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Brooklyn court split on question of whether t-shirts worn in court unfairly impacted jury

February 6, 2015 By Charisma L. Troiano, Esq. Brooklyn Daily Eagle
Hon. Robert Miller. Eagle file photo by Mario Belluomo
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A Brooklyn appeals court was split in its decision on whether or not t-shirts worn with the victim’s image improperly influenced a jury sufficient to warrant the reversal of a conviction.  A majority of the justices agreed that such gestures can have the ability to unduly influence a jury, but split on the particular circumstances as to when such improper influence occurs. 

The Appellate Division, Second Department, held that the 2008 conviction of Joel Nelson for the killing of Leo Walton and mortal wounding of Walton’s roommate Mark Maldonado can stand, even though Walton supporters wore shirts bearing the deceased’s picture and the words “Remember Leo Walton” or “Remembering Leo Walton.”  One justice disagreed. 

At the 2008 Brooklyn trial, Joel Nelson was accused of entering Walton’s apartment—after being invited by the deceased—and killing Walton and then following Maldonado into a bedroom and firing four shots.  Nelson claimed self-defense. 

During the course of the trial, Walton supporters were seen in court wearing t-shirts with the victim’s face. Nelson’s defense attorney objected to the shirts and requested that the presiding justice ask that the supporters be removed or be ordered to change their shirts. The objection came close to the end of trial, before the prosecution’s summation, causing the trial judge to question the timing of the objection.

The presiding trial justice noted that he had seen the shirts worn in the courtroom on at least three occasions. Nevertheless, Nelson’s counsel argued that Walton family members wearing the shirt so close to summations — or immediately prior to the jury going into deliberations — would improperly influence the jury to make a decision based on sympathy and emotion as opposed to the evidence presented at trial. 

The Brooklyn Supreme Court justice handling Nelson’s trial disagreed. Describing the shirts as “[a] white tee shirt with a silk screen with a picture of the deceased with some written language on it,” the lower court said it noticed the shirts but did not think the wearers’ actions were sufficient to influence a jury. “I had noticed that shirt, couldn’t read what was written on it,” the lower court said in its decision to overrule the defense’s objection and deny the motion to set aside the guilty verdict, presumably concluding that if the trial judge could not see the writing on the shirts, the jury likely could not read the message either.  

“[The shirts] was not flauntily [sic] displayed in front of the jury, nor in any way did any members of the family bring undue attention to it,” the lower Brooklyn trial court held as its reasoning.  Neither the shirts nor the family members wearing them, the lower court concluded, improperly “inflamed” the jury. 

Nelson appealed the decision to the higher Brooklyn appellate court, where a panel of four justices ruled 3-1 in favor of upholding Nelson’s conviction.

Writing for the majority of the court, Justice Robert Miller explained that great care is given during a criminal proceeding to ensure that the jury is impartial and unbiased, starting with jury selection, or voir dire. “In order to safeguard the constitutional guarantees of impartiality and to ensure that a jury’s verdict is based solely on the evidence formally admitted as proof, courts go to great lengths to screen out prospective jurors that possess characteristics which may impact a juror’s ability to be impartial,” Miller wrote. That care is taken throughout the trial, including the conduct of spectators in the courtroom. “These safeguards, so scrupulously observed in every criminal proceeding, lose all purpose if the atmosphere in the courtroom itself affects the ability of the jurors to remain impartial,” Miller further explained adding that the fundamental process of due process requires that a trial be “free from a coercive … atmosphere.”

The question then before the court was whether or not the Walton shirts created improper coercion. 

The majority did not deny that the Walton shirts, with an image of the deceased and a call to “remember” the victim, raised the risk of improper influence. “[O]ne could not seriously deny that allowing spectators at a criminal trial to wear … the victim’s photo can raise a risk of improper considerations,” since such depictions ‘are at once an appeal for sympathy for the victim…and a call for some response from those who see them,’” the court wrote, citing case precedent. But, the appellate court declined to issue a blanket ruling that such shirts or gestures are banned from all trials or require an automatic reversal of conviction when a courtroom spectator is seen wearing one. “We nevertheless conclude that a per se rule is inappropriate.”

The court reasoned that each instance would have to be taken on a case-by-case basis, as there were “innumerable variations of conduct that may arise in and among court spectators, and the varying degrees of impact such conduct may have on a jury.”

In Nelson’s case, the higher court gave deference to the trial judge’s observations, but not without first disagreeing with the way in which the judge handled the issue. 

The trial judge is in the “best position to detect and evaluate the danger that spectator conduct may present to the integrity of the trial process,” and in close cases such as Nelson’s, “the most prudent course is to err on the side of caution,” the higher court noted.

The appellate court suggested that the proper course of action would have been for the trial judge, as soon as he noticed the shirts (which was prior to the defense’s objections), to ask the spectators to remove or cover the shirts and to have informed the Walton supporters that their actions “could potentially imperil the legitimacy of the trial.” 

“[T]he minor inconvenience imposed upon spectators by limiting the scope of their conduct cannot reasonably be compared to the importance of providing the accused with his or her right to a trial by a jury unencumbered by the threat of coercive influences,” the higher court held.

Nevertheless, the trial judge’s conclusion that the shirts were not inflammatory and that the jury was incapable of seeing the full t-shirt and message was sufficient to uphold Nelson’s conviction. “Upon this record, we are unable to conclude that the Supreme Court’s determination, that the spectator conduct did not threaten the ability of the jury to remain impartial, was error.”

Associate Justice Thomas Dickerson split with the majority and submitted a dissent that the circumstances in Nelson’s case did in fact warrant a finding that the shirt unduly influenced the jury depriving Nelson of his right to a fair trial. 

Dickerson agreed with majority that a per se or blanket rule on spectator conduct would be improper. However, the dissenting justice found issue with the majority’s reliance on the behavior of the shirt wearers rather than on the impact of the shirts themselves. 

“[T]he unacceptable risk of impermissible factors entering into the jury’s determination could hardly be said to be cured by the fact that the victim’s family members were quiet and orderly, and did not “flauntily [sic]” display the shirts,” Dickerson wrote. 

Alexis Ascher, a staff attorney with Appellate Advocates, represented Nelson in his appeal, and Brooklyn Assistant District Attorneys Leonard Joblove and Morgan Dennehy appeared for the prosecution.

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