A high-profile trial that was over before it began is set for a do-over next week in Fort Worth.

Federal District Judge Mark Pittman ordered a retrial of nine defendants accused in an alleged attack at a U.S. Immigrations and Customs Enforcement detention center in Alvarado, Texas to begin on Monday, Feb. 23.

Jury selection will start at 9 a.m., with opening arguments after 14 jurors and alternates are empaneled.

The rules for the new trial are more restrictive than the first. Neither side will be allowed to question prospective jurors during voir dire; instead they will submit questions to the court and the judge will ask them.

In the first trial, each defense team had ten minutes for opening statements. That has been reduced to eight minutes. Each of their closing arguments can last no more than 12 minutes. The government is allowed 30 minutes for opening statements and 45 minutes for closing arguments.

Pittman said that he is exercising his right to limit those times “in order to prevent unnecessary expense or delay.” When declaring the mistrial on Tuesday, he said the proceedings had already cost hundreds of thousands of tax dollars.

Mistrial during jury selection

Jury selection was underway in the case on Tuesday, when Pittman abruptly sent prospective jurors out of the courtroom. He had noticed that defense attorney MarQuetta Clayton was wearing a T-shirt under her blazer with images of protesters on it. 

Pittman said he saw no choice but to declare a mistrial because there was no way to know how many of the potential jurors had noticed the shirt or had been prejudiced by the shirt. 

When the judge returned from a short recess, he said he had gone over caselaw to see how to rule. He had received word that one of the defense counsel or staff was wearing an anti-ICE lapel pin. No one came forward to admit that.

The judge then called Clayton up to the podium and made a note that she had turned her shirt inside out. He asked her what the graphics portrayed on the shirt, and she said Martin Luther King, Shirley Chisholm, and other civil rights protesters. 

The judge said that the rules of conduct for trial say no graphic tees can be worn. He told the court that clothing cannot be used to sway the jury or provide testimony. 

He said he had considered admonishing potential jurors, but that “there was no way of knowing if you can remove the skunk from the jury box.” 

The judge also said that Clayton had tried to introduce a poster board showing scenes of protest during voir dire without first showing it to the judge or to the prosecution, which is against court rules.

Pittman said he would pursue a show-cause hearing for Clayton after the trial about her violation of the rules of conduct.