Concurring:
I agree with my colleagues that any error in this case was harmless, that is to say, had the trial court made the inquiry I believe it should have made, the information derived would have justified it, in the exercise of its discretion, to have the defendant produced in manacles. Hence, I vote, as the majority does, to affirm.
My reason for writing separately is my strong conviction that before a defendant is subjected to the humiliating prospect of pleading his case in chains, a trial judge must make an inquiry regarding the necessity for the restraints—even if no jury is present. In my view, the trial court’s responsibility to satisfy itself by means of such inquiry may not be delegated to the federal marshals or other custodial personnel; a trial court may not hand over to others this duty which, like any other facet of running its courtroom, is imposed on it.
The majority apparently believes that so long as no jury is present, a defendant may, without any judicial inquiry as to its necessity, be led into the courtroom chained and shackled. Concededly, the distinction between a jury and non-jury setting is relevant to the issue of prejudice to a defendant. But, the rule that a defendant should not needlessly be shackled or suffer similar physical restraint during the course of the legal proceedings against him is, as the majority itself acknowledges, bottomed on more than the danger of jury prejudice. Physical re*106straints detract from the dignity and decorum of court proceedings, and on that basis alone are disfavored. Illinois v. Allen, 397 U.S. 337, 344, 90 S.Ct. 1057, 1061, 25 L.Ed.2d 353 (1970). Restraints may also substantially interfere with the accused’s ability to present his case—by impeding easy communication with counsel, confusing a defendant to a degree sufficient to impair his mental faculties, and causing the prisoner to suffer pain. See Duckett v. Godinez, 67 F.3d 734, 748 (9th Cir.1995). These concerns are implicated regardless of whether a jury is witness to the physical restraints placed on a defendant.
In sum, the broad language the majority uses does not square with the Supreme Court’s admonition in Allen that such restraints should be used only as a “last resort.” 397 U.S. at 344, 90 S.Ct. at 1061. The fact that the proceeding is non-jury does not diminish the degradation a prisoner suffers when needlessly paraded about a courtroom, like a dancing bear on a lead, wearing belly chains and manacles.
Our rule that a court impose no greater restraints than necessary, Davidson v. Riley, 44 F.3d 1118, 1122-24 (2d Cir.1995), presupposes the exercise by the trial judge of informed discretion as to their necessity in the first place. Here the trial court totally abdicated that responsibility. The defendant was brought into the courtroom in chains, and the court—rather than inquiring into their necessity—stated that it declined to get involved; instead the decision as to how defendant was to appear was made by his jailors. Because I think the majority opinion creates an unwise and unwarranted exception to the Davidson rule, I write separately.