Nesvig v. Hoff

SANDSTROM, Justice,

dissenting.

[¶ 25] I am concerned that the majority takes a reasonable principle to an illogical extreme which may stretch an already over-extended law enforcement and endanger those in the courtroom and the courthouse.

[¶ 26] The United ■ States Supreme Court has recognized the concern that jurors may be influenced by seeing defendants restrained, just as courts have been concerned that jurors may be influenced by other extraneous information. On the other hand, we have long recognized the ability of judges — professional fact-finders — to exclude the extraneous. Here the majority apparently thinks our judges cannot exclude a party’s restraints from their professional decision-making. If the majority does not think this, then the rule it announces here is a pyrrhie victory for the absurd. I reject the idea that North Dakota’s judges are incapable of excluding the extraneous factor of whether a party is restrained in some way.

[¶ 27] This Court recently told the legislature our courts are overburdened. Now the majority would add a constitu*616tionally unnecessary requirement of an additional hearing to decide whether a party needs to have restraints for another hearing or proceeding. This Court and the legislature have recognized how law enforcement is overburdened in this state, yet the majority would unnecessarily impose a greater burden on law enforcement when there is no jury to be influenced by extraneous factors.

[¶ 28] As for this case, thé majority finds its own facts while asserting “[tjhere is no suggestion on this record that Hoff presented a security risk.” But there is such information in the record. The judge was told the sheriff believed Hoff needed to be restrained. The majority, which apparently believes the judge could not exclude from his decision-making the extraneous factor of Hoffs restraints, says the judge should hear otherwise extraneous information — perhaps intelligence information, perhaps highly prejudicial bad-conduct information — to decide whether restraints are appropriate. Further, the majority ignores the district court’s finding that Hoff was able to write and communicate with his lawyer.

[¶ 29] Out of the hundreds of cases interpreting Deck v. Missouri, 544 U.S. 622, 629, 125 S.Ct. 2007, 161 L.Ed.2d 958 (2005), the majority is unable to cite any case in the United States holding as it does to extend Deck to non-jury commitment of sexually dangerous individuals. Other courts have refused to extend Deck. In United States v. Zuber, 118 F.3d 101, 102 (2nd Cir.1997), the United States Court of Appeals for the Second Circuit ruled, “We hold that the rule that courts may not permit a party to a jury trial to appear in court in physical restraints without first conducting an independent evaluation of the need for these restraints does not apply in the context of a non-jury sentencing hearing.”

[¶ 30] This case of commitment of a sexually dangerous individual is a civil proceeding that follows a criminal conviction. Recently, the Illinois Court of Appeals ruled that the Deck restrictions on restraints does not apply to post-conviction relief proceedings — a civil proceeding that follows a criminal conviction:

With postconviction proceedings, the defendants are convicted criminals seeking review of possible constitutional errors in their trials and/or sentences. The constitutional concerns at issue in the trial and sentencing phases of criminal proceedings are not present in postconviction proceedings. Further, the dignity of the courtroom is not demeaned by a convicted criminal’s appearance in shackles when he or she seeks review of his or her trial and/or sentence because the defendant’s guilt and sentence have already been determined. We strongly disagree with defendant that restraints during postconviction proceedings make a mockery of postconviction proceedings, which are review proceedings after a conviction. Moreover, for the same reason, we disagree with [People v.] Rippatoe [, 408 Ill.App.3d 1061, 1066-67, 348 Ill.Dec. 825, 945 N.E.2d 132, 137 (2011),] that the dignity of the courtroom is demeaned by a pro se defendant’s representation of himself at a proceeding after his trial, especially since the defendant there did not even express an issue with the restraints at the hearing. Additionally, our supreme court has specifically limited the [People v.] Boose [, 66 Ill.2d 261, 5 Ill.Dec. 832, 362 N.E.2d 303 (1977),] determination in Rule 430 to proceedings involving the determination of guilt or innocence and chose not to make a similar rule for postconviction proceedings. Accordingly, we find the pre*617sumption that shackling is improper until manifest need is shown and the required determination of manifest need established by Boose [a case that follows Deck] and its prodigy does not apply to postconviction proceedings.

People v. Kelley, 2013 IL App (4th) 110874, ¶ 25, 369 Ill.Dec. 457, 986 N.E.2d 770 (emphasis added). Kelley specifically considered the mental health case cited by the majority, In re Mark P., 402 Ill.App.3d 173, 342 Ill.Dec. 354, 932 N.E.2d 481, and decided it did not apply to post-conviction proceedings. The cases cited by the majority at ¶ 9 as “involuntary commitment proceedings” are, in fact, mental health and drug treatment cases. None are commitment-of-sexually-dangerous-individual cases, and none followed convictions.

[¶ 31] Finally, I note that our Court defers to law enforcement — without any hearing on the question — as to whether or not an incarcerated person is transported to our Court for oral argument and whether or not that person has restraints at oral argument. I will state here that I for one am able to make my decision on the merits, unaffected by that law enforcement decision.

[¶ 32] DALE V. SANDSTROM