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While testifying in a 1997 trial, probation violator James Allen Mar fretted about being forced to wear a stun belt designed to deliver a disabling eight-second jolt of 50,000 volts. Mar, who police said had violent tendencies, contended that fear of an accidental zap — one of the commonplace hazards of stun belts — could prejudice his case by making him appear nervous and guilty on the witness stand. On Wednesday, Mar got some sympathy from the California Supreme Court. The court seemed to want to ensure that stun belts, like shackles and other protective measures, are used only when absolutely necessary and don’t violate a defendant’s right to trial without restraint. The court also appeared eager to figure out a way to do so under current case law, without formulating new tests of need. “Presumably there is the psychological effect of the stun belt. Fifty thousand volts. That’s quite a jolt,” Justice Joyce Kennard said. “Is that the least restrictive [method of restraint]?” she asked later. “Isn’t that a factor that should be considered by the trial court?” In an earlier case Wednesday, the court indicated some interest in letting criminal defendants have more access to police personnel files to ensure disclosure of information that might be favorable to their defense. But the justices seemed unsure how to accomplish that without violating officers’ privacy rights. “That’s always a thorny issue,” Los Angeles Deputy Public Defender Mark Harvis told the court. “And it’s a balancing test.” In the stun belt case, People v. Mar, S086611, Fresno, Calif.’s 5th District Court of Appeal ruled two years ago that it had been properly within Kern County, Calif., Superior Court Judge Clarence Westra Jr.’s discretion to deny Mar’s request to remove his stun belt while testifying. The court said that while a stun belt is a physical restraint that can be used only on a showing of “manifest need,” that need had been shown because of Mar’s frequent violent outbursts before trial. The “manifest need” language came directly from the California Supreme Court’s 1976 ruling in People v. Duran, 16 Cal.3d 282, which dealt with manacles and shackles. On Wednesday, the Supreme Court justices asked whether that test had not been met in Mar’s case, only to be told “no” by Mar’s lawyer, San Francisco solo practitioner Carlo Andreani. Manifest need, he argued, must be judged along with three other factors: Is it the last resort, the least restrictive alternative and medically appropriate? “That stun belt,” Andreani said, “triggers a whole panoply of restrictions on constitutional rights.” Justices Carlos Moreno and Janice Rogers Brown raised the fact that police said Mar had been violent, and asked whether that gave the judge the right to use restraints. Andreani argued that Mar had been verbally abusive, not physically, and said judges don’t have the right to order restraints, “absent the reasons I’ve stated.” When Kennard asked Sacramento-based Deputy Attorney General David Rhodes about the psychological effects of stun belts, he responded by saying that courts are not a secure environment and that officers use batons and guns as restraints in some courtrooms. He even noted that a defendant was shot in a Wisconsin court recently after attacking a bailiff. But Chief Justice Ronald George quickly noted that stun belts — properly known as Remote Electronically Activated Control Technology — have an alarmingly high rate of accidental activation, causing burns, uncontrolled defecation and even death. “That isn’t going to happen with guns and batons,” he said. “They don’t tend to accidentally discharge.” Rhodes agreed that’s something judges should take into account when ordering stun belt restraints, but he also said he thought stun belts, which are hidden from view, are less prejudicial to defendants than other restraints. “To my mind, a remedy that would be more prejudicial would be binding [defendants] or gagging [them]. Jurors could see that,” he said. “Removal from a courtroom would be more prejudicial.” The earlier case heard by the court, City of Los Angeles v. Superior Court (Brandon), S093628, involved the difficult interplay between the California Supreme Court’s 1974 ruling in Pitchess v. Superior Court, 11 Cal.3d 531, which protects peace officers’ personnel records from disclosure, and the U.S. Supreme Court’s 1963 ruling in Brady v. Maryland, 373 U.S. 83, which requires prosecutors to disclose evidence favorable to the defendant. Prosecutors contend the two are separate doctrines that cannot be blended. But Los Angeles’ 2nd District Court of Appeal did just that two years ago, holding that a state law must yield to the rights to due process and a fair trial conferred on a criminal defendant by the U.S. Constitution. The ruling allowed Jeremy Brandon, accused of child molestation, access to police personnel records that showed that his arresting officer had failed to report he unjustifiably sprayed mace in a person’s face in 1990, and also failed to report the beating of a prisoner by another officer in 1996. Under Pitchess, complaints older than five years were not disclosable. Kennard hinted at opening up the records a bit by asking Los Angeles Deputy City Attorney Julie Raffish whether it would be an undue burden if the court required agencies to keep records of citizen complaints “forever.” Raffish said yes, but added that “the main question is whether the Constitution requires such a system, such manipulation. We don’t believe it does.” Kennard also later raised the possibility of requiring defendants to make a “plausible showing” that the information they seek is material to their guilt or innocence and favorable to their defense. But Los Angeles Deputy Public Defender Harvis, arguing for Brandon, said that would put defendants in a Catch-22 situation. “It puts the defense in the position of having to be prescient,” he said. “We have no idea of what’s in [those files]. If we knew, we’d have it.” But Justice Brown argued that allowing defendants to go rifling through personnel files before the prosecutor or the judge has any idea what the issues are or who the players will be also requires a degree of prescience. “How does the court decide what’s material without knowing what that case is going to look like?” she asked Harvis. “Does it matter if you impeach the officer whose participation [at trial] may be tangential? Why should [file searching] routinely be done if the police officer testifying is not pivotal to the case?” Kennard seemed to sum up some justices’ thinking when she told Raffish that the court hoped to find some middle ground where both sides were treated fairly — and then asked if what Harvis basically wanted from the court was an admonition to prosecutors that under Brady they have an obligation to provide evidence that’s material and favorable to the defense. “Would that alleviate your concerns?” she asked. The court is expected to rule in both cases within 90 days.

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