Harrell v. Israel, 81-1804

• Decision Date: 10 February 1982
• Docket Number: No. 81-1804,81-1804
• Citation: 672 F.2d 632
• Parties: Alfred Ronnie HARRELL, Petitioner-Appellant, v. Thomas R. ISRAEL, Warden, and Attorney General of the State of Wisconsin, Respondents-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 632

672 F.2d 632

Alfred Ronnie HARRELL, Petitioner-Appellant, v. Thomas R. ISRAEL, Warden, and Attorney General of the State of Wisconsin, Respondents-Appellees.

No. 81-1804.

United States Court of Appeals Seventh Circuit.

Submitted Feb. 10, 1982 ^*.

Decided March 15, 1982.

Mark Lukoff, Wis. Public Defender, Milwaukee, Wis., for petitioner-appellant.

Kirbie Knutson, Asst. Atty. Gen., Madison, Wis., for respondents-appellees.

Before BAUER, WOOD and POSNER, Circuit Judges.

PER CURIAM.

This is an appeal from the denial of a petition for habeas corpus. The petitioner, Alfred Ronnie Harrell, alleges that he was denied due process because both he and his witness were required to wear leg irons throughout his trial. We affirm the judgment of the district court denying the petition.

I

On July 14, 1978, Alfred Ronnie Harrell, an inmate at the Wisconsin State Prison, a maximum security institution at Waupun, was tried by a jury in the Circuit Court for Dodge County on an information charging him with assault by a prisoner, contrary to sec. 946.43(2), Wis.Stats. Conviction carried a maximum penalty of ten years imprisonment. According to the complaint, Harrell had physically attacked a corrections officer at the prison on November 15, 1977. Harrell denied the charge, claiming that he had acted in self-defense. Another inmate who had witnessed the incident supported his claim.

Before the trial began, the state trial judge, believing security to be of genuine concern, ordered that the leg irons which Harrell and his witness had worn while being transported from the prison would remain on them during trial. However, the handcuffs they had worn were to be removed. To guard against possible prejudice, the trial judge also ordered that certain precautions be taken so that the jury would not be allowed to focus on the leg irons. ¹ He first instructed the sheriff that the jury was not to be brought into the courtroom until Harrell was seated at counsel table where the leg irons could not be seen. Next, when either Harrell or his inmate witness was to testify, arrangements were to be made so that they would be seated in and leave the witness box outside the presence of the jury. After outlining the procedure that was to be followed, the trial judge offered petitioner an opportunity to respond. Neither Harrell nor his counsel made any objection at the time.

Despite these precautions, it appears that it may have been possible for a few of the jurors to have seen that Harrell and his witness were wearing leg irons. The witness box from which they testified was approximately four feet from the jury. Although the front portion of the box was enclosed, enabling Harrell and his witness to conceal the fact that they were wearing leg irons from a majority of the jury, it was at least possible that the leg irons were visible to four jurors if some effort were made on their part to look around the enclosure.

At the conclusion of the trial, the jury found Harrell guilty as charged. Harrell filed a motion for a new trial, alleging that the shackling of both himself and his witness prevented him from receiving a fair trial. The trial court denied the motion and was affirmed on appeal by the Wisconsin Court of Appeals. The Wisconsin Supreme Court denied a petition for review.

His state remedies exhausted, Harrell filed for habeas relief in the district court. The petition was denied. The district court concluded that the trial judge had used what in his discretion he saw to be an unobtrusive method of insuring security. It stated that the precautions taken by the trial court prevented the jury from being constantly reminded of the restraints, and any alternative, such as stationing deputy sheriffs around the courtroom, would have been no less intrusive. The district court also noted that the nature of the charge against Harrell, assaulting a prison guard, required that the jury know he was an inmate in a state prison. Thus, the shackling told them nothing they were not already aware of. Under these circumstances, the district court concluded the trial court had not abused its discretion in ordering that Harrell and his witness remain shackled.

II

As a general rule, a defendant in a criminal case has the right to appear before the jury free from shackles or other physical restraints. Illinois v. Allen, 397 U.S. 337, 344, 90 S.Ct. 1057, 1061, 25 L.Ed.2d 353 (1970); Kennedy v. Cardwell, 487 F.2d 101 (6th Cir. 1973), cert. denied, 416 U.S. 959, 94 S.Ct. 1976, 40 L.Ed.2d 310 (1974); United States v. Samuel, 431 F.2d 610 (4th Cir. 1970). See generally Annot., 90 A.L.R.3d 17 (1979). This right springs from the basic principle of American jurisprudence that a person accused of a crime is presumed innocent until his guilt has been established beyond a reasonable doubt. ² Samuel, 431 F.2d at 614. For this presumption to be effective, courts must guard against practices which unnecessarily mark the defendant as a dangerous character or suggest that his guilt is a foregone conclusion. As one court has observed, if a defendant is to be presumed innocent, he must be allowed the indicia of innocence. ³ Id. See also Estelle v. Williams, 425 U.S. 501, 503, 96 S.Ct. 1691, 1692, 48 L.Ed.2d 126 (1976).

Concomitant to the defendant's right to appear before the jury without physical restraints is his right to have his witness appear that way also. United States v. Roustio, 455 F.2d 366, 371 (7th Cir. 1972). Although the shackling of defense witnesses may be less prejudicial to the accused because it does not directly affect the presumption of innocence, Kennedy v. Cardwell, 487 F.2d at 105 n.5, it nevertheless may harm his defense by detracting from his witness' credibility. United States v. Garcia, 625 F.2d 162 (7th Cir.), cert. denied, 449 U.S. 923, 101 S.Ct. 325, 66 L.Ed.2d 152 (1980). Thus, the general rule against the use of physical restraints in the courtroom applies to defense witnesses as well as the defendant himself.

Notwithstanding the importance of this rule to insuring a fair trial, a defendant's right to appear and to have his witnesses appear without restraints is not absolute. In Illinois v. Allen, 397 U.S. at 344, 90 S.Ct. at 1061, the Supreme Court stated that binding and even gagging a defendant is permissible when necessary to control contumacious conduct at trial. The use of physical restraints has also been upheld in the absence of disruptive conduct at trial where the trial court has reason to believe it is necessary to maintain the security of the courtroom. Loux v. United States, 389 F.2d 911, 919 (9th Cir.), cert. denied, 393 U.S. 867, 89 S.Ct. 151, 21 L.Ed.2d 135 (1968). As the Samuel court recognized:

The judge presiding at the trial, the jurors, courtroom personnel and spectators are entitled to security in the performance of their functions or in observing the trial. The members of the public out of the courtroom are entitled to security in the pursuit of their daily activities. The public also has an interest in the expeditious trial of persons accused of crime, and an interest in preventing the guilty from being at large and committing other offenses. Thus, in appropriate circumstances, the accused's right to the indicia of innocence before the jury must bow to the competing rights of participants in the courtroom and society at large. Cf. Illinois v. Allen, 397 U.S. 337, 90 S.Ct. 1057, 25 L.Ed.2d 353 (1970).

431 F.2d at 615.

Because of the potential for prejudice, this court has required a showing of "extreme need" to justify the use of physical restraints at trial. United States v. Garcia, 625 F.2d at 162; United States v. Esquer, 459 F.2d 431 (7th Cir. 1972), cert. denied, 414 U.S. 1006, 94 S.Ct. 366, 38 L.Ed.2d 243 (1973). However, the trial judge has wide discretion in determining whether that standard is met. Garcia, supra. "It is he who is best equipped to decide the extent to which security measures should be adopted to prevent disruption of the trial, harm to those in the courtroom, escape of the accused, and the prevention of other crimes." Samuel, supra, at 615. ⁴

This court has twice upheld the use of shackles on defense witnesses who were inmates of maximum security prisons and whose records reflected a propensity for violence or escape. United States v. Roustio; United States v. Garcia. ⁵ However, in United States v. Esquer, 459 F.2d at 433, the court held that the trial court's shackling of a defense witness in handcuffs simply because he was an inmate at a maximum security prison was unjustified. The witness' status as a maximum security prisoner, the court held, did not by itself constitute the exceptional circumstances needed to justify the use of such drastic measures. The court went on to hold, however, that the resulting prejudice in that case did not rise to the level of reversible error.

In light of these cases, it would appear that the trial court's order that petitioner and his witness remain in leg irons throughout the trial may not have been fully justified under the circumstances presented here. There was no showing that either had ever attempted to escape or disrupt a trial. Although the trial court subsequently referred to the nature and seriousness of the charge against petitioner as a possible justification for its shackling order in denying petitioner's motion for a new trial, this does not explain why his witness, who had not been charged with any crime, was also required to wear leg irons. Because the general rule against the use of physical restraints at trial applies to defense witnesses, as well as the defendant himself, it is not enough for the state to show that the use of such restraints on petitioner was justified. It must be shown that the extreme need standard was met as to his witness as well. No such showing was made here. Instead, it appears that the trial court's shackling order was intended as part of a new policy to be followed in all future cases...