(concurring) — Because we vest our courts with great power over our persons and property, we hold the participants — -judges, lawyers, jurors and witnesses — to high standards of conduct and appearance. Our reason for doing so is self-serving. By attaching solemnity to the court and its processes, we seek respect for its acts. Here, the State offered a witness who was shackled and dressed in what Marcelino Rodriguez’s lawyer described for the record as “[a] traditional jail uniform with stripes across it, [a] cartoon character of what a prison uniform looks like[.]” While the majority quotes with approval words that describe such an event as “an affront to the very dignity and decorum of judicial proceedings that the judge is seeking to uphold!,]”1 the majority’s reasoning and holding sanction it.
At trial, the State did not justify Arnulfo Ojeda’s appearance with explanations that he posed a danger to the *704community or a risk of flight. Rather, the State offered no explanations for Mr. Ojeda’s appearance, apparently assuming it was appropriate to offer the testimony of a shackled prosecution witness dressed in a jail uniform. On appeal, the State continues to maintain this position. According to the State, the issue raised by Mr. Ojeda’s appearance is limited to witness credibility. The State contends that if a shackled witness testifies for the defense, the witness may prejudice the defense. But if the shackled witness testifies for the State, the defendant cannot be prejudiced because only the State is harmed by that witness’s lack of credibility.
The majority states that the issue is not whether the trial court should have permitted the witness to testify in shackles and a prison uniform, or even whether the witness’s appearance prejudiced Mr. Rodriguez. For the majority, the issue reduces itself to a single rhetorical question— whether the decision should have been made by “the trial judge in the courtroom, or a panel of appellate judges in Spokane.” Majority at 696.
The trial court denied Mr. Rodriguez’s motion for a mistrial based upon its understanding that only the State could be prejudiced by the testimony of a shackled prosecution witness dressed in a jail uniform. We review an order denying a mistrial for abuse of discretion. State v. Post, 118 Wn.2d 596, 620, 826 P.2d 172, 837 P.2d 599 (1992). However, if the court’s reasons are based on issues of law, no element of discretion is involved and we review for error of law. Lyster v. Metzger, 68 Wn.2d 216, 226, 412 P.2d 340 (1966).
The correct focus is not on whether the witness testified for the defense or the prosecution, but on whether the witness’s appearance in shackles and a jail uniform denied Mr. Rodriguez a fair trial. This position was recognized in United States v. Brooks, 125 F.3d 484 (7th Cir. 1997). In Brooks, the defendant moved for a mistrial because the government’s witness appeared in prison clothing and testified with immunity that she had accompanied the two *705defendants while they robbed a bank. The defendants contended that the jury could have inferred that they were guilty of the same crimes for which the witness had been convicted. Id. at 498. Upon taking the stand, the witness immediately testified that she had been convicted of two crimes and was currently in prison. The Brooks court found “[t]he jury’s immediate awareness of the fact that she was an inmate dispelled the possible prejudice that the prison attire might have created.” Id. at 499. The court noted that the witness “was not asked to relate her convictions to the defendants in any way, and she did not do so.” Id.
Unlike the witness in Brooks, Mr. Ojeda related the crimes for which he was convicted to Mr. Rodriguez. He testified that he supplied cocaine to Mr. Rodriguez after Mr. Rodriguez came to him and informed him that he needed cocaine for the sale to the man later identified as a police informant. He testified that it was this criminal conduct for which he was incarcerated. The jury could easily believe that the State had already obtained one conviction and caught one dealer, and now it was proceeding against his customers. In effect, Mr. Ojeda’s appearance may have established guilt by association in the jury’s collective mind. Although Mr. Ojeda testified for the State, his appearance could have affected Mr. Rodriguez’s right to a fair trial. In such a case, the trial court should hold a Hartzog2 hearing before allowing a witness to testify in shackles and in a jail uniform.
Nevertheless, I agree with the majority that Mr. Rodriguez’s conviction should be affirmed. There was overwhelming evidence that he twice sold cocaine to a confidential informant. A jury would have convicted him even if Mr. Ojeda had not testified in shackles and a jail uniform. The trial court’s denial of a motion for a mistrial will be overturned only when there is a “substantial likelihood” the prejudice affected the jury’s verdict. State v. Russell, 125 Wn.2d 24, 85, 882 P.2d 747 (1994); see also State v. *706Hutchinson, 135 Wn.2d 863, 888, 959 P.2d 1061 (1998), cert. denied, 525 U.S. 1157 (1999). Absent the circumstances recognized in Brooks and present in Mr. Rodriguez’s case, I agree with the majority that a Hartzog hearing is not ordinarily required when the State offers a prosecution witness who is shackled and dressed in a jail uniform. I would hold, however, that before the State could present such a witness, the State should be required to explain the need and ask the court’s permission.
Review denied at 143 Wn.2d 1021 (2001).
Illinois v. Allen, 397 U.S. 337, 344, 90 S. Ct. 1057, 25 L. Ed. 2d 353 (1970).
State v. Hartzog, 96 Wn.2d 383, 635 P.2d 694 (1981).