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Plea-Withdrawal, Post-sentencing – Procedure – Shackled, Deaf Defendant: Must Show Actual Interference with Effective Signing

State v. Jeremy D. Russ, 2006 WI App 9
For Russ: Martha K. Askins, SPD, Madison Appellate

Issue/Holding: A deaf defendant who had been shackled when he entered a guilty plea and was sentenced must show actual inability to communicate effectively in order to meet his burden of showing a violation of rights. Thus, even though the defendant adduced expert proof at the postconviction hearing “that communication would be limited and difficult if a deaf person who used sign language were handcuffed,” he did not meet his burden of proof:

¶10      As the trial court observed, the expert’s testimony—the only evidence presented at the postconviction hearing—was purely theoretical. It established that Russ could have had a very difficult time communicating information to others in the courtroom. Russ, however, must prove that he was actually prevented from effectively communicating. Russ presented no evidence that the shackles hindered him from imparting any particular piece of information or from directing questions to anybody in the courtroom. Neither his trial counsel nor the interpreters took the stand to attest to their inability at any point during sentencing to understand Russ; nor did Russ give any testimony of his own. Moreover, despite the court’s invitation to let it know if the restraints prevented Russ from communicating adequately, Russ never notified the court of any such difficulty either personally or through counsel.

Deck v. Missouri, 125 S. Ct. 2005 (2005) distinguished, ¶11: that decision “was primarily concerned with the prejudicial effect of shackles” on a jury; Court’s observation that shackles could interfere with right to communicate with counsel deemed mere “observation” in nature of dicta, ¶11. A one-judge concurrence (¶¶18-23) makes some useful points about what factors ought to inform the discretionary determination of shackling, something the concurrence says should be “saved only for extraordinary cases.” For succinct analysis of Deck, see Lakin v. Stine, 431 F.3d 959 (6th Cir 2005).

The result applies to sentencing as well as plea-withdrawal, ¶6 (” A common theme he raises on all three grounds is the fact that he was handcuffed at the plea hearing and sentencing”).


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