Rocca v. Lane

47 A.D.2d 243, 366 N.Y.S.2d 456, 1975 N.Y. App. Div. LEXIS 9146

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 7, 1975
• Status: Published

Opinions

Hopkins, Acting P. J.

The petitioner has been an ordained Roman Catholic priest for 25 years. He was admitted to the Bar in 1973. He is employed as an attorney by the Legal Aid Society and was assigned to represent Cecilia Daniels, a defendant under criminal charges in the Criminal Court of the City of New York. He appeared before the court wearing his clerical collar, prepared to try the case before a jury on behalf of his client. The Assistant District Attorney objected to the appearance by the petitioner in the garb of a Roman Catholic priest. After considerable colloquy, during which the petitioner maintained both the right of the defendant to be represented by him in his clerical habit and his right to so appear, the trial court directed him to remove his clerical collar before proceeding further in the trial.

The court then adjourned the case in order that its ruling might be reviewed. The petitioner thereafter brought this CPLR article 78 proceeding in the nature of prohibition to restrain the Criminal Court from preventing him from trying the case before the jury wearing a clerical collar. The Criminal Term of the Supreme Court¹ has granted the petitioner’s application and has prohibited the Criminal Court from enforcing its order (La Rocca v Lane, 77 Misc 2d 123). We reverse and dismiss the proceeding. The Criminal Court did not act improvidently in directing the petitioner not to appear in a clerical collar and no constitutional rights of the petitioner or his client were violated by the direction.

The Criminal Court, in making its direction, was motivated by its concern that the members of the jury might be prejudiced by the appearance of the petitioner in his clerical garb and that, accordingly, a fair trial could not be conducted. The Criminal Term, on the other hand, found that no bias might be presumed, that by the voir dire the presence of bias might be detected and eradicated and that the defendant in the criminal case is entitled to the assistance of counsel of her own choice. These conflicting views, together with the constitutional right under the First Amendment raised by the petitioner, compel us to weigh issues of great importance within our system of justice.

The issues, as we see them, are threefold: (1) the right of the defendant in a criminal case to be represented by counsel attired in priestly garb, (2) the right of the petitioner under the First Amendment to appear in court as an attorney so attired before a jury, and (3) the power of the court to regulate the dress of an attorney.

I. THE RIGHT OF THE DEFENDANT

We first note that the defendant in the criminal case is represented by the Legal Aid Society, not by the petitioner. The petitioner, as an attorney employed by the Legal Aid Society, was assigned by it to represent the defendant. The defendant, as an indigent, was entitled to the assistance of counsel (Gideon v Wainwright, 372 US 335), even though the crime charged was a misdemeanor (County Law, § 722-a). The right to counsel is not absolute (People v Brabson, 9 NY2d 173, 180); thus, the defendant could not force the court to assign particular counsel, even within the Legal Aid Society’s office (People v Howard, 150 Cal App 2d 428; People v Cox, 22 111 2d 534, cert den 374 US 855; cf. State v Rush, 46 NJ 399; People v Norman, 252 Cal App 2d 381, cert den 391 US 923; Commonwealth v Johnson, 428 Pa 210; Baker v People, 299 F Supp 1265). The court’s duty is simply to select competent counsel within the provisions of the statute (County Law, § 722; see 21 Am Jur 2d, Criminal Law, § 319).

The defendant’s constitutional right to assistance of counsel is satisfied when he is represented by competent counsel. His right does not extend to representation by the petitioner, whether in clerical garb or not. In the event, then, that the petitioner was compelled for reasons grounded on religious belief or for other reasons to request to be relieved of his assignment, the defendant could not on account of her preference for the petitioner require the court to continue his representation. Indeed, in the context of this case, the Legal Aid Society would simply assign another attorney on its staff' to the defendant.

There is, in brief, no infringement of the defendant’s right to counsel by the action of the Criminal Court.

II. THE PETITIONER’S RIGHTS UNDER THE FIRST AMENDMENT

The free exercise of religious beliefs has been surrounded by special protection under the First Amendment. Though it is in many ways a kind of personal expression, the intrusion into which by State action is forbidden, the right of individual worship is not altogether beyond regulation by the State. The freedom to practice one’s religion does not, for instance, deprive the State from compelling the individual’s testimony before the grand jury (People v Woodruff, 26 AD2d 236, affd 21 NY2d 848). The State Constitution, indeed, states that "the liberty of conscience hereby secured shall not be so construed as to * * * justify practices inconsistent with the peace or safety of this state” (NY Const art I, § 3).

Of course, the First Amendment takes precedence over our State Constitution (Cantwell v Connecticut, 310 US 296). Hence, it is the Federal standard to which we must look in determining whether the petitioner’s right of religious freedom has been violated by the order of the Criminal Court. The Federal standard requires us to find that any incidental burden on the petitioner’s exercise of his religion must be justified by a compelling State interest in the regulation of a subject within the State’s power to regulate (Sherbert v Verner, 374 US 398, 403; Wisconsin v Yoder, 406 US 205, 220). A balancing of the particular values becomes, therefore, the mechanism whereby the constitutionality of the regulation is decided. In striking the balance, it has been suggested by a leading commentator that three elements are involved — first, the importance of the secular value underlying the regulation; second, the degree of necessity that the regulation bears to that value; and third, the impact that an exemption for religious reasons would have on the program carrying out the regulation (Giannella, Religious Liberty, Nonestablishment, and Doctrinal Development, Part 1., The Religious Liberty Guarantee, 80 Harv L Rev 1381, 1390). To this should be added the admonition spoken in the Supreme Court decision upholding laws abolishing polygamy that, although laws "cannot interfere with mere religious belief and opinions, they may with practices” (Reynolds v United States, 98 US 145, 166).

It should be noted that the petitioner claims that he is under instructions from his Bishop to wear his collar and that he fulfills his right of religious worship by doing so in the performance of his duties as an attorney. On the other hand, it is beyond question that the petitioner’s dress is regulated by the court only when he is performing his duties as an attorney in a trial before a jury. The court did not undertake to prohibit him from wearing the clerical collar as a spectator, as a witness, or as a party. Undoubtedly, the relationship between the court and an attorney is more intimate and more subject to regulation than is the status of a spectator, witness, or party, although certainly there is residual power in the court even to regulate that status (American Bar Association Project on Minimum Standards for Criminal Justice, The Function of the Trial Judge, §§ 1.1, 5.3, 6.3, 6.8, 6.10 [Tentative Draft]).

We turn, then, to a consideration of the secular value involved. There is hardly a stronger interest within the governmental structure than the preservation of the right to a fair trial, both by the accused and by the prosecution. The Trial Judge’s function largely rests in his duty to insure that this right is enforced and maintained: Even with respect to the constitutional right of the free press, the right of the Trial Judge to control the proceedings within his courtroom may be pre-eminent (A.B.A. Project on Minimum Standards for Criminal Justice, Fair Trial and Free Press, § 3.5, subd. [a] [Tentative Draft]; cf. Sheppard v Maxwell, 384 US 333; People v Jelke, 308 NY 56).

Concerning the degree of necessity which the regulation bears toward the value, it is manifest that a fair trial is linked closely to the conduct of the attorneys appearing in the trial. An attorney is subject to the reasonable orders of the court to preserve a fair trial (Sacher v United States, 343 US 1; A.B.A. Project on Minimum Standards for Criminal Justice, The Function of the Trial Judge, § 6.5 [Tentative Draft], The Prosecution Function, § 5.2 [Approved Draft] The Defense Function, § 7.1 [Approved Draft]). Of course, the emphasis must be placed on the reasonableness of the orders; an attorney should not be fettered by directions which are arbitrary and bear no relation to the objective of a fair trial. We think that this requirement is answered by the rules which govern the power of the court generally to maintain decorum and fairness in a trial, to which we advert beyond.

Last, we consider what effect on a fair trial an exemption from the regulation would have in the program carrying out the regulation. There are few clergymen who practice law generally. An exemption for the petitioner would affect only the trials in which he appears. Nevertheless, he is a staff member of the Legal Aid Society, which is regularly engaged in the defense of persons charged with criminal offenses. Moreover, the regulation has a minimal effect on the petitioner’s conduct, for it is directed against him only when he tries cases before a jury² and requires him only to doff his clerical collar. If, indeed, the court’s order is reasonably aimed at attaining the value of a fair trial, an exemption, even for one attorney, would be unwarranted, since it would single out the petitioner for special favor.

On balance, then, we conclude that the petitioner’s right to free exercise of religious belief is subject to reasonable regulation when he appears as an attorney in court to try a case before a jury. Other considerations support this view. The petitioner’s right to practice as an attorney is quite different from his right to officiate as a clergyman. When he appears in court, he is not acting as a priest. This does not mean that he gives up his religious beliefs or his priestly duties when he acts as an attorney; it does mean, however, that when he enters on secular pursuits he is subject to reasonable regulations in the secular realm. Any exemption at all in behalf of the petitioner would tend to destroy a pattern of conduct common to all attorneys (cf. Braunfeld v Brown, 366 US 599; United States v Hudson, 431 F2d 468, cert den sub nona. Hudson v United States, 400 US 1011).

In addition, there exist stronger grounds for regulating action based on religious convictions than for regulating mere inaction, as the Supreme Court observed in the Reynolds case (Reynolds v United States, 98 US 145, 161, supra). In Sherbert, for example, the regulation which prevented the plaintiff from enjoying the benefit of unemployment compensation because of her refusal to work on Saturday (inaction) for religious principles was struck down (Sherbert v Verner, 374 US 398, supra), and in Wisconsin v Yoder (406 US 205, supra) it was the defendant’s refusal to send his children to school beyond the eighth grade which was attacked. Here, however, the petitioner is seeking to engage in the active practice of the law, and his refusal to adhere to the direction of the court falls within that affirmative endeavor.

In summary, we are of the opinion that the petitioner’s rights under the First Amendment must yield to the reasonable regulation of the court when he appears to try a case before a jury. The question still remains, however, whether the court’s order was reasonable under the circumstances. To this question we now address ourselves.

III. THE POWER OF THE COURT TO REGULATE THE ATTIRE OF

AN ATTORNEY

The power of a court over proceedings in the courtroom cannot be better expressed than by the language of Judge (then Justice) Gabrielli in Matter of Peck v Stone (32 AD2d 506, 508): "A Judge must have and does possess the power to enforce order and control behavior in the courtroom; and, as an officer of the court, an attorney is subject to the control and direction of the Judge (People ex rel. Karlin v Culkin, 248 NY 465). The Judge is properly given broad discretionary powers in the regulation of his courtroom; and so it should be. Furthermore, membership in the Bar is a privilege burdened with conditions and while certain conditions of conduct may be imposed by a Judge, the imposition of any such rule must bear a reasonable relationship to contemporary conditions and ought to be imposed only after there is a reasonable foundation for the need of any rule.

"In becoming an officer of the court, an attorney becomes an instrument or agency to advance the ends of justice. Thus it is required that there be co-operation with the court whenever justice would be adversely affected if co-operation were withheld. While such is the responsibility of an attorney and while it is the duty of a Judge to preserve order and to insure that justice is not obstructed, it nonetheless follows that any order or regulation imposed upon attorneys practicing before him must be based upon factual conditions which leave no doubt that a continuance of the proscribed conduct will result in a disrespect for order and an impairment in the administration of justice. To this end, therefore, any such order or rule must have a reasonable or plausible basis, else this discretionary power is subject to being declared arbitrarily exercised.”

It is difficult to mark a definite line which will conclusively fence off the discretionary power of a court to enforce procedures to insure the integrity of the judicial process. Each case turns on its own facts, but the main purpose of the procedure must always be kept in mind — the preservation of the judicial process. A judge must observe the duties impressed upon him by the Code of Judicial Conduct — one of whose canons dictates that he shall "maintain order and decorum in proceedings before him” (Code of Judicial Conduct, canon 3, subd A, par [2]) and another of which prescribes that he shall "diligently discharge his administrative responsibilities” (Code of Judicial Conduct, canon 3, subd B, par [1]). But there underlies all of these prescriptions the fundamental principle that the court shall conduct the business before it fairly toward all.

The Criminal Court clearly had in mind, in issuing its order, its desire to conduct a fair trial, stating that the petitioner’s attire "would create a prejudice which would prevent [it] from conducting a fair and impartial trial before a jury.” The petitioner argues with considerable force that the voir dire would effectively screen but of the jury those veniremen who might thus be prejudiced, and the Criminal Term, likewise, noted that the "prejudices of the past have been tempered by the involvement of our clergymen in the now open citadels of public life” (La Rocca v Lane, 77 Misc 2d 123, 128, supra).

A judicious use of the voir dire might well lead to the selection of a jury which would not be biased by the petitioner’s appearance in clerical garb as attorney for the defendant. There is, of course, no guarantee that such would be the result. One study has come to the conclusion that "voir dire is grossly ineffective as a screening mechanism” (Broeder, Voir Dire Examination: An Empirical Study, 38 So Cal L Rev 503, 528). Jurors do not always admit their preferences or their actions (cf. Broeder, Occupational Expertise and Bias as Affecting Juror Behavior: A Preliminary Look, 40 NYUL Rev 1079; Comment, 70 Yale LJ, 763, 777).

It is unnecessary, however, to come to the extreme position that the veniremen would conceal their prejudices and thus frustrate the objective of a fair trial. A fair trial encompasses more than a fair jury; it includes the atmosphere and the appearance of a fair trial. "It is not merely of some importance but is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done” (Rex v Sussex Justices [1924], 1 KB 256, 259; cf. Cox v Louisiana, 379 US 559, 565). "Preserving and enhancing respect for law is of surpassing importance in the administration of justice and the standards emphasize the pervasive obligation of the judge to maintain and safeguard both the reality and appearance of justice and respect for the law by his judicial conduct and utterances” (A.B.A. Project on Minimum Standards for Criminal Justice, The Function of the Trial Judge, Introduction [Tentative Draft], p 4).

The petitioner’s attire at the trial would undoubtedly affect the witnesses and the spectators. Witnesses for the prosecution, especially the complaining witnesses, might question whether the scales of justice had not been tipped by the petitioner’s presence. The location of a clergyman at the side of a complaining witness during the selection of a jury has been said to be an error on the part of the court (People v De More, 45 Misc 2d 872, 874). Dress is "a continuing visual communication to the jury” (People v Roman, 35 NY2d 978, 979) and to others in the courtroom as well, and it represents, when attached closely to a concept or mode of life, a symbolism which draws an appropriate response.³ For this reason, state the American Bar Association Standards for Criminal Justice, The Prosecution Function [Approved Draft] (Commentary a. to § 5.2, pp 113-114): "Certain standards of dress, decorum, manners and orderly procedure have evolved over the centuries to enhance the authority of courts and the status and authority of the advocates commensurate with their special offices and powers. Such standards also serve to insure calm, dispassionate consideration which places the focus on the evidence rather than personalities.”⁴

The court’s power to regulate dress cannot be unreasonably exercised. Whether counsel preferred a bow-tie to a four-in-hand, or a gray suit to a blue, in common experience should have no influence on the conduct of a trial. There are idiosyncrasies which are beyond the power of a court or even the strictures of a book of etiquette to correct. When, nonetheless, a discernible nexus between dress of an attorney and the attainment of a fair trial becomes evident in common experience, the court should take such action as will be reasonably adapted to regulate the dress of the attorney.

The court’s order in this case was reasonably adapted to achieve the purpose of a fair trial. We take note that the petitioner’s protest against the order was respectful and obviously sincere. His opposition took the form of vigorous argument before the court, couched in dignified language, and in the institution of a proceeding to review the court’s ruling by other authority. Our concern, nevertheless, is not with what we consider to be the petitioner’s motives, sincere as they are, but rather with the integrity of the judicial process. That process must envelop not simply the petitioner, but all who appear in court or come to see the proceedings, and all must be aware of the court’s interest in conducting a fair and impartial trial.

For these reasons, we reverse the judgment, on the law, without costs, and dismiss the petition on the merits.

1 . The proceeding was determined at Criminal Term, although proceedings pursuant to CPLR (art. 78) are returnable at Special Term.

2 . The petitioner contends that this establishes the lack of reason for the regulation, since he may appear in nonjury cases or on other occasions in court in his clerical attire. But this claim ignores the difference between a jury trial and other court proceedings. It is arguable that even in a nonjury case the petitioner should not wear clerical garb (see discussion under "III” infra), so that he is favored by the regulation to this extent.

3 . In United States ex rel. Robson v Malone (412 F2d 848, 850) the symbolic rising on the entrance of the Judge into the courtroom was said to be sufficiently related to the functioning of the court as to constitute grounds for exclusion from the court of those spectators who objected to rising.

4 . The Standards refer to the garb worn by counsel in England and Europe (id., p 114). In England the gowns and wigs worn by barristers differ according to rank and gender (W. W. Boulton, Conduct and Etiquette at the Bar of England and Wales [4th ed., 1965], pp 80-81). Though the origin of the use of these articles doubtless stems from the common attire in the Middle Ages of student, clergy and public officials, they now serve the purpose of putting opposing counsel on a parity.