The Virginia Supreme Court Addresses Trial in Jail-issued Clothing

On June 2nd, the Virginia Supreme Court issued its opinion in Wilkins v. Commonwealth of Virginia, 2016 WL 3094565 (Va. June 2, 2016). Mr. Wilkins assigned as error the question of whether “the trial court erred by allowing the jury [trial] to proceed when the defendant was wearing his jail uniform” but the Virginia Supreme Court stated that the case presented the “very narrow question” of whether Mr. Wilkin’s attire was “readily identifiable as jail-issued clothing.” Id. at 3.

As a general rule, the Supreme Court of the United States held in Estelle v. Williams, 425 U.S. 501, 512 (1976) that a defendant cannot be compelled to stand trial dressed clothing that is identifiable as prison clothes. The Virginia Supreme Court applied this rule in 2005, and explained that the “particular evil proscribed is compulsion” and that the defendant must object to being forced to wear prison attire before he can obtain the benefit of the Estelle rule. Jackson v. Washington, 619 S.E.2d 92, 95 (2005).  If the defendant fails to object, makes a tactical decision to wear jail-issued clothing, or wears the jail-issued clothing as a result of his own actions that are frustrating the process of justice then there is no compulsion. Wilkins, 2016 WL 3094565 at 3.

Here, Mr. Wilkins ends up losing his appeal because nothing on the record showed that the clothing he wore was “readily identifiable” as jail issued. Instead, his outfit was described only as “kind of like green, sort of scrub outfit. [sic]” His attorney also noted that Mr. Wilkins was “wearing black sneakers that [his attorney thought] they have inmates wear.” And that he had “a visible bracelet on his left arm.” Id. at 4.

 This simply was not enough. To prevail, a defendant must show that he was compelled to wear jail attire and that it was readily identifiable as jail attire. Id. at 3. Since Mr. Wilkin’s clothing was not readily identifiable, he failed to meet his burden. The Court did provide guidance for the kinds of things that would meet the burden of showing “readily identifiable” jail-issued clothing. Things like: markings with the word “jail” or “prison”, markings with serial numbers or other indicia of incarceration (i.e., words like “Property of Fairfax County Jail”, and even “orange jumpsuits or striped outfits widely associated with prison attire” would do.

Because the Court found that Mr. Wilkins’ attire was not readily identifiable as prison issued, it did not directly address the issue of compulsion. The trial judge, however, noted on the record that Mr. Wilkins had been “somewhat less than civil” and that he thought the defendant “failed to produce street clothes” which fell into what he viewed “as a pattern of trying to avoid going to trial . . . .” So if the Court had to address the issue, Mr. Wilkins probably would have lost on that prong as well.

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