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To some it shows support for law enforcement, while to others it is a symbol of white supremacy. All district court and some circuit court employees are prohibited from displaying it while at work, but it is required to be worn by uniformed members of the Kent County Sheriff’s Department, including its courtroom bailiffs.  But is a face mask depicting the “thin blue line” flag worn by a bailiff during a jury trial an inherently prejudicial affront to a criminal defendant’s right to a fair trial?  The Maryland Court of Special Appeals recently concluded that it is not. Everett Smith v. State (No. 1273, Sept. Term 2020) (October 27, 2021). 

When defendant Everett Smith revoked his 14-year-old daughter’s telephone privileges to discipline her, she openly defied him and attempted to make a call. Smith grabbed the telephone, hit his daughter in the head with it, and punched her multiple times.  A Kent County jury convicted Smith of child abuse and second-degree assault, resulting in a 15-year sentence, with all but five years suspended. Id. at 1-4.

Prior to trial, Smith’s attorney objected to bailiffs’ wearing thin blue line face masks in the presence of the jury. Counsel argued that “it is inherently a political statement,” often used at white supremacy rallies as a deliberately provocative rejection of the Black Lives Matter movement. As it allegedly represents the notion that only the police stand between order and chaos in the streets, the defendant also feared that thin blue line face masks would evince a bias on the part of court personnel in favor of the police officers who were to testify in the case. Id. at 5.  The State countered that in the absence of evidence as to precisely what sentiments the wearer intended to convey, “[i]t is simply an American Flag with a blue stripe,” and “the fact that it may even be political speech would inure more protections for it.” Id. at 6. 

The trial judge did not take testimony as to why the Sheriff required his deputies to don the mask, but assumed for the sake of argument that it was intended as a political statement. This, in the judge’s view, was determinative: “[E]ven if it does reach the level of being only worn for — to make some sort of political statement, [then] it’s protected by the First Amendment to the Constitution in a public forum and therefore the [c]ourt’s going to deny the request” to remove the masks. Id. at 7. 

On appeal, the Court of Special Appeals expressed doubt about the trial judge’s apparent conclusion that the bailiffs’ First Amendment rights trumped a criminal defendant’s right to a fair trial, but nonetheless affirmed the result. The Court noted that the weight of authority indicates that a courtroom is not a public forum for First Amendment purposes and, therefore, even “viewpoint-discriminatory” regulation of speech is permissible. Id. at 8 (citation omitted). It did not actually reach this issue, however, as it concluded that even if it could regulate the symbolic speech in question, there was no reason to do so in this case. Id. at 9. 

Because Smith alleged no actual prejudice and no testimony was taken on the Sheriff’s motives, Smith had to rely on popular perceptions of the thin blue line flag to establish that its display was inimical to his right to a fair trial.  The salient points of his argument were summarized by the Court:

Smith cites an NPR article … observing that proponents say that the symbol “is meant to represent the men and women in blue standing as a line between law and order . . . and it’s been hung as a show of police pride and solidarity.” The article explains that others characterize the symbol differently, observing that “[b]ecause the flag has also been associated with white supremacist groups, some say it symbolizes a blatantly racist agenda. And since it has also been adopted by the ‘Blue Lives Matter’ movement, which launched in response to the Black Lives Matter movement, many believe it connotes opposition to the goals of ending police brutality and systemic racism.”

Id. at 11-12 (citations omitted).

Smith pointed to several other articles and to a decision by District Court of Maryland Chief Judge John P. Morrissey to prohibit any district court employee from displaying the thin blue line flag in any form. The Chief’s action was based on the fact that it could be perceived by some “to signify support for law enforcement” and as such “could undermine the District Court’s mission of fair, efficient, and effective administration of justice for all and call into question the Judiciary’s obligation to remain impartial and unbiased.” Email communication from Chief Judge John Morrissey to all District Court employees (5/5/2021).

The Court acknowledged the competing narratives but concluded the debate really came only to this: “Although the symbol has been affiliated with white supremacists and extremist events, some continue to view the ‘thin blue line’ flag as a symbol of pride or support.” Id. at 17.  Despite agreeing that Chief Judge Morrissey’s statewide ban was “entirely appropriate,” the Court found that it had no bearing on the question before it: “whether the wearing of a ‘thin blue line’ flag face mask by a courtroom bailiff is so inherently prejudicial as to deprive an accused of his constitutional right to due process.” Id. at 14. 

The Court continued. “Whenever a courtroom arrangement is challenged as inherently prejudicial…the question must be not whether jurors actually articulated a consciousness of some prejudicial effect, but rather whether ‘an unacceptable risk is presented of impermissible factors coming into play.’” Holbrook v. Flynn, 475 U.S. 560, 570 (1986) (quoting Estelle v. Williams, 435 U.S. 501, 505 (1976)). Inherent prejudice is “difficult to establish” and the question must be addressed on a case-by-case basis. Id. at 10 (citations omitted). “A reviewing court must look at the scene presented to jurors and determine whether what they saw was so inherently prejudicial as to pose an unacceptable threat to defendant’s right to a fair trial; if the challenged practice is not found inherently prejudicial and if the defendant fails to show actual prejudice, the inquiry is over.” Id. (quoting Holbrook, supra 475 U.S. at 572). 

The Court reviewed U.S. Supreme Court cases that addressed courtroom practices found to be so inherently prejudicial as to deprive a defendant of a fair trial – requiring an accused to be tried in prison garb or in restraints (without a specific finding of necessity). Estelle v. Williams, supra; Deck v. Missouri, 544 U.S. 622 (2005). The Court contrasted those with the Maryland Court of Appeals’ determination that the presence of uniformed law enforcement officers in the courtroom was not inherently prejudicial.

The chief feature that distinguishes the use of identifiable security officers from courtroom practices we might find inherently prejudicial is the wider range of inferences that a juror might reasonably draw from the officers’ presence….Jurors may just as easily believe that the officers are there to guard against disruptions emanating from outside the courtroom or to ensure that tense courtroom exchanges do not erupt into violence. Indeed, it is entirely possible that jurors will not infer anything at all from the presence of the guards.***Our society has become inured to the presence of armed guards in most public places; they are doubtless taken for granted so long as their numbers or weaponry do not suggest particular official concern or alarm.

Slip Op. at 10-11, quoting Bruce v. State, 318 Md. 706, 718-19 (1990) (citations omitted). 

Like police uniforms generally, the Court said that “a similarly wide range of inferences could have been drawn from the bailiff’s ‘thin blue line’ face mask.”  Id. at 17. “Inasmuch as the ‘thin blue line’ flag is seen by some as a symbol of general support for law enforcement, a reasonable juror may have inferred that the law enforcement officer wearing the ‘thin blue line’ flag face mask was doing so in order to display his pride in being a law enforcement officer…. Accordingly, we reject Smith’s inherent prejudice argument and hold that the wearing of a ‘thin blue line’ flag face mask by a uniformed courtroom bailiff did not constitute inherent prejudice depriving Smith of his right to a fair trial.” Id. at 18.

The Court was quick to point out what its opinion did not say:   

We do not suggest that a bailiff wearing a “thin blue line” flag face mask is a good practice, nor do we suggest that prejudice can never arise in different circumstances in which actual prejudice rather than inherent prejudice is alleged. Indeed, a litigant may have a reasonable argument that a bailiff wearing a “thin blue line” flag face mask caused actual prejudice in a case involving, for example, allegations of excessive force or other misconduct by a law enforcement officer, or in a case in which a law enforcement officer’s credibility is weighed against that of a layperson….Furthermore, a prohibition on the wearing of “thin blue line” symbols by courthouse staff may be a prudent prophylactic measure to avoid issues on appeal, as well as to err on the side of caution to ensure litigants’ right to a neutral and fair tribunal. Here, however, we do not deal with allegations of actual prejudice. Our holding, therefore, is limited to the inherent prejudice argument raised in this case and discussed supra.

Id. at 18-19.

Curiously, a law enforcement officer was a key witness for the State in this case and his testimony included what the jury might have considered to be a series of false exculpatory statements made by the defendant. Id. at 3.  While it does not appear as though the defendant testified at trial so as to require the jury to weigh the officer’s credibility directly “against that of a layperson,” the Court does appear to make a rather narrow distinction in this regard.

It should also be noted that defense counsel offered to elicit testimony from the bailiff as to whether he was required to wear the mask or was making a political statement of his own. Id. at 7. The trial court apparently found testimony unnecessary because it was willing to assume that it was intended as a political statement. The appellate court made no comment on this so it is not clear whether its opinion should be read to suggest that the actual motives of court personnel are irrelevant where, as here, the political statement itself is ambiguous, or whether it was irrelevant here because the record did not include an allegation of actual prejudice. Until these questions are answered, defense counsel will need to cover these bases and more when making a record in similar cases.