State v. Ward

Rosen, J.,

dissenting: I agree with the majority’s well-reasoned opinion up to the point where it finds the error in the trial court’s failure to grant the defendant’s motion for mistrial harmless. As the majority concludes, a trial court almost always abuses its discretion to take control of the courtroom when it allows witnesses or nonwitnesses to be brought before a jury in jail clothing without articulated justification.

Much thought and planning has been given to the creation of the courtroom setting in which the pursuit of justice is to be carried out. We strive for an ambience of dignity, consideration, respect, and, most of all, impartiality, in which each witness’ testimony is given its due evidentiaiy weight. When inmates in their inescapably identifiable bright orange prison attire are purposely paraded into the courtroom as part of die staging of the prosecution of an accused, it cannot help but prejudice the jury’s perception of the lifestyle and associations of the defendant, thereby compromising the heart of the impartial proceedings we so fervently strive to achieve.

In this case, the State’s procuring of the involuntary appearance of West and Jackson in the courtroom gallery and their forced participation in Ward’s trial while wearing and being identified specifically by their prison attire clearly set them apart from that group of peers and citizens that are typically observers of a public trial. Repeatedly calling the jury’s attention to the orange jumpsuits that these individuals were wearing was blatantly prejudicial in that it directly called the jury’s attention to the relationship between the defendant and the spectators in “oranges,” which served to declare the defendant “guilty by sartorial association.” All that was missing was a theater orchestra playing a bar show/vaudeville parody of Stephen Sondheim’s melody entitled “Send in the Cons.”

I regard this tactic as an impermissible manipulation by the prosecution that created immeasurable prejudice to the defendant, which could not be overcome by the weight of the remaining evidence against her. I would find the trial court’s error in failing to grant Ward’s motion for mistrial not harmless and would reverse and remand for a fair trial.

Johnson, J., joins in the foregoing dissent.