One of the most pernicious rights in the Constitution is set forth in the Sixth Amendment, putatively guaranteeing a jury of one’s peers by the words, “an impartial jury.” Inspirational and aspirational, though rarely if ever achieved. But more importantly, what about their footwear?
The court is a place, like church, where evolving style often rubs against tradition. Everyone has an opinion about how lawyers, defendants and litigants should dress.
But what about jurors? Can a potential juror get the boot for violating a court dress code? Who enforces it?
These are questions that have come up in a federal mortgage-fraud case in Orlando, Fla., where two lawyers say their clients’ rights were violated when court security officers allegedly turned away a number of prospective jurors for violating the court dress code.
Apparently, the dress code in the Orlando division of the U.S. District Court for the Middle District of Florida is a bit on the conservative side:
You are expected to conduct yourself with reserve and courtesy, and when appearing at the courthouse, must dress appropriately to preserve the dignity of the Court. Proper attire includes coat and tie for men and similarly appropriate attire for women. No jeans, polo shirts or sneakers.
According to the Rule 33(a) motion filed, potential jurors wearing sneakers were turned away from the courthouse. Whether they were wearing coats and ties with their sneakers is unknown. Part of the question is whether the venire-people were chased off by court security or by the judge, or whether security was following the judge’s directions. According to the district clerk, only the judge is allowed to chase away jurors for dress code violations.
As a lawyer, (and I hate to admit this, but…) it never made its way onto my radar that there were potential federal jurors being turned away from the courthouse because they didn’t meet Ozzie and Harriet’s ideal for juror attire.
This isn’t just a matter of sartorial splendor. Jurors in federal court are renowned for being, how do I say this nicely, white. And establishment. And relatively well-to-do, which distinguishes them from defendants who, how do I say this nicely, aren’t. Remember that whole “jury of their peers” thing?
It’s not that the notion that people serving jury duty should dress inappropriately for the courthouse, but there are wide swaths of people who have no footwear but sneakers. And never have, and never will, own a tie. So what? This not only doesn’t make them unqualified jurors, but removes from the pool the very group of jurors that are closest to peers, closer to balancing the makeup of the venire, so as to provide an impartial jury.
Andrew G. Ferguson, a jury expert and law professor at the University of the District of Columbia, said the defense lawyers could have a strong argument if it turns out security officials were policing for dress code violations, despite the district policy.
“The court, through the judges, should make the decision about who is ‘suitable’ or suitably attired for jury service,” he said. “I do not know the demographic realities of the courthouse, but I could see, if done on a regular basis, it could distort the diversity of the jury pool.”
Why it would be better, or different, if the judge makes the decision to turn away potential jurors with rubber footwear is unclear. While the judge has the inherent discretion to run his courtroom, that discretion doesn’t extend to eliminating the diversity of the panel.
Concepts like “suitable” are deeply disturbing. Aside from the problem of sneakers being sufficiently pervasive in society that discriminating on that basis likely works to eliminate people of color, it’s a reflection of a judge’s personal sensibilities. Trials aren’t about pleasing the judge by allowing him to only see people who dress the way he prefers.
Nor, as the WSJ Lawblog suggests, is the issue one of juror’s rights, notwithstanding the asinine reverse Batson issue. The right to an impartial jury belongs to the defendant, and no other right, concern or interest trumps the defendant’s right when it comes to the makeup of the pool.
But what about the “dignity” of the proceedings, the expectation that people engaged in such a serious, solemn endeavor as jury service dress themselves appropriately? Sure, we all want appropriate dress, but not at the price of an impartial jury. Even then, who’s to say what appropriate attire means?
There doesn’t appear to be any consensus among the federal courts on how jurors should dress. Most appear hostile toward tank tops and flip flops. Some dislike jeans. Others balk at mini-skirts.
In the federal courthouse in nearby Tampa, the dress code is more relaxed than in Orlando, with no mention of a coat and tie: “No ripped/stained jeans, shorts, flip flops, tank tops or beach attire are allowed.”
In the Southern District of New York, in Manhattan, there isn’t a formal dress code. The jury duty FAQ admonishes prospective jurors only “to dress in a manner respectful to the Court.”
If you’re serving on a jury in the Northern District of Iowa, “you should wear comfortable but appropriate, business-like clothing. Shorts, jeans, t-shirts, tank tops and sweatshirts should not be worn.”
In Los Angeles, “Business attire is strongly suggested. Ties are not required. Jurors should not wear shorts, mini-skirts, tank tops, flip-flops, or hats (unless for religious purposes).”
Business attire? Well, talk about a throwback to an earlier age, when people both had jobs and went to work at a location other than the kitchen table. When you’re sitting at the defense table with a young black man, gazing on the white faces just above the collared shirt and tie of your potential jurors in the box, wondering why a district with a 37% population of color can’t manage to get a single black guy to show up, don’t tell me about the importance of not wearing sneakers.
No matter what the footwear, there is no dignity in that courtroom when the Constitution’s promise of an impartial jury takes a back seat to the breadth of one’s closet and Joan Ranger’s fashion tastes. To the guy on trial, footwear means nothing compared to having the possibility of a jury reasonably close to his peers.