Flynn v. Holbrook

• Decision Date: 07 December 1984
• Docket Number: No. 84-1266,84-1266
• Citation: 749 F.2d 961
• Parties: Charles FLYNN, Petitioner, Appellant, v. Terrance HOLBROOK, et al., Respondents, Appellees.
• Court: U.S. Court of Appeals — First Circuit

Page 961

749 F.2d 961

Charles FLYNN, Petitioner, Appellant, v. Terrance HOLBROOK, et al., Respondents, Appellees.

No. 84-1266.

United States Court of Appeals, First Circuit.

Argued Sept. 12, 1984.

Decided Dec. 7, 1984.

Barry P. Wilson, Boston, Mass., for petitioner, appellant.

John A. Murphy, Sp. Asst. Atty. Gen., Providence, R.I., with whom Dennis J. Roberts, II, Atty. Gen., Providence, R.I., was on brief, for respondents, appellees.

Before COFFIN, Circuit Judge, ALDRICH and COWEN, ^* Senior Circuit Judges.

BAILEY ALDRICH, Senior Circuit Judge.

Petitioner Flynn appeals from the district court's, 581 F.Supp. 990, denial of a writ of habeas corpus. He, with five co-defendants, was tried to a jury in the Rhode Island superior court, charged with a highly publicized armed robbery of a safe deposit vault. There had been no violence. Flynn and two others were convicted; the rest acquitted. The convicted defendants appealed, unsuccessfully raising the points now presented. Flynn, alone, sought habeas corpus, again without success. We reverse.

From the start of the trial defendants were brought to court accompanied by four uniformed, and conspicuously armed, state troopers, who sat, throughout, directly behind them in the front row of the spectators' benches. Upon defendants' timely protest that this created an "armed camp," the court stated that the matter was out of its hands, and that the makeup and number of the security squad was determined solely by delegates of the Supreme Court Committee on Security. To defendants' complaint that uniformed state police had never appeared at a Rhode Island trial before, the court replied,

"But the rights of the defendants are equally safeguarded by an examination of the jurors."

Defendants immediately sought certiorari. In reversing and remanding, the Rhode Island Supreme Court (hereinafter court, or Rhode Island court) stated,

"The presence of armed, uniformed police officers acting as a security force in criminal courtrooms in this jurisdiction is a departure from the practice usually found in the trial courts of this state .... [It] might be considered a form of restraint, and a showing of the need of their presence should be required in such circumstances. A.B.A. Project on Minimum Standards for Criminal Justice, Standards Relating to Trial by Jury, (Approved Draft 1968), standard 4.1(C), Comment, p. 94.... The presence of the State Police is a decision that must be resolved by the trial judge after consideration of all relevant factors." State v. Byrnes, 116 R.I. 925, 357 A.2d 448, 449 (1976) (Byrnes I ).

The particular comment cited read, in part,

(C) Defendants and witnesses should not be subjected to physical restraint while in court unless the trial judge has found such restraint reasonably necessary to maintain order. If the trial judge orders such restraint, the judge should enter into the record of the case the reasons therefor ....

The court's directions were plain. The presence of armed, uniformed troopers is viewable as a form of physical restraint, unusual, and not to be countenanced short of a finding that it was "reasonably necessary to maintain order." In such event the court was to record its reasons for so finding. In spite of this, when the hearing ordered by the court took place, nothing of any kind was offered as to the need, let alone as to an unusual need, to maintain order. The only evidence presented came from two officials, who testified to personnel problems. It seems that because of the demands of the Presiding Justice there was a shortage of commitment officers who generally handle prisoners. Consequently, a request for back-up had been made of the state police. Commitment officers were, if armed, not noticeably so. By union contract, state troopers could not appear out of uniform, or without visible arms. When it appeared that the Presiding Justice was sitting without a jury, defendants suggested to the court what might seem the logical solution, viz., to send the troopers to the P.J.'s court. The response was that this was an undesirable choice because the commitment officers were better trained than the police for the work in that court.

The evidence stopped there. Nothing was offered as to the character, conduct, or disposition of any of the defendants, or of any other circumstance that might threaten the maintenance of order. Obviously, there was no, and could be no, finding of such. Nor was attention, apparently, paid to counsel's assurances that their clients would behave, nor consideration given to why, if only armed officers were available, there needed to be so many, nor, finally, why they needed to sit so conspicuously close to the defendants. Hence, matters were back at square one, with, if we may say so, a thump. Convenience, a manpower shortage, even, incredibly, a union contract, determined who was to be present and, apparently, the troopers themselves, decided where they would like to sit. Alternatively, the prosecutor made that decision, which would be no better.

In an at best trivial recognition of the instructions to consider the need for special restraint, the trial judge stated that it was his "conviction that the Supreme Court [in giving its instructions] has not been informed that the defendants on trial here are being held without bail.... [If it were not for that] there would not be any state policemen in this courtroom, uniform or plain clothes." It seems hardly necessary to observe that many defendants are incarcerated during trial; indeed, they are the only ones as to which a need for restraint arises. Inability to make bail is the common factor that fathers the vast percentage of cases discussing excessive restraint. Even more to the point, the trial judge had apparently not read the court's order with enough care to note the third sentence thereof.

"The petitioners, all of whom have been indicted on the charges of robbery, are being held without bail." Byrnes I, 357 A.2d at 448.

On this basis he held to his earlier belief that, so far as defendants' rights were concerned, it was enough to make inquiry on the voir dire whether the presence of the officers would affect the juror's decision, a practice he was already engaged in when he was reversed for its insufficiency.

Unfortunately, as we shall develop, since physical restraint, or, more exactly, the exhibition thereof to the jury, is antithetical to the presumption of innocence, the Byrnes I order was not only correct, but constitutionally obligatory. See Estelle v. Williams, 425 U.S. 501, 96 S.Ct. 1691, 48 L.Ed.2d 126 (1976); Illinois v. Allen, 397 U.S. 337, 90 S.Ct. 1057, 25 L.Ed.2d 353 (1970). The trial court's total, and, we may add, inexplicable failure to observe it, requires the vacation of a conviction resulting from a trial that lasted in excess of two months, without any other prejudicial error. Because of the seriousness of this, and the seriousness of our disagreement with the Rhode Island court's ultimate disregard of a basic constitutional principle, we write at greater length than we perhaps otherwise might.

His conviction having been affirmed on appeal, State v. Byrnes, 433 A.2d 658 (R.I.1981) (Byrnes II ), post, Flynn, after several false starts, brought this petition. In denying the writ, the district court said,

"To repeat the characterization employed by the Rhode Island Supreme Court, the circumstances of this trial were veritably 'extraordinary.' Id. at 663. And, the need for, and extent of, security measures are generally held to be within the sound discretion of the trial court. United States v. Gambina, 564 F.2d 22, 24 (8th Cir.1977); United States v. Clardy, 540 F.2d 439, 442-43 (9th Cir.), cert. denied, 429 U.S. 963 [97 S.Ct. 391, 50 L.Ed.2d 331] (1976); Kennedy v. Cardwell, 487 F.2d 101, 108-09 (6th Cir.1973), cert. denied, 416 U.S. 959 [94 S.Ct. 1976, 40 L.Ed.2d 310] (1974). Cf. Woodard v. Perrin, 692 F.2d 220, 221-22 (1st Cir.1982). Even though security precautions may in some measure deprive a defendant of the physical indicia of innocence, they are not per se prohibited; rather, the necessity for the employment of such procedures obligates the trial court

to simultaneously discharge clashing duties.... On the one hand, it was incumbent upon the court to strive to preserve impartiality and to avoid allowing anything to undermine the defendant's presumption of innocence. On the other hand, the trial court was charged with the duty to preserve the safety of counsel, jury, witnesses, specators--in short, everyone inside the courtroom.

Clardy, 540 F.2d at 442-43. Judge Giannini, called upon to juggle these competing considerations, performed the resultant balancing with care. His conclusion that, in this instance, the interests of justice required the presence of the troopers, while perhaps fairly debatable, was well within the perimeters of his discretion. E.g., Gambina, 564 F.2d at 24. The necessity for heightened security for this trial was manifest. As noted by the state supreme court, the voir dire of the venire disclosed no prejudice attributable to the presence of the police. Less totalitarian alternatives appear to have been explored and rejected on rational grounds. The security measures approved here, extreme though they may have been, did not, under the totality of the circumstances, deny due process or equal protection to the petitioner. See Hardee v. Kuhlman, 581 F.2d 330, 331-32 (2d Cir.1978); United States v. Howell, 514 F.2d 710, 714-15 (5th Cir.), cert. denied, 423 U.S. 987 [96 S.Ct. 396, 46 L.Ed.2d 304] (1975)."

We extensively disagree. The Rhode Island court said the presence of the armed state police was an extraordinary event, not that the circumstances of the trial were extraordinary. The trial judge had not balanced with care the competing considerations of avoiding the undermining of the defendants' presumption of innocence and preserving the safety of counsel, jury, witnesses and...