Resubmitted Under Third Circuit Rule 12(6) on September 4, 1973.
Gibbons and Hunter, Circuit Judges. Resubmitted: Aldisert, Gibbons and Hunter, Circuit Judges.
Frank Gaito appeals from an order of the United States District Court for the Western District of Pennsylvania denying, after an evidentiary hearing, his petition for a writ of habeas corpus. Gaito's sole contention is that two required appearances before a jury in his prison clothes deprived him of his fourteenth amendment right to due process of law.
Gaito was convicted in 1959 in the criminal courts of Allegheny County, Pennsylvania, on charges of burglary, assault with intent to kill, and a violation of the Pennsylvania Uniform Firearms Act of 1939. A series of appeals and petitions culminated in the granting of a new trial by the Supreme Court of Pennsylvania because it found that an oral confession which the prosecution had introduced in the first trial was involuntary. Commonwealth ex rel. Gaito v. Maroney, 422 Pa. 171, 220 A.2d 628 (1966).
At his second trial, it is undisputed that Gaito was transported from the State Correctional Institution at Pittsburgh to the jury selection in his prison garb. This prison garb consisted of matching brown denim shirt and pants, work shoes, and a heavy dark brown corduroy coat. According to the affidavit of Edward Anent, a prison official, it was standard policy to take men to court in prison garb unless the court order specified that they were being sent for trial, in which event a suit would normally be furnished. Since Gaito's court order "only stated [that] he was to be brought to court," he was not provided with a suit. Consequently, while the jury was being chosen, appellant sat in the courtroom in his prison clothes. No objection to this procedure was made on that day by either appellant or his court-appointed attorney.
The next morning, according to Gaito's testimony at the evidentiary hearing, his sister brought his civilian clothes to the prison, but a guard refused to permit him to return to his cell to put them on. Then, while he was waiting for his trial to start, appellant says that another prisoner told him about a recent decision from the Eastern District of Pennsylvania which purportedly held that it was prejudicial error to try a man in his prison clothes.*fn1 Based on this information, Gaito himself asked the trial judge to declare a mistrial so that a new jury could be picked. This motion was denied, and appellant's trial began with him dressed in his prison garb in full view of the jury. Several witnesses testified during the morning, and at the lunch recess Gaito obtained his civilian clothes which he wore for the rest of the trial. He was again found guilty and, after exhausting his state remedies, he filed the present habeas corpus petition.
In refusing to grant a writ of habeas corpus, the district court stated:
"Assuming, without deciding, the law to be that the appearance of a defendant before the jury in prison clothes is a violation of due process without a specific showing of actual prejudice, . . . I find factually that the clothes in which the petitioner appeared were not reasonably identifiable as prison clothes. The petitioner testified that at times he had his coat on and at times he had it off. But neither the coat, the shirt, nor the pants bore any numbers, letters, or insignias. There were no identifying or branding marks on the uniform, with or without the coat. To me, then, and presumably to the jury, the clothes, which were clean and pressed and in no way demeaned the petitioner, appeared to be work clothes rather than prison clothes. There is no contention that any other circumstances of the retrial marked the petitioner as a prisoner. Therefore, having failed to sustain his burden of proving that the clothes which he wore were probably discerned by the jury to be prison clothes, the petitioner will be denied a writ of habeas corpus."
Although there is some authority to the contrary,*fn2 we accept the majority view that compelling a defendant to appear before a jury in his prison clothes unconstitutionally infringes his due process right to be presumed innocent until proven guilty.*fn3 E.g., Bentley v. Crist, 469 F.2d 854 (9th Cir. 1972); Hernandez v. Beto, 443 F.2d 634 (5th Cir. 1971), cert. denied 404 U.S. 897, 30 L. Ed. 2d 174, 92 S. Ct. 201 (1971); Brooks v. Texas, 381 F.2d 619 (5th Cir. 1967); Commonwealth v. Keeler, 216 Pa. Super. 193, 264 A.2d 407 (1970); Miller v. State, 249 Ark. 3, 457 S.W.2d 848 (1970); People v. Shaw, 381 Mich. 467, 164 N.W.2d 7 (1969); People v. Zapata, 220 Cal.App. 2d 903, 34 Cal. Rptr. 171 (1963), cert. denied 377 U.S. 406, 84 S. Ct. 1633, 12 L. Ed. 2d 495 (1964); Eaddy v. People, 115 Colo. 488, 174 P.2d 717 (1946); Collins v. State, 70 Okl. Cr. 340, 106 P.2d 273 (1940); Shultz v. State, 131 Fla. 757, 179 So. 764 (1934). See Watt v. Page, 452 F.2d 1174 (10th Cir. 1972). Consequently, the issue which we must now decide is whether the district court was clearly erroneous in its factual finding that the clothes in question "were not reasonably identifiable as prison clothes."
Several photographs were taken of appellant in the attire which he was required to wear before the jury. We have examined these photographs, and it seems to us probable that at least some of the jurors recognized this attire as a prison uniform. The government argues that this is unlikely since the clothes worn by Gaito bore no markings and were of a type commonly worn by working men such as gas station attendants or delivery men. This is not persuasive, however, in light of the following testimony from Gaito:
"Q. Was anyone else in the courtroom that day [of the trial]?
"A. Not in the courtroom, no.
"Q. Did you see any people in the building wearing those kind of clothes?
"A. Yes, there was about five or six other guys up there for trials, ...