Individualized Inquiry Required before Shackling Defendant at Pre-Trial Proceedings in Washington

Washington criminal case law has established that defendants are entitled to be free of shackles at trial, unless there are extraordinary circumstances.  Restraints may affect a number of constitutional rights, including the presumption of innocence, the right to testify, and the right to consult with counsel.  Trial courts do, however, have discretion in deciding on courtroom security measures, including restraints, as long as they base that discretion on facts in the record.

In a recent case, a defendant challenged his conviction after he was shackled in pretrial appearances and required to wear a leg brace at his jury trial.  At his first court appearance, the defendant was shackled in handcuffs and a belly chain.  His attorney moved for removal of the shackles, arguing they violated the defendant’s due process rights under the Fifth Amendment and the Washington State Constitution.

The trial court held a consolidated hearing on all motions related to restraint and removal before it.  The court granted the motions “to the extent the court agrees there are less restrictive means of furthering the compelling government interest of courtroom security.”  The court proposed videoconferencing as an alternative, but acknowledged it would not be implemented for over a year.  The court indicated its adoption of the sheriff’s policies would remain in effect until videoconferencing was implemented.  The policy required leg braces at trials.

At trial, the defendant wore a leg brace in accordance with the policy.  His attorney objected, arguing the court had not ruled on security or the need for restraints.  The court said it believed the “limited security measure” was appropriate.  The court said the defendant could walk to the witness box outside the jury’s presence, so they would not see him walk in the brace.

When it was time for the defendant to testify, his attorney suggested getting him to the jury box outside the jury’s presence.  The defendant also asked if he had to stand for the jury, with his counsel noting the brace would be on the leg nearer to the jury.  The court agreed to allow him to remain seated when the jury came in and for his oath.  The defendant expressed concern the jury could see the brace, but the court just told him to “stay seated then.”

The jury found the defendant guilty and he appealed.  He argued the court violated his due process rights by not conducting an individualized inquiry into the necessity of restraints.  The appeals court found due process violations, but found they were harmless errors.  The defendant petitioned the Washington Supreme Court.

The Washington Supreme Court agreed that the pretrial shackling of the defendant without an individualized determination of need violated the defendant’s constitutional rights.  The Washington Supreme Court specifically extended the “protections against blanket shackling policies to pretrial proceedings…”

In previous cases, the Washington Supreme Court identified factors to be considered in determining if restraints are needed.  Those factors are: the serious of the charges; the defendant’s temperament and character; the defendant’s age and physical attributes; the defendant’s record; any history of escapes, attempted escapes, or evidence of a current plan to escape; threats; the defendant’s tendency to engage in self-destructive behaviors; any risk of attempted revenge or mob violence; the possibility other offenders may attempt rescue; the audience’s size and mood; the physical security and nature of the courtroom, and alternative remedies.

Although there was a hearing on the restraints motion, it was for multiple defendants and did not include any information specific to any of the defendants.  The Washington Supreme Court found these circumstances could not have constituted an individualized inquiry, which is required before every court appearance.  The trial court abused its discretion and committed constitutional error in allowing the restraint.

In Washington, unconstitutional shackling is subject to harmless error analysis, but the parties disagreed regarding who had the burden of proof.  There was somewhat conflicting case law on the issue.  The Washington Supreme Court held the state must prove that the constitutional violation was harmless beyond a reasonable doubt.

The Washington Supreme court noted the trial court had not followed established law when it adopted the use of the blanket policy without an individualized inquiry.  The state argued the leg brace could not be seen.  The only evidence in the record regarding whether the brace could be seen by the jury was the defendant’s own concerns that it could.  His attorney had stated the brace could not be seen through the defendant’s clothes, but it was not clear whether that changed when the defendant moved to the witness box.  The court also noted those two conversations occurred on different days.

The defendant also argued he was the only witness not to stand for the jury at the witness box.  Additionally, he sat for his oath and did not walk to and from the witness box in front of the jury.  This restraint on movement could result in inferences of dangerousness.  The jury could also interpret his failure to stand as disrespect.  Finding only conflicting speculation as to what the jury could see, the Washington Supreme Court found the state had not proven the error had been harmless beyond a reasonable doubt.  It reversed the appeals court on the harmlessness issue and remanded for a new trial, with an individualized inquiry regarding restraints at all stages of the proceedings.

Restraints can be highly prejudicial.  If you are facing criminal charges, you need an experienced Washington criminal defense attorney on your side to aggressively protect your rights.  Call Blair & Kim, PLLC, at (206) 622-6562 to set up an appointment.

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