honour's i'm jeffrey runs from the university of montana school of law and it's my duty under the rules of this court and also my privilege to introduce roberta berkoff a third year student needed to practice before this court under the student practice rule and my name is roberta berkoff and i'm here on behalf of plaintive an appellate will be carpenter and i'd like to reserve three minutes of my time for battle mr kirby to want to just dance deliver his closing statement he had seen opposing counsel move about the courtroom for two whole days he told the judge she would like to stand for the argument but he objected by saying to the judge but then the chains are going to make noise i'm sorry i can read and hear you but then the chains are going to make noise she told the district court judge she would like to stand for closing but he was worried about standing for closing because he was worried about the chains making noise and he said he didn't just say but then the chains going to make noise he said but then the chains going to make noise they already i think registering the fact that he wanted to stand for closing and then was unable to do so comfortably because he was worried about not necessarily the freedom of mobility not necessarily about the jury already knew that was in incarcerated but that the chains would also be distracting not didn't him necessarily but also to the jury or both but distracting is not the question if that's all it is there isn't anything for you to really talk to us about in my view maybe you could respond to that because it seems to me that if ali is worried about his well they're going to make a noise but they already knows he know he's in jail they already know he is a prisoner and is there really here and if there is is of harm us i think there's air and the reasons why are if you look at the record there's ten years that have passed since the incident to the time that he actually got in front of the jury entirely possible that with that length of time that passes between incident and when he's in front of a jury he could be out of prison at that point so now you have a ten year mark between incident and being in front of the jury he's obviously shackled to the table that conveys dangerousness but it goes again i think you're missing the question because if in fact they already know he's in jail then the fact that he has chains on are simply an indication that he is in jail and if they already know he's in jail then what is the error or even the harmlessness of it you can go into all of substance about whether he should have been or whether he shouldn't but he doesn't object to had them knowing he's in jail and all the chains do is say yeah he's in jail haven't if he was on a cause of action that was access to the law library or prison conditions that would be one thing but even the defendants indicate that an element of his cause of action was dangerousness and but just because if they know he's in jail then it doesn't necessarily say's danger because he has chains on it everybody who goes to jail how come the jury can't think everybody who's in jail has changed i mean there's nothing to suggest that it's more than just a part of the costume a jail person comes to the courtroom absence of indication in the record that there was any sort of findings that chains were necessary that was a civil case the court there reminded for an evidentiary hearing on whether or not chains were necessary  honor through the ninth circuit and i take it counsel in this case the district court did not instruct the jury you may see mr carpenter with chains this is normal course nothing like that at all here there is describing what the shackles were because i was and i was in a usa for many years and we have we would have prisons the core of all time sometimes they would have no shackles sometimes they would have just on the wrist sometimes they have the full area nation court and i can tell you that he was seen from the feet to a large red metal cement post underneath the plaintiff's table was what was described to me but in the as far as the record and i understand that's what he's telling you and they would be able to maybe contest that sure but in terms of the record as i think about the table he sat for example if i were on the jury could i see the chains underneath the table or was there a curtain on the table there was nothing in the record to indicate that the jury could see the shackles if mr carpenter had had counsel present i'm sure that that would have been an objection that would have been noted for the record as well as other objection and in terms of what the jury could have perceived is there anything in the record to don't know whether they even saw it there's inferences from the record that can be drawn based on sidebar conferences as well as his inability to stand that shows that he was he was contained to that point of stable sidebar conversations happen shackles of the chains if the jury was in a position to have seen him it wouldn't made any difference about him complain about hearing them would it he would have known that he had them on whether they heard him or courtrooms and trial courts for a long time and every day that they bring over the prisoners in a van and they're all trained and everyone sees them trained and so it's really it's normal for people that are in jail to be in chains if they're going to be transported from the jail somewhere so that the there would the jury would have necessarily known at least that at some time in the actions that prisoner proceed plaintiffs should have a hearing prior to but how did that how did the judge know the judge was already in the process of what was at the end of the first trial  so the first trial had was nearly completely over when the defendant first brought to the court's attention anything that might put the judge on notice  that it was at least inconvenient to the defendant right correct so if they'd assess if the jury in the first trial would have seen him that would have been after most of trial was over and before he made any any complaint at all so i think yes we're really talking about the second trial right away and he was changed for the second trial without an additional hearing or any acknowledgment ok now for the second trial did he really knew his objection no he did not your honor so so you have one where he made it too late now where it wouldn't make any difference and then you have a second proceeding and which he never even brings it to the we argue that it was a suicide bomb for the district court to do something and when the circuits remanded there's no requirement for an evidentiary hearing to be held for a prisoner proceed plaintive even when nobody makes an objection it's in those circuits it's required now that in evidence that some finding maybe not in the hearing but that there be some evidence as to the requirement for shockley then let's move to one of your other issues maybe we talk about the leading questions was that raised before the district court and the times that mr i mean mr your client did raise objections did he not as to some of these in the court sustain the objections as just some of them your honor yes he did object and so at this point we're talking about those two which he did not object and yet record has some duty but the judge in this case started off the entire trial by indicating that he would sue a spons rely on it in some instances because he objected that is correct he did object in some cases but in other cases he didn't or he objected soley before the issues higher comment was so wasn't just with two witnesses it with a it was with all six witnesses and the majority of the questions which is contrary to what we'd like to see with having witnesses give their own testimony and testify from memory and the veracity of the witnesses and when you have a prosecutor asking the majority of the questions in a leading fashion it reduces the opportunity for there to be that  his appointment of counsel that you're objecting to i mean it seems to me that we've got well born that's right on point is abuse of discretion and only in exceptional circumstances and says how they're to make the finding and in this particular situation i look for in a supreme court authority which would suggest our will born was out to lunch and i couldn't find any and you couldn't answer i think you know the supreme court hasn't but there is a distinction between a point and request your honor and we're talking about the request for counsel not the appointment of counsel or we even if they time you get counsels if you request and it's all about will born we have to determine is this exceptional circumstances and i think mr carpenter fit that exceptional circumstances he had a the language category of a third grade level he had an overall education competency of the sixth grade the c d c had recommended that he not attend hearings without assistance that she needed short and simple instructions he needed to be told repeatedly what to do and all of that was in mr carpenter's motions for his requests for counsel ok thank you your hon may please the court i'm kathleen borders with the california attorney general's office and i represent our police in this matter willie comprador presented two simple claims in two separate jury trials did the defendant correctional officers use excessive force during a search  june two thousand and four and did sergeant fell use excessive force in january two thousand and five when breaking up a prison fight involving carpenter the jury's heard carpenter and his witness's testimony and they heard the officers testimony both deliberated for about one hour each and both found in favor of the officers mr carpenter had his day in court and he lost on appeal he raises three main issues first that the district court plainly erred by not holding here prior to trial where mr carpenter had minor security restraints and never objected to that the district court plainly erred by not interrupting defense counsel's direct examination where counsel employed some leading questions as necessary to develop a witness's testimony in plaintive did not object and three that the district court abused its discretion by declining to appoint counsel where plaintiff did not show exceptional circumstances turning to the first issue the use of security restraints without a pretrial hearing where carpenter did not object or raise the going to make the noise is not enough to suggest in a pro se situation that it's an objection yes your honor i don't think that that is a statement that would indicate to the court that there was a problem he continued on to say they're ready no i'm in jail that is a true statement again and that came at the end of trial that came right before his closing statement that came outside the presence of the jury in this  on this record there is no evidence that the jury had any awareness that he was minor only restrained under the table there was no evidence at all that the jury even had knowledge of that in the cases even talking about criminal defendants the cases relied actually could appear in court without shackles and it's not clear from the record whether he did or he didn't but i would say that the record is clear that he was fully capable of bringing that case he filed many objection  motions he filed motions eliminate he filed a motion in limine a way to keep out his prison disciplinary history a successful motion he filed motions in limine to keep out his conviction testimony he made objections accor to  articulate his objections when count when defense counsel wanted to attempt to show bias of one of his witnesses and show that they were in the same gang he objected there was a side bar he says successfully convince the court that the gang information should not come in again this is not someone who was just sitting there not aware of what was going on and again going to again to the harmless error i mean even the cases that out of circuit cases that plaintiff are allies and like mouse and lemons for example mousy baker that was a pretrial detainee though so there was no need for the jury to even know that the person was in prison as opposed to this case where it was clear that the of an incident took place in prison it was clear he was an inmate in that case it was witness box outside of the jury's presence those are exactly the things that the panel found the trial court did not do in the mouse case and in the lemons case where the trial court to do that here is there any precedent for the idea and i know might be the situation if it was clear that the jury had seen the change and then it was going to be prejudicial for example in the lemans case he had handcuffs and leg irons and he was required to walk in front of the jury as an exploration of how injured he was so a case like that maybe there might be a situation where the judge might be required to take to take some kind of action and you suggesting there's a case which would suggest that what he was was he in prison garb was he wearing could you see the shackles was it a belly chain and in the record to help us better understand there is not anything specifically in the record about that there is added it is very clear from the record that where he was for example he wanted to testify in the witness stand the judge gave him that option so it's clear that when he was put moved to the witness stand and sat there that the jury was not present so they didn't see him moving around it was clear that his witnesses who were also inmates were not not handcuffed but i don't know his witnesses had were alleged to have beaten up prison guards were like he was he well he was but he admitted and that is another factor going to harmless error in this case that i think contrary order to lie down and stay still he admitted that he was moving that he was reaching under the bunk for something now he says it was a laundry bag to cover his face but he admitted that he was not complying with the orders and the question the jury was supposed to answer was whether when the officers deployed the pepper spray were they doing it wantonly maliciously for the very purpose of causing harm so even if though there is no evidence on the record that the jury saw the shackles i just don't see how the inference can be made that would thrown his own witness testified that carpenter was on top of the other inmate punching him mr barber emitted that he did not immediately drops of the ground but he did not disengage from the fight he admitted that he was involved in pushing so again this isn't the kind of case where the because this isn't for example a case where the officers necessarily even knew anything about mr carpenter and in some of the testimony they said they did they didn't know him they didn't have interaction with him so it isn't necessarily a question of you know is he an inherently prone to violence it was in that my understanding is that generally the inmates are shocked if there might be a situation where it's raised before the court and then there's some argument but it's usually very discreet the court takes extreme measures to make sure the jury does not see think the questions here were simple the officers were credible and the jury you know deliberated about an hour for each it was this was clearly not a case where those issues were going to be going to affect the outcome of the castle me ask you this and this is this is a hypothetical but i want to understand if we have to write something in this case where we're going to come down let's assume same case exactly the same except on the verdict form the verdict for comes back from the jury instead they said they stay they find that they find for the defense and they say and they actually write on the jury form because we saw him wearing shackles so we know he's dangerous period that's on the jury form and your view does the case come out the same  way i definitely think that the trial court in that case would be well advised to consider having some kind of hearing talking with counsel seeing if there is some kind of curative instruction that could be given i mean once the voters come down on voters can voters come down and the verdict says on the form we find for the defense because he was wearing shackles so we know he's dangerous to be honest i mean what i would assume would happen in that case would be the plaintiff would then make a motion for you know to disregard the verdict but the verdict and that's kind of all right we have today is what they're trying to i think that's what they're asking us to do now is to disregard the verdict yes except for it with no evidence that it was harmless but again i think in that situation and then going forward see this the second part of your question i believe is that how would that then affect the second trial and then in that case you know is the judge on notice that that's i would i would have thought you would have said that it wouldn't matter because he argument's sake here we don't know that what we don't know what we don't know but we do know there was no objection so was it your position in the hypothetical i just gave that the plaintiff would still lose because the plaintiff not adequately raised the issue i do believe the plaintiff would still lose but i do appreciate that it can be a different situation where you have a pro se litigant and if you have evidence where the jury specifically considering something that was inappropriate then i believe there would at least be an issue there but i do think that for the court looking at it you would still consider it we've gone for failure to object let me change the subject on in this thing even though you're pro se and so don't worry too much about it and then frankly the playing of puts on their proof without ever having to have anybody testify except the good  the plaintiff but they the department the defendants are gone all are prove whatever haven't anybody testify except the lawyer i certainly do think if there was a case where the attorney was just giving a monologue of the facts of what happened and the officers were just sitting there saying sure sure that sounds right that is your ward reading some of this i think that actually happened i respectfully honor i fully disagree i think the record shows that the initial facts were developed through direct examination in the narrative form it was what happened on this day what happened next what happened next once those facts came out then for the direct testimony there was some summing up for example one of the examples that plaintiff objects to now although i did not object at trial was in fact you gave more than one order correct ok arguably a leading question that testament that question came at the end of the testimony officer had already testified in narrative form that he had given multiple orders so again the question the answer the question for leading questions is is was it necessary to develop the witnesses testimony and question where you know did how many orders did the defendant give ohi didn't remember or ok he testified he only gave one order and then because of a question like in fact you gave more than one order isn't that correct somehow change the testimony embellished it that record is clear that he for that situation he gave more than one order and i think that that goes through the other line questions as well if you have no more questions a counselor you took more than your time but your your good professor got up and stole some of your time just trying to enter dushan and say how good you were so i'll give you thirty seconds honor in this case the judge deferred to the california department of corrections into the second trial it was clear that she asked the officers to sit when the defendant rose to give his pleading testimony the judge also at the end of the second trial deferred to the treatment of the prisoners as they were being released indicating that that was a california department of corrections incidence and i would ask that your honour's remand this case and thank you very much for your argument and again thank you university of montana for participating in this pro bono project we very much in prescience your efforts in that regard and we have a rule then many circuits and that is that if you will take these pro bono cases we guarantee you an argument and as a result we're so delighted when the universities and the law schools take these projects on and we very much appreciate that appreciate both of you for your good argument today thank you very much the court is now in recess