A recent state Court of Appeals ruling is changing how some defendants are presented in court for hearings.

In November, the court ruled that defendants being held in jails throughout Washington cannot be automatically brought before a judge in shackles, despite policies in many jails — including in Skagit County.

“It’s been the policy of the jail since I can remember that inmates are shackled for any court appearance except for sentencing and trial,” said Skagit County Chief of Corrections Don Marlow, whose career in law enforcement spans about three decades.

The ruling states that a judge must determine on a case-by-case basis whether a defendant should be shackled at hearings — which typically last minutes — prior to trial.

“We just have to make an individualized decision,” said Skagit County Superior Court Presiding Judge Brian Stiles.

Now, judicial systems throughout the state are coming up with ways to make sure all defendants are given the opportunity to appear before a judge who will determine whether or not they should be shackled during hearings.

In Skagit County, that means working through a backlog of about 250 defendants, Marlow said.

“It’s created an enormous amount of work for our (team),” he said. “We don’t have the staff really to deal with the issue.”

Determining who should be shackled and who shouldn’t requires time and money from all parts of the criminal justice system — from corrections deputies to lawyers and judges.

“We’re all trying to work through this and come up with the best solution possible,” Marlow said.

THE DECISION

The issue of whether defendants should be shackled during hearings was brought to the appeals court by William Lundstrom, who was charged in Clallam County Superior Court in 2016 with two charges of unlawful possession of a controlled substance.

He appeared shackled during one of his hearings despite the objection of his lawyer, the November ruling states.

While Lundstrom ultimately pleaded guilty to those charges, he asked the Court of Appeals to determine if his rights had been violated because of the shackles he wore during hearings, according to the appeals court’s decision.

The state constitution states that in all criminal proceedings, “the accused shall have the right to appear and defend in person,” which includes having the right to assist their lawyer physically — including use of their hands — and mentally.

“Lundstrom argues that his pretrial restraint violated his due process rights because the trial court failed to make an individualized determination on the necessity of restraints,” according to the ruling.

The judge on Lundstrom’s Clallam County case should have determined whether Lundstrom should have been shackled in the courtroom, instead of defaulting to the jail’s policy, according to the appeals court ruling.

That ruling set a precedent for other defendants throughout the state, putting in motion the process in which judges are now reviewing each case, old and new.

“The Court of Appeals clearly makes it the judge’s role to do,” Stiles said of the ruling. “And we have to abide by that.”

Stiles likened the process for determining whether shackles should be used to that of setting a defendant’s bail: Lawyers on each side make an argument and, based on certain factors, the judge sets bail at an amount deemed appropriate.

When making a decision, Stiles said judges take into account the charges; criminal histories, particularly whether there are any past violent offenses; gang affiliations; previous escapes or escape attempts; and the potential of the defendant to cause a disturbance or injury in the courtroom.

Judges also take into account jail records, which include whether defendants have been involved in fights while in custody.

“Some of these decisions are more easily made than others,” Stiles said.

In an effort to make it through the backlog as quickly as possible, hearings have been scheduled solely to address which defendants will require shackles, Marlow said.

Still, Stiles said it may be two or three months before the backlog is cleared.

”A TERRIBLE BURDEN”

The extra work adds stress to an already understaffed corrections department, Marlow said.

For each unshackled inmate, jail policy dictates at least two corrections deputies need to be in the courtroom.

Jail staff are also responsible for preparing the paperwork a judge will use to decide which defendants should be unshackled, Marlow said.

And corrections deputies are tasked with making sure all in-custody defendants get to the right courtroom at the right time and appear shackled or unshackled, depending on the judge’s decision.

Since Skagit County began working through the backlog in January, Marlow said he has had to have employees work overtime.

Because his department is understaffed, he said he doesn’t know how much overtime is due to the shackling issue versus everyday business.

The added cost for the jail is one of the reasons Skagit County Prosecuting Attorney Rich Weyrich said his office disagrees with the appeals court decision.

“It’s putting a terrible burden on the jail,” Weyrich said. “It’s putting a terrible burden on the taxpayers who have to pay for the overtime and extra deputies.”

His office, he said, is not opposed to a defendant’s right to appear before a jury unshackled. Extending that right to all hearings is the point of contention.

“We just disagree when they’re brought in and out in two minutes,” Weyrich said.

His office’s stance, he said, is to ask the county’s judges that all defendants be shackled during hearings prior to trial.

“We believe they all possess a potential to escape or engage in some sort of assaultive behavior,” he said.

Weyrich cited an example from October when two men — both in shackles — attempted to flee a Lewis County courtroom. Both were quickly apprehended, although one was chased by the judge down a stairwell of the building, according to the Daily Chronicle.

Weyrich said similar occurrences have happened in Skagit County.

He said that recently an out-of-custody, unshackled defendant whom a judge ordered be taken into custody during a hearing attempted to flee from Skagit County District Court.

“One of my fears is you have a person that comes out that’s not shackled that finds out they’re not getting let out of jail and all of the sudden they have this profound sense of not having freedom and they would do something that’s against their typical behavior,” Marlow said.

DEFENDANT DIGNITY

Keith Tyne, director of the Skagit County Public Defender’s Office, said he doesn’t feel threatened by defendants being unshackled in the courtroom and believes the underlying issue of dignity is important.

During his time at the Public Defender’s Office, Tyne said his employees have spent thousands of hours one-on-one with unshackled defendants.

“No one has ever been assaulted,” he said.

While he recognizes there is a financial impact for all parties involved, Tyne said the Court of Appeals opinion was about preserving the “dignity of the defendant before the court and before the public,” and a person’s right to assist in their defense.

“(Shackling is) a literal infringement upon your freedom,” Tyne said.

His office’s stance, he said, is to request every defendant be unshackled because, according to the Court of Appeals opinion, it is a judge’s place to say otherwise — not a lawyer’s.

“Our part, on behalf of our clients, is to uphold their rights,” he said.

Once a procedure is established and the backlog clears, Stiles said the issue will be just another part of the criminal justice process.

His concern, he said, is what would happen if a local judge is determined during an appeal to have made the wrong decision.

“Is it case dismissal, or is it just harmless error?” he said. “We don’t have much guidance with that yet.”

— Reporter Kera Wanielista: 360-416-2141, kwanielista@skagitpublishing.com, Twitter: @Kera_SVH, facebook.com/KeraReports

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