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.)

How can you attack the enforcement of a judgment in federal court?

The Writ of Audita Querela.

(WARNING:  The following post is not exactly riveting, but you never know when you might need it)

What exactly is a writ of Audita Querela? A writ of audita querela is a process whereby a convicted person may collaterally attack the enforcement of the judgment (but not the judgment itself) due to matters that arise after the judgment is issued. But rather than try to explain it, I'll just let the 5th Circuit Court of Appeals tell you about it:

The writ of audita querela is a common law writ dating from the reign of Edward III that constitutes the initial process in an action brought by a judgment defendant to obtain relief against the consequences of the judgment on the ground that some defense or discharge has arisen since its rendition that could not be taken advantage of otherwise. Audita querela is distinguished from coram nobis in that coram nobis attacks the judgment itself, whereas audita querela is directed against the enforcement, or further enforcement, of a judgment which, when rendered, was just and unimpeachable. In other words, a writ of coram nobis attacks a judgment that was infirm at the time it was rendered for reasons that later came to light, while a writ of audita querela is used to challenge a judgment that was correct at the time it was rendered but which is made infirm by matters that arose after its rendition.

Rule 60(b) of the Federal Rules of Civil Procedure expressly abolished the application of the writ of audita querela to civil judgments in 1948. However, the reasoning of the Supreme Court's opinion in United States v. Morgan, 74 S.Ct. 247 (1954), may allow the writ to be used to attack a criminal judgment. In Morgan, the Court held that the writ of coram nobis, which Rule 60(b) also had abolished in civil cases, was still available in criminal proceedings under the All Writs Act, 28 U.S.C. § 1651(a), where it was needed to fill a gap in the federal post-conviction remedial scheme. Accordingly, we have, as have several other circuits, acknowledged, with some reservation, that the writ of audita querela might also survive in criminal adjudications, if there is a gap for it to fill. We have yet to encounter a case that has required us to decide squarely whether or not the writ of audita querela survives in criminal cases.

Nevertheless, we have held that, if the writ survives, it can only be available where there is a legal objection to a judgment which has arisen subsequent to that judgment. Purely equitable grounds for relief do not justify the issuance of a writ of audita querela. Furthermore, the writ is only available where the legal objection raised cannot be brought pursuant to any other post-conviction remedy. This limitation follows from the reasoning of Morgan, which allows relief pursuant to a writ of audita querela only where a gap exists in the system of federal post-conviction remedies.

Taken from U.S. v. Miller, No. 08-11186, filed March 8, 2010.

Prosecuting Intellectual Property Crimes

If you ever find yourself defending an intellectual property crime in federal court, see the DOJ's playbook HERE.

The Cool Kids Rule the Prisons too!

HERE is an interesting story about a 7th Circuit case which upheld a prison rule prohibiting inmates from playing Dungeons and Dragons. Apparently, the socially-inept can't even catch a break in prison.