A recent ruling from the San Francisco-based 9th U.S. Circuit Court of Appeals has local judges and attorneys at odds over the shackling of inmates for routine court proceedings.
At issue is the balance of courtroom security with a defendant’s presumption of innocence, as well as challenges posed by transporting inmates to court.
For now, there does not seem to be a consensus, leaving judges to apply their own litmus tests.
But attorneys with Vancouver Defenders believe judges should “do the right thing” for the defendants coming before them.
The 9th Circuit — which has jurisdiction over federal courts in Washington, Oregon, Alaska, Arizona, California, Hawaii, Idaho, Montana and Nevada — previously ruled that defendants have a constitutional right to be free from physical restraints when jurors are present. The decision was reached, in part, to prevent bias, uphold the presumption of innocence and allow a defendant to fully participate in his or her defense. Some exceptions exist if there are security or escape concerns.
But now a May 31 ruling extends that right to all court proceedings, after a divided 9th Circuit found routine shackling on pretrial matters violates a defendant’s Fifth Amendment right. The ruling holds that judges must determine on an individually-reviewed basis which defendants need to be shackled in court for security purposes.
In Clark County, inmates are generally restrained with leg shackles and handcuffs linked to a waist chain in the front. And when groups are transported to the courthouse for criminal dockets, all of the inmates are linked by chain.
The “no-shackling” issue was first raised Monday by defense attorney Jeff Barrar of Vancouver Defenders in front of District Court Judge Darvin Zimmerman during his domestic violence docket, according to Barrar’s blog on his firm’s website.
Zimmerman said Thursday that he was taken by surprise when the first motion was raised, and he needed time to briefly look over the ruling. After the first motion was made, corrections deputies took all of the inmates back to the jail, he said, and they brought them over one at a time. The docket had 12 defendants, and it took about 5 1/2 hours to complete. A docket of this size typically takes about two hours to complete, Zimmerman said.
Clark County Jail Chief Ric Bishop said he’s aware of the no-shackling issue.
“In this case, our preliminary review of the federal court ruling appears to me that the question of shackling resides with the court on an individually-reviewed basis. Our legal counsel is currently reviewing this ruling so that we can make proper adjustments in response to the court’s direction,” he said Wednesday.
Superior Court Administrator Jeff Amram said that the Clark County Sheriff’s Office handles inmates up to the point of bringing them to the courtroom. And as of Wednesday, he wasn’t yet sure how judges would address the issue of shackling or what it would look like if each defendant was reviewed on a case-by-case basis.
“We haven’t gotten that far into it,” Amram said, later adding, “I know there’s going to be a man-power issue.”
On Thursday, Superior Court Judge Robert Lewis appointed Vancouver Defenders to represent a defendant during the first appearance docket. Grant Cole, an associate attorney with the firm, objected to his client being shackled in the courtroom without an individualized finding by the court.
Lewis denied the request and said that although the ruling has persuasive value, it is not binding on the court.
“While the court has the authority to order that restraints be removed, I will allow the use by transport staff to address safety and security concerns inherent in a busy docket,” Lewis said on the record. “And counsel may continue to raise the issue in individual cases by appropriate motion where the utility of restraints is minimal or the actual prejudice to the defendant is significant.”
‘Right thing to do’
Defense attorney Christie Emrich, speaking on behalf of Vancouver Defenders, said in an interview that the firm disagrees with the judge’s assessment.
“Our opinion is the 9th Circuit was very clear, and a judge needs to make a determination, an individualized decision regarding each defendant and whether or not that person should be in shackles and if there are less restrictive means,” she said. “…We think it’s the right thing to do.”
Some defendants who come before the court have no prior criminal history or may be there for low-level crimes, but they are restrained as much as a violent felon, Emrich argued.
“The accused is presumed innocent. We are going to continue to fight for that assumption in our courtroom,” she said.
Zimmerman said he’s not inclined to follow a hard-and-fast rule for determining whether shackles are appropriate and on Wednesday ordered at least one inmate be unshackled. If he decides to have someone unshackled, that defendant will appear at the end of his docket to comply with security measures, he said. An obvious exception is an inmate who is deaf and needs to speak with their hands.
He finds it more personal and humane to have a defendant appear in front of him in restraints, Zimmerman said, than to set up a system where the defendant is across the room in a “plastic cage” used in some other courthouses.
It’s a balancing act of a potential constitutional right with the safety of courtroom spectators, staff, attorneys and transport staff, he said.
“We generally can’t have unrestrained prisoners in the courtroom even with armed officers, as they might try to disarm the officers,” Zimmerman said in an email. “As the domestic violence judge, I have generally the busiest dockets and the highest level of emotions to take into consideration.”
However, District Court, as a whole, is not taking any particular stance, Court Administrator Ela Selga said. It’s her understanding that each judge will make their own decision as the issue is raised in front of them.
For instance, Presiding District Court Judge Kelli Osler said Wednesday that before her morning docket, she individually reviewed each case and notified the jail of her findings for which defendants should be shackled. Of the eight people who came before her, she ordered that one be unshackled.
“I don’t know if I’m going to continue that practice,” she said. “This is a relatively new decision. I’m doing the best I can.”
Could video help?
As a “partial solution,” Clark County Prosecuting Attorney Tony Golik is advocating for video conferences for first appearances and arraignments in Clark County Superior Court so that inmates don’t have to appear shackled. District Court has used this method for years.
“Different counties are reacting differently to the decision and how to interpret the opinion. With respect to shackling or not, that is the court’s duty to decide how they want to proceed,” Golik said. “My opinion is that we should move to a video system for first appearances and should have done that quite some time ago in this county.”
Many other Washington counties already use that system, he added.
“I think it’s the right thing to do with respect to a more efficient court system, which is something we should be pursuing anyway,” Golik said.
He’s currently in the process of convening a work group to discuss how best to implement a change, he said, assuming the judges are all in agreement on how to proceed.
Emrich said Vancouver Defenders is opposed to that idea and that there are already too many hiccups with the video conferences in District Court.
“We appreciate that transport has to adjust to what they’re doing … but, we just want the local judges to follow (the ruling),” she said.
