Emily Johnson-Liu
Every day in courtrooms around the state, judges decide how they will balance the importance of maintaining security in their courtrooms against the interests of criminal defendants when tried before a jury, free of restraints, manacles, or shackles. Some judges opt to routinely shackle defendants who are in jail awaiting trial, regardless of the threat posed by the particular defendant. The Court of Criminal Appeals recently considered a case, Bell v. State,1 where the trial judge may have been doing just that. Ultimately, the court delivered a nuanced decision, finding that routine shackling—while still error—is not constitutional error unless the jury is actually aware that the defendant is shackled.
The facts of the case
Vaughn Bell was on trial for possessing between 1 and 4 grams of ecstasy.2 The facts of the offense were fairly typical for a drug case: An officer stopped the car Bell was riding in and eventually found marijuana residue and a bottle of pills nearest to Bell. He opted for a jury trial, and over a lunch break during the trial, the judge ordered that Bell be shackled. The defense attorney countered that there was no need to restrain Bell because, as far as the attorney recalled, he had no history of fleeing or escaping, and there were two bailiffs in the courtroom who could provide security. The judge responded that the bailiff was responsible for the jury, not Bell, and added, “Everybody who is in custody has the same necessity of restraint.”3
The defense was also concerned that it would undermine the presumption of innocence if the jury were to see the chain running between Bell’s ankles and that if he moved, the jury would hear the chain rattle and suspect that Bell had “done something that got him chained up.”4 The prosecutor had the bailiff sit in various seats in the jury box to determine what the jury could see. The bailiff reported that Bell’s pants covered up the cuffs and chains so that they were not visible. The judge added that several briefcases had been positioned to shield the restraints from view and that Bell should be careful about moving his legs. He would also have breaks to stretch his legs.5 For the rest of trial, no one said anything more about the chains. As a result, it was not clear if the jurors were even aware that Bell had been restrained.
Bell’s first appeal
On appeal, Bell argued his conviction should be reversed because he had been shackled without proper justification. The intermediate court of appeals looked to the leading United States Supreme Court decision on shackling: Deck v. Missouri.6 In Deck, the Supreme Court reiterated that the law has long forbidden the practice of routinely using visible shackles in front of a jury. While that right to remain free of visible chains has a constitutional aspect to it, it is not absolute. Visible shackling will not offend the constitution provided it is justified by a special need specific to the defendant on trial.7 Based on the rule in Deck, the court of appeals found that it was error of a constitutional magnitude for the judge to order Bell restrained without articulating a need for shackling specific to him. Nevertheless, the court of appeals ruled that the error was harmless in Bell’s case, particularly as there was no indication that the jury was ever aware of the shackles.8
The Court of Criminal Appeals alters the kind of error involved
Bell appealed to the Court of Criminal Appeals and argued that Texas should follow the approach of the Fifth Circuit Court of Appeals, which presumes that restraints will be visible to the jury and puts the onus on prosecutors to prove otherwise.9 The Court of Criminal Appeals not only rejected that approach, but it also went one step further: The court held that unless a jury was aware of the shackles, there were no constitutional implications to shackling a defendant without cause. In short, it removed any unconstitutional taint associated with routinely shackling defendants in every case—as long as no jurors were aware of the restraints. The court held that due process was implicated only when the jury could see the restraints; it was not the mere shackling alone but the jury’s perception of the shackles that led to constitutional error.10 The court ruled that only where there is “a reasonable probability that the jury was aware of the defendant’s shackles” will there be constitutional error.11 And in Bell’s case, no such reasonable probability existed.
But it’s still error, just not constitutional error
Although the court removed the unconstitutional taint from routine shackling, it still held that it was error (just not constitutional error) to shackle defendants without justification. The difference is sometimes subtle, but with constitutional error, an appellate court applies a more rigorous test to determine if the error is harmless.12 So one potential effect of the decision in Bell is that by lowering the category of error to non-constitutional error, fewer cases involving shackling will be reversed on appeal. There is a danger that after Bell, some judges will believe the court is quietly condoning the practice of routinely shackling defendants, but with some strongly worded language in the Bell decision, the Court of Criminal Appeals may be hoping to shame trial judges into giving up this practice.
A “distasteful” practice
Now that more than eight years have passed since the Supreme Court issued its decision in Deck, the Bell case provides a good reminder of best practices when it comes to the decision to shackle. Whether to restrain a defendant is supposed to be made on a case-by-case basis. In any given case, it may be justified by three basic categories of concerns: 1) ensuring physical safety and security in the courtroom; 2) preventing escape; and 3) maintaining courtroom decorum. But the justification still must be specifically tailored to the defendant on trial. Circumstances that are sufficiently particularized so as to justify shackling include a defendant’s:
• history of possessing makeshift weapons in jail while awaiting trial,
• prior attack on a courtroom participant,13
• repeated courtroom outbursts; or
• history of escapes and expressed wish to die rather than be incarcerated.14
Examples would not include courtroom set-up or the number of available security personnel. These latter circumstances are not particular to the defendant on trial, and if they were considered sufficient, such circumstances would permit shackling of every defendant in every trial. While not unconstitutional (as long as the shackles stay hidden), shackling every defendant in every case still violates common law. But this may have been just what the judge in Bell’s case was doing—routinely shackling defendants in custody as a matter of course. The Court of Criminal Appeals condemned such a procedure, calling it “a distasteful practice ‘[reminiscent] of an era when the accused was brought from prison to the courtroom in chains, unkempt and wearing (at best) prison attire, following which he was exposed to a jury in the worst possible light.’”15 If the shame of carrying out ill-regarded and unseemly practices is not enough to discourage a trial judge from routinely shackling defendants, there is also the ever-present risk that a slip-up exposes the restraints for the jury to see, suddenly transforming what was ordinary error into constitutional error. While an inadvertent exposure could occur even where shackling is justified (because judges should make every effort to prevent the jury from seeing the defendant in shackles in every case), the constitutional violation will be greater where there was no justification for shackling the defendant in the first place.
What can a prosecutor do?
Judges do not always allow prosecutors input in the process of deciding whether a defendant should be shackled. But where they are allowed input at this early stage, prosecutors can often protect their cases by articulating on the record a particularized need for restraining the defendant on trial. Prosecutors may have access to criminal history information that judges do not, including a defendant’s prior violent offenses or escape attempts. DA’s investigators or victim assistance coordinators may learn from our witnesses that the defendant has been making retaliatory threats toward them. The jailers who house and transport inmates are another good source of information, as defendants’ jail mail or jail phone calls sometimes document threats to courtroom participants. Also, some jails use classification systems to assess an inmate’s individual risk, which can add to, though likely cannot supplant, the judge’s own assessment of risk.
If the judge routinely shackles defendants despite entreaties from the local prosecutor’s office to exercise more discretion, pay close attention to what the defense attorney says on the record about the restraints, and correct any inaccuracies. If the defense objects to the defendant having to wear a belly chain because it will be visible to jurors, see if the restraint can be worn underneath the defendant’s clothing, and document for the record that the restraint is not visible. In case of a conflict, ask for a fact-finding from the judge that the restraints are not visible to the jury. If the defense complains that a few briefcases fail to completely hide the defendant’s ankle restraints, securely attach a table skirt around both counsel tables. Then, like the prosecutor in Bell, ask the bailiff to verify that the restraints will not seen by the jury. And if the defense attorney keeps referring to the defendant’s “leg irons” when they are actually entirely coated with polyurethane so they are silent, document that for the record, too.
As with a lot of trial errors, prosecutors alone cannot prevent shackling error from developing into an error of constitutional dimension. A lot of that will depend on the judge and fortune. Still, it is reassuring to know that a hard-won conviction is unlikely to be reversed for shackling error when there was only an off chance that a juror may have known about it.
Endnotes
1 Bell v. State, No. PD-0087-12, 2013 WL 5221060 (Tex. Crim. App. Sept. 18, 2013).
2 Bell v. State, 356 S.W.3d 528 n.1 (Tex. App.—Texarkana 2011, pet. granted).
3 Bell, 2013 WL 5221060, at *1.
4 Bell, 356 S.W.3d 533 n.6.
5 Bell, 2013 WL 5221060, at *1.
6 544 U.S. 622 (2005).
7 Id. at 626-29.
8 356 S.W.3d at 537-39.
9 2013 WL 5221060, at *3.
10 2013 WL 5221060, at *2.
11 2013 WL 5221060, at *3.
12 Id.; Tex. R. App. P. 44.2(a) & (b).
13 Culverhouse v. State, 755 S.W.2d 856, 860 (Tex. Crim. App. 1988).
14 Jacobs v. State, 787 S.W.2d 397, 407 (Tex. Crim. App. 1990).
15 2013 WL 5221060, at *3 (quoting United States v. Brantley, 342 Fed.Appx. 762, 770 (3rd Cir. 2009)).