Kennedy v. Cardwell

• Decision Date: 30 October 1973
• Docket Number: No. 72-2054.,72-2054.
• Citation: 487 F.2d 101
• Parties: James Edward KENNEDY, Petitioner-Appellant, v. Harold J. CARDWELL, Warden, Respondent-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

487 F.2d 101 (1973)

James Edward KENNEDY, Petitioner-Appellant, v. Harold J. CARDWELL, Warden, Respondent-Appellee.

No. 72-2054.

United States Court of Appeals, Sixth Circuit.

Argued April 4, 1973.

Decided October 30, 1973.

Michael E. Geltner, Bruce Jacob, Columbus, Ohio, on brief, for petitioner-appellant; Joe McKeever, Salem, Ore., R. Raymond Twohig, Jr., Columbus, Ohio, of counsel.

William J. Brown, Atty. Gen. of Ohio, Leo J. Conway, Asst. Atty. Gen., Columbus, Ohio, on brief, for respondent-appellee.

Before WEICK, MILLER and KENT,^* Circuit Judges.

WILLIAM E. MILLER, Circuit Judge.

This is an appeal by James Edward Kennedy, a state prisoner, from the district court's denial of a writ of habeas corpus. Numerous issues are raised by the petitioner but only one issue requires detailed discussion.

We are met with the question whether shackling¹ the petitioner to a uniformed deputy sheriff at his two state court jury trials denied him a fair and impartial trial by infringing the presumption of innocence in contravention of the fourteenth amendment's due process clause of the Federal Constitution. The events preceding Kennedy's trials began in February 1964, when he was indicted by the grand jury in Cuyahoga County, Ohio, for armed robbery. In September 1964, the petitioner was transferred from a federal institution in Illinois, where he was incarcerated under an unrelated charge, to the Cuyahoga County Jail to await trial on the armed robbery charge. On November 10, 1964, the petitioner, along with several other jail prisoners, sawed through the jail cell bars and escaped. This incident led to the defendant's indictment on December 11, 1964, for escaping from jail and rendering a jail less secure.

Upon Kennedy's capture about a year after he escaped, he was returned to a federal prison in Pennsylvania. Approximately one and one half years later he was removed to Ohio to stand trial on all three state charges. The first trial, for armed robbery, was apparently scheduled to commence on July 24, 1967, but on that day the state requested and received a continuance until the following day when the trial actually began. On July 24, however, defense counsel addressed the question of courtroom procedure since the defendant had been brought into court and seated at the defense table handcuffed to a uniformed deputy sheriff. A discussion on the record ensued among the attorneys, the court, the defendant and a deputy sheriff, but no sworn testimony was received by the court.

The defendant's attorney stated to the court that at several pretrial hearings before the court shackles had not been necessary, that the defendant had behaved as a gentleman and that he had even taken the stand at one such hearing.² Defense counsel then asserted that it was improper to bring a defendant to trial in such restraints unless there was an affirmative showing by the state of the necessity of the measure. The prosecutor responded that although he did not have the defendant's record before him at that time, it indicated that Kennedy had escaped from the Ohio Reformatory in Mansfield, Ohio, and also that he had escaped in 1964 from the Cuyahoga County Jail. He then declared: "I think that it is only proper that certain precautions are taken to see that such a thing does not happen again."

The Chief Deputy Sheriff then spoke to the court, referring to Kennedy's "highly escaping abilities," and requested the court to give the Sheriff permission to use every precaution to insure that the defendant was secured during the trial. In response to the court's inquiry concerning what restraints he suggested, the Deputy asserted that handcuffing the defendant to a deputy was necessary. The Chief Deputy then stated: "We do not have maximum security in this Court, no bars as such to restrain him from leaving here because he could very easily without being manacled break for one of these exits, and it will require a numerous amount of deputies in the court to insure he will remain in court during this trial." The court took the matter under advisement until the next morning when it ruled:

Upon the record of this defendant, and further taking into consideration the nature of the charge herein and the experience of our police officials with the defendant together with all other relevant facts and circumstances, including but not limited to the somewhat desperate situation involving the temperment and personal characteristics of the defendant, the Court believes and does find that the shackling of the defendant at all times during trial is necessary to prevent violence and escape.

The court gave the defendant the option to have handcuffs or leg-irons. The court also stated that its ruling was effective for both the armed robbery trial and the trial on the escape charges.

The armed robbery trial proceeded and the jury found the defendant guilty.³ The second trial, for escaping from jail and rendering a jail less secure, also before a jury, commenced immediately after the first and again the defendant was found guilty. The defendant appealed his convictions in the state courts. Being denied relief, he sought habeas corpus in the court below.

We start our analysis with the due process clause of the fourteenth amendment. A principal ingredient of due process is that every criminal defendant is entitled to a fair and impartial trial. Massey v. Moore, 348 U.S. 105, 108, 75 S.Ct. 145, 99 L.Ed. 135 (1954). See Rochin v. California, 342 U.S. 165, 72 S.Ct. 205, 96 L.Ed. 183 (1952). In order for a defendant to receive a fair and impartial trial,

the principle that there is a presumption of innocence in favor of the accused is the undoubted law, axiomatic and elementary, and its enforcement lies at the foundation of the administration of our criminal law. Coffin v. United States, 156 U.S. 432, 453, 15 S.Ct. 394, 403, 39 L.Ed. 481 (1895).⁴

Thus it necessarily follows that a criminal defendant is generally entitled to the physical indicia of innocence. United States v. Samuel, 431 F.2d 610, 614 (4th Cir. 1970). As the Supreme Court of Colorado stated in Eaddy v. People, 115 Colo. 488, 492, 174 P.2d 717, 718-719 (1946).

the presumption of innocence requires the garb of innocence, and regardless of the ultimate outcome, or of the evidence awaiting presentation, every defendant is entitled to be brought before the court with the appearance, dignity, and self-respect of a free and innocent man. . . .

The case law dealing with the physical indicia of innocence, as it pertains to physical restraints during the criminal trial process, may be divided into distinct factual categories. Once the cases are classified, even though each grouping is factually diverse, certain principles emerge which pervade the entire body of law making comparisons and analogies particularly apt. Also the cases within each group cite as direct authority cases within another category which reveal many contradictions within and among the various classifications, and although the same general principles control the practical application of the general rule is quite different. For this reason a discussion of the different types of cases dealing with the garb of innocence helps in analyzing the case before us.

The first category of the "garb of innocence" cases includes those involving a defendant who stands trial in shackles.⁵ See, e. g., United States v. Kress, 451 F.2d 576 (9th Cir. 1971); United States v. Thompson, 432 F.2d 997 (4th Cir. 1970); United States v. Samuel, 431 F.2d 610 (4th Cir. 1970); Woodards v. Cardwell, 430 F.2d 978 (6th Cir. 1970); Loux v. United States, 389 F.2d 911 (9th Cir. 1968). The principle controlling this situation was stated by this Court in Woodards v. Cardwell, 430 F.2d 978, 982 (6th Cir. 1970).

The rule that a prisoner brought into court for trial is entitled to appear free from all bonds or shackles is an important component of a fair and impartial trial. And shackles should never be permitted except to prevent the escape of the accused, to protect everyone in the courtroom, and to maintain order during trial.

The historical development of the rule that a defendant should be unfettered while standing trial, except in extraordinary instances, has been traced from Virgil and the Bible through the Magna Charta and the great English legal scholars — Bracton, Coke and Blackstone — into our own jurisprudence. See Krauskopf, Physical Restraint of the Defendant in the Courtroom, 15 St. Louis U.L.J. 351 (1971). Although the original reasons underlying the English rule are not precisely clear,⁶ the American cases reveal four reasons why a defendant should not be shackled during his criminal trial. The most prevalent and important justification for the rule in this country is illustrated by and emanates from the early Missouri case of State v. Kring, 64 Mo. 591, 593 (1877), where the Missouri Supreme Court stated:

When the court allows a prisoner to be brought before a jury with his hands chained in irons, and refuses, on his application, or that of his counsel, to order their removal, the jury must necessarily conceive a prejudice against the accused, as being in the opinion of the judge a dangerous man, and one not to be trusted, even under the surveillance of officers.

The second reason underlying the rule was initially expressed in the first American shackling case, People v. Harrington, 42 Cal. 165, 168 (1871), where the California Supreme Court declared:

Should the Court refuse to allow a prisoner on trial for felony to manage and control, in person, his own defense, or refuse him the aid of counsel in the conduct of such defense, he would manifestly be deprived of a constitutional right, and a judgment against him on such trial should be reversed. In my opinion any order or action of the Court which, without evident necessity, imposes physical burdens, pains, and restraints upon a prisoner during the progress of his trial, inevitably tends to confuse

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