Constitutional Law Criminal Law Litigation

Shackling Case Shows Limits of Constitution

As many of my law students and criminal defense clients can attest, one of my favorite phrases is “The Constitution is overrated.” That does not mean that I don’t have the utmost respect for the founding document of our democracy – I certainly do. What I mean is that folks should not expect that the Constitution will protect them from every wrong under the sun or even every wrong in the justice system.

A perfect case to illustrate this point was yesterday’s ruling by The Court of Appeals, New York State’s highest court in the case of People v. Emil Best. Defendant Emil Best was charged with endangering the welfare of a child (Penal Law §260.10 [1]) based upon an allegation that he offered a 12-year-old boy $50 to expose his penis. In a written statement wherein defendant waived his Miranda rights,(more proof of my theorem) he admitted that he made the alleged offer, although he claimed to have done so in jest. (Maybe he did it in an Elmo voice?)The defendant then appeared for a pre-trial hearing with his hands cuffed behind his back. At the start of the hearing, defense counsel “request[ed] that [defendant’s] handcuffs be removed.” The trial court “grant[ed] the request to the extent [of asking] the officers to handcuff him in front.”

Presumed Innocent? photo courtesy of

After the hearing, the defense counsel decided to waive a jury. Why you would waive a jury after the judge (who continued such a high bail that the defendant was still incarcerated) only granted your request to unshackle the defendant by moving the cuffs upfront, remains a mystery, but that was his defense counsel’s choice. This happened in Nassau County and while I know the judge involved very well and like her personally, I would not try a sex crime in front her (especially one involving a child) non-jury. She was a social worker for many years before becoming a matrimonial attorney, founded a prominent local Youth Council and remains involved in other charities and organizations promoting children’s rights. Frankly, it bordered on sheer lunacy, but I stray.

The trial lasted two days. Each morning, the defendant was brought in handcuffed from the back, defense counsel made his motion to unshackle, and the judge moved the cuffs up front but kept the defendant in cuffs. Please remember that the judge was also the JURY in this case.

The case by the People consisted of the defendant’s statement and the testimony of the complainant, now 14. (I mean how long was this guy in jail for a misdemeanor? The facts of the case don’t tell us unfortunately). The trial court convicted the defendant and he appealed. The court was affirmed by the Appellate Term and then leave was granted to the Court of Appeals.

Writing for the majority, Justice Carmen Ciparik acknowledged that:
(1)A trial court that restrains a defendant during criminal proceedings must state a particularized reason for doing so on the record;
(2)The federal Constitution “forbid[s] routine use of visible shackles during the guilt phase” of a trial and “permits a State to shackle a criminal defendant only in the presence of a special need;”
(3)The use of visible restraints must be “justified by an essential state interest . . . specific to the defendant on trial;”
(4)Where the court fails to provide such justification “the defendant need not demonstrate actual prejudice to make out a due process violation;” and
(5)The court below made no such findings, put no reason on the record and the record itself presented no special need or reason.

The government had argued that those rules don’t apply because this was anon-jury trial, but Judge Ciparik rejected that argument stating:

“Judicial hostility to shackling… giv[es] effect to three fundamental legal principles”: 1) preserving the presumption of innocence to which every criminal defendant is entitled; 2) ensuring that the defendant is able to participate meaningfully in his or her defense; and 3) maintaining the dignity of the judicial process. The routine and unexplained use of visible restraints does violence to each of these principles, essential pillars of a fair and civilized criminal justice system that are no less implicated when the fact finder is the trial judge rather than a jury.

(citing the US Supreme Court in Deck v. Missouri 544 US 622 (2005)). So with that issue out of the way, and with the clarity of the law disfavoring shackling without a clear showing of a specialized need for it as to the defendant before the court and with the law saying that this right is so fundamental that a defendant need not even show prejudice to successfully argue that it was a due process violation, the court of course found that the defendant’s due process rights to a fair trial were violated by being shackled for no apparent reason before the court. The law was crystal clear that this was violation of defendant’s fundamental rights.

But . . . “A constitutional error may be harmless where evidence of guilt is overwhelming and there is no reasonable possibility that it affected the outcome of the trial. Here, defendant’s own admission established that he offered complainant, a child, $50 to expose his penis. Complainant testified to the same Facts. . .. Given that quantum of evidence, we do not think there is any reasonable possibility that defendant’s appearance in handcuffs contributed to District Court’s finding of guilt.” And so after pages of Constitutional analysis all in favor of the defendant, the Court takes two sentences to dispatch the defendant’s appeal under “harmless error” analysis. See, I told you it’s overrated!

Judge Lippman

In a strong dissent, Justice Jonathan Lippman was the lone voice of reason:

‌The presumption of innocence for those accused is “the undoubted law, axiomatic and elementary, and its enforcement lies at the foundation of the administration of our criminal law” (Coffin v. United States, 156 US 432, 453 [1895]). The unwarranted shackling of defendants strikes at the heart of the right to be presumed innocent

The judge went on to point out that some rights are so basic, so fundamental that harmless error analysis should not be applied to them. But even applying harmless error analysis he said, required reversal. It is only in Judge Lippman’s decision that we learn that “there was testimony at trial that in defendant’s limited mind, his behavior amounted to nothing more than bantering or teasing. Indeed, the police characterized defendant as “slow in his movement and speech,” “timid,” and “deficien[t],” and the complainant testified that he never felt scared by the encounter or defendant.” How did this lawyer waive a jury based on these facts?!? (Yes, I just used 3 punctuation marks). Judge Lippman also pointed out that the testimony of the 12 year old boy was “inconsistent” and that the evidence was far from overwhelming. Lippman concludes his decision by calling for a clear rule that states “that the failure to make a record to justify restraining a defendant at trial will necessitate a new trial.” It will never happen given the majority decision in this case and others, but at least someone is making clear how important this issue is for those accused of crimes and for the basic principle of fairness.

The two opinions also establish how fundamental an error it was to go non-jury. IF two Court of Appeals judges can differ on the strength of the evidence so sharply, couldn’t a relatively experienced lawyer have convinced one juror or two of the same thing? The reason I use the phrase “The Constitution if overrated” as often as I do is because it’s important for future lawyers and current clients to understand that having competent, aggressive counsel can protect you far better than the written words of the Constitution.

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