Williams v. Estelle

Decision Date06 September 1974
Docket NumberNo. 73-3854,73-3854
Citation500 F.2d 206
PartiesHarry Lee WILLIAMS, Petitioner-Appellant, v. W. J. ESTELLE, Director, Texas Department of Corrections, and C. V. Kern, Sheriff, Respondents-Appellees.
CourtU.S. Court of Appeals — Fifth Circuit

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 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); 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 unfair.' This conclusion is consistent with the view that whether a practice is, in a legal sense, prejudicial must be determined in light of both the individual's interest in an accurate determination of guilt or innocence and the state's interest in an efficient criminal justice system unburdened by excessive delay or complication.

For example, physical restraints on a defendant are permissible only when necessary to prevent injury to bystanders, escape, or disorder at trial. Odell v. Hudspeth, 10 Cir., 1951, 189 F.2d 300, 302. Like trial in prison garb, this practice adversely affects the accuracy of the fact-finding process, because it may prejudice the jury against the defendant. Odell v. Hudspeth, supra, 189 F.2d at 302. The use of restraints is not 'inherently unfair,' however, because the adverse effect may be an unavoidable consequence of protecting an important state interest-- such as safety in the courtroom. Therefore, the defendant must show that the practice was prejudicial in his case-- that is, was not necessary to protect an important state interest. See Gregory v. United States, 8 Cir., 1966, 365 F.2d 203, 205; Way v. United States, 10 Cir., 1960, 285 F.2d 253, 254; Hardin v. Estelle, W.D.Tex., 1973, 365 F.Supp. 39, 46-47. See generally Lane v. Warden, 4 Cir., 1963, 320 F.2d 179, 186.

Trial in prison garb, in contrast to use of physical restraints, does not serve a legitimate state interest. The state has advanced no reason for denying a defendant's request for his available civilian clothes. The certainty and frequency of the prejudice need not be measured. The practice in question is also prejudicial because it is unnecessary. 5 Thus the purpose of the rule announced in Hernandez strongly supports retroactivity.

The second factor-- the extent of reliance by law enforcement officials-- also points toward retroactivity. In almost every case in which the Supreme Court has refused to apply constitutional rules of criminal procedure retroactively, the new rule was announced in a case overruling clear, well-established precedent. See Williams v. United States, supra, 401 U.S. at 648, 91 S.Ct. at 1150; Desist v. United States, supra, 394 U.S. at 250, 89 S.Ct. at 1034; DeStefano v. Woods, supra, 392 U.S. at 634, 88 S.Ct. at 2095; Stovall v. Denno, supra, 388 U.S. at 299, 87 S.Ct. at 1971; Johnson v. New Jersey, supra, 384 U.S. at 731, 86 S.Ct. at 1780; Tehan v. Shott, supra, 382 U.S. at 411, 86 S.Ct. at 462; Linkletter v. Walker, supra, 381 U.S. at 630, 85 S.Ct. at 1738; Pruett v. State of Texas, supra, 470 F.2d at 1184. The Court has never refused retroactive application where the condemned practice had not received at least substantial support from prior rulings. See Adams v. Illinois, 405 U.S. 278, 283-284, 92 S.Ct. 916, 920, 31 L.Ed.2d 202 (1972); Gosa v. Mayden, 413 U.S. 665, 682, 93 S.Ct. 2926, 2932, 37 L.Ed.2d 873 (1973) (plurality opinion); Michigan v. Payne, 412 U.S. 47, 56, 93 S.Ct. 1966, 1971, 36 L.Ed.2d 736 (1973). Reliance on a blank slate is not enough. But see Bassett v. Smith, 5 Cir., 1972, 464 F.2d 347, 351. Even where the condemned practice has found support in lower court decisions or Supreme Court dicta, new rules have been applied retroactively if their effect on trial accuracy is substantial and they do not greatly burden the administration of justice. See Witherspoon v. Illinois, supra, 391 U.S. at 523 n. 22, 88 S.Ct. at 1777; Roberts v. Russell, 392 U.S. 293, 295, 88 S.Ct. 1921, 1922, 20 L.Ed.2d 1100 (1968). See generally Robinson v. Neil, 409 U.S. 505, 510, 93 S.Ct. 876, 879, 35 L.Ed.2d 29 (1973).

Addressing the question of retroactivity in a more general context, the Supreme Court had concluded that to be applied prospecitively only, a decision must 'establish a new principle of law either by overruling clear past precedent on which litigants may have relied . . . or by deciding an issue of first impression whose resolution was not clearly...

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