Case 3:16-cr-00051-BR

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J. Morgan Philpot (Oregon Bar No. 144811)

Marcus R. Mumford (admitted pro hac vice)
405 South Main, Suite 975
Salt Lake City, UT 84111
(801) 428-2000
morgan@jmphilpot.com
mrm@mumfordpc.com
Attorneys for Defendant Ammon Bundy

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON
UNITED STATES OF AMERICA,
Plaintiff,

Case No. 3:16-cr-00051-BR

v.

DEFENDANT AMMON BUNDYS MEMO

RE DEFENDANTS TRIAL CLOTHING

AMMON BUNDY, et al,

The Honorable Anna J. Brown

Defendants.
These men are cowboys, and given that the jury will be assessing their authenticity and
credibility, they should be able to present themselves to the jury in that manner.
On August 27, 2016 the U.S. Marshals Service delivered via email a notice that
Defendants trial clothing needed to be provided to their office stating: The following clothing
items are NOT permitted: Ties, Bows, Belts, Handkerchiefs, Cuff Links, Steel toed boots/shoes,
Shoe laces, Shirt tie down straps, Safety pins, Shirt pocket pen protectors. Consistent with that
guidance, Mr. Bundy arranged to wear non-steel toe boots, and he plans to wear other attire
throughout trial consistent with how he would like to be judged and have his
credibility/authenticity assessed. Only later did Mr. Bundy learn that the boots he provided
would be unacceptable.
The Supreme Court of the United States (SCOTUS) has stated that a Defendants
clothing can have a continuing influence at trial and as such carries with it a risk of

MEMORANDUM RE TRIAL CLOTHING

Case 3:16-cr-00051-BR

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impermissible factors coming into play. Estelle v. Williams, 425 U.S. 501, 50405 (1976).
While we have not found a case where the Supreme Court or Ninth Circuit has found a specific
right of a defendant to be tried in the civilian clothes of his choosing, it has often reiterated how
[t]he presumption of innocence, although not articulated in the Constitution, is a basic
component of our system of criminal justice. Id.; Coffin v. United States, 156 U.S. 432 (1895).
Because of this presumption, (n)o insinuations, indications or implications suggesting guilt
should be displayed before the jury, other than admissible evidence and permissible argument.
United States v. Dawson, 563 F.2d 149, 151 (5th Cir. 1977).
Other courts have stated that defendants have a right to be tried in civilian clothing.
Generally, a criminal defendant has a right to appear in civilian clothing and be free from
visible restraints in the courtroom during trial; violation of these rights requires reversal unless
the state can show harmless error. State v. Hardy, 283 P.3d 12 (Ariz. 2012).
The detained Defendants in this case are the only persons in the courtroom who are not
able to wear ties, belts, and or non-steel toed boots. The government presented today focused on
how Mr. Bundy appears when seated, but we understand that Mr. Bundy will stand up and move
around the courtroom during trial, including standing to approach the examination table and
standing and walking to the stand if and when he takes the stand to testify in his own defense.
We must consider, when he does so, how will he look? And what are the spot assumptions and
impressions will the jury have about him when they see him in the kind of white socks and
loafers he was wearing today, with his beltless trousers, and dressed in a formal suit without a
tie. Just as significantly, how will the lack of belt, tie, or other apparel compare to others in the
courtroom, as he and the other detained Defendants are the only ones who will appear that way.

MEMORANDUM RE TRIAL CLOTHING

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These matters are important for making sound impressions of comeliness and good grooming,
perhaps indicating to a juror that some Defendants are being detained while others are not.
The Marshalls office should not be allowed to restrict a Defendants clothing without
some specific argument, relative to a particular defendant, that justifies a restriction. In U. S. ex
rel. Stahl v. Henderson, 472 F.2d 556, 557 (5th Cir. 1973), the court found: The state trial court,
after an evidentiary hearing, and the district court, on review of the state transcript, held that the
security measures taken with regard to Stahl were justified by his potential dangerousness. We
agree. Here, the Marshall has concluded that restraints are unnecessary in Mr. Bundys case. So
where is the evidence and testimony to suggest that these clothing restrictions are?
The matter is not as simple as whether the court can mandate that person wear prison
garb. Courts have found that there should be no insinuations, indications or implications
suggesting guilt displayed before jury. Boswell v Alabama, 537 F.2d 100 (5th Cir). The law
as it stands approaches the appearance of a Defendant relative to a presumption of innocence. A
Defendants appearance and clothing must therefore be approached from a perspective that a
Defendant is in fact presumed to be innocent and may dress as such. In the case at hand, if the
Court is going to deny Mr. Bundys efforts to comply with the Marshalls stated policy, making
an allowance for him to wear non-steel toe boots, a belt, and a tie, so that he can present himself
in an authentic and credible manner to the jury for judgment in this matter, it should only do so
after an evidentiary hearing where findings are made to deny him of rights that potentially affect
the presumption of innocence that does apply. Respectfully submitted: September 5, 2016
/s/ J. Morgan Philpot
J. Morgan Philpot
Marcus R. Mumford
Attorneys for Ammon Bundy

MEMORANDUM RE TRIAL CLOTHING