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All the World (or at Least the Whole Courtroom) Is a Stage

By Randy D. Gordon
May 11, 2021
Texas Lawyer

All the World (or at Least the Whole Courtroom) Is a Stage

By Randy D. Gordon
May 11, 2021
Texas Lawyer

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In ”The Presentation of Self in Everyday Life,” Erving Goffman uses “the term ‘performance’ to refer to all the activity of an individual which occurs during a period marked by his continuous presence before a particular set of observers and which has some influence on the observers.” He labels as “front” the “expressive equipment” that a performer deploys. The front can be atomized into a couple of different parts: the “setting” and “personal front,” which itself has two components, “appearance” and “manner.” Each of these concepts finds concrete expression in the drama of trial.

Goffman identifies a “setting” with “furniture, decor physical layout, and other background items which supply the scenery and stage props for the spate of human action played out before, within, or upon it.” In previous installments, we discussed how the particular trial setting—courthouse and courtroom—impacts the human interaction taking place within. But it remains for us to demonstrate how personal fronts are important to trial in critical but less obvious ways than testimony, exhibits and arguments. What we’ll find is that Robert Ferguson is onto something when he suggests that “Setting and performance reinforce each other through the forms of blocking, proxemics, kinesics, and paralanguage. … Manipulation of the arena of the courtroom can be clever, picayune, and sometimes hilarious, but every movement has three goals in mind: to be seen clearly, to be heard distinctly, and to fill as much of the arena as the court will allow.”

Although a front may serve in many social situations (the suit I’m wearing as I write this in my law office would serve just as well at a business lunch or for attendance at an afternoon wedding), Goffman allows that “in highly ceremonial occasions, setting, manner, and appearance may all be unique and specific, used only for performances of a single type of routine, but such exclusive use of sign-equipment is the exception rather than the rule.” Trial is an example of such an exception to the rule of interchangeability. It is, as Miriam Aziz observes, “a performance with rules of engagement that govern interaction” and, ultimately, a “choreography … with a lot of improvisation!”

We know that the formal setting of trial encourages attention to appearance and manner. The judge wears a black robe. The lawyers wear suits. Nobody wears hats. But we also know that the setting and the various personal fronts convey meaning. Indeed, it’s received wisdom that this is so, and the only point of dispute is whether in certain circumstances a jury has been so tainted by appearance-based messaging that a defendant’s due-process and fair-trial rights have been violated. Those “circumstances” often pivot around the question of whether the messaging is sponsored by the state. A couple of recent cases from Texas flesh out what’s at stake—again, without challenging the notion that more than what’s strictly in evidence is communicated at trial.

An analysis typically starts with the truism that the Sixth Amendment guarantees the right to a fair trial and is a fundamental liberty. Embedded in the concept of a fair trial is the presumption of innocence, which calls upon judges to police proceedings for factors suggesting unfairness. But, given the uncertainty of human psychology and the black box of the jury, the actual impact of any message on jurors (or any other trial participant for that matter) can’t be known. To dodge inquiries into the unknowable, the Supreme Court has laid down what amounts to a per se prohibition of certain state-sponsored practices, those that it deems “so inherently prejudicial that they deprive the defendant of a fair trial.” Forcing an accused to wear identifiable prison attire at his trial is the paradigm here. But the standard is high: the message conveyed must brand the defendant with “an unmistakable mark of guilt.” And private-actor courtroom messaging stands on even less certain ground, with some courts following the state-sponsored line of cases and some not.

Robert Sparks was convicted and sentenced to death for the murder of his wife and two stepsons. The crime was particularly horrific, including the rape of his 12- and 14-year-old stepdaughters, as a court in the Northern District of Texas recently recounted in reviewing a habeas petition. In short, it was the type of crime that could trouble a juror otherwise opposed to the death penalty. During the punishment phase of the trial, “a bailiff wore a necktie bearing the image of a hypodermic syringe that showed his support for the death penalty.” This is what Denis Brion calls a “demonstrative act”—an act intended to convey a message to the jury. Here, the intended message is something like, “I believe this guy deserves to die,” a message that carries additional weight because a bailiff is an authority figure—a representative of the state—and this one has sat through this trial (and many trials before) and determined that Sparks deserves the death penalty. As Brion suggests, this is the type of opinion that would not be allowed were the prosecutor to voice it because it would be presumed to have an improper influence on the jury. So too, then, with a visually striking signal to the jury, although in this case there was a failure to prove that the jury saw the tie.

But what of unofficial spectators (as opposed to witnesses expected to testify)? Many courts have applied a state-actor analysis to spectator conduct involving emotional outbursts, wearing buttons or clothing with written messages, wearing buttons or clothing with a victim’s image, wearing ribbons, and wearing identifiable law enforcement uniforms. Usually, but not always, courts find against the defendant, holding that the conduct at issue did not deprive the defendant of a fair trial. And if the conduct is equivocal or vague, the typical becomes a virtual certainty.

William Ray Parker pleaded guilty to murdering his ex-girlfriend, Angela Lopez, and a jury assessed punishment at 99 years’ confinement. As the Texas Court of Appeals found, “Before trial, Parker’s counsel informed the trial court that spectators supporting the family and victim intended to collectively wear the color purple to show support for the State and to make statements against family violence. … The State acknowledged that purple is the color of ‘domestic violence awareness.’ … On the first day of trial after jury selection … there were ‘approximately 60, 70 people wearing purple.’” Jurors “had to walk through and/or pass those individuals to go into the jury room” that morning.

Although the state conceded that purple is the color of domestic violence awareness, there was no evidence that members of the jury knew that. And the association between the purple and domestic violence is not self-evident. Before looking into the matter, I had assumed the link was to Alice Walker’s ”The Color Purple,” a novel replete with incidents of violence and domestic violence. But it appears that the association between purple and women’s rights more generally is much older than Walker’s 1982 novel. In any event, there’s a potential gap between what the purple-wearing spectators intended to broadcast and what the purple-receiving jurors actually decoded. This does not mean, however, that no message was sent or received. Rather, it merely means that, for example, spectators wearing buttons inscribed with “Women Against Rape” during a rape trial are sending a clearer and more constitutionally objectionable message.

There’s no need to labor the point with more examples (although case law is full of them) but it’s a nice way to dress the stage for the next phase of our own performance, which will be to develop an image of trial that accounts for the significance of more than the arguments that counsel present and the evidence they elicit.

Randy D. Gordon is the office managing partner of the Dallas office of Duane Morris. He is executive professor of law and history at Texas A&M University. His new book project, “Everyday Lawyering: Where Imagination and Morality Meet Advocacy and Logic,” from which this series is partially excerpted, is currently under review at a university press.

Reprinted with permission from © ALM Media Properties LLC. All rights reserved.