Sunday, July 24, 2016

Please: Outside Of The Courtroom

Defense Attorney Andrea Burton wass committed to her cause, and then to jail, reports WKBN in Youngstown, Ohio, as

 An attorney was removed from court and taken into custody after a judge declared her in contempt for refusing to take off a Black Lives Matter pin.

Youngstown Municipal Court Judge Robert Milich said Attorney Andrea Burton was in contempt of court for refusing to remove the pin in his courtroom as instructed. Burton was sentenced to five days in jail, but she has been released on a stay while an appeal is underway.

Burton will stay out of jail during the appeals process as long as she obeys Milich’s order not to wear items that make a political statement in court. If she loses her appeal, she will have to serve the five days in jail.

Milich said his opinions have nothing to do with his decision.

“A judge doesn’t support either side,” he said. “A judge is objective and tries to make sure everyone has an opportunity to have a fair hearing, and it was a situation where it was just in violation of the law,” he said.

The Youngstown branch of the National Association for the Advancement of Colored People (NAACP) said its legal counsel is monitoring the case closely as it may violate Burton’s civil rights.

Burton begs to differ because

“No one wearing an American flag button, no one wearing a crucifix or a Star of David would be removed, so why this particular statement bothered him so much is bothersome,” she said.

Denying an individual the right to wear a crucifix or a Star of David would run afoul of the free exercise provision of the First Amendment.  Wearing an American flag button carries with it little political implication, as reflected in the practice in 2008 of candidate Obama wearing one while Senator McCain chose not to.  No one would argue that Obama was suggesting blind, unquestioning loyalty to the federal government or that famous prisoner-of-war John McCain was unpatriotic or a peacenik.

The report adds "The judge said his ruling is based on Supreme Court case law in which a judge can prohibit symbolic political expression in courtrooms, even if it’s not disruptive."   Rational rules, including those prohibiting political expression, can be imposed in the workplace.

The American Civil Liberties Union of Ohio is seemingly objective, given

"There have been cases in the past when people have been given contempt of court for refusing to comply with a judge’s order to remove an article of clothing that may have a message on it. Many times this has been done to retain the defendant’s right to a fair trial," Brickner said via e-mail Friday.

Brickner said, however, a judge’s restrictions on what people may wear must be reasonable and fairly applied.

If there is any reasonable restriction, it may be one which helps assure a defendant's right to a fair trial. Were Burton, for instance, permitted to wear the pin while defending an African-American and Judge Milich were to impose a relatively strict sentence, there would be legitimate complaints of racial bias.  If the pin were permitted, one which reads "All Lives Matter" also would be. We could feature dueling political statements and robust courtroom debates during arraignments.

Both would be political statements which might prejudice- or give the appearance of prejudicing- the Court.  "There's a difference," Judge Milich noted, "between a flag, a pin from your church or the (Fraternal Order of) Eagles and having a pin that's on a political issue."  Fairness and impartiality in a courtroom cannot be outdated values.

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