CAREY, WARDEN v. MUSLADIN

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70 OCTOBER TERM, 2006
Syllabus
CAREY, WARDEN v. MUSLADIN
certiorari to the united states court of appeals for
the ninth circuit
No. 05–785. Argued October 11, 2006—Decided December 11, 2006
At respondent Musladin’s murder trial, members of the victim’s family sat
in the front row of the spectators’ gallery wearing buttons displaying
the victim’s image. The trial court denied Musladin’s motion to order
the family members not to wear the buttons. The California Court of
Appeal upheld Musladin’s conviction, stating that he had to show actual
or inherent prejudice to succeed on the buttons claim; citing Holbrook
v. Flynn, 475 U. S. 560, as providing the test for inherent prejudice; and
ruling that he had not satisfied that test. The Federal District Court
denied Musladin’s habeas petition, but the Ninth Circuit reversed and
remanded, finding that the state court’s decision “was contrary to, or
involved an unreasonable application of, clearly established Federal
law,” 28 U. S. C. § 2254(d)(1), as determined by this Court in Estelle v.
Williams, 425 U. S. 501, and Flynn, supra.
Held: The Ninth Circuit improperly concluded that the California Court
of Appeal’s decision was contrary to or an unreasonable application of
clearly established federal law as determined by this Court. Pp. 74–77.
(a) Because “clearly established Federal law” in § 2254(d)(1) “refers
to the holdings, as opposed to the dicta, of this Court’s decisions as of
the time of the relevant state-court decision,” Williams v. Taylor, 529
U. S. 362, 412, federal habeas relief may be granted here if the California
Court of Appeal’s decision was contrary to or involved an unreasonable
application of this Court’s applicable holdings. P. 74.
(b) This Court addressed the effect of courtroom practices on defend
ants’ fair-trial rights in Williams, in which the State compelled the de
fendant to stand trial in prison clothes, and Flynn, in which the State
seated uniformed state troopers in the row of spectators’ seats immedi
ately behind the defendant at trial. In both cases, which dealt with
government-sponsored practices, the Court noted that some practices
are so inherently prejudicial that they must be justified by an “essential
state” policy or interest. E. g., Williams, supra, at 505. P. 75.
(c) In contrast to state-sponsored courtroom practices, the effect on a
defendant’s fair-trial rights of the spectator conduct to which Musladin
objects is an open question in this Court’s jurisprudence. The Court
has never addressed a claim that such private-actor courtroom conduct
was so inherently prejudicial that it deprived a defendant of a fair trial

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Syllabus
or applied the test for inherent prejudice in Williams and Flynn to
spectators’ conduct. Indeed, part of that test—asking whether the
practices furthered an essential state interest—suggests that those
cases apply only to state-sponsored practices. Reflecting the lack of
guidance from this Court, lower courts have diverged widely in their
treatment of defendants’ spectator-conduct claims. Given the lack of
applicable holdings from this Court, it cannot be said that the state court
“unreasonably appli[ed] . . . clearly established Federal law.” Pp. 76–77.
427 F. 3d 653, vacated and remanded.
Thomas, J., delivered the opinion of the Court, in which Roberts, C. J.,
and Scalia, Ginsburg, Breyer, and Alito, JJ., joined. Stevens, J.,
post, p. 78, Kennedy, J., post, p. 80, and Souter, J., post, p. 81, filed opin
ions concurring in the judgment.
Gregory A. Ott, Deputy Attorney General of California,
argued the cause for petitioner. With him on the briefs
were Bill Lockyer, Attorney General, Mary Jo Graves, Chief
Assistant Attorney General, Robert R. Anderson, former
Chief Assistant Attorney General, Gerald A. Engler, Senior
Assistant Attorney General, Donald E. de Nicola, Deputy
Solicitor General, and Peggy S. Ruffra, Supervising Deputy
Attorney General.
David W. Fermino, by appointment of the Court, post,
p. 806, argued the cause and filed a brief for respondent.*
*Briefs of amici curiae urging reversal were filed for the State of Illi
nois et al. by Lisa Madigan, Attorney General of Illinois, Gary Feiner
man, Solicitor General, Michael Scodro, Deputy Solicitor General, and
Karl R. Triebel, Assistant Attorney General, and by the Attorneys Gen
eral for their respective States as follows: Troy King of Alabama, Terry
Goddard of Arizona, Mike Beebe of Arkansas, John W. Suthers of Colo
rado, Carl C. Danberg of Delaware, Charles J. Crist, Jr., of Florida, Mark
J. Bennett of Hawaii, Lawrence G. Wasden of Idaho, Steve Carter of Indi
ana, Tom Miller of Iowa, Jim Hood of Mississippi, Mike McGrath of Mon
tana, Patricia A. Madrid of New Mexico, Jim Petro of Ohio, W. A. Drew
Edmondson of Oklahoma, Hardy Myers of Oregon, Thomas W. Corbett,
Jr., of Pennsylvania, Paul Summers of Tennessee, Greg Abbott of Texas,
Mark L. Shurtleff of Utah, Robert F. McDonnell of Virginia, Rob Mc-
Kenna of Washington, Darrell V. McGraw, Jr., of West Virginia, and Peg
Lautenschlager of Wisconsin; for the Criminal Justice Legal Foundation

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72 CAREY v. MUSLADIN
Opinion of the Court
Justice Thomas delivered the opinion of the Court.
This Court has recognized that certain courtroom prac
tices are so inherently prejudicial that they deprive the de
fendant of a fair trial. Estelle v. Williams, 425 U. S. 501,
503–506 (1976); Holbrook v. Flynn, 475 U. S. 560, 568 (1986).
In this case, a state court held that buttons displaying the
victim’s image worn by the victim’s family during respond
ent’s trial did not deny respondent his right to a fair trial.
We must decide whether that holding was contrary to or an
unreasonable application of clearly established federal law,
as determined by this Court. 28 U. S. C. § 2254(d)(1). We
hold that it was not.
I
On May 13, 1994, respondent Mathew Musladin shot and
killed Tom Studer outside the home of Musladin’s estranged
wife, Pamela. At trial, Musladin admitted that he killed
Studer but argued that he did so in self-defense. A Califor
nia jury rejected Musladin’s self-defense argument and con
victed him of first-degree murder and three related offenses.
During Musladin’s trial, several members of Studer’s fam
ily sat in the front row of the spectators’ gallery. On at least
some of the trial’s 14 days, some members of Studer’s family
wore buttons with a photo of Studer on them.1 Prior to
opening statements, Musladin’s counsel moved the court to
order the Studer family not to wear the buttons during the
trial. The court denied the motion, stating that it saw “no
by Kent S. Scheidegger; for the National Crime Victim Law Institute et al.
by Douglas E. Beloof; and for the New Jersey Crime Victims’ Law Center
by Richard D. Pompelio.
Jonathan D. Hacker and Pamela Harris filed a brief for the National
Association of Criminal Defense Lawyers as amicus curiae urging
affirmance.
1 The record contains little concrete information about the buttons. The
buttons were apparently two to four inches in diameter and displayed only
a photograph of Studer. It is not clear how many family members wore
the buttons or how many days of the trial they wore them.

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Opinion of the Court
possible prejudice to the defendant.” App. to Pet. for
Cert. 74a.
Musladin appealed his conviction to the California Court
of Appeal in 1997. He argued that the buttons deprived him
of his Fourteenth Amendment and Sixth Amendment rights.
At the outset of its analysis, the Court of Appeal stated that
Musladin had to show actual or inherent prejudice to succeed
on his claim and cited Flynn, supra, at 570, as providing the
test for inherent prejudice. The Court of Appeal, quoting
part of Flynn’s test, made clear that it “consider[ed] the
wearing of photographs of victims in a courtroom to be an
‘impermissible factor coming into play,’ the practice of which
should be discouraged.” App. to Pet. for Cert. 75a (quoting
Flynn, supra, at 570). Nevertheless, the court concluded,
again quoting Flynn, supra, at 571, that the buttons had not
“branded defendant ‘with an unmistakable mark of guilt’ in
the eyes of the jurors” because “[t]he simple photograph of
Tom Studer was unlikely to have been taken as a sign of
anything other than the normal grief occasioned by the loss
of [a] family member.” App. to Pet. for Cert. 75a.
At the conclusion of the state appellate process, Musladin
filed an application for writ of habeas corpus in Federal Dis
trict Court pursuant to § 2254. In his application, Musladin
argued that the buttons were inherently prejudicial and that
the California Court of Appeal erred by holding that the
Studers’ wearing of the buttons did not deprive him of a fair
trial. The District Court denied habeas relief but granted
a certificate of appealability on the buttons issue.
The Court of Appeals for the Ninth Circuit reversed and
remanded for issuance of the writ, finding that under § 2254
the state court’s decision “was contrary to, or involved an
unreasonable application of, clearly established Federal law,
as determined by the Supreme Court of the United States.”
§ 2254(d)(1). According to the Court of Appeals, this Court’s
decisions in Williams and Flynn clearly established a rule
of federal law applicable to Musladin’s case. Musladin v.

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Opinion of the Court
Lamarque, 427 F. 3d 653, 656–658 (2005). Specifically, the
Court of Appeals cited its own precedent in support of its
conclusion that Williams and Flynn clearly established the
test for inherent prejudice applicable to spectators’ court
room conduct. 427 F. 3d, at 657–658 (citing Norris v. Risley,
918 F. 2d 828 (CA9 1990)). The Court of Appeals held that
the state court’s application of a test for inherent prejudice
that differed from the one stated in Williams and Flynn
“was contrary to clearly established federal law and consti
tuted an unreasonable application of that law.” 427 F. 3d, at
659–660. The Court of Appeals denied rehearing en banc.
427 F. 3d 647 (2005). We granted certiorari, 547 U. S. 1069
(2006), and now vacate.
II
Under the Antiterrorism and Effective Death Penalty Act
of 1996, 110 Stat. 1219:
“(d) An application for a writ of habeas corpus on be
half of a person in custody pursuant to the judgment of
a State court shall not be granted with respect to any
claim that was adjudicated on the merits in State court
proceedings unless the adjudication of the claim—
“(1) resulted in a decision that was contrary to, or
involved an unreasonable application of, clearly estab
lished Federal law, as determined by the Supreme Court
of the United States.” 28 U. S. C. § 2254.
In Williams v. Taylor, 529 U. S. 362 (2000), we explained
that “clearly established Federal law” in § 2254(d)(1) “refers
to the holdings, as opposed to the dicta, of this Court’s deci
sions as of the time of the relevant state-court decision.”
Id., at 412. Therefore, federal habeas relief may be granted
here if the California Court of Appeal’s decision was contrary
to or involved an unreasonable application of this Court’s ap
plicable holdings.

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Opinion of the Court
A
In Estelle v. Williams and Flynn, this Court addressed
the effect of courtroom practices on defendants’ fair-trial
rights. In Williams, the Court considered “whether an ac
cused who is compelled to wear identifiable prison clothing
at his trial by a jury is denied due process or equal protection
of the laws.” 425 U. S., at 502. The Court stated that “the
State cannot, consistently with the Fourteenth Amendment,
compel an accused to stand trial before a jury while dressed
in identifiable prison clothes,” id., at 512, but held that the
defendant in that case had waived any objection to being
tried in prison clothes by failing to object at trial, id., at
512–513.
In Flynn, the Court addressed whether seating “four uni
formed state troopers” in the row of spectators’ seats imme
diately behind the defendant at trial denied the defendant
his right to a fair trial. 475 U. S., at 562. The Court held
that the presence of the troopers was not so inherently prej
udicial that it denied the defendant a fair trial. Id., at 571.
In reaching that holding, the Court stated that “the question
must be . . . whether ‘an unacceptable risk is presented of
impermissible factors coming into play.’ ” Id., at 570 (quot
ing Williams, supra, at 505).
Both Williams and Flynn dealt with government
sponsored practices: In Williams, the State compelled the
defendant to stand trial in prison clothes, and in Flynn, the
State seated the troopers immediately behind the defendant.
Moreover, in both cases, this Court noted that some practices
are so inherently prejudicial that they must be justified by
an “essential state” policy or interest. Williams, supra, at
505 (concluding that the practice “further[ed] no essential
state policy”); Flynn, supra, at 568–569 (holding that the
practice was not of the sort that had to be justified by an
“essential state interest”).

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Opinion of the Court
B
In contrast to state-sponsored courtroom practices, the ef
fect on a defendant’s fair-trial rights of the spectator conduct
to which Musladin objects is an open question in our juris
prudence. This Court has never addressed a claim that such
private-actor courtroom conduct was so inherently prejudi
cial that it deprived a defendant of a fair trial.2 And al
though the Court articulated the test for inherent prejudice
that applies to state conduct in Williams and Flynn, we
have never applied that test to spectators’ conduct. Indeed,
part of the legal test of Williams and Flynn—asking
whether the practices furthered an essential state interest—
suggests that those cases apply only to state-sponsored
practices.
Reflecting the lack of guidance from this Court, lower
courts have diverged widely in their treatment of defend
ants’ spectator-conduct claims. Some courts have applied
Williams and Flynn to spectators’ conduct. Norris v. Ris
ley, supra, at 830–831 (applying Williams and Flynn to hold
spectators’ buttons worn during a trial deprived the defend
ant of a fair trial); In re Woods, 154 Wash. 2d 400, 416–418,
114 P. 3d 607, 616–617 (2005) (applying Flynn but conclud
ing that ribbons worn by spectators did not prejudice the
defendant). Other courts have declined to extend Williams
and Flynn to spectators’ conduct. Billings v. Polk, 441
F. 3d 238, 246–247 (CA4 2006) (“These precedents do not
2 This Court has considered cases in which the proceedings were a sham
or were mob dominated. See Moore v. Dempsey, 261 U. S. 86, 91 (1923)
(describing allegations that “the whole proceeding [was] a mask—that
counsel, jury and judge were swept to the fatal end by an irresistible wave
of public passion, and that the State Courts failed to correct the wrong”);
Frank v. Mangum, 237 U. S. 309, 324–325 (1915) (“[T]he disorder in and
about the court-room during the trial and up to and at the reception of
the verdict amounted to mob domination, that not only the jury but the
presiding judge succumbed to it”).

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Opinion of the Court
clearly establish that a defendant’s right to a fair jury trial
is violated whenever an article of clothing worn at trial argu
ably conveys a message about the matter before the jury”);
Davis v. State, 223 S. W. 3d 466, 474–475 (Tex. App. 2006)
(“Appellant does not cite any authority holding the display of
this type of item by spectators creates inherent prejudice”).
Other courts have distinguished Flynn on the facts. Pachl
v. Zenon, 145 Ore. App. 350, 360, n. 1, 929 P. 2d 1088, 1093–
1094, n. 1 (1996) (in banc). And still other courts have ruled
on spectator-conduct claims without relying on, discussing,
or distinguishing Williams or Flynn. Buckner v. State, 714
So. 2d 384, 388–389 (Fla. 1998) (per curiam); State v. Speed,
265 Kan. 26, 47–48, 961 P. 2d 13, 29–30 (1998); Nguyen v.
State, 977 S. W. 2d 450, 457 (Tex. App. 1998); Kenyon v. State,
58 Ark. App. 24, 33–35, 946 S. W. 2d 705, 710–711 (1997);
State v. Nelson, 96–0883, pp. 9–10 (La. App. 12/17/97), 705
So. 2d 758, 763.
Given the lack of holdings from this Court regarding the
potentially prejudicial effect of spectators’ courtroom con
duct of the kind involved here, it cannot be said that the
state court “unreasonabl[y] appli[ed] clearly established Fed
eral law.” § 2254(d)(1). No holding of this Court required
the California Court of Appeal to apply the test of Williams
and Flynn to the spectators’ conduct here. Therefore, the
state court’s decision was not contrary to or an unreasonable
application of clearly established federal law.
III
The Court of Appeals improperly concluded that the Cali
fornia Court of Appeal’s decision was contrary to or an un
reasonable application of clearly established federal law as
determined by this Court. For these reasons, the judgment
of the Court of Appeals is vacated, and the case is remanded
for further proceedings consistent with this opinion.
It is so ordered.

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Stevens, J., concurring in judgment
Justice Stevens, concurring in the judgment.
In Williams v. Taylor, 529 U. S. 362 (2000), this Court is
sued two opinions announcing two separate holdings. In
Part II–B of Justice O’Connor’s opinion, the Court held that
an incorrect application of federal law was not necessarily an
“ ‘unreasonable application of . . . clearly established Federal
law’ ” within the meaning of 28 U. S. C. § 2254(d)(1). 529
U. S., at 409–413. In Parts III and IV of my opinion, in
which Justice O’Connor joined, the Court held that the Vir
ginia Supreme Court’s rejection of the petitioner’s claim that
he had received ineffective assistance of counsel was both
contrary to and an unreasonable application of law as deter
mined by our earlier opinion in Strickland v. Washington,
466 U. S. 668 (1984). Williams, 529 U. S., at 390–398.
In Strickland, we held that the petitioner had not been
denied the effective assistance of counsel and upheld his sen
tence of death. 466 U. S., at 700. While our ultimate hold
ing rejected the petitioner’s ineffective-assistance claim, the
reasoning in our opinion (including carefully considered
dicta) set forth the standards for evaluating such claims that
have been accepted as “clearly established law” for over 20
years. See Williams, 529 U. S., at 391. Nevertheless, in
a somewhat ironic dictum in her Williams opinion, Justice
O’Connor stated that the statutory phrase “clearly estab
lished Federal law, as determined by the Supreme Court of
the United States,” refers to “the holdings, as opposed to the
dicta, of this Court’s decisions as of the time of the relevant
state-court decision.” Id., at 412. That dictum has been re
peated in three subsequent opinions in which a bare majority
of the Court rejected constitutional claims that four of us
would have upheld.* Because I am persuaded that Justice
*See Yarborough v. Alvarado, 541 U. S. 652, 660–661 (2004); Lockyer v.
Andrade, 538 U. S. 63, 71 (2003); Tyler v. Cain, 533 U. S. 656, 664 (2001).

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Stevens, J., concurring in judgment
O’Connor’s dictum about dicta represents an incorrect inter
pretation of the statute’s text, and because its repetition
today is wholly unnecessary, I do not join the Court’s opinion.
Virtually every one of the Court’s opinions announcing a
new application of a constitutional principle contains some
explanatory language that is intended to provide guidance to
lawyers and judges in future cases. See, e. g., Crawford v.
Washington, 541 U. S. 36 (2004); Strickland, 466 U. S. 668;
Miranda v. Arizona, 384 U. S. 436 (1966); see also Marbury
v. Madison, 1 Cranch 137 (1803). It is quite wrong to invite
state-court judges to discount the importance of such guid
ance on the ground that it may not have been strictly neces
sary as an explanation of the Court’s specific holding in the
case. Cf. County of Allegheny v. American Civil Liberties
Union, Greater Pittsburgh Chapter, 492 U. S. 573, 668 (1989)
(Kennedy, J., concurring in judgment in part and dissenting
in part) (“As a general rule, the principle of stare decisis
directs us to adhere not only to the holdings of our prior
cases, but also their explications of the governing rules of
law”); Sheet Metal Workers v. EEOC, 478 U. S. 421, 490
(1986) (O’Connor, J., concurring in part and dissenting in
part) (“Although technically dicta, . . . an important part of
the Court’s rationale for the result that it reache[s] is entitled
to greater weight . . . ”). The text of the Antiterrorism and
Effective Death Penalty Act of 1996 itself provides sufficient
obstacles to obtaining habeas relief without placing a judicial
thumb on the warden’s side of the scales.
Ultimately, however, my reasons for joining the Court’s
judgment in this case are essentially the same as those ex
pressed by Justice Souter, with one caveat. In my opin
ion, there is no merit whatsoever to the suggestion that the
First Amendment may provide some measure of protection
to spectators in a courtroom who engage in actual or sym
bolic speech to express any point of view about an ongoing
proceeding.

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Kennedy, J., concurring in judgment
Justice Kennedy, concurring in the judgment.
Trials must be free from a coercive or intimidating atmos
phere. This fundamental principle of due process is well es
tablished. It was recognized in Frank v. Mangum, 237 U. S.
309 (1915), though the Court credited the determination of
the state court and granted no relief; and it was the square
holding in Moore v. Dempsey, 261 U. S. 86 (1923), though the
Court remanded for factfinding rather than for a new trial.
The disruptive presence of the press required reversal in
Sheppard v. Maxwell, 384 U. S. 333, 355 (1966), where “news
men took over practically the entire courtroom, hounding
most of the participants in the trial,” and Estes v. Texas, 381
U. S. 532, 550 (1965), where the presence of cameras dis
tracted jurors throughout the proceedings.
The rule against a coercive or intimidating atmosphere at
trial exists because “we are committed to a government of
laws and not of men,” under which it is “of the utmost impor
tance that the administration of justice be absolutely fair and
orderly,” and “[t]he constitutional safeguards relating to the
integrity of the criminal process attend every stage of a
criminal proceeding . . . culminating with a trial ‘in a court
room presided over by a judge.’ ” Cox v. Louisiana, 379
U. S. 559, 562 (1965) (quoting Rideau v. Louisiana, 373 U. S.
723, 727 (1963)) (finding a statute did not on its face violate
First Amendment rights where it prohibited picketing in
courthouses). Cf. Wood v. Georgia, 370 U. S. 375 (1962);
Turner v. Louisiana, 379 U. S. 466 (1965).
The rule settled by these cases requires a court, on either
direct or collateral review, to order a new trial when a de
fendant shows his conviction has been obtained in a trial
tainted by an atmosphere of coercion or intimidation similar
to that documented in the foregoing cases. This would seem
to be true whether the pressures were from partisans, or, as
seems to have been the case in Sheppard, from persons re
acting to the drama of the moment who created an environ
ment so raucous that calm deliberation by the judge or jury

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Souter, J., concurring in judgment
was likely compromised in a serious way. If, in a given case,
intimidation of this nature was brought about by the wearing
of buttons, relief under the Antiterrorism and Effective
Death Penalty Act of 1996 (AEDPA) would likely be avail
able even in the absence of a Supreme Court case addressing
the wearing of buttons. While general rules tend to accord
courts “more leeway . . . in reaching outcomes in case-by-case
determinations,” Yarborough v. Alvarado, 541 U. S. 652, 664
(2004), AEDPA does not require state and federal courts to
wait for some nearly identical factual pattern before a legal
rule must be applied, cf. Wright v. West, 505 U. S. 277, 308–
309 (1992) (Kennedy, J., concurring in judgment).
In the case before us there is no indication the atmosphere
at respondent’s trial was one of coercion or intimidation to
the severe extent demonstrated in the cases just discussed.
The instant case does present the issue whether as a preven
tative measure, or as a general rule to preserve the calm and
dignity of a court, buttons proclaiming a message relevant to
the case ought to be prohibited as a matter of course. That
rule has not been clearly established by our cases to date.
It may be that trial judges as a general practice already take
careful measures to preserve the decorum of courtrooms,
thereby accounting for the lack of guiding precedents on
this subject.
In all events, it seems to me the case as presented to us
here does call for a new rule, perhaps justified as much as a
preventative measure as by the urgent needs of the situa
tion. That rule should be explored in the court system, and
then established in this Court before it can be grounds for
relief in the procedural posture of this case.
For these reasons, I concur in the judgment of the Court.
Justice Souter, concurring in the judgment.
In this habeas proceeding, a federal court may not set
aside the state judgment sustaining Musladin’s conviction
without finding it contrary to, or an unreasonable application

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Souter, J., concurring in judgment
of, clearly established federal law. 28 U. S. C. § 2254(d)(1).
While the ground between criteria entailed by “clearly es
tablished” and “unreasonable application” may be murky, it
makes sense to regard the standard governing this case as
clearly established by this Court. We have a number of de
cisions dealing with threats to the fundamental fairness of a
criminal trial posed by conditions in (or originating in) the
courtroom, see, e. g., Holbrook v. Flynn, 475 U. S. 560 (1986);
Estelle v. Williams, 425 U. S. 501 (1976); Sheppard v. Max
well, 384 U. S. 333 (1966); Estes v. Texas, 381 U. S. 532 (1965),
and the two most recent ones agree on a general formulation
harking back to Estes, id., at 542–546: the question is
whether the practice or condition presents “ ‘an unacceptable
risk . . . of impermissible factors coming into play’ ” in the
jury’s consideration of the case. Flynn, supra, at 570 (quot
ing Williams, supra, at 505). The Court’s intent to adopt a
standard at this general and comprehensive level could not
be much clearer.
As for the applicability of this standard, there is no serious
question that it reaches the behavior of spectators. The
focus of the later cases is on appearances within the court
room open to the jurors’ observation. There is no sugges
tion in the opinions, and no reason to think now, that it
should matter whether the State or an individual may be to
blame for some objectionable sight; either way, the trial
judge has an affirmative obligation to control the courtroom
and keep it free of improper influence. Sheppard, supra, at
363. And since the Williams-Flynn standard is a guide for
trial judges, not for laypersons without schooling in threats
to the fairness of trials, its general formulation is enough to
tell trial judges that it applies to the behavior of courtroom
visitors.
Nor is there any reasonable doubt about the pertinence of
the standard to the practice in question; one could not seri
ously deny that allowing spectators at a criminal trial to
wear visible buttons with the victim’s photo can raise a risk
of improper considerations. The display is no part of the

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evidence going to guilt or innocence, and the buttons are at
once an appeal for sympathy for the victim (and perhaps for
those who wear the buttons) and a call for some response
from those who see them. On the jurors’ part, that ex
pected response could well seem to be a verdict of guilty,
and a sympathetic urge to assuage the grief or rage of survi
vors with a conviction would be the paradigm of improper
consideration.
The only debatable question is whether the risk in a given
case reaches the “unacceptable” level. While there is a fair
argument that any level of risk from wearing buttons in a
courtroom is unacceptable, two considerations keep me from
concluding that the state court acted unreasonably in failing
to see the issue this way and reverse the conviction. First,
of the several courts that have considered the influence of
spectators’ buttons, the majority have left convictions stand
ing. See, e. g., State v. Speed, 265 Kan. 26, 47–48, 961 P. 2d
13, 29–30 (1998); State v. Braxton, 344 N. C. 702, 709–710,
477 S. E. 2d 172, 176–177 (1996); State v. Lord, 128 Wash.
App. 216, 219–223, 114 P. 3d 1241, 1243–1245 (2005); Nguyen
v. State, 977 S. W. 2d 450, 457 (Tex. App. 1998). I am wary
of assuming that every trial and reviewing judge in those
cases was unreasonable as well as mistaken in failing to em
brace a no-risk standard, and so I would find it hard to say
the state judges were unreasonable in this case, given the
lack of detail about the buttons’ display. Second, an interest
in protected expression on the part of the spectators wearing
mourners’ buttons has been raised, but not given focus or
careful attention in this or any other case that has come to
our notice. Although I do not find such a First Amendment
interest intuitively strong here, in the absence of developed
argument it would be preferable not to decide whether pro
tection of speech could require acceptance of some risk
raised by spectators’ buttons.
For these reasons, I think Musladin has not shown the
state judge’s application of our law to be unreasonable, and
on that ground concur in the Court’s judgment.