Judge Rita B. Garman on Criminal Justice

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People v. Allen (2006)

• Justice Garman concurred in the majority opinion, written by Justice Lloyd A. Karmeier, over the vigorous and lenghty dissent of Justice Charles E. Freeman (in which justice Thomas L. Kilbride and Justice McMorrow joined), which concluded amongst other things, that although a judge cannnot defer to a sheriff's department in allowing all criminal defendants to be wired with electronic stun belts, and although stun belts are only warranted where a manifest need is shown, the wiring criminal defendants with electronic stun belts during their trials did not, on its own, violate the defendants due process rights, or rights to a fair trial.

ISSUES:

The court confronted two issues:

• (1) whether wiring a criminal defendant with an electronic stun belt during his trial is ever warranted or constitutional; and

• (2) whether the Will County, Illinois Sheriff's Department policy of wiring all criminal defendants with electronic stun belts during their trials constituted a violation of due process;

HOLDINGS:

• (1) The Majority held that, even though the U.S. Supreme Court had previously ruled the shacklin of a criminal defendnt during his trial to be unconstitutional, that the wiring of a criminal defendnt with an electronic stun beltb was not inherently unconstitutional as a violation of the defendant's due process rights.

• (2) The Will County Sheriff's policy of wiring all defendants with electronic stun belts, and the Judge's deference to this policy, were unconstitutional, as instead, trial courts must hold evidentiary hearings to determine whether the wiring of a criminal defendant with stun belt is warranted under the individualized circumstaces of the case.

MAJORITY REASONING:

• (1) The U.S. Supreme Court Court, in Deck v. Missouri ruled that due process "prohibits the use of physical retraints visible to the jury absent a trial court determination, in the exercise of its discrtion, that they are justified by a state interest specific to that trial."

• (2) We find that the Deck Court's stated reasons which prompt due process scrutiny in visible restraint cases-the presumption of innocence, securing a meaningful defense, and maintaining dignified proceedings-may be applied with like force to stun belts which are not necessarily visible to the jury.

• (3) The possibility of prejudicing a jury, however, is not the only reason why courts should not allow the shackling of an accused in the absence of a strong necessity for doing so. The presumption of innocence is central to our administration of criminal justice. In the absence of exceptional circumstances, an accused has the right to stand trial ‘with the appearance, dignity, and self-respect of a free and innocent man.’ [Citation.] It jeopardizes the presumption's value and protection and demeans our justice for an accused without clear cause to be required to stand in a courtroom in manacles or other restraints while he is being judged.

• (4) Thus, even when there is no jury, any unnecessary restraint is impermissible because it hinders the defendant's ability to assist his counsel, runs afoul of the presumption of innocence, and demeans both the defendant and the proceedings.

• (5) An electronic stun belt “ is no less a restraint than manacles or handcuffs."

• (6) It appears that almost every court which has reviewed this issue has held that electronic stun belts are restraining devices the use of which is subject to the same restrictions as shackles.

• (7) Thus, while defendant herein has proven a due process violation which amounted to error by showing that he was required to wear an electronic stun belt at trial without the court having first determined that it was necessary, defendant has failed to persuade this court “that the error was so serious that it affected the fairness of [his] trial and challenged the integrity of the judicial process.”

• (8) Here, defendant cannot, and does not, claim that the evidence presented was closely balanced. Further, he has not shown that his presumption of innocence, ability to assist his counsel, or the dignity of the proceedings was compromised. In fact, defendant wore the electronic device into the third day of his jury trial with no objection, complaint, or any apparent difficulty consulting with his counsel.

• (9) We agree with the appellate court in Nicholas that although the failure to conduct a Boose hearing under these circumstances is an error, defendant's failure to object and to carry his burden of persuasion*354 amounts to forfeiture of the error, where he cannot establish that it prevented him from obtaining a fair trial.

• (10) "Next, we note that in his dissent, Justice Freeman agrees with the majority opinion that the issue presented in this case is 'whether defendant is entitled to a new trial because he was made to wear, without a showing of manifest need, an electronic stun belt as a restraining device during his trial.' However, after defining the parameters of the case, the dissent goes on to enlarge those parameters by contending that we should also address the propriety of using stun belts in any criminal trial. While we might agree with some of the medical and other important concerns identified in the lengthy dissent, as we previously noted, the issue of whether to continue to use such restraints in Illinois courts is, unfortunately, simply not raised in this case. Thus, despite the dissent's desire for this court to determine whether stun belts are an acceptable form of restraint in Illinois, until a case comes before us which actually raises that particular issue, any attempt to answer such an abstract question would be improper."

• (11) This opinion sends a clear message to the trial courts: control of the courtroom is vested in the trial judge. While the sheriff may be responsible for courtroom security, it is the trial judge who makes the determination as to how security involving a defendant who is on trial is handled, so as to fully protect his constitutional rights. Towards that end, a Boose hearing is required in stun belt cases, as in shackle or handcuff cases, because regardless of the differences between the types of restraints, they each implicate due process concerns and thus require strict limits be placed on their use.

• (12) The dissent, however, relies on information outside the record and cases outside our jurisdiction to speculate as to the type and effect of the stun belt worn in this case and to proselytize for a ban on the use of stun belts in Illinois, an issue which we have clearly determined to be outside the scope of this appeal. The facts are that defendant himself did not ask that we determine whether the “medical impact” or anxiety which stun belts may create makes them an improper form of restraint under all circumstances, and there is nothing of record to show that the type of electronic device worn in the nonprecedential cases cited by the dissent are in any way similar to the device worn by defendant. Further, although the dissent agrees that defendant has forfeited the issues regarding the trial court's requirement that he wear an electronic restraint where neither he nor his counsel made any overt complaint at trial or in a posttrial motion, the dissent then invites speculation as to what defendant could have been experiencing. Such speculation is completely irrelevant and has no place in this court's review, which must be based solely on the facts of record.

• (13) A fair reading of the cold transcript leads us to the more likely conclusion that defendant was not suffering any of the anxiety or nervousness speculated upon by the dissent. As noted, what the record does show is that neither defendant nor his counsel objected to the use of the stun belt at any time.

• (14) This fact supports the inference that defendant never expressed any concern to his attorney about wearing the device, nor did it impinge on his ability to work with counsel.

• (15) Here, the dissent can point to nothing of record which demonstrates that defendant was made nervous or anxious by the fact that he was wearing the device. Thus, none of the actions of defendant, his counsel or the court support the conclusion *358 that defendant's presumption of innocence or the dignity of the court was effected by the error in failing to hold the requisite Boose hearing. Instead, counsel's concern about the possibility of the jury's seeing the bulky device under defendant's clothing was resolved by the trial court's action in seating defendant on the stand before the jury reentered the courtroom.

• (16) Finally, we object to the dissent's statement that “the unjustified use of the stun belt in this case is deemed inconsequential by a majority of this court.” The instant matter presented a narrow issue which we have resolved through the consistent use of this court's previous case law. We have cited as controlling this court's findings in Boose and Staley that a trial court's failure to examine the necessity of requiring a defendant to wear restraints at trial is a due process violation, and continued this line of reasoning to include not only visible restraints, but the type of “semi-hidden” electronic device used herein. Therefore, contrary to the dissent's assertion, we have most definitely shown that an error such as occurred here has consequences.

• (17) Here, unlike the aforementioned cases where a trial objection was made, due to defendant's complete forfeiture of the issue, not only the fact of the error but proof that the error “affected the fairness of the defendant's trial and challenged the integrity of the judicial process” was necessary.

• (18) “To determine whether defendant's right to a fair trial has been compromised * * * [under] the second prong of the plain error test * * * [w]e ask whether a substantial right has been affected to such a degree that we cannot confidently state that defendant's trial was fundamentally fair.” We thus agree with the dissent and with defendant that the trial court's actions here amounted to error. However, under the circumstances presented, we are not persuaded that such error resulted in fundamental unfairness or caused a “severe threat” to the fairness of defendant's trial."

DISSENT REASONING (JUSTICES FREEMAN, KILBRIDE, AND MCMORROW, authored by JUSTICE FREEMAN):

• (1) After considering our case law on restraints and the nature of the electronic stun belt, I am persuaded that the error resulted in fundamental unfairness or caused a “severe threat” to the fairness of the trial. I would hold that defendant has satisfied the second prong of our plain error rule, i.e., that the error was so serious that it affected the fairness of defendant's trial and that it challenged the integrity of the judicial process. For these reasons, I dissent.

• (2) Defense counsel stated that his preference was for defendant not to wear the belt at all. As the excerpt from the transcript demonstrates, however, the trial judge made clear that such a preference would be out of the question. In other words, the use of the belt was not open to argument. I would characterize the colloquy between the two as being enough to register a contemporaneous objection.

• (3) “[u]nder * * * the plain error rule, the errors that will be considered as not having been waived, although not properly preserved, are those that are so fundamental to the integrity of the judicial process that they cannot be waived or forfeited by the failure to raise them in the trial court. I also believe that, being so fundamental to the integrity of the judicial process, they must be considered by the court regardless of the guilt of the defendant and therefore the harmless error test, even harmless error beyond a reasonable doubt, is not relevant.”

• (4) "This court noted that a fair trial, in all its stages, ‘is a fundamental requirement in a criminal prosecution and when such requirement is not met, it amounts to a denial of due process of law’ ” no matter “ ‘how strong the evidence against an accused may be.’ ”

• (5) "As I noted previously, in Staley, the defendant was not tried by a jury, but by a judge. Surely a judge understands the presumption of innocence ***563 **368 and would not equate the presence of restraints on a defendant with that defendant's guilt of the charged crime. Yet, this court still reversed despite this fact and without a showing of prejudice because unjust shackling jeopardized more than the value and protection of the presumption of innocence. It also “ demeans our justice for an accused without clear cause to be required to stand in a courtroom in manacles or other restraints while he is being judged.”

• (6) "I note that these concerns echo the United States Supreme Court's observations about the importance to the criminal justice system of maintaining dignified proceedings in which defendants are treated respectfully. Contrary to the court's assertions, it today is not “follow[ing] the strict application of [the plain error] doctrine as recently set forth in Herron ” (222 Ill.2d at 359, 305 Ill.Dec. at 555, 856 N.E.2d at 360), rather it is corrupting the second prong of the rule by requiring defendant to establish that he was specifically prejudiced even though the rule itself does not require a showing of prejudice."

• (7) The record, however, does not reflect that the belt was invisible. Indeed, the belt is described in the record as a “fairly noticeable object.” FN4 The fact that the belt is, in fact, somewhat noticeable has been a source of concern to the Eleventh Circuit Court of Appeals, which has stated that

• (8) "It appears that electronic stun belts are not undetectable or invisible. The * * * 'belt protrudes some three inches from the wearer's back.' In [one case], the electronic restraining device in use was so noticeable that it piqued jurors' curiosity about what the device was. “[I]f the stun belt protrudes from the defendant's back to a noticeable degree, it is at least possible that it may be viewed by the jury. If seen, the belt ‘may be even more prejudicial than handcuffs or leg irons because it implies that unique force is necessary to control the defendant.’"

• (9) "Moreover, the record here establishes that the bulge from the belt was noticeable enough to cause the trial judge to break from the usual trial protocol and have defendant preseated on the witness stand outside the presence of the jury. Thus, the use of the stun belt in this case necessitated the trial judge to treat defendant, upon his testifying, differently from the other witnesses who testified for the State at trial. Police officers Breen, Reid, Jensen, and Proschaska, in addition to auto yard owner Bill Clemmons, all walked up to the witness stand and were sworn in as witnesses in the presence of the jury, as is usually done in all criminal cases. Such things may mean little to those of us trained in the law, but jurors are not so trained and may well attach undue significance to such discrepancies. The disparate treatment of defendant from other witnesses who are not on trial 'might have a significant effect on the jury's feelings about the defendant.'"

• (10) The court accuses me of speculating about the effect that this discrepancy had on the jury. I note that the court indulges in speculation itself when it states that the discrepancy did not affect the jury. This misses the point. One should not have to resort to speculation to appreciate that what occurred at trial raised the danger of prejudice, which in restraint cases, is what courts are supposed to be guarding against.

• (11) I note that the court, in today's opinion, refers to other cases arising from the Third District, and Will County in particular. Thus, it appears that the sheriff of Will County has established a general, blanket policy of restraining all felony prisoners with electronic stun belts without regard for particularized circumstances and clearly not on the case-by-case basis that this court required for imposition of restraints in Boose and Staley. The sheriff's actions in this regard appear to run afoul of the rule that it is the trial judge who traditionally exercises his or her discretion in maintaining order in the trial courtroom.

• (12) The stun belt will deliver an eight-second, 50,000 volt electric shock if activated by a remote transmitter which is controlled by an attending officer. The shock contains enough amperage to immobilize a person temporarily and cause muscular weakness for approximately 30-45 minutes. The wearer is generally knocked to the ground by the shock and shakes uncontrollably. Activation may also cause immediate and uncontrolled defecation and urination, and the belt's metal prongs may leave welts on the wearer's skin requiring as long as six months to heal. An electrical jolt of this magnitude causes temporary debilitating pain and may cause some wearers to suffer heartbeat irregularities or seizures.

• (13) “Wearing a stun belt is a considerable impediment to a defendant's ability to follow the proceedings and take an active interest in the presentation of his case. It is reasonable*381 to assume that much of a defendant's focus and attention when wearing one of these devices is occupied by anxiety over the possible triggering of the belt. A defendant is likely to concentrate on doing everything he can to prevent the belt from being activated, and is thus less likely to participate fully in his defense at trial. We have noted that the presence of shackles may ‘significantly affect the trial strategy [the defendant] chooses to follow.’ [Citation.] A stun belt is far more likely to have an impact on a defendant's trial strategy than are shackles, as a belt may interfere with the defendant's ability to direct his own defense.”

• (14) Similarly, the Supreme Court of California has acknowledged that “it is by no means clear that the use of a stun belt upon any particular defendant will, as a general matter, be less debilitating or detrimental to the defendant's ability fully to participate in his or her defense” than would be the use of the more traditional methods of restraint, such as handcuffs or shackles.

• (15) “[t]he psychological effect of wearing a device that at any moment can be activated remotely by a law enforcement officer (intentionally or accidentally), and that will result in a severe electrical shock that promises to be both injurious and humiliating, may vary greatly depending upon the personality and attitude of the particular defendant, and in many instances may impair the defendant's ability to think clearly, concentrate on the testimony, communicate with counsel at trial, and maintain a positive demeanor before the jury.”

• (16) In this vein, the court was also deeply troubled by claims made in promotional literature from manufacturers of the belts that touted the belt's ability “to provide law enforcement with ‘total psychological supremacy ... of potentially troubling prisoners.’ ”

• (17) Although a stun belt may be less visible than devices such as handcuffs or shackles, the belt imposes a more substantial burden on the ability *383 of a defendant to participate in his own defense and to confer with counsel during trial than do other devices. The stun belt also poses a serious threat to courtroom decorum and dignity. Because of the importance of these rights to our criminal justice system, the unjustified use of an electronic stun belt should result in plain error.

• (18) Given the psychological effects the stun belt has on its wearer, as identified by courts in other jurisdictions, I am unwilling to hold, as my colleagues do, that because of defendant's procedural default, defendant must establish prejudice with specific reference to the record in order to warrant relief on appeal. Such a holding is inconsistent with Boose and Staley, which do not require that specific prejudice be shown.

• (19) "For these reasons, I am unwilling to assume, as my colleagues appear to, that because the record does not reflect any overt signs of nervousness or distress on defendant's part over the use of the belt, defendant did not experience any anxiety or suffer any prejudice. All people react to stress differently. The record may not reflect anxiety on a defendant's part because he or she may not manifest anxiety in an outwardly discernable manner, e.g., nervous twitching, stuttering, shaking, and the like. Instead, a defendant may be the type of individual who internalizes anxiety in ways that are not visible to observers. Similarly, a defendant's lack of outcry to the trial judge or his counsel does not necessarily establish a comfort level with the stun belt or acquiescence in its use. Rather, such a defendant may be afraid of saying anything to anyone, lest an objection lead to activation of the stun belt."

• (20) Frankly and with all due respect, I have difficulty understanding the court's treatment of defendant's argument in this case. The court stresses often in its opinion that it is not “address[ing] the propriety of using stun belts in any criminal trial” and that the “use [of] such restraints in Illinois courts is * * * not raised in this case.”

• (21) "* * * [T]oday's opinion, while stating that a due process violation occurred here, demands actual proof of an impact on those rights even though, in our earlier cases, the due process violation was not predicated upon a finding of actual prejudice. Defendant's procedural default does not lessen the due process violation since that violation * * *."

• (22) "How can the court rule that such a restraint is the equivalent of something else if the court does not take the time to understand how the device works and refuses to look to other opinions from other jurisdictions which have set forth this necessary information? In my view, it is appropriate, and indeed necessary, to look to other cases to understand what these devices are and how they work in order to address defendant's argument that the use of these restraints compromised his trial such that the second prong of the plain error test is satisfied. The court's criticism of my use of cases from outside the jurisdiction (some of which the court itself cites in the body of its opinion) in order to assess defendant's plain error argument is simply not justified."