Young v. Callahan, 82-1722

• Decision Date: 16 February 1983
• Docket Number: No. 82-1722,82-1722
• Parties: David YOUNG, Jr., Petitioner, Appellant, v. William CALLAHAN, Respondent, Appellee.
• Court: U.S. Court of Appeals — First Circuit

Page 32

700 F.2d 32

David YOUNG, Jr., Petitioner, Appellant, v. William CALLAHAN, Respondent, Appellee.

No. 82-1722.

United States Court of Appeals, First Circuit.

Argued Jan. 5, 1983.

Decided Feb. 16, 1983.

Robert L. Sheketoff, with whom Kimberly Homan, Norman S. Zalkind, and Zalkind, Zalkind & Sheketoff, Boston, Mass., were on brief, for petitioner, appellant.

Michael B. Roitman, Asst. Atty. Gen., with whom Francis X. Bellotti, Atty. Gen., Boston, Mass., Stephen R. Delinsky, Chief, Criminal Bureau, Needham, Mass., and Barbara A.H. Smith, Chief, Criminal Appellate Division, Norwell, Mass., were on brief, for respondent, appellee.

Before COFFIN, Chief Judge, ALDRICH and BREYER, Circuit Judges.

COFFIN, Chief Judge.

Appellant David Young appeals the dismissal by the district court of his petition for habeas corpus. Of three grounds urged below as warranting habeas relief, only one is pressed on appeal: appellant contends that his Fourteenth Amendment right to due process was violated when, over objection and without inquiry into security needs, he was confined at trial to the prisoner's dock. ¹ In earlier cases we have either found resolution unnecessary or that ample justification was present. Here we must decide the question whether the dock without any particular justification can today pass constitutional muster. We conclude that it cannot.

I. Relevant Facts and Procedural History

In January of 1979 appellant was tried in Massachusetts Superior Court on one count of assault and battery with a dangerous weapon and two counts of murder. The jury returned a guilty verdict on the assault and battery indictment but was unable to reach a verdict on the two murder indictments. In a new trial in February of 1979, appellant was found guilty of second degree murder on both counts. ² Those convictions were affirmed by the Massachusetts Supreme Judicial Court in Commonwealth v. Young, (1981) 382 Mass. 448, 416 N.E.2d 944 (1981).

Prior to appellant's second trial, counsel moved that he be allowed to sit at counsel table rather than in the prisoner's dock on the grounds that "forcing him to sit in the prisoner's dock would deprive him of his constitutional rights to a fair trial, to the presumption of innocence, to access to counsel, non-suggestive eyewitness identifications, and due process of law." That motion was accompanied by an affidavit from appellant's trial counsel averring, based on his own observations and those of correctional officers during appellant's two years of incarceration and on appellant's conduct at the first trial, that "allowing [appellant] to sit at counsel table will not present any hazards to the orderly judicial process or to the security of its personnel", and that the trial of the case would involve a substantial amount of testimony concerning acts and conduct of the appellant over a several day period and would thus "require consultation with the defendant." Massachusetts law at the time of appellant's trial placed "it ... within the judge's sound discretion whether to grant a defendant's request to sit at counsel table or elsewhere", Commonwealth v. Moore, 379 Mass. 106, 109, 393 N.E.2d 904 (1979). In this case the trial court denied appellant's motion without allowing counsel to be heard, in the following colloquy:

"Counsel: I have a motion, your Honor, for the defendant to sit at counsel table. It's a recent one. I had one before and I have a recent one.

The Court: That is all right. That is denied.

Counsel: Denied you said, your Honor?

The Court: Yes.

Counsel: May I be heard?

The Court: Look. We do it routinely. At some time the Supreme Court may tell us different. I know the arguments, pros and cons, having heard them. Until the Supreme Court tells me no we are going to follow--

Counsel: I take my exception. And I also just mention for the record so I will be protected later on because I have gotten an extremely favorable opinion on this from Justice Caffrey on the Walker case, and I just wanted to make it clear on the record that I consider this a Constitutional question."

II. Prior Case Law

In Walker v. Butterworth, 457 F.Supp. 1233, 1239 (D.Mass.1978), referred to by counsel in the colloquy above, the court, while finding that "the prisoner's dock is an anachronism in a modern trial which could have been abandoned years ago", concluded that it "is not unconstitutional per se" and that, in that case, it had "neither diluted [petitioner's] presumption of innocence nor denied him a fair and impartial trial." On appeal, finding other grounds which compelled us to grant appellant's petition, we did not reach the question of whether that appellant's confinement to the prisoner's dock was harmful error.

We noted, however, that, like the compelled attire in prison garb held unconstitutional in Estelle v. Williams, 425 U.S. 501, 96 S.Ct. 1691, 48 L.Ed.2d 126 (1976), confinement of the accused to a prisoner's dock may erode the jury's presumption of the accused's innocence.

"The practice of isolating the accused in a four foot high box very well may affect a juror's objectivity. Confinement in a prisoner dock focuses attention on the accused and may create the impression that he is somehow different or dangerous. By treating the accused in this distinctive manner, a juror may be influenced throughout the trial. The impression created may well erode the presumption of innocence that every person is to enjoy." Walker v. Butterworth, 599 F.2d 1074, 1080 (1st Cir.1979).

Discounting the state interests attributed to use of a prisoner's dock--"identification of the accused person to the jury: minimizing the danger of harm to the public court, and jury; and encouraging maintenance of courtroom order"--as achievable in less prejudicial ways, two members of the panel commented by way of dictum:

"The right of a fair trial is simply too delicate and valuable to be impeded by an anachronistic practice. Because confinement in the prisoner dock is unnecessary to accomplish any important state interest, and may well dilute the presumption of innocence, the Massachusetts prisoner dock must be considered, as a general matter, to be an unconstitutional practice." Id. at 1081.

Noting our commentary in Walker v. Butterworth but reasoning that "the dock has served and may continue to serve a valid function in those cases where some form of restraint is necessary to prevent escape or to protect others in the court room", the Supreme Judicial Court announced a new rule ³ in Commonwealth v. Moore, 379 Mass. 106, 111, 393 N.E.2d 904 (1979):

"For the future, we think that a judge confronted with a request that the defendant be permitted to sit at counsel table should not deny the request unless he follows the 'more circumspect procedure' we have prescribed for unusual security measures. See Commonwealth v. Brown, 364 Mass. 471, 478-80 (1973). In particular, the reasons for the denial should be stated on the record. But where inquiry reveals that some security measures are necessary, and that the dock is the least restrictive measure available, we think its use is proper."

Finding no error or, if error, no prejudice in defendant's confinement to the dock, the court noted that "the defendant did not sharply raise a constitutional objection", that "the [trial] judge was concerned with security", and that "the judge gave timely and forceful instructions to the jury to draw no inference from the fact that the defendant was in the dock, explaining that it was only a matter of custom." Id. at 111.

In Bumpus v. Gunter, 635 F.2d 907 (1st Cir.1980), we once again reviewed the claim of a habeas corpus petitioner that confinement to the prisoner's dock violated his constitutional right to a fair trial. Because the trial judge had stated "specific and supported security reasons" for the use of the dock, we found no constitutional violation:

"Even assuming without deciding that there is a constitutional right in ordinary circumstances not to be required, over objection, to sit in such an enclosure, the security considerations existing in the present trial sufficiently justified the requirement." Id. at 914-15.

We further expressed the opinion that "[t]he concerns over the use of the dock expressed by this court in Walker v. Butterworth would appear to be satisfied by the policy announced in Commonwealth v. Moore", and speculated, with some lack of prescience, that "in the unlikely event the issue of constitutionality ever again arises in a particular case, it will have to be resolved in light of all the facts in that case, not in terms of a per se rule." Id. at 914, 914 n.2 (citation omitted).

III. The Use of the Prisoner's Dock in this Case

Unlike in Bumpus or in Moore, there is no evidence here that the trial court was concerned over security. Defense counsel's affidavit, making reference to appellant's behavior during two years of incarceration and at his first trial, alleged that "allowing [appellant] to sit at counsel table will not present any hazards to the orderly judicial process or to the security of its personnel." The trial court made no further inquiry into the matter and nothing in the record contradicts counsel's affidavit. Unlike the defendant in Moore, appellant here made a clear constitutional objection after having raised the constitutional issue in a pre-trial motion.

In once again evaluating for constitutional error the confinement of an accused to the prisoner's box, ⁴ we reiterate, see Walker v. Butterworth, supra, 599 F.2d at 1080, that such confinement, like appearance in prison attire, is a "constant reminder of the accused's condition" which "may affect a juror's judgment", eroding the presumption of innocence which the accused is due. Estelle v. Williams, 425 U.S. 501, 504-05, 96 S.Ct. 1691, 1693-94, 48 L.Ed.2d 126 (1976). In finding unconstitutional the compelled appearance in prison garb of the accused, the Court in Estelle noted that the American Bar Association's...