32, 21 L.Ed.2d 2 (1968) ;

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Smith v. State of Texas, 5 Cir., 1968, 395 F.2d 958.

This criterion is not an automatic guide to whether retroactivity is justified. 'The question whether a constitutional rule of criminal procedure does or does not enhance the reliability of the fact-finding process at trial is necessarily a matter of degree.' Johnson v. New Jersey, 384 U.S. 719, 729, 86 S.Ct. 1772, 1778, 16 L.Ed.2d 882 (1966); Adams v. Illinois, 405 U.S. 278, 281, 92 S.Ct. 916, 918, 31 L.Ed.2d 202 (1972); Gosa v. Mayden, 413 U.S. 665, 680, 93 S.Ct. 2926, 2936, 37 L.Ed.3d 873 (1973); Michigan v. Payne, 412 U.S. 47, 55, 93 S.Ct. 1966, 1970, 36 L.Ed.2d 736 (1973); Bassett v. Smith, 5 Cir., 1972, 464 F.2d 347, 349. The 'certainty and frequency' of the prejudice the new rele is designed to eliminate are important determinants of the appropriateness of retroactivity. Stovall v. Denno, 388 U.S. 293, 299, 87 S.Ct. 1967, 1971, 18 L.Ed.2d 1199 (1967); Juelich v. United States, 5 Cir., 1968, 403 F.2d 523. See DeStefano v. Woods, 392 U.S. 631, 634, 88 S.Ct. 2093, 2095, 20 L.Ed.2d 1308 (1968).

In the present case, the purpose of the new rule unquestionably is to enhance the reliability of the fact-finding process. Nothing could be more subversive of that process than a practice that compromises the presumption of innocence. Nor need we speculate about the certainty and frequency of the prejudice associated with this error.

In Brooks v. Texas, supra, we declared trial in prison garb to be 'inherently...

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