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Carlton Gunn was peeved when he returned to the L.A. federal public defender’s office in 2003, after three years in the state of Washington. “I came back, and all of our defendants were being shackled. It was very disturbing,” the senior deputy defender said Tuesday. “It’s demeaning to the whole system.” So Gunn decided to challenge a policy instituted in 2003 in the U.S. District Court for the Central District of California requiring pretrial detainees to wear leg shackles in court. And on Tuesday, the 9th U.S. Circuit Court of Appeals agreed with him. But the opinion came with a vigorous dissent — and left open the possibility that the rule could be reinstated. Writing for the majority, Chief Judge Mary Schroeder expressed concern that the shackles unnecessarily impinge on defendants’ freedoms. “Preservation of dignity and decorum are necessary for the conduct of judicial proceedings that determine issues of liberty and life,” Schroeder wrote. Judge Ronald Gould joined her in the majority. But, Schroeder wrote, it was the U.S. Marshals’ inadequate justification for the policy — and not the shackles themselves — that led her to strike down a district court’s decision upholding the rule. “The only support for the policy is the conclusory declaration of a single representative of the Marshals service that the policy is necessary because of safety concerns and financial limitations,” she wrote. “We order the existing shackling policy rescinded, but we do not preclude reinstatement of a similar policy upon a showing of adequate justification,” Schroeder wrote later in the opinion. This same vagueness that led to Schroeder’s conclusion caused Judge Richard Clifton to take the opposite stance. “Anyone who has been present in a courtroom filled with such defendants, particularly in a busy urban court, understands that ‘decorum’ is a relative thing,” Clifton wrote in a dissent that argued that court security is a prime concern in the wake of several crimes against judges. “More to the point,” Clifton continued, “what effect the leg-restraint policy has on the decorum of the court and what negative impact that has on the defendant may be impossible to define precisely, but I have to believe that the answers are ‘not much’ and ‘none.’” With an understaffed Marshals service, he added, there’s nothing wrong with precautionary shackling. “An ounce of prevention is, after all, worth a pound of cure,” Clifton wrote. That both the opinion and dissent were based on judges’ precautionary concerns — leaning toward decorum or security — is noteworthy, said Rory Little, a professor at Hastings College of the Law and a former federal prosecutor. “It’s a fascinating exercise in litigation,” he said. “Both sides of the facts submitted are supported by little or no evidence.” In the Northern District of California, defendants are generally allowed to attend their hearings shackle-free unless they are known to be violent. But San Francisco Federal Public Defender Barry Portman cheered Schroeder’s opinion against shackling. “It first of all dehumanizes a prisoner and treats him like an animal,” Portman said. He said that of the two or three times he has been the target of courtroom violence in the past two decades, at least one of the defendants who hit him was in shackles. A spokesman for the Central District U.S. attorney’s office, which tried the case, said lawyers there are going to consider whether to further justify the rule in an attempt to reinstate it. But Gunn said he believes there’s no way to justify it. “Leg irons, to me, symbolically, are the worst,” he said. “It reminds me of slaves shuffling around.” The case is U.S. v. Howard, 05 C.D.O.S. 9758.

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