Rather, the case turns on whether the federal appeals court in San Francisco had the authority to order a new trial for the defendant, who was convicted after the state court trial judge refused to tell the family of the victim, Tom Studer, to remove the buttons.
The case is therefore a potentially important test of the relationship between the federal and state courts, as redefined by a 10-year-old federal law that greatly restricted the federal courts’ ability to set aside state convictions through writs of habeas corpus. The real question is how one of the most important limitations in that law actually works.
In the 1996 law, the Antiterrorism and Effective Death Penalty Act, Congress specified that federal judges could grant habeas corpus petitions only if the state court decision was “contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States.”
That limitation seems straightforward enough, but as the argument on Wednesday made clear, it is more complicated than it looks.
The Supreme Court has had various things to say over the years about the unduly prejudicial impact of such practices as placing a defendant in shackles or in prison garb in the presence of the jury. But it has never said a word about a murder victim’s relatives wearing buttons.
So, did the federal appeals court in this case, the United States Court of Appeals for the Ninth Circuit, have the authority to extrapolate from the old Supreme Court precedents to the new situation? Did it have the authority to apply one of its own cases, a 1990 ruling that overturned a rape conviction because female spectators at the trial had worn buttons declaring “Women Against Rape”?
Gregory A. Ott, a California deputy attorney general, argued that the 1996 law required answering “no” to both those questions. Mr. Ott told the justices that the California Supreme Court’s decision upholding Mathew Musladin’s murder conviction neither violated “clearly established” law, of which there was none, nor amounted to an “unreasonable application” of the law that did exist.
There seemed relatively little doubt that most of the justices were inclined to agree. So they spent most of the argument trying to tease out the potential implications of a ruling that overturned the Ninth Circuit’s decision in his case, Carey v. Musladin. No. 05-785.
Suppose, Justice Anthony M. Kennedy asked Mr. Ott, that there was no Supreme Court ruling on a particular issue, but that the courts of five federal appellate circuits had looked at the issue and had all reached the same conclusion. “And they all say, ‘We think the general rule of the Supreme Court is as follows,’ ” Justice Kennedy said, asking: “Isn’t that entitled to some weight? You’re not supposed to cite that when you go to the Sixth Circuit court or you go to the state court?”
Such a decision, even if widely shared among the appeals courts, could not be considered “clearly established” law, Mr. Ott replied. “To redefine or shape this court’s holdings beyond the face of those holdings, our position is that cannot be done with state or circuit law,” he said.
He added that such lower-court extrapolations might be considered “reasonable applications” of Supreme Court law under some circumstances, and those could be of some relevance in a habeas corpus case.
Justice David H. Souter asked Mr. Ott to imagine that rather than a picture of the man Mr. Musladin was charged with killing, the buttons had carried the words “Hang Musladin.” Was there “not sufficiently clear law from this court to find that practice unconstitutional?” the justice asked.
There was no “clearly established” law governing that situation, Mr. Ott replied. But he said it would be “unreasonable” for a judge to permit such a display, and that it “would require habeas relief.”
How was that really different, Justice Souter wanted to know. “The prosecutor is going to get up and urge the jury to convict him,” he said. “What is wrong with it on a button? What risk does the button raise that the prosecutor’s argument does not?”
“It is an outside influence, Your Honor,” Mr. Ott replied.
Mr. Musladin’s lawyer, David W. Fermino, received a similar line of questioning when he argued that the buttons created an “unacceptable risk that impermissible factors have caused a jury’s verdict to be based not solely on evidence introduced at trial.” There was a “clearly established rule,” Mr. Fermino said, that equated such courtroom behavior with “inherent prejudice.”
Suppose “the trial is being held and the families appear and they’re all in black because they’re still in mourning,” Chief Justice John G. Roberts Jr. asked Mr. Fermino. “Does that violate this clearly established rule?”
It would, Mr. Fermino replied. He said the Ninth Circuit was properly concerned with “the risk, not the reality.”
That was an answer unlikely to persuade many justices. So Justice Souter, who emerged during the argument as the justice most sympathetic to the defendant, tried a rescue. Dressing in black might be normal behavior for people in mourning, he said, but the wearing of buttons is “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,” Justice Souter added.
In a second argument on Wednesday, the justices considered the constitutionality of California’s criminal sentencing system in light of the Supreme Court’s recent rulings on the respective roles of the judge and jury in making determinations that are central in calculating a sentence.
Last year, in United States v. Booker, the court found the federal sentencing guidelines unconstitutional because the system permitted judges rather than juries to make the relevant factual findings. As part of the same ruling, the court then saved the guidelines by making them advisory rather than mandatory.
The California system also places judges in a central role. But there was considerable confusion during the argument in Cunningham v. California, No. 05-6551, about exactly what the judges’ role is. The case is being watched closely for hints about the court’s next move on federal sentencing.