The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
From last week's Long v. State (Fla. Ct. App. Oct. 29, 2014) (2-to-1 vote):
Brian Scott Long appeals his convictions of two counts of lewd and lascivious molestation and one count of sexual battery by a person in familial or custodial authority. Because men wearing jackets embroidered with "Bikers Against Child Abuse" were in the presence of jurors prior to the commencement of the trial, we conclude that inherent prejudice has been established and that there was an unacceptable risk that impermissible factors affected the jury. Accordingly, Long's convictions are reversed, the sentences vacated, and the cause remanded for a new trial….
Inherent prejudice has been shown here. By displaying their insignia, the bikers intended to do more than be present as support for the victim. After all, the victim already knew the bikers. Thus, they could have provided support to her by merely being present without wearing any distinguishing clothing. Instead, in apparent contravention of the prosecutor's instruction, the bikers chose to appear, as the morning trial was set to commence, in clothing which was intended "to communicate a message to the jury." Woods, 923 F.2d at 1459. That message was the appellant was a sexual abuser and that sexual abuse was to be condemned by a guilty verdict. As the trial court stated below, the bikers engaged in "reckless advocacy"—advocacy of a certain outcome to be reached by the jury regardless of what the State proved at trial….
A fair trial is, fundamentally, a trial free from "influence or domination by either a hostile or friendly mob. There is no room at any stage of judicial proceedings for such intervention; mob law is the very antithesis of due process." While we would not describe the bikers with a perjorative term such as mob, it is nevertheless the case that these individuals appeared at trial with the announced purpose of remonstrating "against child abuse." The bikers, then, sought to send an implied message to the jury that Long should be found guilty. Such a message has no part in a trial.