State v. Allen: Free Speech vs. Fair Trial
The Washington State Supreme Court recently handed down an opinion in the State of Washington v. Darcus Dwayne Allen, involving Mr. Allen’s appeal of his conviction for First Degree Murder as Maurice Clemmons’ alleged getaway driver in the notorious murder of four Lakewood police officers in November 2009.
Several spectators in the courtroom arrived wearing T-shirts that read “You will not be forgotten, Lakewood Police,” followed by the names of the deceased officers. When Allen raised an objection to the T-shirts, the judge admitted that the spectators’ free speech rights were competing with Allen’s rights to a fair and public trial, but that they were allowed to be worn under the First Amendment. The same episode occurred in court the next day, with Allen objecting to the clothing and the judge allowing them for the same reason.
On appeal the Supreme Court recognized that there is a high bar to censor displays in the courtroom–that the display must be “so inherently prejudicial that it poses an unacceptable threat to the defendant’s right to a fair trial.” The Court elaborated that silent displays are permissible, as long as they don’t “advocate for the guilt or innocence of the defendant.” The court decided that, because the speech was silent and only a show of support for the victims, it was not prejudicial. The Court cited other cases allowing silent displays of remembrance, such as colored ribbons or buttons with the likeness of the deceased, and contrasted those with a case where spectators wore buttons with the writing “Women Against Rape,” with the word rape underlined in red. According to the Court, the first category were acceptable, while the latter, which arguably implied the defendant’s guilt, were not.
Because Mr. Allen’s conviction was overturned based upon the prosecutor’s misconduct in misstating the standard for accomplice liability, the issue regarding the t-shirts was not dispositive. However, the Court addressed the issue because of its likelihood in arising again and provided guidelines for the judge to provide a better appellate record, by describing in more detail the appearance of the t-shirts, how many spectators were wearing them, how visible they were to the jury, and whether they contained any other message that might be construed as advocating for the defendant’s guilty or innocence.
