On June 2, 2016, the seven judge Virginia Supreme Court affirmed a court of appeals decision to uphold the conviction of a defendant who had a jury trial while wearing jail-issued attire. The unanimous ruling was written by Chief Justice Donald W. Lemons.

The defendant, Robert Allen Wilkins, was housed in the Portsmouth City Jail awaiting trial on a charge of petit larceny. Wilkins was found guilty and sentenced to five years in prison. Wilkins appealed, raising the sole issue that his Fourteenth Amendment due process rights were violated when he was forced to stand trial in jail clothes. Here's what the record of the case showed:

At the outset of the trial, Wilkins' lawyer objected to Wilkins being tried while wearing jail garb. The judge ordered a recess for the purpose of finding him some civilian clothes. After the recess, Wilkins returned to court in his jail clothes, and the lawyer told the judge that the jail had refused to accept clothes from a friend of Wilkins. When Wilkins' lawyer again objected to the jail clothes, the judge said it was Wilkins' responsibility to provide his own clothes, and the jury might not even be able to tell that Wilkins was wearing jail gear, and then concluded with "I guess we have to try him in jail clothes."

On appeal, the court of appeals upheld the conviction, ruling that the trial judge afforded Wilkins an opportunity to procure street clothes, and that the record failed to establish that the jail attire was "clearly identifiable" as jail clothing.

The Supreme Court agreed, although it focused solely on the fact that Wilkins failed to show that the jury knew that what he was wearing wa; jail—issued clothes. Noting that Wilikns was wearing a "green, sort of scrub outfit, black sneakers" and a visible bracelet on his left arm, the Supreme Court said that there was "no indication that Wilkins' outfit was marked in any manner that would indicate it was from the Portsmouth City Jail, or any other detention facility."

Because they determined that the record was insufficient to show that Wilkins' jail clothes were readily identifiable as prison garb, and because it was Wilkins' burden to prove this fact, the Supreme Court upheld his conviction and refused to determine whether Wilkins' failure to procure street clothes was the responsibility of the court or the result of his own actions in bad faith. See: Wilkins v. Commonwealth of Virginia, Record No. 151068, (S. Ct. Va.), June 2, 2016.

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