By a single vote, the en banc panel holds unconstitutional the Southern District of California's routine practice of shackling every single defendant who appears in court for pretrial proceedings.
Judge Kozinski's majority opinion is, in my view, masterful. He spends a lot more time on history -- Blackstone, etc. -- than I would, but that's perhaps understandable. More impressive is that he writes incredibly well; almost lyrically. In a way that demonstrates that he gets it. That there's something here that transcends prejudice in front of a jury, inability to take notes, and other assorted practical consequences engendered by shackling. Instead, he focuses on the dignity of the proceeding: an intangible, and yet very real and critical, component of criminal justice. One all-too-often ignored in the modern era of routinized pleas and factory incarceration. A sample quote from his opinion:
"The most visible and public
manifestation of our criminal justice system is the courtroom.
Courtrooms are palaces of justice, imbued with a majesty that
reflects the gravity of proceedings designed to deprive a
person of liberty or even life. A member of the public who
wanders into a criminal courtroom must immediately
perceive that it is a place where justice is administered with
due regard to individuals whom the law presumes to be
innocent. That perception cannot prevail if defendants are
marched in like convicts on a chain gang. Both the defendant
and the public have the right to a dignified, inspiring and
open court process. Thus, innocent defendants may not be
shackled at any point in the courtroom unless there is an
individualized showing of need."
Super impressive. Made even more so, perhaps, by the fact that Judge Kozinski's vote swung the result. It was a 6-5 decision. When (and if) the smart, iconoclastic, libertarian Judge Kozinski is eventually replaced by a knee-jerk partisan, the circuit will be far the worse for it, in my view.
As for who's on the 6 and who's on the 5, it's pretty much what you'd expect. Though Judge Graber (distressingly) joins the dissent, alongside the usual hardcore conservatives (Ikuta, O'Scannlain, and Callahan) and Judge Silverman, went senior six days after the opinion was taken en banc and hence was eligible to be drawn.
Still, a super close -- and important -- decision.
