Xanthull v. Beto, Civ. A. No. 67-G-141.

• Decision Date: 16 January 1970
• Docket Number: Civ. A. No. 67-G-141.
• Citation: 307 F. Supp. 903
• Parties: Theodore XANTHULL, Petitioner, v. Dr. George J. BETO, Director, Texas Department of Corrections, Respondent.
• Court: U.S. District Court — Southern District of Texas

307 F. Supp. 903

Theodore XANTHULL, Petitioner, v. Dr. George J. BETO, Director, Texas Department of Corrections, Respondent.

Civ. A. No. 67-G-141.

United States District Court S. D. Texas, Galveston Division.

January 16, 1970.

Frank B. Davis and Hugh M. Ray, Andrews, Kurth, Campbell & Jones, Houston, Tex. (court appointed), for petitioner.

Crawford C. Martin, Atty. Gen., Robert C. Flowers and Charles R. Parrett, Asst. Attys. Gen., Austin, Tex., for respondent.

MEMORANDUM AND ORDER

NOEL, District Judge.

Petitioner, a prisoner in state custody, has filed a petition and supplemental petition seeking a writ of habeas corpus. Respondent has filed his answer with state court pleadings attached.

In his original petition Xanthull attacked his state conviction for the following reasons: 1. that the state's introduction into evidence of his involuntary confession denied his fifth and sixth amendment rights; and 2. that the state denied him a fair trial in that he was forced to wear his jail uniform during his jury trial although he requested his own clothes. In open court petitioner waived all other claims attacking the validity of his state conviction.

The Court granted petitioner a full oral evidentiary hearing on these issues. In light of the law and the facts presented at the hearing the original petition for habeas corpus is denied.

Xanthull had the burden to establish the facts to support his constitutional claims. Walker v. Beto, 387 F.2d 626, 627 (5th Cir.1967) (per curiam). The evidence adduced at the hearing failed to establish that his confession was involuntary, likewise the evidence failed to establish that petitioner was physically abused or promised medical treatment as an inducement to confess.

Petitioner's second ground for relief rests on the proposition that jury trial in a jail uniform is inherently prejudicial. To support his theory petitioner relies on Brooks v. Texas, 381 F.2d 619 (5th Cir.1967) (alternate ground), and the state cases cited in 21 Am.Jur.2d, Criminal Law § 239 (1965). The Court has examined these cases carefully, but is persuaded by the reasoning in McFalls v. Peyton, 270 F.Supp. 577, 579 (W.D.Va.1967) aff'd, 401 F.2d 890 (4th Cir.1968) cert. denied, 394 U.S. 951, 89 S.Ct. 1292, 22 L.Ed.2d 486 (1969), that trial in a jail uniform is not inherently prejudicial. The court in McFalls reasoned that the petitioner in a habeas corpus case has the burden to establish how trial in a prison uniform prejudiced his right to a fair trial. Cf. Mallonee v. Lanier, 354 F.2d 940 (5th Cir.1966) (per curiam). In McFalls the court reasoned that a state judge has discretion in conducting his trial proceedings, and that the physical appearance of the accused during trial falls within that discretion. Cf. United States v. Greco, 186 F.Supp. 5, 7 (M.D.Penn.1960). The court concluded not to grant the writ of habeas corpus because there was no clear evidence of prejudice caused the accused by his trial in jail clothes. Cf. Gregory v. United States, 365 F.2d 203, 205 (8th Cir.1966) cert. denied, 385 U. S. 1029, 87 S.Ct. 759, 17 L.Ed.2d 676 (1967).

In contrast to McFalls, the question was discussed as an alternate ground for its holding by the Fifth Circuit in Brooks v. Texas, supra, 381 F.2d at 624. After stating the facts the court said:

It is inherently unfair to try a defendant for crime while garbed in his jail uniform, especially when his civilian clothing is at hand. No insinuations, indications or implications suggesting guilt should be displayed before the jury, other than admissible evidence and permissible argument. This case is readily distinguishable from Mallonee v. Lanier, Warden, 5 Cir.1966, 354 F.2d 940, where there was no more than a showing of a possibility of injury, and from United States v. Greco, M.D.Pa.1960, 186 F. Supp. 5, where the district court was held justified in taking steps to manacle a convicted bank robber for security reasons.

In view of its summary disposition of the jail uniform question and the fact that the language used was in the alternative, this Court does not regard Brooks as being determinative here. But assuming it might be some indication of the views of the Fifth Circuit, this Court is unable to determine from the quoted passage whether the court intended to say that it would be inherently prejudicial in every jury case, regardless of the facts, to try an individual in a prison uniform, or rather, that upon the facts there, such prejudice was apparent.

The opinion in Brooks commences with a lengthy statement of facts, which establishes that the court considered the specific facts there before concluding that Brooks had been prejudiced by his prison garb during his jury trial. The court distinguished the case before it from Mallonee, supra, which turned on petitioner's failure to prove prejudice. Had it intended to frame the universal rule asserted by Xanthull, this Court is of the opinion that the Fifth Circuit would have overruled Mallonee, not distinguished it.

When considered out of context, the first two sentences quoted above would appear to announce a universal rule of constitutional law binding in every case to which they apply. However, the last sentence shows that the court analyzed the facts in the case before it determined that Brooks was prejudiced. As a result of this factual determination, this Court is of the opinion that the first two sentences are dicta and not intended to pronounce a universal rule.

If Brooks could be construed to stand for the proposition that to try an accused in prison clothes is inherently prejudicial, this Court would respectfully decline to follow such rule pending a clear statement of it by the Fifth Circuit. Until constrained by unambiguous binding authority to the contrary, this Court will continue to analyze all the facts in each case before holding that an accused has been prejudiced and therefore denied a fair trial when tried before a jury in a prison uniform.

As in McFalls, Xanthull has failed to show this Court how he was prejudiced by his jury trial in jail clothes. The fact that he wore jail clothes during a jury trial does not create a single negative inference. Many inferences could be drawn from such fact. It could be inferred that he was benefitted—not prejudiced—by the jail uniform, in that his appearance could have aroused the sympathy of the jury and mitigated the effect of the confession and other over-whelming direct evidence of his guilt. McFalls v. Peyton, supra.

The state introduced into evidence Xanthull's confession,...