- The Washington Times - Wednesday, October 11, 2006

ASSOCIATED PRESS

The Supreme Court yesterday debated the case of a murder suspect whose conviction was thrown out because the victim’s family wore buttons bearing a picture of their loved one to the trial.

The justices waded into issues of defendants’ rights, struggling with whether the buttons visible to the jury denied Matthew Musladin a fair trial or were a harmless expression of grief. The state of California is seeking to reinstate Mr. Musladin’s conviction.

In another case, the justices considered when a judge’s discretion to impose additional prison time violates a convict’s constitutional rights.

In the buttons case, some of the justices seemed uncertain about how to proceed.

There is “a pretty darn good argument” that the buttons risked the defendant’s right to a fair trial, said Associate Justice David H. Souter. At the same time, Justice Souter asked, “what am I to make” of the fact that not a single court has ruled on a similar set of circumstances? He questioned where the constitutional line would be drawn.

What if the buttons has said “Hang Musladin”? Justice Souter asked.

Associate Justice Antonin Scalia said the message of the buttons in the Musladin case did not point to the defendant as the killer. Justice Scalia said the circumstances might be different if the victim’s family had worn the buttons to a sentencing phase of a trial after the defendant had been convicted.

Mr. Musladin said he acted in self-defense in the shooting death of Tom Studer, the fiance of Mr. Musladin’s estranged wife. Mr. Studer was shot twice, the second time as he lay under his truck in an attempt to escape the gunfire.

In another case, the lawyer for a former California police officer told justices that the state’s sentencing law violates a defendant’s Sixth Amendment right to a jury trial. John Cunningham’s attorney said his client should have been sentenced to 12 years in prison after a jury convicted him of sexually abusing his son.

Instead, the trial judge tacked on four years in prison based on facts that were not considered by the jury, said lawyer Peter Gold.

In two major rulings since 2004, the Supreme Court has said that systems that allow judges alone to decide facts that lead to longer prison terms violate the Sixth Amendment right to a jury trial.

California law provides for three possible sentences and prescribes the middle option unless a judge finds reason to increase or reduce prison time. In Cunningham’s case, the judge decided that the child’s vulnerability and the father’s abuse of trust justified the longest sentence.

The sentence fits with the recent court rulings because it is in the range set out in the law, said California Deputy Attorney General Jeffrey Laurence. In addition, California’s Supreme Court has interpreted the state law to conform with the U.S. high court rulings, Mr. Laurence said.

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