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"Our Policy Hasn't Changed, Mr. Horowitz"

Unfortunately, before I can tell you why I wrote this post, I have to tell you about something I was planning never to blog about. I had hoped I would not have to write this post.

Friday’s court session made me realize I had no choice.

To get into a juvenile courtroom in Fresno County through the front door of that courtroom is impossible unless the door is opened from the inside. For anyone. It’s physically impossible.

To get out of that courtroom is impossible without a keycard. Defense attorneys — except public defenders and employees of the firm that handles conflict cases the public defender cannot take — do not have keycards. Obviously, family members of minors brought before the court, as well as the minors themselves, are also not given such cards.

Since it is nearly impossible to exit the courtroom, why are numerous minors brought before the juvenile court shackled?

In a word, it happens because of an illegal policy, and local judges who have chosen to thumb their noses at the California Supreme Court. Fresno County, it seems, is not a part of the State of California. We are not subject to the jurisdiction of the California Supreme Court. Their opinions are advisory only.

About the middle of this past year, I attempted to challenge the policy because the California Supreme Court has clearly held that the reliance on “policy” is illegal. The essential circumstances are outlined in this linked brief.

The immediate upshot of my objection was that the court allowed the Sheriff’s Department a couple of hours to come up with an excuse forinvestigate why the minor was shackled and ordered requested they have someone present in the afternoon to state the excuse provide the reason for the shackling. During that time, the minor was apparently kept in a cell adjacent to the courtroom, because when I attempted to visit him at the Juvenile Justice Campus, I was told he was not there, that he was in the cell adjacent to the courtroom and that there was no way that the Juvenile Justice Campus could contact anyone to inform them I wanted to visit the client. The Juvenile Court, it should be noted, is located on the Juvenile Justice Campus.

During the afternoon session, the sole witness was a deputy who had researched the issue. The prosecutor led him through a series of questions about the minor’s behavior during six months of custody. The minor had been a bad boy. He sometimes yelled at other minors. He occasionally broke the rules by, for example, banging on his door or not standing up properly in line. Over a six-month period, there were — as I recall — a couple dozen incidents. (A later attempt by me to argue that this was a fairly typical record for juveniles in the pod met a retort from the court that there was no such evidence before the court and that the court believed “most” juveniles in the pods followed the rules. Any juvenile defense lawyer can tell you otherwise. Next time, I will put “a few” witnesses on the stand who can testify about such things under oath.)

On cross-examination, the deputy stated that he had never seen, nor was he informed of, any incidents involving the minor being disruptive in court, or on the way to court. I periodically noted, for the record, that my client had sat quietly next to me throughout the proceedings — at least once pointing out that he had responded to questions from the court by appending the honorific following his response. The deputy further testified, under oath, that the policy of the Sheriff’s Department was to shackle all juveniles wearing purple shirts. The purple shirts apparently signified that they came from a particular pod. The criteria for being placed in the pod was either unclear or unknown. (My own experience shows that it does not seem to be necessarily related to behavior.) The deputy was not sure why “purple shirts” were shackled, merely stating that was the policy.

Notwithstanding the testimony of the deputy making it clear the minor was shackled because “that was the policy,” the court held that he was shackled — as the law allowed — for particularized reasons. Although I had argued that the particularized reasons should relate to behavior within the courtroom, the court rejected this, going on to state specifically that he was shackled because of his “disruptive” behavior while in his cell, or in the pod.

The court then made the rather astounding statement, on the record, after having found that there were particularized reasons why the minor neededto be shackled during the proceedings, that:

It’s just an arraignment where a plea or a denial is entered. We do not have a trial. We do not have a disposition and the Court finds that there are safety concerns; there are disruptive concerns based upon the nonconforming behavior that the minor has demonstrated while he has been in Juvenile Hall.

Now that having been said, the minor has behaved and done extraordinarily well in court. There is no reason for me to believe that he wouldn’t.

Let me repeat that. The judge stated that the minor had behaved “extraordinarily well” during the hours spent in court that day. He went on to state “There is no reason for me to believe that he wouldn’t.” No reason!

So why were the restraints necessary again?

Before I could get the copy of the transcript and complete a writ on the issue, the misdemeanor case — did I forget to mention that it was a misdemeanorcase? — was dismissed “in the interests of justice.” This is often a euphemism for “we don’t have enough evidence to move forward, but we don’t want to say that on the record.” I cannot prove that my making it clear I was not going to drop the matter is the reason for the dismissal.

Immediately after the hearing, I revised a form I utilize for keeping progress notes on my cases in court. At the top, I added “OOC/IC” for “out of custody/in custody.” Next to that, I have: “Shackles? Y N CO NA” — “Yes No Cuffs-Only Not-Applicable.” Whenever I go into court now, I circle the appropriate acronyms. Suffice it to say that I intend someday that this will be useful. (If only I could convince other defense attorneys to keep track.)

I was pleasantly surprised to note for quite some time that my clients were not coming to court in shackles.

Okay. So now we get to what I mentioned at the beginning of this post: Friday’s hearing in another juvenile case. My client is brought into court and he’s in shackles. I noted that he’s been present numerous times in the past without shackles. I asked the reason he was shackled this day and, of course, nobody knew. The court asked the bailiff to find out. The bailiff invoked the presiding judge’s “one-hour-to-find-an-excuse-reason” rule. She had, meanwhile, called for backup the minute I started complaining about the shackles.

Her supervisor having arrived in response to the call, the court suggested that the minor be unshackled and the extra deputy remain in the courtroom; there being two of them, it would be that much harder for my client to escape the locked private enclave where the public cannot see what is happening. It would also be harder for him to jump up, get around the (fairly massive) table and sprint the 30 feet or so to the hyper-elevated bench before the two deputies accidentally shot the judge to death or mistakenly tasered his clerk.

Still, that seems reasonable, doesn’t it? Remove handcuffs for a kid — a kid!— who was there to be told he was going to a group home before being reunited with his parents, and allow two armed deputies to stand nearby instead.

“No! That’s not how it’s done!,” exclaimed the bailiff. And, I kid you not, she used her “stop right there” voice. The judge (quite briefly) looked startled.

Now if I had used that tone, or spoken those words, to a judge? I probably would escape tasering, but not a tongue-lashing. (I know, because I once made the mistake of muttering to my client in a near whisper, “Or as the Constitution does” when a judge told me I would get as much time to cross-examine someone as he allowed. But that’s another story.)

The judge, however, did not respond to the bailiff as he would to me. Perhaps it’s because she’s armed. Instead, he said, “Oh…okay.” I looked at him and said, “The law says the judge is in control of his own courtroom,” but was told in no uncertain terms that “we aren’t going to get into that.”

After consultation with my client, he decided that he wanted no further delay and was willing to proceed with the hearing, ignoring the shackling issue.

But here’s the kicker: As I was being escorted from the courtroom — remember, it is impossible to get out unless the bailiff unlocks the door — I asked the bailiff why my client was shackled today, when he has never been shackled before.

Her response? “Our policy hasn’t changed, Mr. Horowitz.”