morning everyone our first case this morning is united states versus henderson  morning your honor samaritan is the court counsel her name's tom patton and i'm here today representing rainey henderson mr henderson has a protected liberty interest from being shackled at pretrial hearings absent an individualized finding that he presents a risk of danger of acting out in the courtroom or of trying to escape you know you has this protected liberty interest that's protected by the due process clause because the right not to be the pretrial hearings is deeply rooted in the common law in therefore it was incorporated into it as part of the rights protected by the due process clause in judge miers cos finding that right exists is in error and should be reversed so how do we get to the merits how do we deal with the jurisdictional problem and can you tell me why you chose not to pursue  we chose the collateral we chose this route because i'm not sure about the writ of mandamus because part of there are the requirements for a writ of mandamus it has to be a clear duty and while we do think that this was clearly part of the common law and a due process right if you bring the writ of mandamus then you have the issue of well is the right clearly established as the judge is this just a ministerial act it's so clear that it's you have to order the judge just to challenges on the collateral order doctrine well your honor i would actually disagree on the collateral order doctrine because it's first of all i think the first two prongs are clearly met because it judged meyer's cross order clearly completely addresses this issue and it is totally divorced from the merits of the underlying case and so then you just get down to his or her decision virtually unreviewable on appeal from a final judgment and i think doctors because that liberty that they're going to lose just cannot be replaced can't be remedied on direct appeal even though like enron all the it's not going to have anything to do with the merits of the case you know he's going to go and get the psyche bile and unless the psych eval says that he can't stand trial there's going to be a trial so i can have anything to do with the merits of the trial and so there's no relief you can get and it's the same thing that's not actually true deck itself in the supreme court case th year it's effectively challenging here relying on and challenging at the same time it was an appeal from a final judgment correct your honor but dec actually involved the defendant appearing before the capital sentencing jury in changed in full color handcuffs and leg irons and everything and so the that actually happened so the supreme court could say we can review what actually happened we can review the trial or the not the trial record the record of the second sentencing hearing and see whether or not we think there is prejudice here this shackling is not going to occur a trial mr henderson goes to trial he's not number one if mr henderson is acquitted there's no way that you can always a possibility that's not basis for collateral review the cell opinion itself made that very point that part of why it was in this was in the a majority of the cell opinion responding to the dissents claim that this could not be appealable under the collateral or doctrine is the majority opinion says you cannot undo the harm even if he is acquitted indeed if he is acquitted there will be no appeal through which he might obtain review and that was specifically a part of the supreme court's analysis in cell saying that the force medication order was appealable under the collateral order doctrine because he could not get effect and they also made the point that said hate the force medication might make the trial itself unfair but that is a separate issue that and that issue could be reviewed on direct appeal well if the if the forced medication actually made the trial unfair they said it's a separate issue of whether he should be medicated in the first place and he has the liberty interest not to be forcibly medicated and that liberty interest could not be vindicated on in ordinary direct appeal which is why the force medication argument was obviously not in that category of claim this is a deck claim under deck versus missouri and that case was a review of a final judgment and the court granted effective relief and so why can't that likewise happen here on review of the final judgment well i would not agree with the characterization that this is a duck claim we will say that it's a  medication claim absolute and line of cases right deck and its predecessor but dec dealt with shackling before the jury now it's a capital process of capital sentencing rather than to a jury tri here can be reviewed following final judgment and reversed based on a shackling error not one that affects trial because he's not going to shackle the trial and so it's right but if there is a ultimate finding in your favor on the merits that shackling at pretrial proceedings is unconstitutional effect differently it can be granted in the form of a reversal if the error is proven to be harmful i disagree with you differently if the state or if the government can't prove that the error was harmless your honor i would just cell could not possibly come out the way cell did with that and as a result of course medication issue this is the shackling claim let's deal with the sha ling cases checking cases are reviewed on final judgment a shackling case where the argument is that you were shackled in front of the jury and that being shackled in front of the jury caused your actual person trial procedure to be unfair yes can be reviewed on direct appeal but that is not our claim dect dealt with shackling in front of a juror it did not address this particular issue now we think the reasoning of deck supports our right i clearly we do and that's what we argued but our claim is not the identical claim that that cat in fact deck says at the beginning of the opinion said the the issue here is shackling in front of a capital sentencing honor distinguished it on for fellow jurisdiction purposes between the blanket policy and an individual determination that surroundings in individual determination that is erroneous means that you are actually reviewing there's not i mean you're right in that in the sense that if we think that they've made the wrong decision in doing the actual if she would do individual ised hearings and we think that's wrong under the logic of our collateral murder doctrine that would be appealable now as a practical matter i don't think that you're actually going to have those issues come up why not let your your office has limited resources and time obviously b as a practical matter i doubt that there would be very many if any defendants that end up getting shackled falls fully shackled at pretrial proceedings because i just i don't think they're going to have a little jerk to to having and then all that it's like any appeal of any issue your honor once it gets appealed in this court issues a ruling on it that sets out what the rule is and if that's a ruling that routine ankle like irons violates the due process and they're not going to do to me we made look we made that up number one cause that's the way the court handled the civil jury trial and limits and so we put that out as you know as in any case where even if you think you're right on the merits you should give one hundred percent relief if if there is a way to resolve the matter short of having to go all the way to the end and resolve the merits where you get a little bit less but that you're comfortable with that we put that out as an option for the court and we put that out as an option to the district court it please the court jason bomb of the f united states council we disagree that the second prong of the collateral order doctrine is also satisfied in this case that is whether an important right has been decided is separate from the issues and the supreme court has said that the collateral order doctrine does boil down to some degree of a value judgment of the right that's implicated and we think that's part of what separates this from the selling of cases in the notion of an acquittal is in cell it was clear that it was the magnitude of the intrusion of a injected anti psychotic medication and it was part of why that was reviewable that type of magnitude of claim just isn't made in the shackling case because it's just not as important i think that's right i mean you know there are other there are other views on that you know could you address mr boehm in this case the government's briefs in sanchez coma's case pending in the supreme court the government's briefs suggest the defendants in the situation should just file a separate civil suit who would the defendant be i believe the defendant would be the united states marshal service the preacher the tailor just following orders of a district judge while what they would be challenging i believe your honor is that national policy directive now they'd be challenging you were hers of a district detention and that and civil trial litigants have brought civil quick cases challenging the conditions of their confinement and we view this as part of that i have a real trouble understanding that approach when you're talking not about conditions of confinement in jails or in prisons or in transport but in the courtroom itself and perhaps your own of the best course is to challenge this then not in  civil case but at the conclusion of the final judge papers and so if we go that route which you are also recommending how would the diff picture of the scene for me in which the defense would be able to overcome an think i mean it would be a fairly extreme situation where the judge did something to suggest that in fact the implicit bias or any bias was triggered by the defendant being shackled before him or her with the judge have to say on the record i didn't believe you with a motion to suppress because you just look so suspicious in those jail clothes he chuckles i mean i guess i think it would have to be an extreme example and i do think ok heads that part of so why should we treat this is a is a man us petition we can give the judge an opportunity to respond i think as counsel stated a mandamus is that the right is clearly due and here there is no right clearly due to  pretrial detainees not being shut down with this issue ever to decide what would be decided as it was in the second circuit on the eleventh circuit here on or after a final judgment was brought in both of those cases or both of those circuits where they challenge the before the judge and both the second and the eleventh circuit consistent with the supreme court and dec said there that is not a constitutional right to be unshackled before a district judge well we have the dic has its historical accuracy problems but if one thought that there were such a right how would it ever be decided under the government's approach if there was a right to being unshackled before a judge yes it could be challenged to want to have an individualized determination just to have an individual eyes determination i believe again judge you would have to challenge it after your final judgment as the did and there was the court not to show prejudice i'm sorry where you could not show prejudice in terms of the conviction well that's separate from whether there's a constitutional right i believe your honor if there could be such a right that is a harmless violation that happens to other constitutional could you know it looks let's turn this around suppose the district judge decides to take a particular of a particular notorious defendant with a long record of dangerous behavior and decides you know i'm i'm really devoted to this appearance of fairness and dignity in my courtroom you know i'm not going to alone allow any shackles on this person you have enough personnel to keep this person secure in the courtroom so i'm not going to allow shaklee who the government appeal that i don't believe so your honor it would not be the government's due process rights i don't believe is being violated there and here the defendant saying that it's his individual his due process rights that's being violated if the judge makes an individualized determination i don't think the government has any claim on appeal to challenge that ok thank you  actually won't because the issue they granted cert on was whether or not the ninth circuit's jurisdictional argument was correct having admitted that the individual defendants cases were moved because the individual defendants criminal cases had already issue because all four of the named defendants in that case by the time the ninth circuit ruled had all their cases were completely been treated as a real it is an underlying case that it had those additional mootness complications but it's a writ of m