BRIAN A. MAUS, Plaintiff-Appellant,
DIANE BAKER, et al., Defendants-Appellees
Submitted March 19, 2014
Appeal from the United States District Court for the Eastern District of Wisconsin. No. 2:09-cv-00042-RTR -- Rudolph T. Randa, Judge.
Brian A. Maus, Plaintiff - Appellant, Pro se, Green Bay, WI.
For Diane Baker, Mark Weston, Russell Cook, Keith Svoboda, Jim Benishek, Defendants - Appellees: Andrew P. Smith, Phillips Borowski, S.C., Rhinelander, WI; Christine K. Van Berkum, Phillips & Borowski, S.C., Mequon, WI.
Before POSNER, KANNE, and TINDER, Circuit Judges.
Posner, Circuit Judge
The plaintiff filed suit under 42 U.S.C. § 1983 against guards and other personnel at a county jail in which he'd been a pretrial detainee. His claim that they had used excessive force against him survived summary judgment and was tried to a jury, which found for the defendants. The plaintiff was a prison inmate at the time of his trial, and his only substantial claim on appeal is that he was denied a fair trial because he was compelled to wear shackles and his prison uniform in the courtroom--
with the shackles (as well as, of course, the uniform) visible to the jury--while the defendants were allowed to, and did, appear in their jail-guard uniforms, the contrast between their uniforms and the plaintiff's uniform highlighting the difference in social standing between them and him. The judge made no effort to prevent the shackles from being seen by the jurors and didn't even tell them not to allow the sight of the shackles to influence their decision, though he had promised before trial to give such an instruction.
Remarkably, the record does not indicate the extent to which Maus was shackled. We know that before the trial began his lawyer asked the judge to direct that Maus be free of " all shackles, hand cuffs, leg irons, and other restraints" during the trial. And we know that he was handcuffed during the trial except when he testified. What we don't know is whether he was wearing leg irons--better described as " ankle cuffs," and now often called " legcuffs," since they differ from handcuffs only in being somewhat larger.
The sight of a shackled litigant is apt to make jurors think they're dealing with a mad dog; and just the contrast between a litigant's wearing prison garb and his opponents' wearing law enforcement uniforms is likely to influence the jury against the prisoner, and has long been recognized as being highly prejudicial.
See, e.g., Holbrook v. Flynn, 475 U.S. 560, 568-69, 106 S.Ct. 1340, 89 L.Ed.2d 525 (1986); Estelle v. Williams, 425 U.S. 501, 504-05, 96 S.Ct. 1691, 48 L.Ed.2d 126 (1976); Illinois v. Allen, 397 U.S. 337, 344, 90 S.Ct. 1057, 25 L.Ed.2d 353 (1970); Stephenson v. Wilson, 619 F.3d 664, 668-69 (7th Cir. 2010). Although the issue has arisen mainly in criminal (including postconviction) cases, as in the cases just cited, it arises from time to time in civil cases as well, such as this case, and the prejudicial effect of visible shackling and prison clothing has been recognized in those cases too.
See, e.g., Lemons v. Skidmore, 985 F.2d 354, 356-57 (7th Cir. 1993); Davidson v. Riley, 44 F.3d 1118, 1122-23 (2d Cir. 1995); Holloway v. Alexander, 957 F.2d 529, 530 (8th Cir. 1992).
There may have been adequate reasons to shackle the plaintiff in this case--a violent person, who had attacked guards--but the shackles should have been concealed from the jury. E.g., id.; Sides v. Cherry, 609 F.3d 576, 584 (3d Cir. 2010); United States v. Honken, 541 F.3d 1146, 1152 (8th Cir. 2008). Ordinarily courtroom security can be assured by shackling the prisoner just at the ankles (skipping the handcuffs); and when that is done a curtain attached to the table at which he sits will hide the shackles from the jury's sight. If the prisoner is to testify, then seating him in the witness box before the jury enters and removing him from the box after the jury leaves for a break or for the day will keep the jury from seeing the shackles; the sides of the box will conceal them. There is no indication that these methods of concealment would have been infeasible in this case, and it is not even clear that the plaintiff is so violent that he had to be manacled at all. His handcuffs were removed, without incident, when he testified.
The " curative instruction" that the judge failed to give would not have eliminated the prejudice to the plaintiff arising from the visible manacles, the prison uniforms, and the guards' uniforms. Curative instructions have (as judges too rarely acknowledge) only limited efficacy. As we said in United States v. Mazzone, 782 F.2d 757, 764 (7th Cir. 1986), " we are not quite so naï ve as to believe that telling jurors not to think about something will cause them to forget it." Justice Jackson ...