Thursday, March 11, 2010

Shackle that Defendant - Because I Said So!

Nothing was more frustrating to me when I was a child than when I would ask my parents "Why?" and they would respond "because I said so." That's not even an answer! "You're getting a spanking because you put sill-putty in your sister's hair and we had to cut it out with scissors" is an answer.

For the U.S. Court of Appeals for the Fifth Circuit, a similarly unacceptable answer to the question "why" is: "because that's how we always do it." "Because that's how we always do it" was the trial judge's response when asked why the defendant had to be shackled during trial. U.S. v. Banegas, No. 08-10915.

Shackling a defendant during trial in "inherently prejudicial" and "undermines the presumption of innocence and the related fairness of the proceedings." U.S. v. Joseph, 333 F.3d 598 (5th Cir. 2003). "The law has long forbidden routine use of visible shackles during the guilt phase; it permits a State to shackle a criminal defendant only in the presence of a special need." Deck v. Missouri, 544 U.S. 622 (2007). Accordingly, the trial court must state its reasons for shackling outside the presence of the jury.

In Banegas, the court's stated reason for shackling the defendant was that "everyone in this court who has tried a case pro se that's incarcerated" gets shackled. Nothing more was offered. Was it because the defendant was a safety threat ? A flight risk? An involuntary break-dancer? The record doesn't reflect - it's just how the court always does it.

In Deck, the Supreme Court took a look at the issue of shackling and identified several historical factors that should be considered in determining whether a defendant should be visibly shackled: 1) past escape, 2) prior convictions, 3) that nature of the crime for which the defendant was on trial, 4) conduct prior to trial while in prison, 5) any prior disposition toward violence, and 6) physical attributes of the defendant like size, strength, and age.

Despite whether the trial court uses these factors or other factors tailored to the particular case, it MUST state its reasoning on the record so that the issue may be resolved by the appellate court. When the appellate court is left to guess at the reason for shackling, it has no choice but to find a due process violation and vacate the conviction.

(It should be noted that the record did not demonstrate whether Banegas' shackles were visible to the jury, therefore the Fifth Circuit had to assume that they were visible. The holding was premised on that assumption.)