¶1concurring and dissenting.
¶2The law is well established that a governmental entity may not deprive a citizen of a liberty interest by conditioning the receipt of a protected statutory right upon the relinquishment of the liberty interest. See Connick v. Myers, 461 U.S. 138, 143-44 (1983); Elrod v. Burns, 427 U.S. 347, 360-63 (1976). “[United States v.] Jackson [, 390 U.S. 570 (1968),] and [North Carolina v.] Pearce [, 395 U.S. 711 (1969),] are clear and subsequent cases have not dulled their force: if the only objective of a state practice is to discourage the assertion of constitutional rights it is ‘patently unconstitutional.’” Chaffin v. Stynchcombe, 412 U.S. 17, 32 n.20 (1973).
¶3The trial judge improperly forced Johnson to choose between asserting his right to sever the trials as protected by Rule 3A: 10(b), and his right to wear at trial appropriate attire of his choice. Without giving a reason, the trial judge concluded that Johnson’s motion was “connected” to the Commonwealth’s motion to require Johnson to remove his military uniform. Thus, as a condition for granting Johnson’s motion for separate trials pursuant *167to Rule 3A: 10(b), the trial judge required Johnson to remove his military uniform.
¶4Before acting on Johnson’s motion, the trial judge asked, “Are you going to change his clothes?” When Johnson’s counsel responded affirmatively, the trial judge stated, “I’ll rule on your motion as soon as he gets back.” When Johnson removed his military uniform and returned to the courtroom for the trial, the trial judge granted the motion to sever the trials.
¶5By drawing a connection between Johnson’s motion and his dress, the trial judge also tacitly circumvented counsel’s argument that Johnson “has a constitutional right to dress in that uniform.” It is fundamental to our jurisprudence that a defendant “certainly may not be punished for exercising a protected statutory or constitutional right.” United States v. Goodwin, 457 U.S. 368, 372 (1982). See also Battle v. Commonwealth, 12 Va. App. 624, 628-29, 406 S.E.2d 195, 197 (1991). The effect of the trial judge’s ruling was to exact from Johnson an impermissible penalty for choosing to wear the military uniform.
¶6I would hold that the trial judge violated Johnson’s right to due process when he required Johnson to remove his military uniform before the trial commenced as a condition of granting Johnson’s motion for severance of his trials pursuant to Rule 3A: 10(b). Thus, I agree with the majority’s conclusion that the trial judge erred in denying Johnson the right to wear his military uniform to trial.
¶7I do not agree that the trial judge’s conduct must go unsanctioned because of a view that it was harmless. Not every decision by a trial judge that results in a violation of a defendant’s right to due process is subject to a harmless error analysis. See Tumey v. Ohio, 273 U.S. 510 (1927). “[Tjhere are some constitutional rights so basic to a fair trial that their infraction can never be treated as harmless error.” Chapman v. California, 386 U.S. 18, 23 (1967). Proof that the defendant’s guilt was certain and that the defendant received the minimum punishment is not, in such cases, a reason to affirm the conviction. Tumey, 273 U.S. at 535. I believe that the deprivation of Johnson’s liberty interest was a violation so egregious that a new trial is warranted.