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7th Circuit: Shackling during trial didn’t undermine right to present complete defense

Richard Shirley v. Lizzie Tegels, 7th Circuit Court of Appeals No. 18-1713, 3/8/23

Shirley was shackled while he testified at his jury trial for 1st degree reckless homicide. In this federal habeas appeal, he argued that the shackling violated his constitutional right to present a complete defense. The 7th Circuit denied relief because no SCOTUS case clearly establishes that shackling a defendant while he is testifying violates that right.

As the 7th Circuit repeatedly notes, the record doesn’t say why Shirley was shackled. Apparently, it was due to some  “really bad policy at the sheriff’s department.” A cloth was draped over both counsel tables, but during voir dire one juror saw the shackles.

However, this appeal does not involve the expected issue: whether his shackling during trial undermined his presumption of innocence. Shirley procedurally defaulted that issue.  According to the court of appeals the sole issue was whether the shackles undermined his right to present a complete defense by, for example, preventing him from leaving the stand, pointing out exhibits, and providing demonstrations as other the other witnesses did.

The 7th Circuit agreed with Shirley that SCOTUS has clearly established that a defendant has a constitutional right to present a complete defense. See e.g. Chambers v. Mississippi, 410 U.S. 284, 294 (1973); Crane v. Kentucky, 476 U.S. 683, 690 (1986); Rock v. Arkansas, 483 U.S. 44, 52 (1987); United States v. Scheffer, 523 U.S. 303, 308 (1998); Holmes v. South Carolina, 547 U.S. 319, 324 (2006);  Deck v. Missouri, 544 U.S. 622 (2005).

The problem, however, is that “[n]o Supreme Court precedent has squarely addressed whether placing a criminal defendant in hidden physical restraints unconstitutionally inhibits that defendant’s ability to present a complete defense at trial.”

Shirley pointed to Deck where SCOTUS held that the constitution prohibits the use of shackles during the penalty phases of a criminal trial, just as it does during the guilt phase. SCOTUS reasoned that during the guilt phase visible shackles could interfere with the defendant’s ability to participate in his own defense by choosing to take the witness stand or communicating with his lawyer. Deck, at 631-632.

According to the 7th Circuit, this observation was “a reason” for SCOTUS’s decision in Deck, not an independent rule governing shackling in general. Thus it does not constitute “clearly established federal law” under § 2254(d)(1).

Judge Hamilton filed a concurring option. He agreed that the 7th Circuit could not extend Deck to the facts of Shirley’s case. However he was troubled by the sheriff’s office policy of routinely shackling defendants. (This case arose in Milwaukee so presumably he’s referring to the Milwaukee County Sheriff). Hamilton said:

Shackles can be justified in individual cases, but such routine use of shackles is an invitation for reversible error. Deck v. Missouri, 544 U.S. 622, 626-29 (2005)United States v. Henderson, 915 F.3d 1127, 1133-41 (7th Cir. 2019) (Hamilton, J., dissenting from denial of supervisory writ of mandamus to block routine use of full restraints on all detained defendants in pretrial hearings in federal district court); Woods v. Thieret, 5 F.3d 244, 248 (7th Cir. 1993) (emphasizing judge’s personal responsibility for deciding independently about restraints during trials).

He also cautioned trial courts. They need to prevent the jury from both seeing and hearing shackles. They make a recognizable clinking sound. Shirley says he was distracted while testifying because he had to hold still to avoid making his shackles clink.

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