Sneakers and the Sixth Amendment

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.

33 comments on “Sneakers and the Sixth Amendment

    1. SHG Post author

      No, I mean pernicious, as it creates an aura of fairness that we haven’t been capable of coming close to since the days when the population consisted solely of Anglo-Saxon rejects. It’s a lie we tell ourselves to make our system seem better than it is. And don’t get me started on death qualified jurors, which is another matter altogether.

      1. lawrence kaplan

        I see your point. but still disagree with you. Do you think we would be better off if the right to an “impartial jury” was absent from the Bill of Rights?

          1. lawrence kaplan

            So, if I understand you correctly, you really agree with me. That is, it is not the right to an impartial jury that itself that is “pernicious;” to the contrary, that right is, as I said, precious. What you seem to be saying– I must say, rather unclearly– is something else, namely, that it is our belief that we have lived up to and implemented that right that is pernicious.

            1. SHG Post author

              I’m going to explain this one time: No, I do not “really agree with you.” You don’t exist here. I do. This is my soapbox, and that you (and apparently no one else) finds what I’m saying unclear doesn’t make you the center of the SJ universe. In other words, you have it all ass-backwards.

              Now, if you hadn’t gotten stuck on your misunderstanding of what I’ve written, and felt compelled to persist with it through three comments even though this doesn’t appear to be a problem for anyone else, the alternative to a bad execution of a constitutional right isn’t the elimination of the right, but a faithful execution of the right. If you are still confused, then you definitely don’t belong here.

      2. Jesse

        Are you sure you know what “pernicious” means? LOL

        Yes, the erosion of this right under color of “respect for the court” or other namby-pamby crap is pernicious, but the right itself is not, and it still exists despite not being respected.

        1. lawrence kaplan

          SHG: You really are very nasty for no little or no reason. The fact that I said that I found your description of the right to an impartial jury as “pernicious” to be unclear– not exactly a very harsh or personal criticism– and that I mistakenly said “you agree with me” instead of “we are in agreement about this” certainly didn’t call for your rant. Again, had my rather anodyne comment not made you see red, you would have realized that, indeed, we are on the same side and that I do not continue to misunderstand you. That is, we both agree that the right to an impartial jury is precious; but what is pernicious is the American people’s belief that we have faithfully executed that right when in fact we haven’t. You really should learn to take “yes” for an answer.

          As for you implied inference that since no one else wrote in to comment that they found your description unclear , that means that no one else actually found it to be unclear. a moment’s reflection on your part should make you realize that it is laughable. Silence on a blog, as I am sure I need not tell you, does not imply consent.
          And another moment’s reflection may make you realize that my “persistence,” however annoying you found it to be, did prompt you to state your point, with which, to reiterate, I am in agreement, more clearly

          By the way, I am in agreement with most of your posts. But I believe your talent for alienating your admirers by bullying them and telling them that they “do not exist” and that they “have it all ass-backward” is both self-defeating and distasteful.

          1. SHG Post author

            I responded to your first comment with an explanation. No snark. No bullying. A perfectly nice explanation. Yet you persisted. I responded to your second comment with a less nice response. Still no snark or bullying. Yet you persisted. My patience wore thin. My third response to you was intended to shut you down.

            I don’t do this for your agreement, approval, admiration or validation. You aren’t the center of my universe. You got your response and demanded more, and more, and more. As you still felt the need to post this comment, I failed, as you didn’t shut down.

            Let me make this as clear as humanly possible: It’s because of comments like yours that I want to trash comments altogether. You added nothing illuminating or useful to my (or anyone else here) day, and instead were just a persistent annoyance. You think I do this for your amusement? You think I owe you something? What did you contribute? Nothing.

            You read my blog, waste my time, and bring nothing useful. And now you want to complain about it because I didn’t rub your tummy on your third comment?

          2. Anon Lawprof

            Does someone force you to come here? Does someone force you to comment? If you find SHG too nasty for your taste, you have the power to eliminate the problem. Complaining, however, about what you take as a gift is poor form.

  1. Jake DiMare

    This article is gold! All this time and you’re finally telling us the only thing we have to do to get out of jury duty is show up in bathing suit?

    1. SHG Post author

      That’s right. On the other hand, it won’t protect you from being held in contempt, where you could end up in the tank (for which you will be properly dressed).

  2. Stephan R. Illa

    Not all judicial districts have such elevated sartorial standards. For example, the Eastern District of Arkansas apparently allows jurors to wear costumes to court. In the Whitewater trial, one alternate juror wore a “Star Trek” uniform to court each day, complete with a badge, a communicator and a (presumably non-functional) phaser. She was dismissed nine days into the trial, not because her clothing diminished the dignity of the proceedings, but because she violated the court’s order prohibiting contact with the media.

  3. George B

    What happens when the jury has been empaneled, and the next day one member is barred from entering?

    1. SHG Post author

      Good question.

      Judge: It appears that one of the jurors will no longer be able to serve for personal reasons.

      Clerk: Will alternate number 1 please take seat number 7.

  4. Catherine Mulcahey

    When I was in a practice that included some criminal and traffic cases, we had a closet of shirts, ties and even a few jackets from thrift stores. We “lent” them to clients so they would be dressed “appropriately” for court. Perhaps the federal courts could do the same for potential jurors. Of course, this doesn’t solve the footwear problem. The only solution I can think of for that would be bare feet. For everybody.
    I practice only in state court in Florida, where the judges are not usually as sensitive and easily offended as the ones in federal courts. (Except that judge in Brevard County who slugged a PD last week.) But I have had a number of clients who have been surprised to learn that the woman in the courtroom wearing a sleeveless top and flip-flops is the lawyer for Bank of America.

  5. John Barleycorn

    A guy shows up for jury duty with his shirt open up at the collar and he is stopped by the bailiff who tells him he must wear a neck tie in order to get into the courtroom.

    The guy goes back to his car and looks around for a neck tie but he simply doesn’t have one.

    So he grabs a set of jumper cables in the trunk and desperately ties them around his neck and even manages to tie a fair looking knot that lets the ends dangle free.

    He then returned back to the courtroom and again the bailiff looks him over carefully for a few minutes and says “Okay you can come in – just don’t start anything.”

    I wonder if all this stringent dress code mumbo jumbo isn’t really more about conformity and submission of the juror as opposed to showing respect for the court?

    BTW, Do these dress codes include aprons for grand jurors indicting ham sandwiches or do they get to show up in their pajamas?

  6. David

    Exactly, “appropriate attire” varies by individual. Even if the guidelines were clear, are prospective jurors expected to spend money on outfits?

    Two comparisons that sprang to mind when I first read this story:

    1. The British royal family policy is that while there is standard/classical formal dress, they don’t want anyone meeting them to feel they should spend money on a special outfit, what they have already is good enough;

    2. Many churches I’ve been to, especially during summer but not only then, people wear nice but casual clothes, including jeans, and including those acting as cantor or lector (reader) and do not disturb the solemnity of the occasion nor are they being disrespectful, and in some cases they may not even have “church clothes”. Many (of those who regularly attend religious services) would find it unusual to expect them to dress better for potential mandatory juror service, especially having to spend money for new clothes, than they do for church.

    1. SHG Post author

      And your comment reminds me of a story. I represented some guys in Anchorage many years ago, who had come from New York. I asked their families to give me some clothing for them to wear to court. When they asked what, I explained “the sort of clothing they would wear to church.”

      They gave me this absurdly gaudy colorful silk shirts and silk pantaloons, which I found out about in Anchorage. Oh well, too late to do anything about it. So they dressed for court. The judge was outraged that they would dress so disrespectfully toward the court. When he expressed his opinion, I responded that if it was good enough for God, it should be good enough for him. He wasn’t amused.

    1. SHG Post author

      That’s an interesting scenario. A clear First Amendment right, but could they toss them out for wearing a denim jacket regardless of what was written on it?

      And definitely a potential juror I would want in the pool.

  7. JWB

    Prospective jurors aside, I was once told by a fellow who had had experience back in the ’80′s with the High Court of American Samoa that bothering to put on footwear of any kind for court appearances was not a practice uniformly followed by the local bar in Pago Pago. There was supposedly an ethnic angle, with the white lawyers being more likely to wear shoes and the ethnic-Samoan lawyers being more likely to argue barefoot.

    1. SHG Post author

      Come on, if you’re going to go this far, go all the way. Did they go barefoot with suits and ties, grass skirts (and ties?), bathing trunks?

  8. Pingback: Jury Duty in Sneakers | Ahcuah

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