Fill and Sign the Donald V Cook County Sheriff Departmentfindlaw Form

IN THE CIRCUIT COURT OF ________ COUNTY, __________ NAME OF PLAINTIFF ) ) ) V. ) ) NO. ) ) NAME OF DEFENDANT ) ) ) MOTION TO PRECLUDE THE SHERIFF'S DEPARTMENT FROM BRINGING _________________ INTO COURT IN SHACKLES, AND TO LIMIT THE NUMBER OF UNIFORMED OFFICERS IN THE COURTROOM COMES NOW, __________________, by counsel, and moves this Court, pursuant to the Fourth, Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution, and Article ___, Sections _______ of the __________ Constitution, to preclude the Sheriff's Department from bringing _________________ into Court in shackles, and to limit the number of uniformed officers in the courtroom during trial. In support of his notice, ________________ states as follows: 1. Because it impinges on the right to a fair trial, the courts will reverse if t he jury is exposed to any vestige of the accused's incarceration--shackles, handcuffs or other manacle s. There are basically two rationales for the "common-law right of a person being tried . . . to be free of all manner of shackles or bonds . . . when in court in the presence of the jury." Rush v. State, 301 So.2d 297, 300 (Miss. 1974). Indeed, the law regarding the shackling of defendants was recently explored by the Eleventh Circuit in Elledge v. Dugger, 823 F.2d 1439 (11th Cir. 1987), rehearing denied with opinion, 833 F.2d 250 (1987): -2- Initially, the prejudice perceived when a defendant is seen in shackles by the jury involves the presumption of innocence. The issue has generally arisen in the context of a determination of guilt or innocence. Courts focus on the prejudicial impact restraints have on the defendant's presumption of innocence. Id., 823 F.2d at 1450 (citing Allen v. Montgomery, 728 F.2d 1409, 1413 (11th Cir. 1984)); Collins v. State, 164 Ga.App. 482, 297 S.E.2d 503, 505 (1982); State v. Tolley, 290 N.C. 349, 226 S.E.2d 353, 367 (1976). 2. Even after the defendant stands as a convicted felon--and the presumption of innocence deserts him--"a jury might view the shackles as first-hand evidence of future dangerousness and uncontrollable behavior, which if unmanageable in the courtroom may also be unmanageable in prison, leaving death as a proper decision." Elledge, 823 F.2d at 1450. The accused has the right to be tried without the obvious trappings of dangerous criminality. Just as it would be wholly unacceptable for the judge to voice his personal opinion that the defendant is a dangerous "animal", so this perception may not be given by the extensive and obvious security measures of the sheriff's department. The Supreme Court has held that the courts must be exceedingly careful before the accused is placed in shackles: -3- The Supreme Court has characterized shackling as an "inherently prejudicial practice." Holbrook v. Flynn, 475 U.S. 560, 106 S. Ct. 1340, 1345, 89 L. Ed. 2d 525, 534 (1986). "Not only is it possible that the sight of shackles and gags might have a significant effect on the jury's feelings about the defendant, but the use of the technique is itself something of an affront to the very dignity and decorum of judicial proceedings that the judge is seeking to uphold." Illinois v. Allen, 397 U.S. 337, 344, 90 S.Ct. 1057, 1061, 25 L.Ed.2d 353 (1970). When shackling occurs, it must be subjected to "close judicial scrutiny. . . ." Estelle v. Williams, 425 U.S. 501, 503-04, 96 S. Ct. 1691, 1692-93, 48 L. Ed. 2d 126 (1976). Elledge, 823 F.2d at 1451 (footnote omitted) (citing Woodard v. Perrin, 692 F.2d 220, 221 (1st Cir. 1982); Hardin v. Estelle, 365 F.Supp. 39, 47 (D.Tex.) aff'd on other grounds, 484 F.2d 944 (5th Cir. 1973)).3. Equally--and for similar reasons--it is highly prejudicial for the courtroom to be packed with police officers. In Dennis v. Dees, 278 F.Supp. 354 (E.D. La. 1968), a federal habeas corpus action brought after the defendant had been convicted in state court of murdering a fellow inmate at the Louisiana State Penitentiary, there were guards armed with shotguns and automatic weapons stationed throughout the courtroom. The trial judge sought to excuse the use of obviously excessive force by stating that it merely reflected the policy of the local Sheriff's office. The reviewing court rejected that excuse as insufficient to justify the show of force in the courtroom, since the trial judge had effectively -4- abdicated his role as the guardian of the defendant's rights. Id. at 358. The Eleventh Circuit likewise recently granted habeas relief on such a claim in Woods v. Dugger, 923 F.2d 1454 (11th Cir. 1991).4. As the Supreme Court of West Virginia has stated: "Mere reliance on `policy' or judgement of local law enforcement officials is not sufficient justification. The discretion is in the court's name and must be exercised, not delegated." State v. Peacher, 280 S.E. 2d 559, 573 (W.Va. 1981); see also State v. Peacher, 280 S.E. 2d 559, 572, 574 (W. Va. 1981) (citations omit- ted) (holding that the trial court should have held an evidentiary hearing on the reasonableness of extra security precautions before allowing a plainclothes deputy sheriff who was alleged to have had contact with the jury sit within the bar of the court fifteen feet behind the defendant.) Even where there is a bona fide need for additional security the courts have held that the trial courts should explore the least restrictive alternative: Once it has been determined that special security precautions are called for, the least drastic and conspicuous measures reasonably available that will meet the particular need' should be employed. It is well settled that unusual physical restraints should be employed only as a last resort. Commonwealth v. DeVasto, 387 N.E.2d 1169, 1172 (Mass.App. 1979) (quoting Commonwealth v. Brown, 364 Mass. 471, 476, 305 -5- N.E.2d 830 (1973)); accord Commonwealth v. Agiasottelis, 336 Mass. 12, 16, 142 N.E.2d 386 (1957); Hall v. State, 199 Ind. 592, 159 N.E. 420 (1928) ("[i]n the modern court-room, as little show of arms must be made as possible and ordinarily the necessary re- straint can be accomplished by placing ununiformed guards near the prisoner" (emphasis supplied)); Eaddy v. People, 115 Colo. 488, 492, 174 P.2d 717, 718-719 (1946); Anthony v. State, 521 P.2d 486, 496 (Alaska 1974); Dorman v. United States, 140 U.S. App. D.C. 313, 325-326, 435 F.2d 385, 397-398 (1970); Kennedy v. Cardwell, 487 F.2d 101, 108-09 (6th Cir. 1973). 5. It is nothing new to say that an "extraneous influence" from the audience of a capital trial should not be allowed to influence the jury. See Fuselier v. State, 468 So.2d 45, 53 (Miss. 1985). If it is necessary, the trial court may take whatever steps required to purge the courtroom of potential taint, even to the extent of excluding members of the audience. Of course, no such drastic remedy was either requested or required here -- simply that the jury not be intimidated by ranks of armed, uniformed officers in the courtroom where __________________ stands accused of the death of his child. WHEREFORE, _______________ moves that his motion be granted. -6- Respectfully submitted, ________________________________ Attorney for Defendant CERTIFICATE I, _______________, do hereby certify that I have on this day delivered, by hand, a true and correct copy of the foregoing Motion to This _____ day of __________ _____. Respectfully submitted,_____________________________