Spain v. Rushen

• Decision Date: 14 March 1988
• Docket Number: No. 86-2687,86-2687
• Citation: 883 F.2d 712
• Parties: Johnny SPAIN, Petitioner-Appellee, v. Ruth L. RUSHEN, Director, California Department of Corrections, Respondent-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 712

883 F.2d 712

Johnny SPAIN, Petitioner-Appellee, v. Ruth L. RUSHEN, Director, California Department of Corrections, Respondent-Appellant.

No. 86-2687.

United States Court of Appeals Ninth Circuit.

Argued and Submitted March 14, 1988.

Withdrawn from Submission Nov. 18, 1988.

Resubmitted Dec. 22, 1988.

Decided Aug. 22, 1989.

Ronald E. Niver and John H. Sugiyama, San Francisco, Cal., for respondent-appellant.

Dennis Riordan, Riordan & Rosenthal, San Francisco, Cal., for petitioner-appellee.

Appeal from the United States District Court for the Northern District of California.

Before HALL, KOZINSKI and NOONAN, Circuit Judges.

CYNTHIA HOLCOMB HALL, Circuit Judge:

Ruth Rushen, Director of the California Department of Corrections, appeals from the district court's grant of a writ of habeas corpus to Johnny Spain. Rushen contends that the district court erred in determining that the state trial court violated Spain's constitutional rights by shackling Spain during his criminal trial. We affirm.

I

In 1971, Johnny Spain was imprisoned in San Quentin Prison and was a member of the Black Panther Party. ¹ Spain was serving On August 21, 1971, there was an outburst of deadly violence at the Adjustment Center. George Jackson, also a member of the Black Panther Party, returned to the Adjustment Center after meeting with his lawyer, Stephen Bingham. When guards found a bullet clip on Jackson, Jackson removed a gun from under his wig and forced one of the guards present to open the cells of other prisoners. Many of the prisoners, including Spain, emerged from their cells. There was testimony that Spain played a role in binding guards and placing them in the cells where they subsequently were assaulted. He was seen approaching the guards with an earphone cord in his hands. The cord was of the type used to bind the guards. There also was testimony that at one point he held Jackson's gun, which was used to murder two of the guards.

a life sentence for a 1967 conviction for first degree murder. In May of 1971, Spain was transferred to the Adjustment Center at San Quentin, a three-story structure primarily used to segregate and discipline disruptive prisoners.

When an alarm was sounded, Jackson and Spain fled from the Adjustment Center, Jackson with a gun in his hand and Spain with some keys. Jackson was shot by guards and was killed instantly. Spain dove into some bushes where he was found hiding. When order was restored the aftermath of the violence was revealed: one officer had bled to death from a neck wound; two had been shot to death in the head; three others had their throats slashed, but survived; and two prisoners died of similar wounds. The Director of Corrections called the incident the worst in her eight years as Director.

Officials found a number of weapons and knives in their subsequent search. In Spain's back pocket, officials found a six inch long vial wrapped in tape, which Spain identified as an explosive. A search of Spain's cell revealed a road map with an escape route and, hidden inside bars of soap, thirteen rounds of .38 caliber ammunition, four .410 gauge shotgun shells, and one .22 caliber magnum shell.

Spain was charged with five murder counts, one conspiracy count, and one assault count. The prosecution attempted to show that the Black Panther Party had organized the escape attempt and that Spain was linked to the conspiracy by his membership in the Black Panthers. Spain did not testify; his defense was that he could not recall anything from the time his cell door opened to the time he ended up outside the Adjustment Center.

In a trial with five other prisoners, Spain was found guilty of two counts of first degree murder and of conspiracy to escape by force or violence; he was acquitted of the other four counts. In the courtroom during the trial, Spain was shackled. He wore leg irons, a waist chain to which each of his hands was bound by individual chains about eight inches long, and chains that apparently held him to his chair. ² Spain, already serving a life term for murder On June 29, 1982, the District Court for the Northern District of California issued Spain a writ of habeas corpus because it determined that Spain's constitutional rights were violated by ex parte communications between the trial judge and a juror. Spain v. Rushen, 543 F.Supp. 757 (N.D.Cal.1982), aff'd mem., 701 F.2d 186 (9th Cir.), vacated, 464 U.S. 114, 104 S.Ct. 453, 78 L.Ed.2d 267 (1983). Although a challenge to the constitutionality of Spain's shackling was raised in his habeas petition, the district court did not reach that issue. We affirmed the district court in an unpublished decision. 701 F.2d 186. The Supreme Court reversed and vacated the judgment, 464 U.S. 114, 104 S.Ct. 453, 78 L.Ed.2d 267 and noted that Spain's argument that his constitutional rights were violated when he was shackled was to be resolved on remand, id. at 117 n. 1, 104 S.Ct. at 455 n. 1. On remand, the district court referred the case to a magistrate for an evidentiary hearing to determine the effect Spain's shackling during the trial had on his ability to cooperate with his trial attorney and to testify in his own defense. The magistrate made the following findings of fact:

was sentenced to another term of life imprisonment in 1976.

1. Petitioner's shackling at trial aggravated his existing medical and psychological problems, and pained and preoccupied him during that time.

2. Petitioner's shackling interfered with his ability to communicate with his trial counsel and to participate in the preparation of his own defense.

3. Petitioner's shackling impeded his ability to testify on his own behalf.

Evidentiary Report at 6-7, Spain v. Rushen, No. C-81-4858 TEH (JSB) (N.D.Cal. Oct. 9, 1985) [hereinafter Evidentiary Report]. The district court virtually adopted these findings, ³ Spain v. Rushen, No. C-81-4858 TEH, at 5 (N.D.Cal. Sept. 22, 1986), determined that Spain's due process

                right to a fair trial was violated by being shackled at trial, and issued a second writ of habeas corpus. 4   From this writ, Rushen appeals
                

II

We review de novo the district court's decision to grant a petition for writ of habeas corpus. Carter v. McCarthy, 806 F.2d 1373, 1375 (9th Cir.1986), cert. denied, 484 U.S. 870, 108 S.Ct. 198, 98 L.Ed.2d 149 (1987).

A

Generally, a criminal defendant has a constitutional right to appear before a jury free of shackles. See Wilson v. McCarthy, 770 F.2d 1482, 1484 (9th Cir.1985). However, a trial judge's decision to shackle a defendant is not per se unconstitutional. Stewart v. Corbin, 850 F.2d 492, 497 (9th Cir.1988), cert. denied, --- U.S. ----, 109 S.Ct. 1737, 104 L.Ed.2d 175 (1989). "The trial court has discretion to use shackles or other security measures when circumstances dictate." Wilson, 770 F.2d at 1484. Thus, we review for an abuse of discretion a trial judge's decision to shackle a defendant. Stewart, 850 F.2d

at 497-98; Wilson, 770 F.2d at 1485. ⁵

B

As mentioned, the district court below adopted the magistrate's factual findings. Before we can determine whether the trial court abused its discretion, we must first examine these findings, which are reviewed for clear error. Fed.R.Civ.P. 52(a).

Rule 52(a) provides: "Findings of fact ... shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses." Because in this case the findings in large measure depend on credibility determinations, we must accord particularly wide-ranging latitude, or "special deference," to the district court. See Anderson v. Bessemer City, 470 U.S. 564, 574, 575, 105 S.Ct. 1504, 1511, 1512, 84 L.Ed.2d 518 (1984).

In Anderson, the Court sent a clear message to the courts of appeals warning us not to "reverse the finding of the trier of fact simply because [we are] convinced that [we] would have decided the case differently." Id. at 573, 105 S.Ct. at 1511. This is a principle we "must constantly have in mind." Id. (quoting Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U.S. 100, 123, 89 S.Ct. 1562, 1576, 23 L.Ed.2d 129 (1969)). And

when a trial judge's finding is based on his decision to credit the testimony of one of two or more witnesses, each of whom has told a coherent and facially plausible story that is not contradicted by extrinsic evidence, that finding, if not internally inconsistent, can virtually never be clear error.

Id. 470 U.S. at 575, 105 S.Ct. at 1512.

We believe that the emphatic sentiments expressed in Anderson command us to accept the district court's findings. The magistrate considered medical reports, which included Spain's medical history and his prison medical records, and the live testimony of Spain, Charles R. Garry (Spain's counsel), and two experts in psychology. In considering the live testimony, the magistrate did not accept each witness's account uncritically. Compare Henson v. CIR, 835 F.2d 850 (11th Cir.1988). She properly discounted the weight of the witnesses' testimony as appropriate.

Spain called Dr. Delman, a psychologist, and the state called Dr. Sutton, a psychiatrist, in an attempt to reconstruct Spain's state of mind during the trial. The magistrate provided the following background:

Dr. Delman ... has seen Spain four times in the last couple of years, each interview spanning 2-3 hours. Delman did not interview anyone other than Spain, his friends, and supporters. Although Delman did review Spain's prison psychiatric file, Delman did not speak to any correctional officers, prison officials, or persons involved in Spain's prosecution. Delman's opinion was that "Spain was so depressed and pessimistic and beaten by the chains, that I don't believe he was capable of cooperating [in his defense] in a reasonable way."

Dr. Sutton [is] a staff psychiatrist at San Quentin.... Sutton examined Spain before and at the time of trial. She testified that she saw Spain on "several...