According to this recent article in the ABA Journal, criminal defense lawyers “[i]ncreasingly . . . are asking their clients to wear glasses during jury trials,” believing that juries will be more likely to acquit bespectacled defendants, who they may view as less threatening. One prosecutor characterized the strategy as an “unspoken nerd defense.” The article links to this 2008 study, which concluded that the wearing of “[e]yeglasses had an indirect effect on verdict by increasing [jurors’] ratings of [the defendant’s] intelligence, which decreased guilty verdicts.” This got me wondering: if an indigent defendant can’t afford non-prescription eyeglasses – apparently available for as little as $8 on Amazon – is he entitled to the same at the state’s expense?
Maybe that seems like a frivolous question, and I admit to being a little tongue-in-cheek about it. But it is closely related to a some non-frivolous questions. For example, if an indigent defendant does not own dress clothes, must the state provide them? In Felts v. Estelle, 875 F.2d 785 (9th Cir. 1989), the court held that “the state is under an affirmative duty to provide civilian clothing in a timely fashion and, if no such clothing is in its possession, to provide reasonable funds for the purchase of acceptable attire.” The decision isn’t quite on point, though, because it was grounded in a defendant’s right not to be forced to go to trial in prison garb – in that case, the police seized, then lost, all the clothing that the defendant owned, leaving him with no civilian clothing at all – and the court expressly made “no judgment about what constitutes suitable clothing.” In Johnson v. State, 2009 WL 3517992 (Ind. Ct. App. Oct. 8, 2009), the court noted with approval that the trial judge had approved a defense request to “purchase a suit, shirt, and tie from Goodwill,” apparently at state expense, but the appellate court decision didn’t focus on the existence or the extent of the right to dress clothing.
Another related issue is what to do with a defendant who is covered in offensive tattoos. The New York Times has this story about a murder defendant with, among other things, a “large swastika tattooed on his neck.” Some might argue that a person who chooses to get such a tattoo ought to bear the consequences of his choice, but the trial judge agreed to pay a cosmetologist $125 per day to cover the tattoos.
I’m not aware of any North Carolina law on these issues. I know that defense lawyers often pay out-of-pocket for dress clothes for clients; I did that myself, more than once. Perhaps such an expense would be reimbursable under, for example, section III.G of the Office of Indigent Defense Services’ fee and expense policy for non-capital trials. That section is a catchall provision for “other expenses,” beyond normal overhead, that may be reimbursed if necessary and reasonable. I don’t know whether IDS would approve, say, $25 for a Goodwill suit – if you work for IDS, or if you’re a defense lawyer who has requested reimbursement for court clothing, please post a comment. I doubt that IDS would approve $8 for non-prescription eyeglasses, but maybe if the “nerd defense” catches on . . . [Update: The powers that be at IDS have informed me that there is “no way” that IDS would pay for non-prescription glasses, but that clothing requests are considered on a case-by-case basis and sometimes approved if very modest.]