By Bill Mears
CNN Washington Bureau
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WASHINGTON (CNN) -- The buttons were 2 to 4 inches around, showing a man killed in a shooting, and were worn by his family at the murder trial of the accused shooter.
That silent gesture and the impact it may have had on the jury was hotly debated Wednesday at the U.S. Supreme Court in a case testing the power of federal courts to override a judge's discretion.
At issue was whether Matthew Musladin, who was convicted of murder, was denied due process and a fair trial by the presence of the buttons, an act the dead man's parents and brother said was simply an expression of grief and remembrance.
The justices appeared split on the issue.
"I view the wearing of the buttons," said Justice David Souter, "as something that is abnormal and something that is intended to presumably get the jury's attention. I don't know why otherwise they would be doing it."
On the other side, Justice Antonin Scalia dismissed the suggestion jurors would be swayed by a photo.
"Let's assume that the buttons were big enough that they could recognize that the buttons were the face of the deceased for whose murder the trial was about," he said. "I mean, gee, the victim's family loved him a lot. Therefore, this guy must be guilty? That doesn't follow at all."
The facts of the case described a domestic disturbance gone violently wrong.
Musladin had gone to pick up his 3-year-old son from his estranged wife, Pamela, in May 1994. She and the boy were living with her fiance, Tom Studer. The Musladins got into an argument, and when Studer and Pamela's brother emerged from the house to help, Musladin shot Studer to death. The defendant claimed he acted in self-defense.
Buttons visible to jurors
During the two-week trial, at least three members of Studer's family sat in the front row wearing buttons showing the deceased as a smiling man in his Navy uniform. The buttons were in clear sight of the jurors, and the judge denied a defense motion to prevent the family from wearing them in court.
The judge concluded, "The jury's already been instructed not to let passion or prejudice influence their verdict."
The defense appealed, saying the buttons affected the jury's deliberations.
State courts and a federal district court denied the motion. But a U.S. appeals court threw out the conviction and life sentence, ordering a new trial. The appellate decision cited a 1976 Supreme Court ruling that a defendant forced to wear prison garb at trial impaired his "presumption of innocence."
The justices will now decide the larger question of whether the state judge's error allowing the buttons was so severe that the federal court was right to toss out the conviction. Laws passed by Congress require a "clearly established" violation by local or state judges before federal courts can intervene in claims of improper detention or prosecution.
Since the high court has never directly addressed the impact of "silent signals of affiliation" by court spectators wearing buttons, legal scholars are curious as to whether the conservative majority will allow state trial judges to maintain such discretion, in the absence of any clear Supreme Court precedents.
The lack of clear precedent prompted the justices to offer a range of scenarios. It appeared little consensus on the legal and constitutional issues was reached.
"We haven't had a case, have we, where it is spectator conduct as opposed to government conduct that's being attacked?" asked Justice Ruth Bader Ginsburg.
"In this case," responded David Fermino, Musladin's attorney, "where you have a trial judge who denies a lawyer's motion, that you have an implicit in that state action, the court has endorsed the practice" of wearing buttons in court.
Justice Anthony Kennedy observed, "If the family were there and they were sobbing, with tears coming out of her eyes, it has much more impact than a button."
Fermino said, "We are not talking about controlling the emotions of spectators. We are talking about an impermissible factor like a message or the risk of a message."
Scalia raised the issue of free speech. "But there is a First Amendment problem when you're dealing with activities of people other than the prosecution," he said.
Justice Stephen Breyer weighed in on the side of courtroom decorum. "Well, the rule should be no buttons, no signs, no banners." he said. "A courtroom is a place of fair trial, not a place for a demonstration of any kind."
Chief Justice John Roberts considered the interests of the victims.
"What if the issue was mourning?" he said. "The trial is being held and the families appear, and they're all in black because they're still mourning. Does that violate the clearly established rule?"
Justice David Souter said jurors could be influenced by buttons worn in court.