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Juror’s glimpse of defendant chained to others wearing jail garb doesn’t warrant new trial

State v. Anthony Colon, 2016AP1071-CR, 2/7/17, District 1 (1-judge opinion; ineligible for publication); case activity (including briefs)

Colon was on trial for 2 felonies and 3 misdemeanors. During a break in deliberations, the bailiff happened to be transporting Colon to the court room. Colon was wearing street clothes, but he was chained to other defendants who were wearing orange jail garb. Upon learning that some of Colon’s jurors may have seen him that way, defense counsel asked the judge to question the jury, but he did not move for a mistrial.

When asked if they had seen Colon outside the courtroom earlier that day, only one juror replied “yes.” He said he saw “some gentlemen coming out of the elevator.” The judge asked “anything else that you saw?” The juror did not give an audible response.  Slip op. ¶19. However, he did say that he did not believe that anything he saw “could prejudice or bias him in this case.” The judge did not ask the juror what Colon was wearing, who he was with, or what he was doing. Based on this evidence the judge found: “there’s no evidence that [the juror] saw anybody being led around by a deputy in chains.”  ¶23.

On appeal Colon argued that (1) he was denied a fair trial because a juror saw him shackled to several defendants who were wearing jail garb, and (2) he was denied effective assistance of counsel because his trial lawyer failed to move for a mistrial.

Ineffective assistance. The court of appeals held because no juror saw Colon chained to defendants wearing jail garb, counsel did not perform deficiently in failing to request a mistrial. Slip op. ¶33. Furthermore, Colon wasn’t prejudiced because the juror said that nothing he saw would prejudice his opinion in the case, and because the jury unanimously acquitted Colon of the two felony (i.e. most serious) charges.

Fair trial.  The court of appeals acknowledged that requiring a defendant to appear at trial in identifiable prison clothing or handcuffs and shackles undermines his presumption of innocence. See Estelle v. Williams, 425 U.S. 501, 512 (1976). It held, however, that this rule does not apply when a juror sees a defendant shackled “outside the courtroom.” Citing State v. Cassel, 48 Wis. 2d 619, 624, 180 N.W.2d 607 (1970), the court explained:

¶39 . . . [Cassel] held that whether a detainee outside a courtroom should be transported in chains and handcuffs is a matter for the sheriff or police because the custodian is responsible for the detainee’s safekeeping and safe transportation . . . The court reasoned that jurors “normally expect” a prisoner to be under some restraints in a situation where he would be able to escape and seeing a prisoner in chains or handcuffs may generate some sympathy. The court further noted that the observations by some jurors were “casual, momentary and inadvertent.” Id.

The court of appeals’ “inside versus outside” the courtroom distinction is not quite accurate.  Lopez v. Thurmer, 573 F.3d 484 (7th Cir. 2009) explains where the line is. Under Estelle, a trial court cannot require a defendant to be tried in prison clothes. Under Illinois v. Allen, 397 U.S. 337 (1970) and  Holbrook v. Flynn, 475 U.S. 560 (1986), a trial court cannot allow a defendant to appear at trial in restraints like handcuffs or shackles without first balancing the need for additional security against the risk that it will prejudice the defendant in the eyes of the jury. Lopez at 491. This rule applies to trial “proceedings” both inside and outside the courtroom. An example of a proceeding outside the courtroom is a jury view of the crime scene.  Id.  However, per Cassel, this rule apparently does not apply where the defendant is simply being transported to and from the courtroom.

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