dissenting:
The majority has found that defendant cannot challenge the fact that his legs were shackled at the July 23 proceeding or that one of his hands remained cuffed at the February 18 proceeding, and that the trial court did not commit plain error by allowing defendant to remain in leg shackles during the October 17 and February 18 proceedings because the record does not show that the shackling on October 17 and February 18 hindered defendant’s ability to assist his attorney, compromised his presumption of innocence, or demeaned the dignity of the proceedings. I disagree with the majority’s conclusion that the trial court did not commit plain error when it, as the majority admits, committed due process errors by failing to hold Boose hearings before the October 17 and February 18 proceedings. 373 Ill. App. 3d at 176. Therefore, I respectfully dissent.
I agree with the majority that the supreme court’s decision in Allen controls the disposition of this appeal. The basis for my disagreement lies in my belief that Allen actually requires reversal of the judgment of the circuit court of Peoria County rather than affirmance. I think a summary of my argument, that will be set out in greater detail below, would be helpful.
SUMMARY OF ARGUMENT
Our supreme court has held that (1) “In the absence of exceptional circumstances, an accused has the right to stand trial ‘with the appearance, dignity and self-respect of [an innocent and free person]’ ” and (2) “[i]t jeopardizes the presumption’s [of innocence] value and protection and demeans our justice for an accused without clear cause to be required to stand in a courtroom in manacles or other restraints while he is being judged.” (Emphasis added.) In re Staley, 67 Ill. 2d 33, 37, 364 N.E.2d 72, 73 (1977), quoting Eaddy v. People, 115 Colo. 488, 492, 174 P.2d 717, 719 (1946). The Allen court concluded, citing Staley: “Thus, even when there is no jury, any unnecessary restraint is impermissible because it hinders the defendant’s ability to assist his counsel, runs afoul of the presumption of innocence, and demeans both the defendant and the proceedings. ” (Emphasis added.) Allen, 222 Ill. 2d at 346, 856 N.E.2d at 353. Thus, trying defendant in “unnecessary” restraints is, by definition, plain error.
Although these are the same reasons cited by the supreme court in mandating a hearing to determine whether there are legitimate reasons for restraining the defendant during his trial (People v. Boose, 66 Ill. 2d 261, 265-66, 362 N.E.2d 305 (1977)), the court decided in Allen that the mere failure to have that hearing is not “plain error” (Allen, 222 Ill. 2d at 360). Therefore, without an objection by the defendant to the restraints and a showing that the failure to hold the Boose hearing undermined his ability to assist in his defense, jeopardized the presumption of innocence and demeaned our system of justice, a forfeiture of this due process right occurs.
To avoid the inadvertent nullification of case law that retains the approval of the supreme court and remains good and valid law of this state, we should utilize the presumption present in those earlier cases that without a determination of special circumstances, a defendant who is restrained during his/her trial has been “unnecessarily restrained.” Thus, we would have to find “plain error” by operation of law.
ANALYSIS
The supreme court has stated unequivocally that “[i]n the absence of exceptional circumstances,” presumably as determined by a Boose hearing, “an accused has the right to stand trial ‘with the appearance, dignity and self-respect of [an innocent and free person].’ ” Staley, 67 Ill. 2d at 37, 364 N.E.2d at 73, quoting Eaddy, 115 Colo, at 492, 174 P.2d at 719. The supreme court has further stated that it “demeans our justice for an accused without clear cause to be required to stand in a courtroom in manacles or other restraints while he is being judged.” (Emphasis added.) Staley, 67 Ill. 2d at 37, 364 N.E.2d at 73. With those clearly stated principles in mind, I turn to what constitutes plain error in cases where the evidence is not closely balanced but where a defendant, contrary to his rights, is tried in shackles without a finding on the record of exceptional circumstances to justify depriving him of those rights.
In Allen, the supreme court discussed the second prong of the plain error test, relying on its holding in People v. Herron, 215 Ill. 2d 167, 830 N.E.2d 467 (2005). In Herron, the court stated as follows:
“In the second instance, the defendant must prove there was plain error and that the error was so serious that it affected the fairness of the defendant’s trial and challenged the integrity of the judicial process. [Citation.] Prejudice to the defendant is presumed because of the importance of the right involved, ‘regardless of the strength of the evidence. ’ [Citation.] In both instances, the burden of persuasion remains with the defendant. [Citation.]” (Emphasis added.) Herron, 215 Ill. 2d at 187, 830 N.E.2d at 479-80.
Thus, it seems, the second prong of the plain error doctrine embodies a two-part test. First there must have been an error at trial. Second, that error must be one that (a) affects the fairness of the defendant’s trial and (b) challenges the integrity of the judicial process. The Allen court found that “while defendant herein has proven a due process violation which amounted to error by showing that he was required to wear an electronic stun belt at trial without the court having first determined that it was necessary, defendant has failed to persuade this court ‘that the error was so serious that it affected the fairness of [his] trial and challenged the integrity of the judicial process.’ ” Allen, 222 Ill. 2d at 353, quoting Herron, 215 Ill. 2d at 187, 830 N.E.2d at 479-80.
I agree with the majority’s finding that the evidence in this case is not closely balanced. Therefore, if we are to find plain error, it would be under the second prong of the plain error rule. The failure to conduct the Boose hearing is error. See Allen, 222 Ill. 2d at 353. More so, “a trial court’s failure to examine the necessity of requiring a defendant to wear restraints at trial is a due process violation.” Allen, 222 Ill. 2d at 359. Herron, with which the Allen court obviously agrees, tells us that prejudice on account of this violation is presumed. We now know that a due process violation that prejudices defendant is not enough to satisfy the second prong. What we do not know is what exactly (a) affects the fairness of a defendant’s trial and (b) challenges the integrity of the judicial process — if not, in either case, the prejudicial due process violation resulting from the failure to conduct the “requisite [mandatory] hearing.” But, although the Allen court did say that this showing was insufficient to prove “that [defendant’s] presumption of innocence, ability to assist his counsel, or the dignity of the proceedings was compromised” (Allen, 222 Ill. 2d at 353), it also said:
“[A]ny unnecessary restraint is impermissible because it hinders the defendant’s ability to assist his counsel, runs afoul of the presumption of innocence, and demeans both the defendant and the proceedings.” (Emphasis added.) Allen, 222 Ill. 2d at 346, citing Staley, 67 Ill. 2d at 36-37, 364 N.E.2d at 73.
The only reasonable conclusion is that “plain error” as defined by Allen in this context occurs not from the failure to hold the Boose hearing but rather from a showing that the restraints are unnecessary. I also note with particularity the court’s reference to any unnecessary restraint, precluding any argument in this case that removing defendant’s handcuffs sufficed to permit him to assist his counsel while both legs remained shackled.
The problem, of course, is how to determine that the restraints were unnecessary when there was no hearing and were no findings. Although it appears that, without the hearing, this is an impossible showing for the defendant to make, I think there is an answer — one that lies in the presumption behind the analysis for when a defendant may be shackled during trial.
If we were to begin with the premise that shackling is in all cases permissible, but a defendant may request a hearing to determine whether they may be removed, then a failure to conduct the hearing would not be plain error. This is true because under this premise, shackling — if in all cases permissible unless proved otherwise — could not have the effects on the trial listed above. Otherwise we would not permit this to be the default condition in the courts.
In reality, however, the law is to the contrary. Instead, we begin with the premise that a defendant may never be shackled during trial. See Boose, 66 Ill. 2d at 265-66, 362 N.E.2d at 305.1 If, and only if, a court, after a hearing, determines in a particular case that shackles are required on account of one or more specific, demonstrable risks, may they be used. See Boose, 66 Ill. 2d at 266, 362 N.E.2d at 305 (“A defendant may be shackled when there is reason to believe that he may try to escape or that he may pose a threat to the safety of people in the courtroom or if it is necessary to maintain order during the trial” (emphases added)); Deck v. Missouri, 544 U.S. 622, 629, 161 L. Ed. 2d 953, 963, 125 S. Ct. 2007, 2012 (2005) (“[T]he Fifth and Fourteenth Amendments prohibit the use of physical restraints visible to the jury absent a trial court determination, in the exercise of its discretion, that they are justified by a state interest specific to a particular trial”).
Under this premise, the one established by both our supreme court and that of the United States, the failure to conduct the hearing, i.e., to permit unnecessary restraints — since necessity may only be determined after a Boose hearing — must be plain error because the presence of the shackles presumptively hinders the defendant’s ability to assist his counsel, runs afoul of the presumption of innocence, and demeans both the defendant and the proceedings. See Allen, 222 Ill. 2d at 346, citing Staley, 67 Ill. 2d at 36-37, 364 N.E.2d at 73. We could only not find plain error by examination of the Boose factors after the hearing and a determination that the restraints were necessary. If the hearing to determine whether the restraints were necessary never took place, we cannot not find plain error.
Because the restraints are presumptively impermissible, we may only logically begin with the premise that the restraints are unnecessary. I must conclude, as did the Allen court, that if the restraints are unnecessary, their presence hinders the defendant’s ability to assist his counsel, runs afoul of the presumption of innocence, and demeans both the defendant and the proceedings. However, the only way to determine whether the restraint was unnecessary or not is to have the court’s assessment of the Boose factors on the record. It necessarily follows that in the absence of that assessment, plain error must attach. Otherwise, the error — unnecessary restraint since there has been no determination of necessity — would go uncorrected in every case.
While this reading may appear at first blush to be in conflict with the holding in Allen, I believe it is fully consistent with the supreme court’s analysis. While the Allen court held that the trial court’s failure to conduct a Boose hearing — standing alone — does not amount to plain error unless the defendant can show that his restraint caused an unfair trial, application of the presumptions found in Herron and Staley and confirmed in Allen show that the failure to conduct the hearing necessarily results in the “unnecessary restraint” that does constitute “plain error.”
I do not believe that the supreme court meant Allen to be interpreted as holding that shackling, absent a Boose hearing, never constitutes plain error. We are therefore left to determine for ourselves what does constitute plain error in these cases based on both the language and the spirit of the supreme court’s opinions. I have attempted to do so faithfully here and conclude that the trial court’s failure to conduct a Boose hearing resulted in a presumption of the unnecessary restraint that the supreme court has found to be plain error. Accordingly, I would reverse the judgment of the circuit court of Peoria County and remand for further proceedings.
“Most of the courts that have considered the question have held that an accused should never be placed in restraints in the presence of the jury ‘unless there is a showing of a manifest need for such restraints.’ [Citations.] The ABA Standards relating to jury trials provide: ‘Defendants *** should not be subjected to physical restraint while in court unless the trial judge has found such restraint reasonably necessary to maintain order.’ [Citation.]” Boose, 66 Ill. 2d at 265-66.