Lead Opinion
delivered the judgment of the court, with opinion.
Chief Justice Thomas and Justices Fitzgerald and Garman concurred in the judgment and opinion.
Justice Freeman dissented, with opinion, joined by Justices McMorrow and Kilbride.
OPINION
After a jury trial in the circuit court
Defendant was indicted for the offense of burglary for entering a motor vehicle, belonging to Will County Auto Wreckers, with the intent to commit a theft. Prior to jury selection on February 11, 2003, defense counsel asked to approach the bench for a sidebar conference with the trial judge, after which the judge stated: “Apparently the defendant still has his handcuffs on. They have been under the table there, so the jurors didn’t get all the way into the courtroom so there should be no problem, but if we can take them off now. Okay. Thank you.” Two days later, after the trial court’s denial of defendant’s motion for a directed verdict and immediately prior to the State resting and defense counsel calling defendant to the stand, the following colloquy occurred:
“[Defense Counsel]: Oh, your Honor, one thing. I don’t know exactly what it is that [defendant] has. There is something that he is wearing on his back and—
THE COURT: Well, it is under his clothes, correct?
[Defense Counsel]: Right, but even standing here I can notice it. It is a fairly noticeable object.
THE COURT: Would you prefer to just have him seated in the witness stand at this point?
[Defense Counsel]: I would prefer unless that can be removed somehow.
THE COURT OFFICER: No.
THE COURT: That’s a security device. The deputy has control of it. [Defendant] does not have shackles on. He does not have handcuffs on. He is in custody and he is restrained in no other manner whatsoever, so for security purposes we keep that on him. At this time it has been out of view. It is under his clothes, but I think that if he did walk across the room, [the jury] may view something or a form of some kind under his clothes, so if you prefer to have him seated in the box, we can do that now.
[Defense Counsel]: Can we do that now?
THE COURT: Have a seat right up here, sir. When you’re sworn in, I suppose you can just sit. You don’t have to stand to be sworn in.
DEFENDANT: Right.
THE COURT: That way they’ll never see it. All right, bring the jurors in.” (Emphasis added.)
No further mention of the “security device” was made at trial, and defendant did not include any issue concerning the restraint in his posttrial motion.
On direct appeal, the sole issue raised by defendant was “whether it was error for the defendant to be forced to wear an electronic security belt as a restraining device at trial.”
Having agreed with the appellate court that defendant was wearing an electronic stun belt, we now examine whether Boose, which generally applies to the “physical restraint” of defendants in the courtroom (Boose,
In In re Staley,
“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.”
As noted by defendant, 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. See, e.g., United States v. McKissick,
Given these findings, we hold that the use of electronic stun belts in the courts of this state is warranted only where there has been a showing of manifest need for the restraint. See Boose,
The determination of whether and how to restrain a defendant is left to the discretion of the trial court, and a reviewing court examines whether the trial
Here, as in Martinez, the trial court never made a Boose analysis; it simply deferred to the judgment of the sheriff. We agree with the Martinez court that this abdication of the trial court’s responsibility is not acceptable. “The court must rigorously control its own courtroom procedures and, consistent with the mandates of due process, protect the rights of the parties and the public.” Martinez,
“ ‘The fact that defendant was a state prison inmate who had been convicted of robbery and was charged with a violent crime did not, without more, justify the use of physical restraints. *** [T]he trial judge must make the decision to use physical restraints on a case-by-case basis. The court cannot adopt a general policy of imposing such restraints *** unless there is a showing of necessity on the record. The court’s summary denial of the motion to release defendant from his shackles was not based upon such a showing of record and implies a general policy of shackling all inmate defendants accused of violent crimes.’ ” (Emphasis added.) Boose,66 Ill. 2d at 268 , quoting People v. Duran,16 Cal. 3d 282 , 293,545 P.2d 1322 , 1329,127 Cal. Rptr. 618 , 625 (1976).
Accordingly, we hold that the trial court’s failure to follow the procedures set forth in Boose before ordering that defendant continue to wear an electronic stun belt during his trial constitutes a due process violation. See People v. Crutchfield,
In Martinez, the appellate court, upon finding that the trial court had abdicated its responsibility to determine the measures necessary to assure courtroom security, reversed the defendant’s conviction and remanded for a new trial. Martinez,
The failure to object to alleged error at trial and raise the issue in a posttrial motion ordinarily results in the forfeiture of the issue on appeal. People v. Enoch,
Supreme Court Rule 615(a) provides: “Any error, defect, irregularity, or variance which does not affect substantial rights shall be disregarded. Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the trial court.” (Emphasis added.) 134 Ill. 2d R. 615(a). In People v. Herron,
“The plain-error doctrine, as it has developed in Illinois, allows a reviewing court to reach a forfeited error affecting substantial rights in two circumstances. First, where the evidence in a case is so closely balanced that the jury’s guilty verdict may have resulted from the error and not the evidence, a reviewing court may consider a forfeited error in order to preclude an argument that an innocent person was wrongly convicted. [Citation.] Second, where the error is so serious that the defendant was denied a substantial right, and thus a fair trial, a reviewing court may consider a forfeited error in order to preserve the integrity of the judicial process. [Citations.] This so-called disjunctive test does not offer two divergent interpretations of plain error, but instead two different ways to ensure the same thing — namely, a fair trial.” (Emphasis added.)
In another recent case, People v. Brown,
In Herron,
Moreover, a fair trial is different from a perfect trial. Herron,
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. Thus, 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 amounts to forfeiture of the error, where he cannot establish that it prevented him from obtaining a fair trial. See Estelle v. Williams,
Further, we reject the dissent’s attempt to distinguish Estelle and Hyche, where those cases, as here, recognized that a serious assault on the defendant’s presumption of innocence was implicated, but held that the defendant had failed to properly preserve the error for review. Estelle,
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.”
Therefore, the dissent’s claim that this court’s opinion has “the effect of countenancing the continued use of stun belts” in Illinois, simply because we decline to engage in dicta, is unfair at best.
Additionally, this opinion takes judicial notice of the routine use of stun belts on felons in other Will County cases in order to establish the fact of their use here, and cites cases both in and outside our jurisdiction in support of our holding that stun belts should be subject to a Boose hearing. 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 (People v. Enoch,
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. Counsel’s only expressed
Further, we disagree with the dissent’s claim that this procedure of “preseating” the defendant, because it was dissimilar to that used with previous witnesses, would cause the jury to “attach undue significance to such discrepancies.”
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.”
As this court stated in People v. Blue,
For these reasons, the judgment of the appellate court is reversed and the judgment of conviction entered by the circuit court is affirmed.
Appellate court judgment reversed; circuit court judgment affirmed.
Notes
Dissenting Opinion
dissenting:
The issue 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. This court has never addressed the propriety of using this particular kind of restraint at a criminal trial. However, as today’s opinion makes clear, there exists a body of our case law which addresses how other types of security devices impact upon a defendant’s trial rights. Indeed, the court acknowledges that the “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.” (Emphasis added.)
I
The court correctly notes that defendant did not properly preserve this issue for review. While my colleagues view the remarks between defense counsel and the trial judge as a failure to object, I view them somewhat differently. Defense counsel stated that his preference was for defendant not to wear the belt at all. As the excerpt from the transcript demonstrates, however (see
This court has recently acknowledged that the purpose of the doctrine is “to protect the rights of the defendant and the integrity and reputation of the judicial process.” People v. Herron,
“the error was so serious that it affected the fairness of the defendant’s trial and challenged the integrity of the judicial process. [Citation.] Prejudice to the defendant is presumed because of the importance of the right involved [emphasis added], ‘regardless of the strength of the evidence.’ (Emphasis in original.) Blue,189 Ill. 2d at 138 . In both instances, the burden of persuasion remains with the defendant.” Herron,215 Ill. 2d at 187 .
Under the first prong, a defendant must establish that he was prejudiced by the error. Under the second prong, defendant need not establish specific prejudice, but rather, must show that the error served to erode the integrity of the judicial process and undermined the fairness of the trial proceedings.
It is important to distinguish between the two prongs of the rule. As this court noted in People v. Mullen,
“under this second aspect of 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.” People v. Green,74 Ill. 2d 444 , 456-57 (1979) (Ryan, J., specially concurring).
Thus, this prong is designed to give the court the ability to act in those cases where systemic, structural errors serve to undermine the presumptions of fairness that normally attach to our criminal trials. As such, very few errors will fall within its ambit. The second prong of our test thus “guards against errors that erode the integrity of the judicial process and undermine the fairness of the defendant’s trial.” Herron,
Relying on Herron, defendant argues that the error committed by the circuit court in this case eroded the integrity of the judicial process and undermined the fairness of his trial. He contends that he has satisfied his burden of persuasion because the error involved here is so serious that prejudice can be presumed. In other words, he argues that plain error occurred in this case pursuant to the second prong of our plain error rule. The court responds to this argument by noting “even constitutional errors can be forfeited [citation] if the error is not of such magnitude that it deprives the defendant of a fair trial.”
It has long been recognized that an accused should never be placed in restraints in the presence of the jury “ ‘unless there is a showing of a manifest need for such restraints.’ ” Boose,
Courts from all jurisdictions have recognized that the foregoing procedures are necessary in restraint cases because placing a defendant in restraints impacts on a defendant’s right to due process in several different ways. Shackles and gags visible to the jury “might have a significant effect on the jury’s feelings about the defendant.” Illinois v. Allen,
This court has long acknowledged these very concerns in restraint cases. For example, in Boose, the defendant, a 15-year-old, was charged with murder. The juvenile court waived jurisdiction of the case and transferred it to the criminal division of the circuit court. Subsequent to the defendant’s indictment, the defendant successfully moved for a hearing to determine whether he was competent to stand trial. The defendant was brought to court wearing handcuffs which were threaded through shackles attached to a restraining belt wrapped around his waist. The defendant’s attorney moved that all of the restraints be removed whenever the jury was present. The trial judge denied the motion, stating that “due to the nature of the charges against the defendant, I believe it would be better to have the shackles remain.” See Boose,
Noting that an “accused should never be placed in restraints in the presence of the jury ‘unless there is a showing of a manifest need for such restraints,’ ” this court affirmed the judgment of the appellate court. Boose,
Two months later, in Staley, this court reaffirmed its teaching in Boose. In Staley, a juvenile defendant was found delinquent for severely beating a teacher in the detention home where the defendant had been previously placed. At his initial hearing before the juvenile court, the assistant Attorney General recommended that the defendant remain handcuffed. The trial judge followed the recommendation, stating that he did not want the behavior that occurred at the detention home to occur in the courtroom. At the ensuing adjudicatory hearing held on the State’s petition for delinquency, the defendant’s attorney asked that the handcuffs be removed. The trial judge denied the motion, and ultimately found the defendant delinquent. On appeal, the appellate court reversed and remanded the matter for a new adjudicatory hearing because the trial judge erred in requiring the defendant to appear at the adjudicatory hearing in handcuffs. Staley,
In affirming the appellate court’s judgment, this court noted, once again, the three distinct trial rights that restraints negatively impact, i.e., the presumption of innocence, the ability to assist in the defense, and the dignity of the judicial process. This court rejected the State’s contention that, because the adjudicatory hearing took place before a judge and not a jury, no error occurred. Prejudice to the jury, the court noted, was not the only reason why shackling had been disapproved:
“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.” Staley,67 Ill. 2d at 37 .
The court emphasized that in the absence of a showing of manifest need, “which must be established clearly on the record,” an accused “cannot be tried in shackles whether there is to be a bench trial or a trial by jury.” Staley,
In examining the holdings in both Boose and Staley, it becomes clear that the court was concerned with more than the effect that shackles would have on the fact finder’s ability to adjudicate guilt in light of a defendant’s right to the presumption of innocence. Both cases identify other trial rights that have the potential to be negatively impacted by the unjustified use of restraints, namely, the defendant’s right to participate and assist in his defense and the right to a dignified trial proceeding. The importance of the latter right, the right to a dignified trial proceeding, was certainly at the center of this court’s decision in Staley, where the court ordered a
Since our decision in Staley, this court has not spoken with clarity with respect to what happens if a defendant raises the issue of unjust restraint on appeal without properly preserving it in the trial court. For example, in People v. Hyche,
In contrast to Hyche, this court in People v. Buss,
In my view, the value of Hyche to today’s discussion is limited for several reasons. First, the case dealt with a question of pretrial restraint as opposed to the present case, which concerns a defendant who was restrained throughout the entirety of his adjudicatory proceeding. Specifically, the defendant in Hyche appeared in a single handcuff before members of the venire on the first day of jury selection. It is unclear from the court’s opinion in Hyche how many of the venire members who saw the defendant so restrained ultimately served on the jury, as the opinion indicates the jury was not selected in a single day. More importantly, however, Hyche is inconsistent with the principles
“The courtroom’s formal dignity, which includes the respectful treatment of defendants, reflects the importance of the matter at issue, guilt or innocence, and the gravity with which Americans consider any deprivation of an individual’s liberty through criminal punishment. And it reflects a seriousness of purpose that helps to explain the judicial system’s power to inspire the confidence and to affect the behavior of a general public whose demands for justice our courts seek to serve. The routine use of shackles in the presence of juries would undermine these symbolic yet concrete objectives. As this Court has said, the use of shackles at trial ‘affront[s]’ the ‘dignity and decorum of judicial proceedings that the judge is seeking to uphold.’ Allen, supra, at 344; see also Trial of Christopher Layer, 16 How. St. Tr., at 99 (statement of Mr. Hungerford) (‘[T]o have a man plead for his life’ in shackles before ‘a court of justice, the highest in the kingdom for criminal matters, where the king himself is supposed to be personally present,’ undermines the ‘dignity of the Court’).” Deck v. Missouri,544 U.S. at 631-32 ,161 L. Ed. 2d at 964 ,125 S. Ct. at 2013 .
These concerns clearly underscore the critical differences between prison garb and physical restraints. For this reason, Hyche’s reliance on Estelle is not persuasive as the case is not truly relevant to the question presented in Hyche. Finally, the court in Hyche did not address plain error in any way.
This court’s more recent opinion in Buss certainly does not follow the analysis set forth in Hyche. In Buss, as I noted previously, we rejected the defendant’s claim of improper shackling, but in so doing, we eschewed the State’s claims of waiver and decided the question on its merits. Our opinion did not cite to Hyche, but instead cited to an appellate court decision which found plain error in the unjustified use of restraints at trial even though the defendant had failed to include the issue in his posttrial motion.
After reviewing our precedents, I find the Staley court’s refusal to subject the error to a harmless-error analysis to be important to today’s discussion regarding the second prong of the plain error rule. In essence, the court’s refusal to predicate a reversal on actual prejudice in Staley reveals that the court was more concerned with the error’s ramifications on the proceedings as a whole. 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
“To determine whether defendant’s right to a fair trial has been compromised, we employ the same test that this court uses whenever it applies the second prong of the plain error test. 134 Ill. 2d R. 615(a). We ask whether a substantial right has been affected to such a degree that we cannot confidently state that defendant’s trial was fundamentally fair. [Citations.]
*** [W]hen an error arises at trial that is of such gravity that it threatens the very integrity of the judicial process, the court must act to correct the error, so that the fairness and the reputation of the process may be preserved and protected.” Blue,189 Ill. 2d at 138 .
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” (
In light of the above, it is unclear to me how this defendant’s failure to raise this matter in the posttrial motion transforms what would have been a due process violation not subject to a harmless error analysis into an error that now requires a showing of actual prejudice in order to warrant relief. To the extent that the court finds Estelle v. Williams relevant to this issue (
I believe that in order to determine whether the second prong of the plain error rule is satisfied in this case, it is essential for us to evaluate the general characteristics of a stun belt, especially in this case because it appears from the trial judge’s remarks that he believed that such a restraint was preferable to handcuffs or shackles. I believe we must assess what kind of impact a restraint such as an electronic stun belt has on a defendant’s trial rights, particularly those rights that have been traditionally recognized as having the most potential to be affected by the use of restraints at trial (i.e., the presumption of innocence, the right to consult with counsel, and the maintenance of dignity in the judicial process), and whether that impact results in fundamental unfairness or causes a severe threat to the fairness of the trial such that the second prong of our plain error rule is implicated. To answer these questions, I look to the same opinions from other jurisdictions where this issue has been previously addressed that my colleagues cite in their opinion.
With respect to the presumption of innocence, courts have recognized that they must “guard against practices that unnecessarily mark the defendant as a dangerous character or suggest that his guilt is a foregone conclusion.” Wrinkles v. State,
“if the stun belt protrades 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.’ [Citation.]” Durham,287 F.3d at 1305 .
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” (see Illinois v. Allen,
Notwithstanding the above, the courts that have addressed this issue are more concerned with the electronic stun belt’s potential to “disrupt a different set of a defendant’s constitutionally guaranteed rights.” Durham,,
In his brief, defendant reiterates the appellate court’s finding that the belt worn by defendant was the same type of belt described in another case from the Third District of our appellate court. According to defendant, the belt, when activated, delivers a 50,000 volt shock to the wearer which lasts for approximately eight seconds. The shock would knock the wearer to the ground and would incapacitate the wearer for 45 minutes. At oral argument, however, the State maintained that defendant could not point to the description in the Martinez case to argue against the use of the belt in his own case. I find the State’s argument particularly unpersuasive since the State does not deny defendant’s description of the belt nor does it attempt to otherwise enlighten this court about the belt in any meaningful way. The State, in its brief, does not once describe the device used in this case, yet argues nonetheless that its use at this trial should not be considered prejudicial in any way. The State’s amicus, the sheriff of Will County, represented by the State’s Attorney of Will County, speaks of his interest in “preserving the ability to use a stun belt as a security measure at trial,” but tells us little about the characteristics of the restraining device he advocates. The lack of such information from the sheriff is even more troubling since the record makes clear it was the Will County sheriff who insisted on the use of the electronic stun belt in this case.
In any event, descriptions of the electronic belt can be readily found in opinions rendered in courts which have closely examined this issue. The following description is fairly representative:
“As the Court of Appeal explained: ‘Stun belts are used to guard against escape and to ensure courtroom safety. This device, manufactured by Stun-Tech, is known as the Remote Electronically Activated Control Technology (REACT) belt. The type of stun belt which is used while a prisoner is in the courtroom consists of four-inch-wide elastic band, which is worn underneath the prisoner’s clothing. This band wraps around the prisoner’s waist and is secured by a Velcro fastener. The belt is powered by two 9-volt batteries connected to prongs which are attached tothe wearer over the left kidney region. ***
‘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 to 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. [Citations.]’ ” Mar,28 Cal. 4th at 1214-15 ,52 P.3d at 103 ,124 Cal. Rptr. 2d at 171 .
See also Wrinkles,
“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 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.” Durham,287 F.3d at 1306 .
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. Mar,
“[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.” Mar,28 Cal. 4th at 1226 , 52 E3d at Ill,124 Cal. Rptr. 2d at 181 .
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.’ ” Mar,
Finally, I note that courts have found that stun belts possess “the potential to be highly detrimental to the dignified administration of criminal justice.” Durham,
In light of the foregoing, I believe that stun belts plainly raise many of the same constitutional concerns that this court recognized in Boose and Staley, though in somewhat different ways. 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 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. 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.
Moreover, I am puzzled by the court’s holding that defendant here “has not shown that his presumption of innocence, ability to assist his counsel, or the dignity of the proceedings was compromised.”
The court’s resolution of this matter reveals that it has overlooked the most glaring problem that occurs when a stun belt is placed upon a criminal defendant without showing a manifest need. A defendant has the right to be free from restraint at trial because, as courts have long recognized, restraints unduly erode the trial protections afforded to a defendant by the Constitution. It is only when a defendant misbehaves or poses a great danger through past behavior that those trial protections are rightfully diminished. Such a defendant’s trial protections are less, but that is constitutionally permissible because just cause has been shown. The unjustified imposition upon a criminal defendant of a remote-controlled electronic restraint — a device which is designed to give “psychological supremacy” over its wearer to the person who holds its activation button — poses a “severe threat” to the fairness of the proceedings. This results in a benefit to the prosecution because the defendant unjustifiably enjoys lesser trial protections through no fault of his own. It is the prosecution, not the defense, which benefits when a defendant, without just cause, is — for a lack of better description — psychologically neutralized, e.g., his attention focused on the stun belt and not the trial, his demeanor affected by trying not to be shocked, and the like. Such a defendant stands at a disadvantage at trial, and the proceedings become tainted. This is precisely the kind of error that the second prong of the plain-error rule seeks to guard against. It is the type of error that “erode[s] the integrity of the judicial process and undermine [s] the fairness of the defendant’s trial.” See Herron,
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 “addressing] the propriety of using stun belts in any criminal trial” and
The court’s opinion also appears to be inconsistent. At the outset of its analysis, the court states that although the trial court never referred to the “security device” as an “electronic stun belt,” it, like the appellate court below, is “confident” in its assessment that “it was indeed that type of restraining device.”
I also have similar difficulties understanding why, if my colleagues are so troubled by the fact that the type of electronic restraint involved in this case is “not even known,” they would issue an opinion which establishes as precedent that electronic stun belts are devices that are the equivalent of physical restraints and must comply with Boose. 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
II
Despite its holding that a trial court must follow the procedures set forth in Boose before ordering that defendant continue to wear an electronic stun belt at trial and the failure to do so results in a due process violation, the court believes that its opinion does not have the effect of countenancing the continued use of stun belts in Will County or any other county in this state. See
“the manufacturer of the REACT stun belt and regular users of the device apparently recognize that the stun belt poses special danger when utilized on persons with particular medical conditions, such as serious heart problems.” Mar,28 Cal. 4th at 1229 ,52 P.3d at 113 ,124 Cal. Rptr. 2d at 183 .
The court also pointed to a statement from the assistant director of the Federal Bureau of Prisons, which instituted a policy not to use stun belts on (i) pregnant female inmates, (ii) inmates with heart disease, (iii) inmates with multiple sclerosis, (iv) inmates with muscular dystrophy, and (v) inmates who are epileptic. Mar,
Finally, today’s opinion fails to acknowledge the importance of adequate training for those officers of the court who control the device at trial. This is especially necessary in view of the stun belt’s troubling potential for accidental activation. I believe that the trial court should make an inquiry concerning the amount of training the officer in charge of the activation button has received before allowing the device to be used in the courtroom.
In light of the concerns regarding health risks and accidental activations, I agree with those courts that hold that “if a stun belt is to be used to restrain a particular defendant, a court must subject that decision to careful scrutiny. This scrutiny should include addressing factual questions related to its operation, the exploration of alternative, less problematic methods of restraint, and a finding that the device is necessary in that particular case for a set of reasons that can be articulated on the record.” Durham,
Ill
As the foregoing demonstrates, I disagree strongly with the court’s treatment of this issue of first impression. The opinion demonstrates that a majority of the court fails to appreciate the significant and profound impact that this relatively new means of restraint has on a defendant’s trial rights. I respectfully dissent.
JUSTICES McMORROW and KILBRIDE join in this dissent.
“The [trial] court added that it would not ‘tell the Sheriff how to run his jail.’ The judge elaborated: ‘[Jail officials] tell me now that it is standard operating procedure, even if it’s a [sic] 80-year-old lady who is in custody with the cuffs off and going to trial on a Class 4 Felony, it’s [the stun belt] worn in court now. And I am not going to change the Sheriffs Department’s policy.’ ” Martinez,347 Ill. App. 3d at 1003 .
I point out that the trial judge in Martinez was the same trial judge who presided over defendant’s trial in this case. 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 sheriffs 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.
During the State’s presentation at oral argument, Justice Garman asked whether actions on the part of the defendant can “trigger” the belt. The assistant Attorney General answered that only the “deputy” holds the button, implying that there could not be any type of accidental activation. These recorded instances of accidental activation in other jurisdictions demonstrate that accidents do in fact occur.