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Recent court decisions involving the shackling of defendants in front of juries have triggered confusion among prosecutors and defense lawyers. The issue: Who should object to the practice of shackling criminal defendants in front of juries-the defense or the prosecution? There also is uncertainty over when-if ever-the practice should be allowed in the first place. In California, an intermediate appeals judge recently put an end to the practice of shackling inmates at trial, ruling that using visible restraints violates a defendant’s constitutional right to a fair trial. Judge Conrad Rushing of the California 6th District Court of Appeal also held that prosecutors and defense lawyers alike bear the burden of making sure that shackling is not done in front of juries-a ruling that has irked prosecutors who argue it’s not their job to act as defense lawyers. In re Jamie Mejia Jasso on Habeas Corpus,142 Cal. App. 4th 1225 (2006). The U.S. Supreme Court also ruled on shackling recently in Deck v. Missouri, 544 U.S. 622 (2005), in which it held that it is unconstitutional to force capital murder defendants to appear before juries in chains and shackles at the sentencing phase. It did, however, allow for shackling during trial or sentencing on a “case-by-case basis,” or when the person presents a security threat. The 9th Circuit issued a similar ruling last year when it prohibited the shackling of defendants during arraignment in front of a magistrate judge, but suggested that a justified policy of shackling may be upheld with “adequate justification of its necessity.” U.S. v. Howard, No. 03-50524 (9th Cir.). “To put the burden on prosecutors, I think, is not justified,” said Paul Logli, past president of the National District Attorneys Association, and the state’s attorney for Winnebago County, Ill. Logli supports the use of hidden shackles in a courtroom, where the defendants’ shackled legs are hidden under a curtain or behind a screen. “You’ve got to have some type of a means to ensure security in the courtroom,” Logli said. And if there’s concern that the shackles might be visible, he added, prosecutors should address the matter to avoid a mistrial. “We’re not the defense attorneys,” Logli said. “On the other hand, we do want to make sure to try the case once [only].” But criminal defense attorney Tim Warriner countered that shackles should be used “[o]nly in really, really rare situations.” He also opposes the use of hidden shackles. “I think to get a fair trial, it has to be clear that [a defendant] is not in custody,” said Warriner of The Law Offices of Tim Warriner in Sacramento, Calif. The hidden shackles, he added, make that obvious. “Juries wonder, ‘Why is this defendant not acting like a normal person would? Why is he not going over and talking to his family?’ [Shackles] make it hard to humanize our clients.” Warriner is currently challenging the use of hidden shackles, among other courtroom security measures, in federal court in Sacramento. Taylor v. Carey, No. Civ. S-05-0788 MCE GGH P (E.D. Calif.). He is pursuing a habeas petition alleging that the jury’s awareness of a defendant’s custodial status is prejudicial and violates his right to a fair trial. The ‘clank’ factor Terry Spitz, chief assistant district attorney in Monterey County, Calif., where a judge recently imposed a no-visible-shackling policy, disagrees. “I’ve handled all kinds of cases,” Spitz said. “I’ve tried them with people in jail uniforms and shackles, and juries acquit. Even knowing the guy who is sitting there is a prisoner-he’s got shackles on-they come back with not-guilty verdicts.” Spitz noted that up until recently, it had been a longstanding policy all over California for defendants who commit crimes in prison to appear before juries in prison uniforms and shackles. That practice, however, ended in September, when a judge ruled that the practice was unconstitutional. Spitz is particularly upset that the judge admonished not just the defense, but also the prosecution for not objecting to the shackles. “[W]e note that when the defendant ‘clanked’ into the courtroom for the first time, the prosecutor apparently stood silent and remained silent through the trial, concerning the use of shackles,” wrote Rushing of the 6th District Court of Appeal. “That has not been our obligation under existing case law,” said Spitz, whose office handled the case before Rushing. “It ought to be a defense burden to raise that issue.” The defendant’s lawyer in the Monterey case, Fred Herro, did not return calls seeking comment.

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