estelle williams argued october decided may respondent charged criminal offense held custody awaiting trial asked jail officer morning trial civilian clothes wear trial action taken voir dire counsel expressly referred respondent jail attire time ensuing jury trial issue raised trial judge concerning jail attire respondent whose conviction upheld appeal sought federal habeas corpus district denied relief appeals reversed though evidence county trial occurred majority nonbailed defendants tried jail clothes evidence practice followed timely objection made trial judge practice particular trial judge permit accused desired tried civilian garb held although state consistent fourteenth amendment compel accused stand trial jury dressed identifiable prison clothes failure make objection tried clothes negates presence compulsion necessary establish constitutional violation nothing record warrants conclusion respondent compelled stand trial jail garb sufficient reason excuse failure raise issue trial pp reversed remanded burger delivered opinion stewart white blackmun powell rehnquist joined powell filed concurring opinion stewart joined post brennan filed dissenting opinion marshall joined post stevens took part consideration decision case dunklin sullivan assistant attorney general texas argued cause petitioner brief john hill attorney general david kendall first assistant attorney general joe dibrell lonny zwiener assistant attorneys general ben aderholt appointment argued cause filed brief respondent reporter note aderholt represented respondent cf post chief justice burger delivered opinion granted certiorari case determine whether accused compelled wear identifiable prison clothing trial jury denied due process equal protection laws november respondent williams convicted state harris county assault intent commit murder malice crime occurred altercation respondent former landlord latter property evidence showed respondent returned apartment complex formerly resided visit female tenant respondent former landlord became involved quarrel heated words exchanged fight ensued respondent struck landlord knife neck chest abdomen severely wounding unable post bond respondent held custody awaiting trial learned go trial respondent asked officer jail civilian clothes request denied result respondent appeared trial clothes distinctly marked prison issue neither respondent counsel raised objection prison attire time jury returned verdict guilty charge assault intent murder malice texas criminal appeals affirmed conviction williams state williams sought release district petition writ habeas corpus although holding requiring defendant stand trial prison garb inherently unfair district denied relief ground error harmless appeals reversed basis prior holding hernandez beto cert denied fifth circuit disagreed district solely issue harmless error right fair trial fundamental liberty secured fourteenth amendment drope missouri presumption innocence although articulated constitution basic component fair trial system criminal justice long ago stated principle presumption innocence favor accused undoubted law axiomatic elementary enforcement lies foundation administration criminal law coffin actual impact particular practice judgment jurors always fully determined left doubt probability deleterious effects fundamental rights calls close judicial scrutiny estes texas murchison courts must best evaluate likely effects particular procedure based reason principle common human experience potential effects presenting accused jury prison attire need however measured abstract courts exceptions determined accused compelled go trial prison jail clothing possible impairment presumption basic adversary system gaito brierley hernandez beto supra brooks texas commonwealth keeler super miller state ark people shaw people zapata cal app cal rptr cert denied eaddy people american bar association standards criminal justice also disapprove practice aba project standards criminal justice trial jury app draft recognition constant reminder accused condition implicit distinctive identifiable attire may affect juror judgment defendant clothing likely continuing influence throughout trial unlike placing jury custody deputy sheriffs also witnesses prosecution unacceptable risk presented impermissible factors coming play turner louisiana factors always avoided manifest illinois allen expressly recognized sight shackles gags might significant effect jury feelings defendant yet upheld practice necessary control contumacious defendant reason authorized removal disruptive defendant courtroom alternatively binding gagging accused agrees conduct properly courtroom unlike physical restraints permitted allen supra compelling accused wear jail clothing furthers essential state policy may convenient jail administrators factor quite unlike substantial need impose physical restraints upon contumacious defendants provides justification practice indeed state texas asserts interest whatever maintaining procedure similarly troubling fact compelling accused stand trial jail grab operates usually post bail prior trial persons secure release subjected condition impose condition one category defendants objection repugnant concept equal justice embodied fourteenth amendment griffin illinois fifth circuit well prior decisions purported adopt per se rule invalidating convictions defendant appeared identifiable prison clothes held instance doctrine applicable line cases see also thomas beto cert denied hernandez beto supra courts accord bentley crist watt page cert denied case appeals quoted language justice douglas speaking harrington california held chapman california federal constitutional error held harmless must able declare belief harmless beyond reasonable doubt said trial errors violate constitution automatically call reversal citations omitted urged petitioners hold federal constitutional errors regardless facts circumstances must always deemed harmful holding petitioners correctly point require automatic reversal convictions make discussion unnecessary decline adopt rule statutes rules long ago congress established courts rule judgments shall reversed errors defects affect substantial rights parties conclude may constitutional errors setting particular case unimportant insignificant may consistent federal constitution deemed harmless requiring automatic reversal conviction citation omitted different result may appropriate defendant trial offense allegedly committed prison jury learn incarceration event consequently courts refused embrace mechanical rule vitiating conviction regardless circumstances accused appeared jury prison garb instead recognized particular evil proscribed compelling defendant tried jail attire reason judicial focus upon compulsion simple instances frequently arise defendant prefers stand trial peers prison garments cases show example uncommon defense tactic produce defendant jail clothes hope eliciting sympathy jury anderson watt watt page supra cf garcia beto apparently accepted practice texas courts barber state tex crim app including respondent tried courts therefore required accused object tried jail garments must invoke abandon rights fifth circuit held defendant may remain silent willingly go trial prison garb thereafter claim error hernandez beto essential meaning appeals decision hernandez described follows held hernandez defendant attorney burden make known defendant desired tried civilian clothes state accountable tried jail clothes ex rel stahl henderson record clear objection made trial judge concerning jail attire either time trial omission plainly result lack appreciation issue respondent raised question jail attendant prior trial trial defense counsel expressly referred respondent attire voir dire trial judge thus informed respondent counsel fully conscious situation despite respondent failure raise issue trial appeals held waiver objection inferred merely failure object trial prison garb customary jurisdiction however analysis ignores essential facts adduced evidentiary hearing notwithstanding evidence general practice harris county finding nonbailed defendants compelled stand trial prison garments timely objection made trial judge contrary district concluded practice particular judge presiding respondent case permit accused desired change civilian clothes doubt judge practice allowing defendants stand trial civilian clothing requested practice evidently followed certain judges well williams beto supp significantly evidentiary hearing respondent trial counsel intimate feared adverse consequences attending objection procedure nothing suggest prejudicial effect defense counsel made objection given decisions point jurisdiction four years respondent trial appeals fifth circuit held inherently unfair try defendant crime garbed jail uniform brooks texas similarly texas criminal appeals held effort made avoid trying accused jail garb ring state prior texas cases made clear objection interposed see wilkinson state tex crim app ring state supra nothing record therefore warrants conclusion respondent compelled stand trial jail garb sufficient reason excuse failure raise issue trial trial judge faulted asking respondent counsel whether deliberately going trial jail clothes impose requirement suggests trial judge operates burden situation johnson zerbst issue concerned whether accused willingly stood trial without benefit counsel adversary system defendant assistance counsel vast array trial decisions strategic tactical must made trial rests accused attorney approach rewrite duties trial judges counsel legal system accordingly although state consistently fourteenth amendment compel accused stand trial jury dressed identifiable prison clothes failure make objection tried clothes whatever reason sufficient negate presence compulsion necessary establish constitutional violation judgment appeals therefore reversed cause remanded proceedings consistent opinion reversed remanded footnotes contumacious defendant brings plight upon presents limited range alternatives obviously defendant allowed abort trial frustrate process justice acts confronted alleged relinquishment fundamental right sort issue johnson zerbst understandably found difficult conceive accused making knowing decision forgo fundamental right assistance counsel absent showing conscious surrender known right however engaged exacting analysis respect strategic tactical decisions even constitutional implications counseled accused see lee cf fed rule crim proc second circuit noted different context federal courts including declined notice alleged errors objected even though errors involve criminal defendant constitutional rights indiviglio cert denied significantly henderson case fifth circuit interpreted hernandez requiring accused take affirmative steps apprise trial desire tried civilian clothes hernandez simply found circumstances presented defendant met burden interpretation particularly meaningful since author hernandez opinion member panel subsequent decision henderson moreover hernandez indicated paint broad brush types cases case must considered factual context evidence showed respondent caucasian sixties evidentiary hearing testified felt real case present trial testimony several eyewitnesses clear consistent circumstances desire elicit jury sympathy reasonable approach one trial judge might reasonably assumed deliberately undertaken based state judge affidavit stated part never compelled defendant go trial jail clothes every occasion defendant attorney requested allowed wear civilian clothes trial granted request counsel testified prior occasion different state judge overruled objection trial client jail clothes also testified seen defendants dressed jail garments courtroom respondent tried texas courts admittedly established rigid rule invalidating practice per se instead courts ordinarily looked whether actual injury prejudice resulted defendant appearance jail garb garcia state tex crim app xanthull state tex crim app cases provided ample grounds objection procedure since least implicitly recognized reversible error result practice similarly decision xanthull beto supp sd tex render fruitless objection respondent part instead case like various state cases simply imposed burden federal habeas petitioners show actual prejudice resulting jury trial jail garments necessary indeed possible us decide whether defense tactic simply indifference either case respondent silence precludes suggestion compulsion petitioner contended brief oral argument appeals decision hernandez applied retroactively petition certiorari raise issue disposition case renders unnecessary decide justice powell justice stewart joins concurring concur opinion opinion dissenting opinion take divergent views case write separately identify specifically considerations deem controlling respondent harry lee williams tried clad prison issue despite differences relevance compulsion case opinion dissenting opinion essentially agree defendant constitutional right tried disagreement significance attributed williams failure object trial relevant case two situations conviction left standing despite claimed infringement constitutional right first situation arises shown substantive right question consensually relinquished situation arises defendant made inexcusable procedural default failing object time substantive right protected hart foreword time chart justices harv rev see american bar association project standards criminal justice remedies app draft williams represented retained experienced counsel conceded counsel fully aware prison garb issue elected raise objection simply thought objection futile record also shows state judge presided williams trial practice allowing defendants stand trial civilian clothing requested supp thus apparent objection interposed williams trial prison garb issue presented arisen case thus presents situation occurs frequently criminal trial namely defendant failing object incident trial implicates constitutional right often case situations timely objection allowed cure also frequently case rights involved counsel failure object susceptible interpretation tactical choice ante view tactical choice procedural default nature involved ordinarily operate matter federal law preclude later raising substantive right generally disfavor inferred waivers constitutional rights see johnson zerbst barker wingo policy however need carried length allowing counsel defendant deliberately forgo objection curable trial defect even though aware factual legal basis objection simply thought objection futile williams counsel claim indeed claimed new issue involved appeals fifth circuit texas courts recognized trial prison garb constitutional error impingement upon presumption innocence ante even confronted procedural default discretion might sometimes exercised overturn conviction familiar principles plain error see indiviglio previous cases make clear bar raised untimely presentation constitutional claims see fay noia henry mississippi right involved right consequence attorney conduct may bind client see henry mississippi supra cf brookhart janis entitlement courts ordinarily rely counsel advise defendant make timely assertion rights even validity guilty plea issue factor mcmann richardson justice brennan justice marshall concurs dissenting dissent statement defendant clothing likely continuing influence throughout trial unacceptable risk presented impermissible factors affecting jurors judgment thus presenting possibility unjustified verdict guilt ante concedes respondent trial identifiable prison garb constituted denial due process law judgment setting aside respondent conviction nevertheless reversed ground respondent compelled state wear prison garb record plainly rest reversal finding respondent knowingly voluntarily intelligently consented tried attire thus waived due process right johnson zerbst rather first time confines due process protections defining right materially affects fairness accuracy process terms state compulsion concept although relevant context fifth amendment privilege simply inapposite constitutional analysis concerning due process criminal proceedings end result definitional approach impute effect waiver failure respondent counsel apprise trial judge respondent objection tried prison garb results illogical delineation particular right involved case also introduces jurisprudence novel dangerously unfair test surrender basic constitutional rights agree concedes respondent denied due process law due process violation state denies accused objection tried garb ante developed relevant constitutional difference concerning due process right accused objected practice one essential due process safeguards attends accused trial benefit presumption innocence bedrock axiomatic elementary principle whose enforcement lies foundation administration criminal law winship quoting coffin see also deutch sinclair presumption innocence given concrete substance due process requirement imposes prosecution burden proving guilt accused beyond reasonable doubt accused criminal prosecution stake interests immense importance possibility may lose liberty upon conviction certainty stigmatized conviction accordingly society values good name freedom every individual condemn man commission crime reasonable doubt guilt winship supra prime instrument reducing risk convictions resting factual error standard accused tried identifiable prison garb dangers denial fair trial possibility verdict based evidence obvious identifiable prison garb robs accused respect dignity accorded participants trial constitutionally due accused element presumption innocence surely tends brand eyes jurors unmistakable mark guilt jurors may speculate accused pretrial incarceration although often result inability raise bail explained fact poses danger community prior criminal record significant danger thus created corruption factfinding process mere suspicion prejudice may subtle jurors may even conscious deadly impact system every person presumed innocent proved guilty beyond reasonable doubt due process clause forbids toleration risk jurors required presumption innocence accept accused peer individual like innocent proved guilty may well see accused garbed prison attire obviously guilty person recommitted place clothes clearly show belongs difficult conceive situation fraught risk presumption innocence standard reasonable doubt trial identifiable prison garb also entails additional dangers accuracy objectiveness factfinding process example accused considering whether testify defense must weigh decision jurors react paraded attire surely reasonable concerned whether jurors less likely credit testimony individual whose garb brands criminal problem likely confront indigent accused appears prison garb poor make bail circumstance concession prosecutorial interest served trying accused prison clothes ante ironical ring light effect trial prison garb denying accused benefit presumption innocence undercutting standard escapes delineate right established case right compelled wear prison garb holds clothes accused unsuccessfully objected wearing prison garb thus compelled wear unconstitutionally disadvantages case obviously prison clothes nonobjecting accused similarly unconstitutionally disadvantageous jury perspective situations objecting nonobjecting defendants every respect identical clothes accused objected create improper negative inferences minds jurors must clothes nonobjecting accused nothing logic experience suggests jurors need knowledge objection lodged react differently two situations baffles conceded trial identifiable prison garb denigrates accused presumption innocence make constitutional determination turn whether accused informed trial objected since objection irrelevant purpose underlying prohibition trial prison garb delineation due process right case confining due process safeguard situations state compulsion irrational face sure accused may knowingly voluntarily intelligently consent tried prison garb johnson zerbst without reason departing standard simply subverted promulgating novel dangerous doctrine basic due process safeguard affecting fairness accuracy factfinding procedure contingent right even come existence affirmatively asserted today thus signaling demise johnson zerbst voluntary waiver test standard determination surrender constitutional protections certainly failure object trial prison garb even accused shown know might object surrenders basic constitutional right securing fairness accuracy factfinding process totally eviscerated traditional doctrine loss rights presumed inaction ii justices powell stewart concur evisceration fundamental due process rights basis rationale essentially different rationale opinion circumstance joining opinion puzzling although opinion admittedly obscure may interpreted either importing concept compulsion areas inapposite diluting standard waiver fundamental constitutional rights concurring opinion prefer reverse appeals ground respondent properly respondent attorney committed inexcusable procedural default tactical choice precludes present assertion substantive right ante concurring opinion obfuscates various issues import statement true rationale concurring opinion brought better focus today opinion francis henderson post properly present question procedural default essential delineate two separate concepts relating methods criminal defendants may yield lose constitutional rights one concept waiver least respect constitutional rights affecting fairness accuracy factfinding process means accused engaged conduct may characterized intentional relinquishment abandonment known right privilege johnson zerbst see supra accused knowingly waived rights otherwise entitled merits claim unconstitutionally deprived anything separate concept procedural default involves manner accused may forfeit rights asserting according strictures state procedural rules accused committed procedural default may never adjudication underlying constitutional claim merits problem addressed fay noia held federal habeas judge may discretion deny relief applicant deliberately orderly procedure state courts forfeited state remedies however fay emphatic clear grant discretion interpreted permission introduce legal fictions federal habeas corpus unambiguously explained deliberate test procedural defaults analogue knowing intelligent waiver standard loss constitutional rights absence procedural rule concerning assertion classic definition waiver enunciated johnson zerbst intentional relinquishment abandonment known right privilege furnishes controlling standard habeas applicant consultation competent counsel otherwise understandingly knowingly forewent privilege seeking vindicate federal claims state courts whether strategic tactical reasons fairly described deliberate state procedures open federal habeas deny relief state courts refused entertain federal claims merits though course federal satisfied holding hearing means facts bearing upon applicant default events wish clearly understood standard put forth depends considered choice petitioner choice made counsel participated petitioner automatically bar relief state finding waiver bar independent determination question federal courts habeas waiver affecting federal rights federal question ibid background mind two glaring inadequacies concurring opinion become manifest first issue procedural default state law presented case texas criminal appeals render decision state procedural grounds view federal waiver doctrine expounded another appeals fifth circuit opinion see williams state issue procedural default never raised state addressed simply indefensible seize ground purported justification perpetuate respondent unconstitutional confinement see also infra second even basic concurring opinion without reference holding fay without citing precedent reverse appeals standard directly repudiates fay implicitly undermines precedential value respect assertion habeas proceedings constitutional rights concurring opinion converts deliberate test fay inexcusable default test find inexcusable procedural default mere failure object unconstitutional practice reasoning timely objection unconstitutional action remedied logic hindsight matter probably invoked time counsel inadvertently inexplicably fails object contemporaneously deprivation client fundamental rights fay test thus rendered hollow shell indeed concurring opinion also appear shift fay burden proof case unconstitutional deprivation accused rights shown requiring accused show default inexcusable rather requiring state show default deliberate moreover fay required decision assert constitutional rights informed choice accused rather counsel concurring opinion alter aspect fay rights involved concurring opinion provides principled content however term right defendant presumption innocence impinged state hales accused clad prison garb judge supposedly charged ensuring fairness trial right right jury trial requirement state prove every element crime proof beyond reasonable doubt right counsel concurring opinion apparently undermine settled doctrines concerning waiver loss rights without ever addressing departure methodology unswerving path charted precedents actions counsel bind accused situations seem obligation elucidate standards counsel actions judged particularly case ineffective assistance counsel alleged see nn infra event concurring opinion means brothers stewart powell forsaking teaching precedents fay respectfully suggest clear responsibility indirection explicate least contours outer limits novel dangerous doctrines formulating see generally francis henderson post brennan dissenting simply unacceptable brethren concede respondent convicted derogation constitutionally secured presumption innocence nevertheless sanction unconstitutional confinement basis procedural default principles neither articulated justified case calling analysis see francis henderson conjured ground decision case unarticulated principles even legitimately implicated hardly passes reasoned adjudication grave disservice litigants must come iii even standard compelled appearance judgment appeals affirmed holding relies per curiam statement appeals fifth circuit petition rehearing hernandez beto cert denied defendant may willingly proceed trial prison garb later protest fact ante yet applying standard hernandez see supp district case expressly found respondent willingly gone trial identifiable prison garb finding affirmed appeals significantly district stated emphasis supplied clear record case consistent evidence adduced dennison companion case prior hernandez exist common practice harris county courts try incarcerated defendants jail clothing unless able secure dispensation doubt judge practice allowing defendants stand trial civilian clothing requested practice evidently followed certain judges well however record reveal judge practice publicly known known defendants counsel reasonably times material respondent criminal trial standard practice defendants custody dressed alike without policy employed judge uniformly adopted even majority criminal district judges harris county instead evidence points strong likelihood trial climate time acted natural deterrent raising objections commonplace trial jail clothes even assuming defendants counsel thought problem considered legal implications absence consideration scarcely concluded either respondent trial counsel knowingly willingly voluntarily waived right tried civilian clothing indeed even sub silentio factual findings concurred two courts supported record defense counsel nothing fear objection ante yet district found prevalent trial climate deterred making objections omits mention significant finding district practice followed respondent case customary jurisdiction also omits mention fact uncontradicted evidence respondent counsel failed object objection perceived futile counsel purpose elicit jury sympathy otherwise acquiesce practice purposes trial tactics crucial defense counsel conscious problem trial jail garb since mentioned point voir dire judge thus informed counsel knowledge ante impliedly suggests trial judge reason relieved obligation affirmatively inquire whether respondent actually desired tried garb trial judge might conclude respondent engaging deliberate trial tactic elicit jury sympathy record wholly devoid basis analysis jury attention respondent jail garb first directed prosecution voir dire indeed done highlight prevalence practice harris county courts trial judge truly sensitive problem willing suggested sustain objection raised practice curious comments provoked reaction suggests mattered case respondent strong respondent real case testimony eyewitnesses clear consistent ante even true share view strength trial evidence relieve trial judge duty inquire whether respondent satisfied proceed trial prison garb particularly since judge knowledge time respondent real case indeed judge uncommunicated good intentions alleged sensitivity prison garb highly questionable light respondent evidence six cases involving nonbailed defendants tried judge courtroom two months surrounding respondent case every accused appeared prison garb reasonableness respondent perception trial objection futile accentuated fact deputy sheriff already denied respondent explicit request wear trial clothes arrested least light district finding knowing voluntary waiver trial objections deterred prevalent trial climate think remand factual development concerning practice harris county time respondent trial record us plainly calls affirmance appeals respondent appeared trial wearing white harris county jail stenciled across back oversized white dungarees harris county jail stenciled legs shower thongs principal witnesses state respondent trial referred person sitting uniform record appeal tex crim app holding compelled wearing prison garb constitutionally proscribed understandably cites precedent startling result area concept compulsion relevant definition substantive right fifth amendment privilege see garner terms clause fifth amendment speaks individual compelled witness due process rights fair trial however depend existence state compulsion moreover clear even fifth amendment context state compulsion required steps taken ensure constitutional rights knowingly voluntarily waived see maness meyers see also nn infra reliance illinois allen particularly inexplicable see ante allen held courts must indulge every reasonable presumption loss constitutional rights johnson zerbst held accused deprived right present trial warned judge removed continues disruptive behavior nevertheless insists conducting manner disorderly disruptive disrespectful trial carried courtroom lost right present course reclaimed soon defendant willing conduct consistently decorum respect inherent concept courts judicial proceedings allen thus requires knowing voluntary intelligent waiver constitutional right present trial standard view also applies trial prison garb suggests accused persons freely choose wear prison garb ante mentions case person free bail thus truly able make voluntary choice respect wear trial asked wear prison garb trial cases show uncommon defense tactic produce defendant jail clothes hope eliciting sympathy jury ante insofar suggests practice prevalent confident simply empirical data support statement event prevalence practice explain limitation acknowledged infirmity cases compelled appearance prison clothes single reported case garcia beto defense attorney testified given particular circumstances case sought portray client drunk thought emphasizing difference accused jurors aided making defense fifth circuit found deliberate trial strategy constituted waiver right tried civilian clothes although cases cited today noted garcia opinion none involved trial tactic see watt page noting cases refer possibility may trial strategy remanding evidentiary hearing matter anderson watt affirming grant habeas relief since trial strategy shown barber state tex crim app asserting fifth circuit garcia noted defendant often wants tried jail clothing common defense counsel prove jury long accused confined jail however demonstration made true barber case case garcia garcia case never suggested practice common single instance defense attorney confronted fact client tried prison garb attempted employ fact invoke jury sympathy thereby waived right otherwise trial civilian garb hardly supports conclusion defendants frequently hope benefit tactic ante concurring opinion similarly myopic statement counsel failure object susceptible interpretation tactical choice ante see also supra event even situations trial prison garb deliberately employed defense tactic justify decision individuals waived rights barker wingo indeed although acknowledging trial prison garb destroys presumption innocence proclaims confronted alleged relinquishment fundamental right sort issue johnson zerbst ante difficult see assertions flatly inconsistent precedents see infra cease example since accused right criminal trials see faretta california say unless indigent accused compelled forgo appointed counsel simply exercising right represent even unaware right counsel cf powell alabama johnson zerbst gideon wainwright argersinger hamlin signaled unless accused makes state rejects motion speedy trial automatically constitutional violation barker wingo supra perhaps hold constitutional violation accused object jury instructions otherwise deny due process right convicted state proves every element offense beyond reasonable doubt since state compulsion mullaney wilbur see also camp arkansas possibilities legion often recognized constitutional rights even though accused explicitly demand trial thus whether decision read importing privilege compulsion notion areas properly applicability abrogating traditional waiver standard rights affecting fairness accuracy factfinding process marked indefensible departure constitutional principles long settled moreover notions may pervasive impact habeas corpus proceedings eventually employ principles overrule deliberate test fay noia holding adequate state procedural ground precludes review appeal mean accused pursue vindication federal claim federal habeas corpus proceeding procedural default alone preclude consideration claim henry mississippi concurring opinion put gloss opinion opinion today francis henderson post confirms fears groundless certainly basic tenet jurisprudence consistently constitutional rights affecting fairness accuracy factfinding process lost unless state demonstrates intentional relinquishment abandonment known right privilege johnson zerbst supra barker wingo supra see generally schneckloth bustamonte brennan dissenting marshall dissenting defining due process right cases terms state compulsion opens door complete abandonment waiver doctrine phrase rights might conceivably value reference potential constitutional challenges example confrontation clause challenges introduction hearsay evidence arise spontaneously course trial concerning may inadequate opportunity counsel consult client concurrence however invokes rights almost talismanically indication term connotes rights held violated unless accused knowingly intelligently waived burden proof demonstrating waiver may presumed silent record rests state surely adulterate standards context procedural defaults see francis henderson post brennan dissenting indeed test fay applied standard measuring procedural defaults situations affecting fundamental rights failure take timely appeal failure challenge timely manner introduction unconstitutionally seized evidence failure object prosecutor closing comments defendant failure testify trial see fay kaufman camp arkansas hernandez formal objection made trial judge although fifth circuit petition rehearing stated defendant may remain silent willingly go trial prison garb thereafter claim error clear addressing question traditional waiver perspective continued ibid case hernandez counsel object jail clothing past experience thought motion change attire frivolous motion accept voluntary waiver hernandez present case factual situation found district virtually identical found hernandez distinguish hernandez however ground nothing record case suggest state trial judge longstanding practice known members bar permit defendant change civilian clothes request ante addition failing take account suspect nature trial judge affidavit see infra statement ignores district finding indication purported practice publicly known known respondent counsel see infra rule practice reverse findings fact concurred two lower courts unless shown clearly erroneous see blau lehman faulkner gibbs dickinson commercial credit chemical foundation baker schofield towson moore cf boulden holman neil biggers brennan concurring part dissenting part implies appeals made findings failed take account relevant evidence district ante district presented data cited nevertheless concluded trial climate objections trial prison garb deterred number cases involving issue particularly substantial number emanating harris county courts merely reinforced finding moreover reason case reassess finding two courts respondent willingly proceed trial prison garb petitioner challenge holding petition writ certiorari sought resolution basic question whether trial prison garb inherently prejudicial destroys presumption innocence see app tr concession petitioner habeas evidentiary hearing trial tactics involved case prosecutor addressing remarks specific member jury panel stated defendant sitting jail clothes assuming jail time trial take consideration fact man jail clothes make feel guilty street clothes second thing oftentimes evidence come person jail seven months eight months awaiting trial token taken consideration verdict supposed go straight line guilty guilty let person dressed influence decision exhibits pp heard questions asked gone reasonable doubt gone business defendant dressed fact may may jail time trial jury federal judge mere moderator governor trial purpose assuring proper conduct determining questions law herron southern pacific upon trial judge rests duty seeing trial conducted solicitude essential rights accused glasser truth fairness sacrificed judge must exert substantial control proceedings geders ante law relating trial prison garb clear see ante concurring opinion ante devastating impact garb presumption innocence pervasive trial judge sensitivity genuine invocation adversary system see ante concurring opinion ante justify trial judge failure inquire matter certainly escape attention right counsel guaranteed constitution serve purpose defendants left mercies incompetent counsel judges strive maintain proper standards performance attorneys representing defendants criminal cases courts mcmann richardson see francis henderson post brennan dissenting see williams exhibits cases involving nonbailed defendants constituted jury cases trial judge period see williams exhibit respondent trial counsel aware defendants appearing trial judge prison garb app remand factual development particularly appropriate believes delineated due process contours trial prison garb differently district since district might analyzed factors relevant state compulsion example respondent objected introduction trial judge affidavit ground taken pursuant federal rules civil procedure thus afforded respondent counsel opportunity judge inquire matters number times objections actually made practice trial prison garb especially hernandez decision brought elimination practice harris county courts fact seems delineated right differently lower courts highlighted fact petition asked whether defendant trial jail clothing destroys presumption innocence deny fair trial pet cert question presented whether accused compelled wear identifiable prison clothing trial jury denied due process equal protection laws ante emphasis supplied moreover particularly incongruous actually premising holding concurring opinion suggests procedural default ground never presented explored reversing merits issue rather remanding inquiry whether alleged procedural default forecloses inquiry merits respondent claims see supra appeals address respondent contention respondent denied effective assistance counsel light holding respect respondent contention appeals addresses issue remand course light fact today declares ample grounds objection trial prison garb see ante concurring opinion ante fact trial counsel concededly tactical reason desiring respondent tried prison garb see supra