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Dressing defendants

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Indiana Lawyer Focus

Jurors are supposed to consider only the evidence when deciding the fate of a defendant. But in a close case, when the evidence isn’t exactly black-and-white, jurors may rely on other information to develop an opinion – and they may be unaware they are doing so.

Tanford Tanford

J. Alex Tanford, professor of law and Ralph F. Fuchs Faculty Fellow at Indiana University Maurer School of Law, explained that most of the time jurors base their opinions on the evidence presented at trial. But they also may make judgments about a person based on their past interactions with people.

“A person that takes the stand and is heavily tattooed, the jurors are going to make some assumptions about that,” he said. “I guess the simplest way of thinking about it is a person who has had a bad experience with a lawyer will say all lawyers are criminals, all lawyers are crooks.”

It is human nature to rely on past experiences when forming opinions, and jurors may be making small judgments throughout a trial. That’s why defense attorneys emphasize to clients the importance of dressing appropriately when in the courtroom.

Looking the part

il-dressing-defendants04-15col.jpg Nikki Tubbs, executive assistant for the Marion County Public Defender Agency, poses for a photo in a room full of business attire collected and maintained by the agency. Defendants may wear outfits from this room for court appearances. (IL Photo/ Perry Reichanadter)

Andrew Borland, a criminal defense attorney with Indianapolis firm Borland & Gaerte, said he once had a client show up for court wearing a basketball jersey. He always hopes juries will focus on the case, but he knows they’re paying attention to what people wear.

Borland said dressing well for court is important, but dressing too well can have downsides, too. If someone is accused of a white collar crime – embezzling money, for example – the defendant would be wise to consider what jurors might infer from his wardrobe.

“Sometimes a polo shirt is better than an Armani suit,” Borland said.

Carter Carter

Derrick Carter, associate professor at Valparaiso University Law School, said defense attorneys try to present their client as average. When he was a public defender in Michigan, he kept extra clothes on hand in case clients had no appropriate clothing for court.

In Indianapolis, the Marion County Public Defender Agency has a room full of clothing and accessories for clients who need a little help dressing for court.

Robert Hill, Marion County’s chief public defender, said that if a defendant needs wardrobe help, a paralegal will determine the person’s size and pick out an outfit.

“It’s something that we maintain and monitor on our own,” Hill said, adding that he has contributed some hand-me-down items for the clothing repository, as have other attorneys. “It’s a person’s right to appear in clothes that won’t bias or prejudice a jury.”
 

il-dressing-defendants03-15col.jpg Belts are among the accessories that help defendants appear polished and professional for court. (IL Photo/ Perry Reichanadter)

Andrew Baldwin, of Baldwin Adams & Kamish – a firm with offices in Danville, Franklin and Bloomington – explained how he gauges a defendant’s look for trial.

“I usually tell my client to wear the best clothes they have and let me see them in it first. This is a better approach, because dressing up a guy who is never in a suit and tie can come off very disingenuous. Juries smell these things. It usually looks uncomfortable and odd, then juries may think the guy is a fake,” he said.

A button-down shirt and decent pair of pants would be a better choice for clients who don’t seem at home in a suit, he said.

Concealing the whole truth

In 2010, a lawyer for John Ditullio successfully argued that his client’s profane and racially charged tattoos on his neck and his large facial tattoo could have a negative effect on the jury’s perception of his client. The Florida court agreed to pay a cosmetologist to cover the tattoos for trial using an airbrush makeup technique.

The jury found Ditullio guilty of murdering teen Kristofer King and attempted murder for stabbing a neighbor. In a New York Times article that described the cosmetic concealment of Ditullio’s tattoos, King’s mother was reported as saying she was outraged at the court-approved makeover because Ditullio chose to get those tattoos after being arrested.

Lisa Wayne, president of the National Association of Criminal Defense Lawyers, said she’s seen the issue of tattoo concealment come up in other courts.

“I think the bottom line is we know people judge a book by its cover, so that goes to the fundamental fairness process … when and where those tattoos were put on the body is not relevant, unless it’s related to an identification,” she said.

The limits of improving – or significantly altering – a defendant’s appearance is a matter for debate.

Carter recently asked his students: Is it OK for a defendant to change hair color, or conceal or add tattoos? What if hair color was one reason an eyewitness identified a defendant as the perpetrator of a crime? The students struggled with this question, and Carter said one student was literally “saved by the bell” as he pondered an answer.

“It can get complicated – I don’t know if there is a right or wrong answer,” Carter said. “For an attorney, the answer is: It depends. It depends.”

Fooling the jury?

A New York defense attorney reportedly coined the term “nerd defense” to describe his practice of passing out thick-rimmed glasses to defendants to wear at trial. And one study seems to suggest that at least in a controlled experimental setting, eyeglasses may have some influence on jurors.

In 2008, the American Journal of Forensic Psychology published findings of a study conducted by Michael J. Brown, Ernesto Henriquez and Jennifer Groscup, of the State University of New York – College of Oneonta.

One black student and one white student served as models for the experiment. Researchers gave 220 undergraduate students a folder containing a vignette of an armed robbery trial, presenting ambiguous evidence. The folders also contained a photo of one of the models, either wearing glasses or not wearing glasses, and asked students to return a verdict as well as rank other factors like trustworthiness for the person in the photo.

The study found that students returned guilty verdicts for 44 percent of defendants wearing glasses and 56 percent of defendants without glasses. But the researchers said other factors – such as how glasses may make someone seem more intelligent – may have influenced the results. And the race of the student returning the verdict may have influenced how he or she perceived the defendant.

Tanford said he’s seen many studies over the years that research how jurors perceive defendants, but he thinks that the studies are generally limited in real-life application.

“There is a sensible conclusion that can be drawn from all of this, which is that jurors do pay attention to who the witnesses are who are talking to them, and that attention is complicated, not simple. That attention has to do with what they are saying and how they are saying it, and how they appear,” he said. “Then what happens is through a kind of cognitive process, the jurors think of other people they know who behave, dress or act similarly, and they will then tend to assume that the witness is like the other people they know, and therefore are prone to make severe errors in judgment.”

Still, Tanford believes that slapping a pair of glasses on a defendant and expecting a not-guilty verdict might be a mistake. The best bet for a fair trial, he said, is to ensure that a jury is diverse so that not all jurors would have the same experiences, biases or prejudices.

“People have been trying to manipulate the jury system for 200 years, and there’s no evidence anyone has ever succeeded,” he said.•

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  1. I have been on this program while on parole from 2011-2013. No person should be forced mentally to share private details of their personal life with total strangers. Also giving permission for a mental therapist to report to your parole agent that your not participating in group therapy because you don't have the financial mean to be in the group therapy. I was personally singled out and sent back three times for not having money and also sent back within the six month when you aren't to be sent according to state law. I will work to het this INSOMM's removed from this state. I also had twelve or thirteen parole agents with a fifteen month period. Thanks for your time.

  2. Our nation produces very few jurists of the caliber of Justice DOUGLAS and his peers these days. Here is that great civil libertarian, who recognized government as both a blessing and, when corrupted by ideological interests, a curse: "Once the investigator has only the conscience of government as a guide, the conscience can become ‘ravenous,’ as Cromwell, bent on destroying Thomas More, said in Bolt, A Man For All Seasons (1960), p. 120. The First Amendment mirrors many episodes where men, harried and harassed by government, sought refuge in their conscience, as these lines of Thomas More show: ‘MORE: And when we stand before God, and you are sent to Paradise for doing according to your conscience, *575 and I am damned for not doing according to mine, will you come with me, for fellowship? ‘CRANMER: So those of us whose names are there are damned, Sir Thomas? ‘MORE: I don't know, Your Grace. I have no window to look into another man's conscience. I condemn no one. ‘CRANMER: Then the matter is capable of question? ‘MORE: Certainly. ‘CRANMER: But that you owe obedience to your King is not capable of question. So weigh a doubt against a certainty—and sign. ‘MORE: Some men think the Earth is round, others think it flat; it is a matter capable of question. But if it is flat, will the King's command make it round? And if it is round, will the King's command flatten it? No, I will not sign.’ Id., pp. 132—133. DOUGLAS THEN WROTE: Where government is the Big Brother,11 privacy gives way to surveillance. **909 But our commitment is otherwise. *576 By the First Amendment we have staked our security on freedom to promote a multiplicity of ideas, to associate at will with kindred spirits, and to defy governmental intrusion into these precincts" Gibson v. Florida Legislative Investigation Comm., 372 U.S. 539, 574-76, 83 S. Ct. 889, 908-09, 9 L. Ed. 2d 929 (1963) Mr. Justice DOUGLAS, concurring. I write: Happy Memorial Day to all -- God please bless our fallen who lived and died to preserve constitutional governance in our wonderful series of Republics. And God open the eyes of those government officials who denounce the constitutions of these Republics by arbitrary actions arising out capricious motives.

  3. From back in the day before secularism got a stranglehold on Hoosier jurists comes this great excerpt via Indiana federal court judge Allan Sharp, dedicated to those many Indiana government attorneys (with whom I have dealt) who count the law as a mere tool, an optional tool that is not to be used when political correctness compels a more acceptable result than merely following the path that the law directs: ALLEN SHARP, District Judge. I. In a scene following a visit by Henry VIII to the home of Sir Thomas More, playwriter Robert Bolt puts the following words into the mouths of his characters: Margaret: Father, that man's bad. MORE: There is no law against that. ROPER: There is! God's law! MORE: Then God can arrest him. ROPER: Sophistication upon sophistication! MORE: No, sheer simplicity. The law, Roper, the law. I know what's legal not what's right. And I'll stick to what's legal. ROPER: Then you set man's law above God's! MORE: No, far below; but let me draw your attention to a fact I'm not God. The currents and eddies of right and wrong, which you find such plain sailing, I can't navigate. I'm no voyager. But in the thickets of law, oh, there I'm a forester. I doubt if there's a man alive who could follow me there, thank God... ALICE: (Exasperated, pointing after Rich) While you talk, he's gone! MORE: And go he should, if he was the Devil himself, until he broke the law! ROPER: So now you'd give the Devil benefit of law! MORE: Yes. What would you do? Cut a great road through the law to get after the Devil? ROPER: I'd cut down every law in England to do that! MORE: (Roused and excited) Oh? (Advances on Roper) And when the last law was down, and the Devil turned round on you where would you hide, Roper, the laws being flat? (He leaves *1257 him) This country's planted thick with laws from coast to coast man's laws, not God's and if you cut them down and you're just the man to do it d'you really think you would stand upright in the winds that would blow then? (Quietly) Yes, I'd give the Devil benefit of law, for my own safety's sake. ROPER: I have long suspected this; this is the golden calf; the law's your god. MORE: (Wearily) Oh, Roper, you're a fool, God's my god... (Rather bitterly) But I find him rather too (Very bitterly) subtle... I don't know where he is nor what he wants. ROPER: My God wants service, to the end and unremitting; nothing else! MORE: (Dryly) Are you sure that's God! He sounds like Moloch. But indeed it may be God And whoever hunts for me, Roper, God or Devil, will find me hiding in the thickets of the law! And I'll hide my daughter with me! Not hoist her up the mainmast of your seagoing principles! They put about too nimbly! (Exit More. They all look after him). Pgs. 65-67, A MAN FOR ALL SEASONS A Play in Two Acts, Robert Bolt, Random House, New York, 1960. Linley E. Pearson, Atty. Gen. of Indiana, Indianapolis, for defendants. Childs v. Duckworth, 509 F. Supp. 1254, 1256 (N.D. Ind. 1981) aff'd, 705 F.2d 915 (7th Cir. 1983)

  4. "Meanwhile small- and mid-size firms are getting squeezed and likely will not survive unless they become a boutique firm." I've been a business attorney in small, and now mid-size firm for over 30 years, and for over 30 years legal consultants have been preaching this exact same mantra of impending doom for small and mid-sized firms -- verbatim. This claim apparently helps them gin up merger opportunities from smaller firms who become convinced that they need to become larger overnight. The claim that large corporations are interested in cost-saving and efficiency has likewise been preached for decades, and is likewise bunk. If large corporations had any real interest in saving money they wouldn't use large law firms whose rates are substantially higher than those of high-quality mid-sized firms.

  5. The family is the foundation of all human government. That is the Grand Design. Modern governments throw off this Design and make bureaucratic war against the family, as does Hollywood and cultural elitists such as third wave feminists. Since WWII we have been on a ship of fools that way, with both the elite and government and their social engineering hacks relentlessly attacking the very foundation of social order. And their success? See it in the streets of Fergusson, on the food stamp doles (mostly broken families)and in the above article. Reject the Grand Design for true social function, enter the Glorious State to manage social dysfunction. Our Brave New World will be a prison camp, and we will welcome it as the only way to manage given the anarchy without it.

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