Should the criminal defendant be assigned a seat in court?

• Author: Shepard, Steven

This somber courtroom in Houston's Bob Casey Federal Building has been the site of legal arguments for nearly fifty years. (1) This January, however, the room itself became the subject of legal argument when attorney Michael Ramsey requested seats for himself and his client at the table on the left, closest to the jury box and directly across from the witness stand. (2) Defendants should sit at that table, Ramsey argued, in order to have "an unimpeded, unobstructed and uncluttered 'face-to-face' confrontation with the witnesses against them." (3) Perhaps because Ramsey's client was Kenneth Lay, the former head of the defunct Enron Corporation and the prime target of a four-year federal task force, (4) the U.S. Attorney promptly responded to Ramsey's request with a brief arguing that Lay must remain where defendants "traditionally" sit, at the table farthest from the jury box. (5)

Judge Simeon Lake settled the dispute two days before voir dire began. In Houston, as in other federal districts, the prosecution is by custom permitted to sit at the table near the jury, though no local rule requires this arrangement. (6) "Since there is no law to guide me in this weighty decision," Judge Lake said, "fairness and common sense" led him to allow the prosecutors to sit at the closer table when presenting their case, and to grant the defendants the same privilege during their presentation. (7) As it happened, Lay and his codefendant chose to remain at the far table. (8)

In this Comment I question the U.S. Attorney's claim that every criminal defendant should be required to sit at the table farthest from the jury. Courtroom seating is properly within a trial judge's discretion, (9) and there are good reasons for seating some criminal defendants far from the jury. (10) Yet there are also persuasive arguments, grounded in history and precedent, for why a trial judge should allow a well-behaved criminal defendant to choose for himself where he will sit. In Part I, I suggest that the criminal defendant's autonomy to choose his seat is an important aspect of the American courtroom tradition. In Part II, I argue that the defendant's well-established freedom to control some aspects of his appearance before the jury--by wearing civilian clothes rather than prison garb, for example--implies a freedom to choose the place of his appearance as well. Part III addresses the government's response to Ramsey's letter.

1. THE CRIMINAL DEFENDANT'S JOURNEY FROM DOCK TO COUNSEL TABLE

   Over the last two centuries American courts have granted the criminal defendant more and more autonomy to choose where he will sit during trial. Our courts have allowed the defendant first to leave the "prisoner's dock"--the railed pen in which he once stood during trial--and then to join his lawyer on the other side of the "bar," even as England and Canada have continued to confine the defendant in the dock. (11) The scope and consistency of this trend suggests that assigning the criminal defendant to a particular seat is out of keeping with American tradition.

   Abolishing the prisoner's dock was a decisive break with historical practice, because the dock was nearly as old as the English courtroom itself. Fifteenth-century illustrations of an English criminal trial show the accused standing front-and-center before the judges, with a marshal at his side. (12) He has remained there ever since, even as the elaborate architecture of the English courthouse has grown up around him. (13)

   Though the dock survived the Atlantic crossing, (14) and lingered in the courthouses of the eastern seaboard well into the twentieth century, (15) by the end of the nineteenth century most American courts had ceased to confine the criminal defendant during trial. (16) Today, the American criminal defendant sits with his lawyer at a counsel table positioned to reflect equal status with the prosecution's table. (17)

   Once freed from the dock, the American criminal defendant then crossed the bar that separated spectators from participants, and took a seat beside his lawyer. One such migration is recorded in a decision of the Tennessee Superior Court in 1806. That court believed that the "proper place" for a prisoner who was "in custody" was behind the bar, because "[s]trictly speaking, no person has a right to go into the bar but attorneys." (18) Nevertheless, the court conceded that the old custom was changing, and permitted a prisoner on bail to cross the bar and sit beside his lawyer. (19)

   The dock disappeared in part because the earliest American trials were held in taverns, meetinghouses, town halls, and private homes, which lacked the elaborate English furniture, (20) and in part, perhaps, because an emerging egalitarian spirit rebelled at the idea of denying the defendant the...