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Lovell v. State11/12/1997
averse to killing other human beings and then fleeing. That is why the most lenient punishment they were entitled to mete out was life imprisonment.
In this setting, I expect that the average juror would be at least incredulous, if not truly fearful, to see such a person sitting just a few feet away without some form of visible restraint. No appellate panel, to the best of my knowledge, has been unrealistic enough to profess that such defendants should appear in court for capital sentencing proceedings without appropriate security. Is it less prejudicial for the jury to see the defendant surrounded by a phalanx of armed sheriffs watching his or her every move than to see the defendant mechanically restrained?
The general prevailing view is that a trial judge has discretion with respect to whether and how a defendant is restrained in court. In a trial as to guilt or innocence, that discretion must be exercised in favor of not mechanically restraining the defendant by leg irons, hand cuffs, or other such devices unless a compelling reason exists in that case to do otherwise. At a capital sentencing proceeding, however, it seems to me that the bent can, quite permissibly, be the other way. Subject to three conditions, all of which are at least implicit in what we said in Hunt and confirmed in Whittlesey, it seems to me that if the judge has any reasonable concern as to whether the mere presence of guards in the courtroom will suffice to maintain order and security, mechanical restraints may properly be employed without the court first engaging in and recounting on the record an exhaustive analysis of the defendant's social, psychiatric, or criminal history in some unscientific, seat-of-the pants effort to predict whether the defendant is likely to cause a breach of security or order.
It is one thing to require the court to articulate its reasons for requiring shackles, so that we, and the public, can be assured that the decision was not made capriciously and that the judge gave fair consideration to the interests of all concerned -- the defendant, the jurors, court personnel, and those charged with safeguarding the defendant and providing courtroom security. There is no fixed, magic matrix, however. Defendants will have different histories and backgrounds, but underlying them all can be a legitimate general concern that a defendant facing the dismal prospect of life imprisonment, at best, and death or life without parole at worst may well try to flee, if given the opportunity. We said exactly that in Hunt, and it has been known to happen; it is not a conjured-up flight of fancy. Alone or with help, dangerous criminals have escaped from courtrooms, sometimes taking (and killing) hostages in the process. If, by setting too strict a standard, we tie the hands of the judge, rather than those of the defendant, we set the scene for just such a tragedy.
I do not suggest a carte blanche open-ended discretion but would simply follow what we have already declared: that (1) the defendant be afforded a fair opportunity, outside the presence of the jury, to challenge the request that he or she be restrained, (2) the restraints ultimately required be reasonable ones, not exceeding what is necessary, and that efforts be made to render them as innocuous as practicable, and (3) either through voir dire or clear instructions, or both, the jury be informed that the restraint is a customary procedure and is not to influence their decision with respect to an appropriate sentence. I believe that those conditions were met in this case.
Judge Chasanow has authorized me to state that he joins in this concurring opinion.
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