The recent Brian Nichols case put the spotlight on courthouse security. In March, he overpowered the diminutive female deputy sheriff bringing him to court in Atlanta as she was removing his handcuffs. He took her gun, then killed the judge, the court reporter and another deputy before escaping.
Why take the cuffs off? After all, Nichols was on trial for some very violent crimes, including rape and burglary. Two days before the attacks, homemade knives were found in his shoes, which he had claimed were arch supports.
One reason the cuffs came off is so that Nichols could change into street clothes. The other is so the jury would not see him with the cuffs on. The U.S. Supreme Court has already held defendants have both these rights.
Last month, in a death penalty case from Missouri, the court revisited the issue of appearing before a jury in shackles.
A man named Carman Deck robbed, shot and killed an elderly couple in Missouri. He was convicted and sentenced to death. The Missouri Supreme Court upheld the conviction but set aside the death sentence. At re-sentencing, Deck was brought into court in leg irons, handcuffs and a belly chain. He was sentenced to death again.
Deck took his case to the U.S. Supreme Court, arguing that being shackled in front of a jury violated his constitutional right of due process. In a 7-2 opinion authored by Justice Steven Breyer, the court agreed. The case is Deck vs. Missouri.
Before looking at the court's reasoning, here are a few important points of criminal procedure. A criminal trial has two parts — determination of guilt and sentencing. In most criminal cases, jurors are not involved in the sentencing phase. Sentencing is done later by the judge.
In a death penalty case, jurors are involved in both the guilt phase and the penalty phase. Deck objected to being shackled at the penalty phase of his trial.
Breyer began the majority decision with a historic overview. He dipped far back into our common law heritage, quoting from the commentaries of Sir William Blackstone, the great English authority on the common law, whose work greatly influenced our founding fathers. In 1769, Blackstone wrote that a defendant "must be brought to the bar without irons or any manner of shackles or bonds ..."
But there has always been an exception to this rule, too, and according to another authority that has been "where the safe custody of the prisoner and the peace of the tribunal imperatively demand, the manacles may be retained." All of this boils down to a basic general rule, with an exception.
During the guilt phase of a trial, defendants have a constitutional right not to appear in restraints that the jury can see. But this right is not absolute. If the state can prove it has a heightened interest such as physical security, preventing escape and keeping courtroom decorum, it can overcome that right. But the state's interest cannot just be a general concern. It must be specific to the particular defendant involved.
The high court identified and discussed three reasons why appearing in shackles at the guilt phase of a trial violates a prisoner's due process rights. First, it undermines the basic criminal law presumption that a defendant is innocent until proven guilty. It sends a not very subtle message to the jury that the defendant is a person who ought not be free. Second, shackles can interfere with the defendant's ability to participate in his defense. Finally, it might be considered an affront to the dignity of the judicial proceeding itself.
But does this reasoning hold water for the penalty phase of a trial? This was the precise issue before the court in Deck vs. Missouri. In concluding that it does, Justice Breyer first conceded that having been convicted, the presumption of innocence no longer applies to the defendant. But although the penalty phase is no longer about guilt or innocence, it is about life or death. Breyer, quoting from one of the court's earlier cases, wrote that the use of shackles can be "a thumb (on) death's side of the scale."
As in the guilt phase, a judge in the penalty phase can also find special circumstances, specific to that case, to justify shackling. But the problem in this case was that the trial judge failed to make such specific findings. Mostly, his stated reason was that Deck "had already been convicted." That wasn't good enough.
Justice Clarence Thomas, joined by Justice Antonin Scalia, issued a dissent twice as long as the majority decision. He strongly challenged the majority's due process concerns about restraining a defendant in the penalty phase of a trial, in front of a jury that had already convicted him of murder. He also argued, unfairly in my view, that the majority had ignored the security issues facing our courts today. The majority made it clear in no uncertain terms that courtroom security can indeed create an exception to the rule against shackles, but it must be specific to the defendant involved, not a generalized fear.
Ohio law appears to be consistent with the majority view, recognizing the general rule that a defendant "appear in court free of shackles" but giving trial judges discretion to rule otherwise and encouraging a hearing before placing a defendant in restraints during any phase of the trial. Deck vs. Missouri should provide additional guidance for trial judges on the specificity needed to rule on this question.
Marianna Brown Bettman, a former Ohio appeals court judge, teaches at the University of Cincinnati College of Law.