Jury selection is was about to begin last week in the trial of Ammon Bundy (Son of Cliven, no relation to Ted) and his fellow defendants who led an armed stand-off on federal lands in Oregon. First, however, the judge in the case had to rule on Bundy’s lawyer’s motion demanding that the defendants, who are in custody, can wear neckties, belts and boots at trial as requested.
The U.S. Marshal’s Service emailed Bundy and the rest to alert them that certain items of apparel wouldn’t be permitted at their trial: “Ties, Bows, Belts, Handkerchiefs, Cuff Links, Steel toe boots/shoes, Shoe laces, Shirt tie down straps, Safety pins, Shirt pocket pen protectors.” When U.S. District Judge Anna J. Brown Tuesday afternoon asked Barbara Alfono, the deputy U.S marshal in charge of the Bundy trial, about the requirement, she explained that security concerns were the source of the order. Those accessories could be used as weapons against deputy marshals or the defendants themselves, she said. As for the boots, they would interfere with the shackles that are placed around the defendants ankles as they are transported to and from the courthouse. (The shackles will be removed, because prior courts have ruled that they are prejudicial, making defendants look dangerous to the jury.)
J. Morgan Philpot, Ammon Bundy’s marvelously named lawyer, argued that since his client is innocent until proven guilty, he should be allowed to wear the civilian clothes that he chooses. “These men are cowboys,” Philpot wrote in his motion, “and given that the jury will be assessing their authenticity and credibility, they should be able to present themselves to the jury in that manner.” He continued:
“We must consider, when he does so, how will he look? And what are the spot assumptions and impressions will the jury have about him when they see him in the kind of white socks and loafers he was wearing today, with his beltless trousers, and dressed in a formal suit without a tie,Just as significantly, how will the lack of belt, tie, or other apparel compare to others in the courtroom, as he and the other detained defendants are the only ones who will appear that way.”
Your Ethics Alarms Ethics Quiz of the Day:
Is it ethical for the system to prevent accused cowboys from looking like cowboys during their trial?
I’m pretty sure what’s going on here. There are other posts on Ethics Alarms about defense attorneys crafting their clients’ appearances to appeal to jurors’ favorable biases rather than their negative ones. Criminal Defense 101 demands that if your defendant naturally looks like Charles Manson, you do everything short of plastic surgery to make him look like Saint Francis of Assisi. In the so-called “nerd defense,” lawyer place their unsavory defendants in glasses to make them look less menacing and more academic, and it appears to work.
Judges usually bend over backwards to allow this, because their main job is to avoid unfair prejudice that nick the defendant’s rights to a fair trial, not try to decide if, for example, an accused killer shaved off his scraggly beard because it makes him look uncharacteristically harmless to the jury, or because it was just getting itchy. Lawyers have even argued that a defendant’s own tattoos can be so prejudicial that the court has to let him cover them up, like in this case, this one, and this one.
There isn’t much precedent on this question, though: Can the system legitimately constrain the attire choices of defendants who come to court straight from jail? It’s obvious what Bundy’s attorney wants to accomplish. Despite his rhetoric regarding his client’s comfort with his appearance (his client just hates the mandatory slip-on loafers), this is really about playing to jury prejudices and cultural stereotypes. What if a defendant in a theft trial wants to dress like Robin Hood, or Santa Clause? The precedent the case threatens to set would be a bonanza for creative defense attorneys. In the United States’ culture, cowboys are the good guys. They settled the West; they shoot villains; they save the day. Cowboys are John Wayne, Roy Rogers, Hopalong Cassidy, the Cartwright boys, Gary Cooper in “High Noon” and Alan Ladd in “Shane.” Their Ethics Code looks like this:
What defendant wouldn’t want to be dressed as a cowboy in his trial, whether he is a real cowboy or not?
The reasons for the dress code issued by the Deputy U.S. Marshall are also reasonable, if a bit alarmist. In a nod to that—imagine the fate of a judge who let a defendant wear a big, thick belt and he strangled the prosecutor with it in court—Philpott reduced his minimum request down to cowboy boots, which his client would get to don after his shackles are removed. Naturally, Above the Law’s Joe Patrice (it is a usually reliable bet that the Above the Law staff will end up on the wrong side of any ethics question) believes that opposition to this was persecution, writing,
“The government’s position here boils down to, “for no specific safety reason, we should be able to dictate the defendants’ litigation strategy.”
No, Joe. It boils down to “a defendant’s appearance shouldn’t affect how the jury viscerally reacts to him, positively or negatively.” Whether Ammon Bundy is a cowboy or not has nothing to do with whether he’s guilty as charged.
Those boots are made for walking, not posturing in court.
Sources: Above the Law, Oregon Live
36 thoughts on “Ethics Quiz: Ammon Bundy’s Cowboy Boots”
Theoretically one could strange the prosecutor with a a blazer’s sleeve so I’d be inclined to allow a necktie. Clip on? They’re culturally expected and the lack of one on a man could be taken amiss by the wrong person.
Are you writing from 1994? No tie with a jacket is more common than with ties, at this point. Including on juries.
I would hold no tie against him. But I’m from Boston…
It has been suggested that my fashion sense stopped there. It took me another 10 years to give up scrunchies for hair ties and I still won’t give up stretch tops. *
And, GAHHHH next you’ll say it’s acceptable to appear in shirtsleeves.
If the tie is going away maybe they could bring back cravats or a nice stock. They’re not just for dressage you know.
*The other half of my fashion sense comes by way of 1594, if you need a nice doublet and cape you know who to go to.
Shirtsleeves are acceptable only if you are a NASA engineer.
Forbidding the cowboy hat and boots seems fair to me… I can imagine as a juror that I would be more inclined to believe a cowboy’s side of the story. Especially a Mormon one. I’ve never met a Mormon who wasn’t exceedingly kind and honest and cowboys are heroes in my imagination. But no tie, belt or shoelaces? That sounds more like they want him to look like a sloven in court.
If the objective in denying him the choice of attire is to play to bias of a jury negatively than it is unethical. Selecting an attire to help bias the jury in favor defendant is ethical, but the judges ruling should be as unbiased as possible.
Why is it necessarily ethical, if it deceives the jury? Did you read “The Nerd Defense” post?
Unless there is a demonstrable safety concern the guy should have the same right to dress how he pleases as a defendant out on bail. Surely a jury can consider the facts without unduly focusing on attire.
Why do you say that? Studies consistently show that they DO focus on appearances.
Maybe they do at the margins. But he should be able to dress as he wants.
I do remember the post, may have to go back an reread but the lawyer for the defendant has a duty to do everything possible to defend his client without being crossing ethical boundaries, the cultural norm there is cowboy boots, if that assists his client by playing to bias than he should be doing what he can to get his client in boots, it is ethical thing to do.
He is not asking to dress as someone he is not, if it may help him fine. Putting on boots takes no more time than slipping the loafers on, there is no reason to deny such a request.
I gave the reasons. You can disagree with them, but don’t say “there’s no reason.”
Who he is is a charged felon. That’s all that matters, or should matter. If he was a retired and decorated military officer, should he be allowed to wear his old uniform and medals? That’s “who he is”, right?
I have seen several enlisted Marines appear in court dressed in their Alphas, a retired member is authorized to wear their uniform so why the hell not? I really don’t know if there is a prohibition on retired military wearing uniforms to court, is there? It is professional attire.
In this instance the difference between boots and loafers in my mind is too minimal to justify denying the request. they are both slip on and have no laces.
There isn’t—but they are not in custody. They don’t get to wear their uniform if they are in custody.
I really don’t know, there is a difference in an individuals rights when in custody or out on bail?
I should have said individuals rights at trial.
This is also out west and not Boston, a jury of peers may have some cowboys on it and cowboy boots in that area are not unusual.
As I said: they aren’t supposed to be assessing the guilt of a “cowboy.” He’s just a citizen. If Superman is on trial, he doesn’t get to wear his cape.
Not unusual? In Oregon? I think you have some romantic ideas of fashion that aren’t shared by practical people who need to work in the great outdoors.
You live in Portland don’t you? Your stating that cowboy boots are unusual attire for cowboys in Oregon?
You’ve never seen someone who actually works with cattle have you? Cowboy boots are for people doing western style riding and poseurs making fashion statements. And in case you’re wondering, they tend to wear baseball caps not cowboy hats.
I grew up around ranches and real cowboys, lace ups, steel-toes, and muck boots are all common but you must be an argumentative troll to say cowboy boots are not common, they are comfortable, long lasting, quick to put on and stable on stirrups.
Idle curiousity…wonder what the LAWYER will be wearing?
As a person who wears 11″ lace up Wesco logging boots every day of my life, I can understand not feeling “Wohl” (a german word that I really don’t know the best translation to in English, possibly a Bavarian dialect) in loafers. I think that the defendants feelings are entirely important to being able to present himself properly. I think you are interjecting your own “Cowboy Code” into this too literally. If I were “innocent” and in court, you can bet I’d want to “fühle mich wohl.” I find the judges remarks ” “He looks very presentable,” condescending at best. His lawyer was not requesting that Ammon be allowed to wear his flannel shirt, cowboy hat, jeans and his big belt buckle, just his boots.
It reminds me a lot of Doc Holiday saying ” Well I’ll be damned” as he looks at his naked feet sticking out from the quilt on his bed. Not the irony of dying with his boots off but the idea that you wouldn’t request that the defendant be naked, totally stripped of everything. For some people that’s exactly what you’re doing when you tell them to do something like not wear their boots.
I feel like ethically there is something bigger here with that request. I could speculate all day about motives or reasons but it’s sort of is like the US Marshal requesting that he be naked. Somehow quite odious.
Maybe people that are comfortable wearing loafers should be forced to wear cowboy boots.
That’s a dangerous road to go down. If he’s a cowboy it isn’t because of the boots, and if taking the boots takes his identity how strong… how real is it to begin with?
I would be inclined to allow an accessory if it was discreet. Not the whole set is there aren’t any steers in need of herding in the courtroom, and not being able to dress what he considers normal is like telling another defendant they can’t wear a cult tee-shirt or tube top. Formality for a trial should be a given.
So I’d consider a hat and boots to be the last things he should be allowed to wear to trial. When a doctor is on trial, they don’t get to wear scrubs, either, so the jury will trust them. Now if he would feel more whole, I think a discreet belt is reasonable, not having one is prejudicing, and your pants might fall down like silly kids in the vids. Another might be a bolo tie. As those could be used as weapons, flimsier ones maybe? I’ve had to dress in outfits I don’t feel comfortable in many, many times, and I doubt be was exempt from those occasions when he was growing up. A minor accessory, but not the boots. I’ll apologize if the wild hose gets loose in the courtroom and NO ONE else is wearing boots to stop it.
This is probably a stupid question, but here we go:
Context: Background mindset is the application of semantics in service of empathy, the use of rules and formulas to create an impression, and it covers fashion and appearance stereotypes.
Question: I appreciate that we don’t allow people to use background mindset to influence the jury’s impression of the defendant, but is there any reason the jury has to see the defendant at all? Any physiological facts relevant to the case can be described or diagrammed, but the defendant’s face seems to be completely irrelevant under most circumstances and would therefore only bias the jury, so why should they know what it looks like?
Secondary stupid question: Are all defendants prohibited from wearing ties and shoelaces, or just ones who have committed violence? I never noticed their absence in fictional court cases before, so if they were actually shown, it may have been an inaccuracy.
In answer to your first question, the issue is not one of the rights of the jury – but rather the Constitutional rights of the defendant. The Constitution guarantees the right of a defendant to confront his/her accuser (s). Only under the most rare of circumstances – e.g., the defendant acts like a visible threat in open court – is that right sometimes taken away. And bear in mind that while a defendant has the RIGHT to be tried by a jury of his/her peers he/she DOES NOT HAVE TO EXERCISE THAT RIGHT. A defendant may choose to be tried by the judge, making any issues about the jury totally irrelevant.
And, no you are not imagining things. In this case, what you see on TV represents reality. Under most normal circumstances, a defendant tries to appear before the Court dressed as traditionally as possible. I do not know all of the various logistics and restrictions, but the overriding fact is while appearing before the jury a defendant can be a attired in street clothes. That is why you NEVER SAW O.J. Simpson, Robert “Baratta” Blake, Casey Anthony, George Zimmerman. While I realize at least one of them – Zimmerman – was actually out on bond (and thus able to change his own clothes nightly) the point should be made. Usually, a defendant changes into street clothes before entering the court.
Obviously, there are exceptions. Even in the cases of extreme poverty, defense attorneys TRY to put something together. But to say parts of their clothing could be a threat to themselves or others has serious legal implications. As in mental health ones. The problem with the boots turned out to be mostly a logistical one at least. But some of the suggestions about some of the other articles of clothing potentially opened some dangerous doors… A
Let me see here. What we have here is a bunch of cowboys, angry about perceived incursion on private farmland by the Federal Government – who take control of FEDERAL LAND. And through it all, from the farms to the hostile yet peaceful takeover, they are dressed in cowboy gear. And that is what they attempt to wear for their trial. Okay. I can dig it. I can even catch the symbolism you reference and can even make a case under which the trial judge – in the abundance of caution – grants the request. But here is my thing as a former Miami journalist who covered criminal and civil courts in the wacky drug-filled “Miami Vice” mid- to late-80s. And has been a lover of good reporting (of course) and the law ever since.
I firmly believe gimmick, or “nerd”, defenses work when prosecutors do NOT!
Assume that the judge had ruled in favor of Mr. Bundy, et al. What a TREMENDOUS opportunity to literally make sure the defendants are tried by a jury of their peers! We would start with an aggressive jury questionnaire that – to the extent we were victorious over strenuous defense objection – would provide a jury pool dominated by good old boys and girls. The more of them ranchers and farmers, the better. Then I would make sure that defense used every single solitary one of their peremptory challenges as I got ever so close to a jury of cowboys and cowgirls who at one time or another were threatened with the loss of their livelihood by the government. I would create a sympathetic jury – made up of 12 individuals who had used COMMON SENSE to resolve their problems. And even before opening statements, I would insist that the judge take judicial notice of the attire of the defendants – without making reference to the pretrial motions. ALL she would have to say is that the Court would have NO PROBLEM if jurors felt comfortable
dressing in their regular work attire. By the time the trial actually started, I
would have turned the courtroom into a virtual Courthouse of the West – where NO ONE would be able to distinguish the Good Guys from the Bad Guys. No one, that is, but WE THE PEOPLE – the prosecutors…
My opening statement would go something like this: (ALWAYS POINTING WHEN APPROPRIATE) “OF COURSE, our government has misused its authority to try and steal land from hard-working farmers and ranchers. Heck, Some of You have experienced that firsthand – and you found COMMON SENSE ways to take care of your situations…
But by the time you listen to, see, and hear all of the evidence in this case, Ladies and Gentlemen of the Jury, some of it in THEIR WORDS – you will realize no common sense was applied here. THESE INDIVIDUALS committed exactly the same crime of which they accused the government. THEY STOLE LAND! But not just from ONE landowner. Oh no! THEY STOLE FROM THE AMERICAN PEOPLE…”
[I probably forgot to mention that I would be – as would my Second Chair and the rest of our team – dressed in WESTERN GARB! I would be adorned in a chocolate brown two piece suit with wide lapels trimmed with white stitching. There would be a plaid shirt buttoned to the top button and adorned with a string tie with a blue coral something on its front (blech! But hey – it’s a look, right?)]
And even before the first witness is called, there is a hardly audible “Oops” from the Defense Table. It comes because of the realization that gimmicks are not going to work here. There must deal with the prosecution’s Theory of the Case directly.
Gimmicks do not work when the prosecution DOES&!
A helluva good movie scenario. I hope somebody does it.
Not wearing cowboy boots in Texas or Oklahoma would probably prejudice the jury against the defendant. As far as the belt, how is he supposed to keep his pants up? With suspenders, please! I think we could do without a heavy belt buckle though.
To be clear, the issue here isn’t whether defendants should be allowed to dress like cowboys in court. Defendants who are out on bail can dress that way if they want. The issue is whether the US Marshals can use their alleged security concerns to prevent prisoners in their custody from dressing that way. More specifically, the issue is whether the US Marshals should be able to use their concerns for security during transportation to the courthouse to prevent defendant from dressing that way after they have arrived.
Why can’t the defendants dress in accordance with the Marshals’ security regulations during transportation and then change clothes after they arrive at the courthouse? Isn’t that what’s done most places? That’s what we do here in New York. Aside from whatever security concerns the jailers might have, the prisoners don’t want their nice clothes to get wrinkled and dirty on the bus ride from jail.
And seriously? “Ties, Bows, Belts, Handkerchiefs, Cuff Links, Steel toe boots/shoes, Shoe laces, Shirt tie down straps, Safety pins, Shirt pocket pen protectors”? Am I the only person here who thinks these alleged security concerns are preposterous?
Every day across the country, thousands of defendants appear at trial wearing ties, bows, belts, handkerchiefs, cufflinks and shoe laces. Even Mafia dons and hitmen wear them. Serial killers wear them. Street gang members wear them. I don’t know whether any defendants wear shirt tie down straps, because I don’t know what those are, or pocket protectors, because I’ve never heard of a defendant wanting to wear one, but those sound awfully safe to me.
As a matter of fact, here in New York, even inmates in maximum security prisons are allowed to wear these things, if that’s the way they want to dress. There are a few limits – ties and bowties must be clip on; bowties must be black; handkerchiefs must be white; cufflinks must have a value of less than $50 – but the only safety related restriction is on the size of belts and buckles. Inmates can have these things in prisons where they outnumber their unarmed guards 50 or 100 to one, but the US Marshals say it’s too dangerous to allow defendants to wear them in a courtroom where armed marshals and cops outnumber the defendants.
I can sympathize with a ban on steel toed boots because getting kicked by one would hurt like hell, but US Marshals who can’t defend themselves against safety pins sound sadly weak. Still, if they really are scared, I suppose we could tell the defendants to find some other way to mend their clothes. (Although, once again, safety pins are permitted in maximum security prisons.) But if the security objection to soft toed cowboy boots is that they interfere with shackles, I can’t think of any reason to prohibit defendants from wearing them in court since, as Jack points out, the defendants aren’t going to be wearing shackles in the courtroom, and then take their boots off again when the shackles go back on.
Again, the issue is not whether these things can be worn in court, but whether these particular defendants, and others who can’t post bail, should be permitted to wear them, just like luckier defendants who can post bail. Maybe, as Jack says, “a defendant’s appearance shouldn’t affect how the jury viscerally reacts to him, positively or negatively,” but the fact is that appearance matters a great deal, and everybody knows it. The government is decreeing that some defendants will be allowed to take this fact fully into account when dressing for court and others will not. I think that’s unfair and unethical.
Moreover, it appears to me that the government is enforcing its security rules selectively to screw Bundy. I have a distinct memory of John Gotti appearing as a defendant in federal court looking quite natty in his supposedly forbidden ties, belts, pocket handkerchiefs, cuff links and shoelaces. He was in the US Marshals’ custody. And on the few occasions when I’ve been at criminal trials in federal court, every defendant, whether out on bail or not, was wearing some or all of these contraband items. Selective enforcement of the rules against defendants like Bundy that the US Marshals happen to dislike is also unethical.
Beyond that, I disagree with Jack that there is anything unethical about any defendant dressing as a cowboy to win points with a jury. Courtroom lawyers care greatly about the clothes that they and their clients and witnesses wear. There are style consultants who make their living by advising lawyers what to wear in court. Every smart trial lawyer wants his clients and witnesses come to his office a few days before trial wearing exactly what they plan to wear to court so he can make adjustments.
Criminal defense lawyers always try to dress their clients to impress the jury favorably. Usually, this means wearing a suit, but one of my law school professors who had been a public defender told us that she sometimes instructed her younger and more harmless-looking defendants to wear clothes that made them look even younger. One well-known book of advice for criminal lawyers advises that defendants who are businessmen should wear brown suits in court, because brown makes them look warmer and more likable. Prosecutors, when they show photos of the defendants to the jury, almost always make sure that jurors notice that the well-groomed defendant sitting in from of them doesn’t really look that way in real life. If an important witness, whether for the prosecution or the defense, comes to the stand dressed like a street thug, you can expect the other side to use that fact in closing arguments to impeach his credibility.
Civil trial lawyers take clothes even more seriously, I think. I read Gerry Spence’s closing argument in the Miss Wyoming libel case against Penthouse magazine. He repeatedly reminded the jury that the publisher, Bob Guccione, had appeared in court wearing a purple velour jumpsuit and gold chains. Spence won big in that trial. Another closing argument that I read (also by Spence, if I remember right) was a suit against Wells Fargo that was tried in rural Northern California. Each time he mentioned the testimony of any witness for the bank, he took care to point out that the witness had been wearing “a $500 suit from San Francisco,” or words to that effect. Another big verdict for Spence. Joe Jamail upped the ante and became a billionaire in the Texaco case by hammering the defendant’s fast talking witnesses from New York City for sneering at Texas values while wearing their “$1,000 suits and gold cufflinks.” In after-trial interviews, the jurors cited the perceived slickness and arrogance of the New Yorkers as being one of the things that weighed heavily on their verdict. And it wasn’t an issue that Jamail had invented out of nothing: the jurors had already, without being prompted, noticed with disfavor the witnesses’ clothes during the trial; Jamail only reminded them, repeatedly, of the unfavorable opinions that they had already formed.
A trial is a performance and everybody involved in it, including the judge, the lawyers and, if the lawyers are doing their job, the defendants and witnesses, is wearing a carefully selected costume designed to have the most favorable possible effect on the jury. For example, Gerry Spence and Racehorse Haynes, the fabulously successful criminal defense lawyer, were both famous for wearing cowboy boots in court with their pinstriped suits. They did it, at least in part, because they thought it would help them win cases. I never heard of the other side objecting. None of this strikes me as unethical at all. It just recognizes the reality of human nature, that to most people, including most jurors, appearance matters a great deal.
If it is wrong to let them dress like cowboys to look more favorable to the jury then it is equally wrong to dress a gang banger to look like a college student. The irony here is that the cowboys want to dress as the live their lives and the gangbangers want to portray a fictitious persona. Which of the two seems more ethical?
Oh, I think it IS wrong to dress up gang bangers. It is a visual lie. But there is no way to prevent it, and as a defense attorney, since it is allowed, you are ethically obligated to do it.