918 F.2d 828 (9th Cir. 1989), 87-4280, Norris v. Risley

Docket Nº:87-4280.
Citation:918 F.2d 828
Party Name:Robert Lee NORRIS, Petitioner-Appellant, v. Henry RISLEY, Warden, Respondent-Appellee.
Case Date:June 30, 1989
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

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918 F.2d 828 (9th Cir. 1989)

Robert Lee NORRIS, Petitioner-Appellant,


Henry RISLEY, Warden, Respondent-Appellee.

No. 87-4280.

United States Court of Appeals, Ninth Circuit

June 30, 1989

Reopened Aug. 7, 1990.

Resubmitted Sept. 27, 1990.

Decided Nov. 8, 1990.

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Robert Lee Norris, Deer Lodge, Mont., in pro per.

Paul D. Johnson, Asst. Atty. Gen., Helena, Mont., for respondent-appellee.

Appeal from the United States District Court for the District of Montana.

Before: PREGERSON, BOOCHEVER and NOONAN, Circuit Judges.

BOOCHEVER, Circuit Judge:

In this appeal we must decide whether the presence of spectators wearing buttons inscribed with the words "Women Against Rape" at Robert Lee Norris's trial for kidnapping and sexual intercourse without consent deprived him of a fair trial.


Norris, an inmate at Montana State Prison, is currently serving a ninety-year sentence after his conviction for kidnapping and sexual intercourse without consent. On appeal the Montana Supreme Court affirmed the conviction. State v. Norris, 212 Mont. 427, 689 P.2d 243 (1984). Having exhausted all state remedies, Norris petitioned the United States District Court for the District of Montana for habeas corpus relief pursuant to 28 U.S.C. Sec. 2254 (1988).

Specifically, Norris contended that jurors were in the presence of a large number of women wearing "Women Against Rape" buttons in the public elevators, in the courtroom, on their way to and from the courtroom, and that the women served refreshments outside the courtroom on behalf of the state. After the jury had been selected, Norris moved to exclude the women from the courtroom during the trial, or to prevent them from wearing the buttons. The state trial court denied the motion:

Well, I'm compelled to deny your motion, because the public is entitled to attend court proceedings up to the point where the Court is absolutely satisfied that there is some imminent threat involved. And certainly the Rape Task Force ladies and personnel are not known for imminent threat to anybody's life.


Well, we do have First Amendment rights that are involved. And I don't feel that I can grant that. As long as it is an expression that is announced peacefully--And certainly a button would do that--I think I have no basis for granting the motion.

In his habeas petition, Norris claimed that, by denying his motion to prohibit the wearing of the buttons by the women during his trial, the state court infringed his right to a fair trial.

Although the trial record contains no findings concerning the presence of these allegedly offending factors or, consequently, their impact on a fair trial, the United States District Court denied the petition for a writ of habeas corpus without an evidentiary hearing. Norris appealed the denial. Finding that, if Norris's allegations were true, his right to a fair trial was compromised, we reversed and remanded, instructing the district court to hold an evidentiary hearing to determine the accuracy of Norris's allegations. Norris v. Risley, 878 F.2d 1178, 1183 (9th Cir.1989). Our order further stated:

If the women were present in some lesser number than that alleged by Norris, the district court should determine whether Norris was denied a fair trial. Relevant factors to be considered would include the number of women, the visibility of the buttons, whether the jurors passed through the women as they entered and exited the courtroom, and whether the women were serving refreshments in view of the jurors, thus giving the apparent imprimatur of the state to the women's presence.


On July 11, 1990, the district court issued its findings of facts and conclusions of law. The court found that approximately fifteen members of the Billings Rape Task Force

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and the National Organization for Women wore "Women Against Rape" buttons during Norris's second arraignment and that some women wore the buttons during trial. The court described the buttons as two and one-half inches in diameter with the word "Rape" underlined with a broad red stroke. After listening to divergent accounts about the jurors' exposure to the buttons, the court made detailed findings. We summarize below those that we consider material.

Pursuant to our instruction that, upon finding that fewer than twenty spectators wore buttons it should determine the impact on Norris's fair trial rights, the court concluded that the "environing atmosphere" both inside and outside the courtroom did not pose an unacceptable risk of prejudicing the jury against Norris. Thus, the court concluded that Norris' right to a fair trial was not infringed.

Norris filed with this court an objection to the judge's findings which we treated as a motion to reinstate the appeal. After granting the motion, we issued an order requesting the simultaneous filing of briefs on the question of whether, under the facts found by the district court, Norris was denied a fair trial. We now find that he was.


We review the district court's findings of fact for clear error. United States v. McConney, 728 F.2d 1195, 1200 & n. 5 (9th Cir.) (en banc ), cert. denied, 469 U.S. 824, 105 S.Ct. 101, 83 L.Ed.2d 46 (1984). The district court carefully made detailed findings of fact. We hold that these findings are not clearly erroneous.

Whether those facts constitute a deprivation of Norris's right to a fair trial involves a mixed question. Mixed questions are ordinarily reviewed de novo because the "application of law to fact will require the consideration of legal concepts and involve the exercise of judgment about the values underlying legal principles." Id. at 1202. This is especially so where, as here, the mixed question implicates constitutional rights. Id. at 1203. Because Norris's right to a fair trial is of constitutional dimension, we review de novo the district court's conclusion that Norris was not deprived of the right to a fair trial.


"The right to a fair trial is a fundamental liberty." Estelle v. Williams, 425 U.S. 501, 503, 96 S.Ct. 1691, 1692, 48 L.Ed.2d 126 (1976). It is inferred from the Sixth Amendment to the United States Constitution which provides that

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense.

This amendment is, of course, binding upon the States through the due process clause of the Fourteenth Amendment. See Duncan v. Louisiana, 391 U.S. 145, 158-59, 88 S.Ct. 1444, 1452-53, 20 L.Ed.2d 491 (1968).

Because Norris has never alleged nor shown actual prejudice, we must determine whether the wearing of "Women Against Rape" buttons during his trial was "so inherently prejudicial as to pose an unacceptable threat" to the right to a fair trial. Holbrook v. Flynn, 475 U.S. 560, 572, 106 S.Ct. 1340, 1347-48, 89 L.Ed.2d 525 (1986). A courtroom practice or arrangement is inherently prejudicial if "an unacceptable risk is presented of impermissible factors coming into play." Estelle, 425 U.S. at 505, 96 S.Ct. at 1693. Because the buttons, which were donned before any evidence was introduced, conveyed an implied message encouraging the jury to find Norris guilty, and because the buttons were not subject to the constitutional safeguards of confrontation and cross-examination, they are clearly the sort of "impermissible factors" that courts must ensure receive no weight. Thus, we must decide whether the risk that the buttons did 'come into play' was an unacceptable one. To

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decide whether that risk was unacceptable we specifically look at the relationship of exposure to the buttons to two facets of the right to a fair trial: the presumption of innocence and the right of confrontation and cross-examination.


Although not specifically articulated in the Constitution, the presumption of innocence is an integral part of the right to a fair trial. Id. at 503, 96 S.Ct. at 1692-93 (citing Coffin v. United States, 156 U.S. 432, 435, 15 S.Ct. 394, 395-96, 39 L.Ed. 481 (1895)). "To implement the presumption, courts must be alert to factors that may undermine the fairness of the fact-finding process." Id. Thus, in remanding this case to the district court to hold an evidentiary hearing we noted that "[a] criminal defendant has the right to be tried in an atmosphere undisturbed by public passion." Norris, 878 F.2d at 1181 (citing Irvin v. Dowd, 366 U.S. 717, 728, 81 S.Ct. 1639, 1645, 6 L.Ed.2d 751 (1961)). Indeed, "[t]he constitutional safeguards relating to the integrity of the criminal process.... embrace the fundamental conception of a fair trial, and ... exclude influence or domination by either a hostile or friendly mob." Cox v. Louisiana, 379 U.S. 559, 562, 85 S.Ct. 476, 479-80, 13 L.Ed.2d 487 (1965). With this in mind, we focus on the fairness of Norris's trial in light of the evidence that some spectators wore "Women Against Rape" buttons both prior to and during trial.

After weighing all the competing evidence on the number of women present wearing buttons in and around the courtroom, the court concluded that three women wore the buttons at any given time either inside or outside the courtroom, including...

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