Defending an incarcerated client adds the challenges of no email access, no confidential phone calls, no client visits to his or her lawyer’s office, finding time to drive to and wait to visit clients during limited jail visiting hours, often no Internet access during client visits, and often limited ability to speak confidentially with the client in the courthouse.

Added to all that is the need to assure that one’s jailed client is in a suitable change of civilian clothes each day s/he appears before the jury. The lawyer should work early on with the client and his or her family or friends to have those civilian clothes ready, and to have new clothes each day before the jury, lest the jury conclude that the defendant is incarcerated pretrial if s/he wears the same civilian clothes each day. If the civilian clothes are not assured from the client’s friends or family, the lawyer should get suitable clothes right away using the lawyer’s own resources. Remember also to include suitable footwear.

Incarcerated defendants should beware merely wearing the civilian clothes in which they were arrested. Those clothes may make it easier for eyewitnesses to identify them. Those clothes may be dirty, ill-fitting, blood-spattered from the alleged affray that led to a prosecution, or simply not appropriate for court, for instance if the clothes are merely shorts and a t-shirt.

The lawyer needs to clear the entire civilian clothing process with the jail, courthouse and courtroom. The lawyer needs to assure that the change of clothes timely arrives for the client each morning to wear those clothes. Because the clothes might get lost, it is a good idea for the lawyer to have a backup set of civilian clothes that fit the client, in the lawyer’s car.

The lawyer should not rely on the fashion nor clothing size sense of the family members or friends who furnish the clothes. The 1970’s leisure suit scare underlines that some people will choose clothing that will unfavorably distract the beholder. On top of that, I became all the more sensitized to clothing and footwear running from the flamboyant, to lowkey, to bewildering from working at the former Ivy Cambridge, Massachusetts clothing store called the Crimson Shop during my first college summer, and, at the other end of the quality scale, working as a high school senior at the former Thom McAn discount shoe store chain. Even when a modest clothing budget is available, suitable courtroom clothing can be found both new and used.

The ideal way for any defendant to dress in court, whether incarcerated or not and whether before a jury or only a judge, is to dress respectfully and comfortably (which means not wearing a necktie or suit if that is uncomfortable), to dress low key, to keep jewelry low key and to a minimum, and to dress so that the clothing is barely noticed.

The defendant does not need to be limited to standard issue K-Mart style. If the defendant is accustomed to wearing clothing or accessories related to the defendant’s religious, national or ethnic background, wearing such clothing in court at minimum will make the client feel comfortable and confident.

The defendant may be in the courtroom for multiple days, which makes comfortable clothing and footwear all the more important, keeping in mind the climate inside the courtroom.

The client also should come to any court date daily bathed and well groomed. The defendant’s hairstyle should be neat; long hair does not preclude neat hair. It is ideal that any facial hair either be fully grown and maintained or fully shaven, unless the client has a skin condition that cannot avoid razor stubble. For jail inmates, advance arrangements — possibly even through a requested court order — may be needed to assure a sufficient haircut for the inmate prior to the trial date and daily access to shaving equipment.

As much as all of the above may seem obvious to many people, I sometimes have clients who come to court in questionable fashion and grooming, and sometimes see family bringing court clothes that seem better suited for an evening on the town than for court.

Today’s blog entry was spurred by a very disappointing unanimous Virginia Supreme Court decision affirming a felony theft conviction by a jury, accompanied by a five-year prison sentence, despite defense counsel’s early protestations that the defendant was in in the courtroom in jail clothes and a jail identification bracelet,  after the defendant’s friend purportedly “had twice attempted to bring Wilkins non-jail-issued clothes but that the Portsmouth City Jail had refused to accept them both times.” Wilkins v. Virginia, ___ Va. ___ (June 2, 2016). The jury was never instructed not to consider Wilkins’s attire, which would have been a double-edged sword for Wilkins in the first place.

The Supreme Court avoided the issue about whether Wilkins had been forced to proceed to trial in jail clothes — or if Wilkins was intentionally trying to delay proceedings — and instead said the defense had failed to meet its burden  “of proving that the clothing he or she wore at trial was readily identifiable to the jury as jail attire,” even though Wilkins was both in jail-issued clothing and a jail identification bracelet. Perhaps the justices have not visited enough jails to know that jail clothes intentionally look like jail clothes, which itself is a way to discourage escape, and identify escaped jail inmates.Had a photograph been taken of Wilkins in the courtroom in his jail clothes and jail wristband, and been made part of the appellate record, perhaps the Supreme Court would have whistled a different tune.

Additionally troubling is that the appellate record in Wilkins lacked a transcript of the voir dire/jury selection and closing argument, to divine the extent to which Wilkins’s courtroom attire may have swayed the jury, particularly considering that the trial judge pointed out to opposing counsel during jury deliberations: “[D]efendant’s conduct here today has been somewhat less than civil, but such interruptions that we have had were largely spontaneous. They were not things I could prevent ahead of time. I certainly 3 tried. Whatever extent that may influence the trial, it is a problem the defendant created for himself.”

Standard issue in the obligatory law school criminal law classes seems to be Estelle v. Williams, 425 U.S. 501 (1976), which makes clear that a criminal defendant cannot be forced to appear in jail clothes before a jury.

Wilkins is a sufficient lesson for criminal defense lawyers always to have suitable backup civilian clothes and footwear at the ready for their jailed clients appearing before a jury.