A U.S. Marshals official shows a girl how restraining cuffs work. Local defense attorneys aren’t happy that all of their clients must wear them in federal court.
  • A U.S. Marshals official shows a girl how restraining cuffs work. Local defense attorneys aren’t happy that all of their clients must wear them in federal court.
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Defendants are currently brought to federal court in leg and arm shackles attached at the waist and are required to wear them for almost every federal court hearing outside of trial and sentencing, following a recent policy set by the national United States Marshal Service.

Defense lawyers are protesting the restraints, on the record, to the judges. They say the shackles are inhumane and prejudice the proceedings.

It’s all smiles when folks try the shackles at a U.S. Marshals public event, but attorney Gene Iredale says their mandatory use for all defendants in federal court creates a guilty-till-proven-innocent atmosphere.

It’s all smiles when folks try the shackles at a U.S. Marshals public event, but attorney Gene Iredale says their mandatory use for all defendants in federal court creates a guilty-till-proven-innocent atmosphere.

“It’s shocking to see people bound hand and foot, it’s something from the Middle Passage or Jim Crow era,” says Reuben Cahn, head of Federal Defenders, which represents indigent clients in federal court. “It’s humiliating and demeaning. It tells defendants that all the rights the courts say people have — the right to be tried by their peers and the right to a fair trial, that they are innocent until proven guilty — that all of that is meaningless.”

Every one of the 58 lawyers Cahn supervises is protesting on the record that the shackles violate clients’ rights, including their Fifth Amendment rights, he said. But almost all of the judges defer to the Marshals Service and leave defendants shackled throughout their hearings.

The majority of federal court defendants are there for nonviolent offenses.

“In this district, most defendants are first-time offenders with border-related crimes, crossing illegally for the second time, smuggling drugs — big and small quantities — and transporting illegal aliens,” Cahn said.

Most of the defendants in San Diego federal court are there for nonviolent, border-related defenses. Of 3373 criminal cases handled in the courts in 2012, 33 were for violent offenses that include four homicides. According to the U.S. Courts Judicial Business 2012 report, the district handled 1283 immigration-related cases, including illegal re-entry, more than any other federal court district in the Ninth Circuit. (Arizona had more illegal re-entry cases but fewer immigration cases.) The courts handled 1539 drug cases, including 313 marijuana cases, usually involving smuggling — 20 percent of all the cases in the Ninth Circuit.

Contacted for comment, the U.S. Marshal Service provided of copy of a letter from presiding U.S. District judge Barry Ted Moskowitz outlining the reasoning behind the change. The letter clearly says the judges retain the ability to ask the marshals to remove the chains during proceedings.

The policy change may be tied to an incident in judge Irma Gonzalez’s court in the spring of last year, when one of several Mexican Mafia codefendants attacked another during a hearing. The marshals say one gangster stabbed the other, while the lawyers present describe the attack as punching.

Ironically, Judge Gonzalez is one of few judges who will order defendants unshackled for hearings.

Eugene Iredale

Eugene Iredale

Gene Iredale, who practices in federal court, has protested the shackling at hearings. He calls the practice “demeaning and ugly.”

“The imposition of a blanket chaining order without there being a serious threat is not in keeping with the federal tradition enunciated by U.S. Supreme Court justice Felix Frankfurter that the courts are palladiums of liberty,” he said.

Iredale feels the shackling policy is a solution to a problem that didn’t exist. “Here in San Diego, the Marshals Service has always been extraordinary in dealing with the security of the courtroom and the humanity of the defendants.”

Chaining, Iredale stated, “says the person is treated like an animal, has no human value, has no rights.”

Cahn said he has clients charged with first-time, nonviolent offenses for whom shackling is painful.

“I have a client who is a veteran of Iraq and Afghanistan who suffered extensive spine and bone injuries from an IED and has post-traumatic stress disorder. It not only causes him physical pain to be held in that position and unable to walk upright, but it causes him extraordinary anguish because of the PTSD.”

Cahn says the impact of being shackled on people who have never been convicted of anything may affect the justice they seek.

“I’m concerned our clients will abandon their defenses so they don’t have to go to court. We have clients who don’t want their families at the proceedings because it’s too humiliating,” he explained. “This is punishment before the conviction.”

Other lawyers say the shackling during hearings poses practical problems that interfere with the defense.

“For me, the hardest part is that when clients need to tell us something, they would be able to write a note and now they can’t,” said an attorney (who asked not to be named) after a hearing where her client was left shackled. “They can barely get the translator’s headphones on and you’re not allowed to help them.”

Other lawyers worry that jurors are being prejudiced.

For example, that the key figure in the U.S. Navy bribery scandal, Leonard Francis, was brought to court and sat through the hearing in shackles was widely reported. His lawyer, Pat Swan, was able to get the judge to order the shackles removed.

In some cases, the defendants are people who are coming to a hearing to be sent into a diversion program — after the U.S. attorney has agreed they pose no risk to society and can be rehabilitated, Cahn said.

“Every person who arrives at the Metropolitan Correctional Center is screened at arrival: their criminal history is reviewed and whether or not they are a threat is determined on a case-by-case basis. Very few are,” he said. “But they’re all brought shackled to court.”

The majority of the district and magistrate judges deny requests to have defendants unshackled and defer to the new policy, defense lawyers report. Former judges Irma Gonzalez, Janis Sammartino, and Marilyn Huff have ordered shackles removed for hearings, lawyers say. “The judges have control over their courtrooms,” Iredale says flatly, and Cahn agrees.

“That’s the most disturbing thing, to raise this objection to judges who don’t see anything wrong with it,” he said. “The judges operate on the assumption that the defendants believe the judge won’t be biased against them because they are innocent until proven guilty, and then they allow the defendants to be chained like animals. You can see why a defendant would doubt the judge is interested in justice.”

In late November, Cahn argued against the blanket policy before judge Larry Burns, who turned down the writ of mandamus. Cahn will be appealing the ruling to the Ninth Circuit Court of Appeals, he said.

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Comments

shizzyfinn May 7, 2009 @ 10:21 p.m.

I dig that story, too. I enjoyed your storytelling. Got a wee bit steamy there on party night, didn't it. Hips on the carpet and whatnot. Cue the horny bellhop from that one Simpsons episode:

Bellhop: [wolf-whistles, makes a cat noise, imitates a bed squeaking, purrs, pants, barks, howls, twiddles his lips] "Hubba hubba!"

BTW, in the Over The Line tournament, there has been a women's team called Sandy Fish Tacos.

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David Dodd May 7, 2009 @ 10:36 p.m.

shizzyfinn: Thanks :)

I love OTL, the team names are awesome. Who knows? Some day this old man might join one. I played some ball in my younger years ;)

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Josh Board May 11, 2009 @ 3:40 p.m.

what a great read!

this story made me want to call my mom up and say "thanks for not insisting on me continuing with those piano lessons when I was 8, you bitch!"

(cue phone slam sound effects)

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Josh Board May 11, 2009 @ 11:33 p.m.

Hey...I never mind people being out for blood. Sometimes women seem to hate when that goes down, and they threaten to "never read my stuff again."

I'd love to hear your friends perspectives.

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SDaniels May 7, 2009 @ 3:07 p.m.

Don't get me wrong--all of that came through, except I thought you meant tacos were served other evenings at the Dandy, not just on the corner :)

Yes, sir! I needed a kick in the ass, and the better kind of shot in the arm :) I will hopefully start on something this week, and will follow your stuff.

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magicsfive May 7, 2009 @ 3:10 p.m.

refried, i LOVED it. i even almost had to excuse myself to take a quick cold shower but couldn't break away. and for god's sake, please don't stop there! part 2 forthcoming i hope? xoxo

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SDaniels May 7, 2009 @ 2:15 p.m.

When you say "without tacos," you really mean it on multiple levels. I get the pun, but maybe expected the tacos to work in somewhere further as a conceit--the idea that unofficial lesbian night is also the only night there are no tacos at the Dandy? I guess my food obsession would lead me to add even a playful description of tacos as they usually appear at the Dandy, and tie in with fleeting pleasures, but perhaps you don't want to go in that direction.

What a beautiful line, and excellent use of semicolon: "I closed the laptop; I was trapped in my own shining heart."

One unclear sentence: "If it was something she had done all of her life: should read "as if she had..."

"a forever kiss that was familiar distantly" I would reverse to read: "distantly familiar."

Sorry, the English teacher/critic in me can't resist, but you are a writer, and it's all about the craft :)

I wish you had won this month, with a simple and heartfelt piece such as this. Do you think you will ever do a piece using food as extended metaphor? You're the man to do it.

Thanks, Gringo!

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David Dodd May 7, 2009 @ 2:31 p.m.

Thanks for the editing help on the first one, obviously I edited out a couple of things (for a PG audience), and I failed to correct what I left out. Corrected ;)

"Familiar distantly" I did on purpose. The kiss was familiar, distantly, because first came the kiss and then the distant memory was realized. Awkward, I know. But it WAS awkward!

And the Lesbians Without Tacos, if you think about it (and I thought about it for a long time), is this: I had one sexual and one romantic encounter with lesbians and neither involved their, um, taco. Plus, Monday is the night that the taquero on the corner takes the night off. It seemed appropriate.

Now YOU go write something I can gush over! :)

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David Dodd May 11, 2009 @ 4:06 p.m.

I understand that the subtitle isn't going to turn heads in a good way, but it was what occurred to me at the time (in the back of that cab on the way home, taco-less in two respects), and I thought that if Mona ever read it she would appreciate it as well.

Mona had a wonderful sense of humor.

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MsGrant May 23, 2009 @ 11:28 a.m.

It is an inherent right for a woman to change her mind. I've started paying more attention to The Reader blogs. Refried, you are an exceptional writer.

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David Dodd May 23, 2009 @ 12:47 p.m.

MsGrant, thank you very much, and the feeling is quite mutual.

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magicsfive May 23, 2009 @ 12:52 p.m.

for some reason i am craving tacos....

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MsGrant June 4, 2009 @ 7:14 p.m.

YOU WON!! A big, fat congratulations to you!! Well done and well deserved. I LOVED this story.

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magicsfive June 4, 2009 @ 7:40 p.m.

omg refried!!!!!!!! you rock so hard...and so deserved to win this. congratulations, my friend!!!!!!!!!! xoxo

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David Dodd June 5, 2009 @ 9:34 a.m.

Thanks you both so very much, I'm extremely flattered and very happy that you enjoyed it :)

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karengina June 6, 2009 @ 11:31 p.m.

I liked the way you constructed the story. Made it all that more enjoyable. Well done!

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David Dodd June 7, 2009 @ 6:57 a.m.

Thank you very much, karengina, I truly appreciate the encouragement :)

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David Dodd June 12, 2009 @ 3:39 p.m.

I was planning on crossing the border today, but couldn't (something came up here). Thanks for letting me know in which issue it came out! I sent them some pictures to use, did they print any of them?

I'll be going over either tomorrow or Monday so I can pick up a copy, but I am very curious...

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Joaquin_de_la_Mesa Jan. 8, 2014 @ 12:26 p.m.

Another example of a government agency (U.S. Marshals) trampling all over the Constitution they've sworn to uphold. What's the matter with the judges in these courts? Why don't they see this Marshal's policy for the inappropriate, unconstitutional nonsense that it is?

Non-elected government agencies are essentially legislating these days. And there's little or no oversight. It's not the way this country is supposed to work.

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sheepdog Jan. 8, 2014 @ 12:49 p.m.

Did one of Iredale's sex offender clients pick the photos for this story?

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CaptainObvious Jan. 11, 2014 @ 6:40 p.m.

Defense attorneys should spend a few weeks in prison before they can say if their clients should be trusted to act like civilised people..

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