Friday, November 25, 2005

U.S. v. Howard (9th. Cir. - Nov. 15, 2005)

This is one is a toughie. As everyone involved -- both the majority and the dissent -- seem to recognize.

The issue is whether criminal defendants can uniformly be forced to appear before the magistrate in shackles. That's what the U.S. Marshal's Office in the Central District decided to do; as a result, in their first appearance before the magistrate, everyone's in leg shackles -- regardless of their crime and without an individualized determination (by anyone) regarding whether it's necessary.

Judge Schroeder holds that this policy is unconstitutional. At least under this -- virtually nonexistent -- record. But expressly leaves open the possibility that it would be okay if the Marshal's Office attempted to actually justify the policy beyond basically some speculation from a single source that the policy might be a good idea. Whereas Judge Clifton -- who's also somewhat disturbed by the lack of a real record here -- dissents, and would uphold the practice, his central argument being that there's no real harm to leg shackles in front of a neutral magistrate, who (unlike a jury) won't be swayed by their presence.

It's a tough call, I think. Both sides make pretty darn good points. I could definitely see reasonable people going either way.