may please the court my name is wayne young i represent the hades petitioner acosta this is the shackling case mr caster was shackled to his chair during his trial now it is clearly established that such restraints whether visible to the jury or not are prohibited unless required by specific security interests to you to that defendant and it's undisputed that there was no showing of such a need in this case so it's clear that the trial court now on that issue of whether they were visible i think the wrinkle here is that it is the court that has the duty to determine whether or not they're visible because of the inherently prejudicial nature of shackles not necessarily only in a sense and a sentencing but a trial is inherently prejudicial so the point of the point becomes whose whose duty it is to determine whether or not those shackles are visible know we didn't have to develop any record in the court we didn't have to put on in the affidavit we didn't have to do anything in the state system because it's their burden i don't quite understand their argument that just doesn't seem to jury course of i don't see any problem again because of the inherently prejudicial nature of our position is that the burden was on the trial court to do something more than to just take a look from the bench and say are there not visible that's fine but that still leaves the question if if what the trial judge is saying in the courtroom isn't true wouldn't you expect defense counsel to say well that's not true judge you can see them well it certainly would have created a better record but as an absolute requirement is the burden on counsel to do any more than to object to its client being shackled when it's something that has to do with the work that the only burden that there is then it is structural and nobody cares about prejudice that's the endeavor the problem is that we do care about prejudice and isn't the question whether the petitioner exercise due diligence in developing a record him question we had the opportunity and that subsequent hearing to do it and he didn't do it so the question returned still is that objection sufficient when it had something to do with the manner in which the courtroom is being run as opposed to the admission of evidence in a case and i think there's overlap between the structural issue and the prejudicial issue but it's an unreasonable finding i believe you know having been a district courts that the jury was unaware of it the first thing that the direct appeal was the only thing that he did and then he went to the federal court and i don't believe that the requirement to develop the evidentiary record precludes you from going directly after direct appeal to the federal court i don't think there's a bird to tresco by way of state hevia so the question becomes the failure to develop it in the post verdict hearing but so so that but again and i guess it comes back to that structural issue but if the counsel made his objection it certainly would have been better to be standing here had to develop the further but having brought it to the attention of the court i position is that the burden shifts to the trial court and perhaps to the prosecution as well at that stage in the proceedings for them to make the inquiry whether or not it's visible  f not then basically non visible or you know basically have new technology now the stun gun is an example then shackling is going to be permitted at any time even though it is clearly established that certainly visible shackles are inherently prejudiced that is difference if the problem is visibility and technology permits invisibility you can't say the established case law prohibits invisible  concern is concerned with what the jury can see in the inference is the jurors will draw from that i think the factors that led to the decision in the cases in which they're visible apply as well to this case and that is sort of the shaming of being shot for court the supreme court i think dec i believe addressed the impact on the defended of being shackled in front of the jury the mental impact is similar for someone whether it's visible to the jury or not and he knows he's sitting in the in the courtroom and that presumption of innocence which is at the core of all these cases it's taken away to him it you know he's thinking what do i do to prevent myself from being from the jury determined that i'm shackled it becomes a factor so some of the same factors that go to visibility applied to tases and would just not visible and given that again the duty goes to the trial court to make sure that they're not visible did indeed hold it it is visible schaffel's are not non visible shackles that violate a defendant's cost to tional rights and in this case the trial court on two occasions  determined that this was a non visible restraint device this way spells that attach to the back of the chair the bailiff made the same observation the trial court invited comment from defense counsel and defense counsel did object  object on the basis soley of the manifest need or lack thereof for the restraint device but said nothing of course about the visibility and as judge reimer pointed out had the opportunity to do that  inability to stay on what everybody else stands is something that he thinks he or alleges the jurors would notice and indeed there are certain customs and in the courtroom the jurors may or may not be familiar with what your comment is that well one that's not the visibility of shackling might be an awareness and it's just an argument of custody but in this case the let me just to develop that if if everybody stands up except defendant or defendant and defense counsel jurists we think you know these guys are  have petitioner stand to be sworn in at the witness stand so he was not restrained during his own testimony in addition the evidence reports in of this trial lasted a single day so this wasn't a situation where you had days or weeks of testimony and the jury seeing petitioner time and again not standing when everyone else was this was a very short trial and there's nothing to suggest that any of the jurors had that awareness concerning that used to be in the in the very old days in the state trial court system lawyers would even sit during an argument and making and during questioning and making objections of lounging yes the federal federal judges are far more strict about standing at the podium one making the arguments and standing when making objections and until last point concerning