Prosecutor’s Wearing a Small Cross

Here’s the issue that drew my attention to the “rummy name” case, People v. Morris (Cal. Ct. App. Oct. 5) (which, incidentally, has some quite horrific facts as well as an interesting usage question and an interesting government-and-religion legal question):

The prosecutor wore a very thin, metallic cross measuring about an inch by one-half inch on a delicate chain. The trial judge observed that she would not have even noticed it if it had not been called to her attention. Morris claims the trial court deprived him of a fair trial by allowing the prosecutor to wear the cross. Although in a hypothetical case the constitutional issues could be grave, we conclude that on the record before us Morris’s right to a fair trial has not been compromised. Nor do we find on these facts a violation of the establishment clause of the United States Constitution….

[Past] cases involving clerical collars are of marginal utility. As the trial court pointed out, clerical collars send a far different message than a small, hardly noticeable silver cross. The clerical collar connotes a special religious status conferred on only those who have achieved a prescribed stature and poses the danger that jurors might ascribe an authority or credibility to a person who has earned the collar. Thus, it is hardly surprising that courts would find the collar breaches the neutrality the Constitution demands.

Nor, however, do we find the cases cited by the Attorney General dispositive…. [They] involve public employees wearing small crosses as the prosecutor did in this case, they were civil cases brought by the employees to vindicate their rights under the First Amendment to the United States Constitution. Neither case implicated a criminal defendant’s right to a fair trial. The courts in both cases emphasized the importance of a public employee’s right to free speech and the free exercise of his or her religion, but neither had to consider the important and countervailing right of a criminal defendant to a fair trial….

We agree with defendant that the Constitution preserves the religious neutrality of the courtroom and it may be necessary to restrict some exercise of the First Amendment to avoid violating the establishment clause. We also believe that because the prosecutor is, in the eyes of the jurors, the personification of the state, we must be particularly sensitive to a defendant’s claim that any religious adornments have the potential to cross the fuzzy line between the free exercise and establishment clauses of the First Amendment. A criminal defendant’s right to a fair trial is an interest far stronger than that of the public employers in Draper and Nichols and one we must consider with extreme care and sensitivity….

[The trial judge] found that the cross was small in size and barely noticeable. She believed any message the cross might convey was ambiguous, as the slender silver cross could be construed equally as a fashion statement or as a religious symbol. Morris does not contest the factual findings of the trial court.

As a result, we do not believe the prosecutor’s small cross compromised the fairness of the trial in this case, and we are unwilling to restrict a lawyer’s First Amendment right to wear a small piece of jewelry the trial judge barely noticed and found unlikely to influence anyone who might have seen it….