Commonwealth v. Conley

LAMBERT, Justice,

dissenting.

Requiring a defendant to stand trial wearing leg irons in full view of the jury eviscerates the presumption of innocence. Leg irons amount to an official declaration that the person so restrained is an immediate danger who must be subdued to prevent harm to the public. While courts are entitled to impose restraint upon persons in custody as may be necessary to assure their good behavior and prevent their flight, the means employed must be the least restrictive and the least prejudicial to the defendant’s rights, and particularly his right to be presumed innocent.

The record does not reflect any trial court consideration of merely procuring additional *80 law enforcement officers to prevent flight. The record is also without any indication that appellant represented a security risk otherwise. Prior to employing the extreme means of shackles, it was incumbent upon the trial court to duly consider whether a less restrictive and prejudicial means would have been sufficient.

The practices of requiring a defendant to appear shackled or dressed in prison garb before the jury have been held to be “inherently prejudicial practices” which have been closely scrutinized by the U.S. Supreme Court. Holbrook v. Flynn, 475 U.S. 560, 568 , 106 S.Ct. 1340, 1345 , 89 L.Ed.2d 525 (1986). The use of extra guards to ensure safety and reduce the risk of flight at a proceeding has been held to be less prejudicial than shackling or forcing the defendant to wear prison garb: “[wjhile shackling and prison clothes are unmistakable indications of the need to separate a defendant from the community at large, the presence of guards at a defendant’s trial need not be interpreted as a sign that he is particularly dangerous or culpable.” Id., at 569 , 106 S.Ct. at 1346 .

In Illinois v. Allen, 397 U.S. 337, 344 , 90 S.Ct. 1057, 1061 , 25 L.Ed.2d 353 (1970) the Court stated “even to contemplate such a technique, much less see it, arouses a feeling that no person should be tried while shackled except as a last resort.” The Court then went on to comment on the effect of forcing defendants to wear shackles has on the dignity of the court system: “[n]ot 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 this technique is itself something of an affront to the very dignity and decorum of judicial proceedings that the judge is seeking to uphold.” Id.

Kentucky courts have also held that requiring a defendant to be shackled is a practice which should only be used when absolutely necessary. For example, where the Court found a defendant to be a man of “demonstrated desperation” (he had been convicted of murder and given a life sentence, and while in jail he had obtained a gun and attempted to escape after murdering an associate warden) the use of shackles was permissible: “this appears to have been an exceptional case ... [b]ut again we say that ordinarily this practice should not be followed and usually it would be condemned by this court.” Tunget v. Commonwealth, 303 Ky. 834 , 198 S.W.2d 785 (1947) cert. den. 331 U.S. 833 , 67 S.Ct. 1514 , 91 L.Ed. 1847 . In Williams v. Commonwealth, Ky., 474 S.W.2d 381, 383 (1971) we stated that “the general rule [is] that a defendant should not be handcuffed or manacled during a criminal trial in the absence of a necessity for such restraint. The cases cited also point out that the trial court is vested with discretion in determining whether a defendant’s substantial rights have been violated, even in cases of unwarranted shackling.”

These authorities convince me that the trial court abused its discretion resulting in prejudicial error.

STEPHENS, C.J., and STUMBO, J., join this dissenting opinion.