the first case on the call this morning is  case number one two zero one three three in the reeve any m gender number one counsel for a very very rapidly you may court's responsibilities in connection with the decision whether to physically restrain a respondent in an involuntary commitment or involuntary medication proceeding but that it did  get one of those standards wrong we submit and in addition i think that the more important issues for the force a review and responsibility to ensure consistent review relate to not just the application of those standards to the facts of this case but the relevant legal was that governed what constitutes reversible error and who would have the burden of showing prejudice affecting the outcome of the think that there are some constitutional considerations that apply and civil proceedings obviously not all of them there's no if the memmott issue but the the the dignity of the court the liberty interests of the respondent all inform the need to have a proceeding in which restraints are not imposed under some blanket policy the court itself is responsible for making that determination is whether the strong presumption against restraints is justified by the evidence it must do so based on ticket or circumstances of the individual case he cannot delegate that responsibility to security officials and that the would did not concede that there there right there i think there may have been a suggestion that it was not the appellate court's place to pronounce new rules that govern these proceedings that's the that's incumbent upon the supreme court but i don't believe that there's any nothing really turns upon that i know that the appellate courts are sensitive to the needs of respondents in these cases rightfully so in similar circumstances they sometimes if we're up to make up to us to make these rules this is what we would do and we are to scream for it to do so but we're not making any headway on the fact that that the  court identified it's certainly not a straight application this were pressed for his apply those rules under common law cases to criminal proceedings following us can force a decision back or consistent with that in the goose case and also in the allen case extending those to a bench trials and it has then officially promulgated rules fool for thirty following t blues case slightly different standards apply with respect with all criminal trials and then again most recently cases as to what the standard for determining reversible error was it essentially said that if there was a claim of error it is incumbent upon the government to prove the absence of any prejudice beyond a reasonable doubt essentially did that and for reasons i'd be glad to elaborate on that really puts the shoe on the wrong foot it creates incentives like we've seen in this case where there was no objection during the trial to an inability to communicate with counsel between the respondent and his counsel there was no argument made by counsel that the restraints somehow contributed to the response  prejudice from the inability to communicate between respond in his hands when the government hasn't shown that there wasn't prejudice by the the application of restraints which may have resulted in the response  behavior now all of this information is in the possession of the responded and presumably his counsel and it's too easy to sit on your hands not in both those during the trial we don't know what communications were prevented between them but then say that the government has the responsibility after the proofs are closed the closing arguments are done and the record is complete and say the government now has to prove that there wasn't precious this is a hugely significant issue in these cases and it's not  showing that there's that there is overwhelming evidence to sustain the government's case typically in a criminal case that is made and that the evidence wasn't even closely balance but an alternative way the respondents bizarre or room interruptions and outbursts and so we would suggest that were where the evidence is in the possession of the respondent it is consistent with case law generally civil cases generally and even in criminal cases except for constitutional error reserved for direct review to impose upon the party trying to show that type of prejudice that it did likely affect  must explicitly state on the rocker his or her reasons for making that decision now there is a shift between the blues case itself which doesn't use that must affirmatively state on the record language and will for thirty where the court took the extra step and meet that obligation of the court so if the appellate court in this case was applying common law president high principles boost doesn't support its holding on that point and that is one of the areas in which we disagree court as to the standard that applied in the circuit court and that is i think that's significant because the pope or if you're found that noncompliance with that for the first time adopted standard for this type of proceeding was grounds for a person never said isn't it is proper for this court to do so but we think the appeal erd got out a little head of his it's piece of this the and decided that that was going to be a new rule that was going to adopt and then applied to reverse the judgment in this case counsel and the claim prejudice supposedly by the by the trial court against the respondent based upon the factors that the appellate court identified are a good example as to why they were not adopt it  se reverse which which can't be case restraints are justified in some circumstances that cannot be then some type of structural error where if there's a conclusion after the fact that they were improperly applied we pay no respondents reaction to being restrained causing pain aggravation leading to the outburst is to great extent speculation it's unsupported by the record the record shows that the trial court of this case very carefully examined the issues paid attention to the evidence relevance relevant to the to the issues to be decided the only suggestion that the restraints wrote a problem for the respondent was after he had described he insist describing an incident in which he read and kissed an intern at the facility there was a dispute about exactly how that that played out and then he said this is the reason i'm deteriorating and suffering referring to  restraints and but even his counsel admitted that he had been deteriorating for several weeks since he stopped taking his medicine the judge noticed a visceral difference in his response in his reactions in carefully analyze the evidence and determine that the respondent was in fact acting in this way as a result of his decision not to continue taking medicine and that that was the justification for based upon sort of a wreck or active determination of factors that was not told should wise so everybody else in the future will get the benefit of this but then am would not i well i think it depends a little bit upon what this or announces as the standards that apply certainly with respect to the duty to state on the record explicitly or dops that the reasons for restraining then that should apply prospectively only  and again that doesn't mean that noncompliance with that categorically always results in reversal there should be some reversible error analysis that buys that not every obligation on the circuit or creates a announced that it was ruling as a first time on some of these things and it relied upon those new pronouncements as a ground war a reversing the judgment to that extent you think the public works judgment should be reversed but we do encourage work to take this opportunity has the burden of proving the existence of prejudice affecting the outcome or the absence of races court both days of his involuntary medication hearing and shackles shackles are either leather or chain ben you have to take little steps because you can't get yourself if you trip or fall there is a reference in the record to where benny is demonstrating something from the witness stand and  officer takes his arm because there must always be somebody near you because you can easily fall and someone must be there to assist you this case is moot and the state has not shown an exception to the move to stop her and that applies at this level of review as justice thomas pointed out during the state's argument this case is now a run of the mill type of case and the state is asking this court mainly to look at the facts of this case and to decide whether or not what the trial judge did in king county was appropriate and as justice thomas pointed out the state's peel away asked this court to take the case respond it comes to court and shackles and at the minimum must have a hearing and place reasons on the record to explain why a person remains in shackles he spun it doesn't appear the respondent respondents counsel prejudicial and in in all of the cases the error is on the trial court to show why the shackling is necessary so first of all we have to look at what the trial court did in the case of a person with mental illness this is no different from other cases where the trial court is just different to security this is no different from the earlier case of mark p where the trial court  security as we know from the auditor general's report a transport security checklist is for purposes of transporting a person to court and as we know from that auditor general's investigation and resulting report it seems as if all recipients at all to the health cent may have or the bird of a recipient who did escape during transport about a month earlier and then this this new procedure w said that maybe two times that he's trying to strike a balance and and he did say i'm trying to strike a balance between what security once and we have say brief that often what security wants is what's best for us here and it's easier for security it's more convenient for security to make sure the person is secure especially after a month before it shortly before this proceeding it was not easy to obtain i have a copy that i can present to the court today it is a one page document that says exactly what's in the auditor general's report it has a check mark by security earlobe it rest it has been his height weight i believe his eye color this is no record it isn't it was not in the record because the trial judge did not make it part of the record it was it was not presented to defense counsel so this is a one page direct one page document that i can give to the court today and  it's something that the state did not try to obtain it's something that we tried really hard to obtain because we were also curious as to what this document might say and when we found the auditor general's report that was only issued in about twenty sixteen it happened contained determination about what me he in a patient transport checklist it contains no reasons that explain part of the record so  i wasn't sure what to do with that our agency wasn't sure what to do with that but it's something that the trial judge if the trial judge relying on it should have made part of the record and that's something to i think that make a record make find find some reason she keep this person in shackles so that was the existing law from twenty times and and contrary to what the although at the appellate level it said no guidance was necessary appellate court said although we didn't do it in mark p we are now explicitly applying the goose factors going forward going forward with cases in the future b apply but mark piece ed it's the court that needs to do something it's the court that needs to decide whether a respondent a month a civil mental health exception the state cannot show here that the hate board repetition yet avoiding review exception applies to it as a complaint party and as far as the public interest exception we have guidance exception change at different stages of the public process or as the stated make or use that is the controversy that determines whether or not the matter is well the state did not cite to carefully in the hernandez case  appellant has shown question of a public nature and the possibility of a recurrence but there is no need for guidance so no you haven't shown involved a sexually violent person and the state had filed a notice of appeal prematurely at the appellate level there was no discussion of movements at the appellate level level dismissed that appeal because of the previous charge or stiction when it got to this court's level this court level looked at whether it needed to decide the case and decided the public interest exception didn't apply and then dismiss the a a how are basically that the appellate court judgment because the case was already mo violated conditions so that's sort of just a totally different type of case than what we're dealing with here counsel what if we if we disagree and find this is not moot i mean that the public interest exception should apply so your time is getting away from me here do you want to be heard on the merits of the issue  harmful in the petition for involuntary medication that had been filed with the trial or in the appellate court pointed that out there's no evidence that he had ever escaped from anywhere and this is somebody who had been back and forth to court before back and forth to cook county from algernon a health center and who had met with his mother for visits and for dinner without shackles met with his court appointed attorney but that shackles went to the gym but that shackles went to the weight room with that shackles i would ask the court to take into account that auditor general's report and the effect that had on algernon health center and on the transportation of individuals to court in shackles this is a person who on his first day of court went to court in shackles shackles removes second day of court he's in court  the shackles were not removed the attorney asked for his writing hand to be read so he could communicate with counsel quietly the judge said no  what what was never characterized as an outburst suddenly two weeks later was called an outburst of or called out things that then he said in court not considered outbursts of the time not notice  that he did experience prejudice and according to that age case a simple case this court has recognized that when the error has been brought to the attention of the public defender did last november thank you thank you judges are trained to be dispassionate to be impartial to consider only relevant evidence to set aside any preconceptions they may have the jurors unfortunately do not have that training in temperament and although i'm not suggesting that the imposition of restraints any enshrine off should be par for the course archaea from that but nonetheless the fact that a trial is conducted before a judge rather than a jury is relevant to determining whether there is reversible error in this case as i believe i've indicated that the trial judge in this case proceeded with extraordinary patience exemplary impartiality evaluated all the evidence and the fact that it was a bench trial before a judge should inform on a common sense basis the appellate review evaluation of whether prejudicial error has been shown i also just briefly addressing the this issue i have cited case law in my brief on that i believe this court's precedent is inconsistent with the reading of the respondents attlee's position in this court if nothing else this case is a great opportunity for the court to explain that exceptions relate to the controversy in the circumstances surrounding it it's not like some gameplay intil the home team has a head and then you blow the whistle and they win and there's no opportunity for further review that also informs the relevance of the need for the whether there is an affirmative obligation always to state on the record the reasons for imposing restraints that's something for this were to decide not for the appellate court to expand on prior precedent and say that that  not what whose holes and also the appellate court's decision said in essence that by virtue of considering the evidence that was a deuced of by the security official in this case that that amounted to proceedings were concluded in the circuit court said i'm trying to balance the information given to me with a response ability to participate in this case and he said i don't need to write notes to words to that effect speaking is better and then communicated orally under the words hearing with his counsel and then very end of the case again when his counsel said that he'd been complaining about the restraints the judge said you never told me about that i possibly would have done something about it if you brought it to my attention and the response counsel politics that shows that the port was conscientiously evaluating the facts of this case and making the decision itself that's the court's responsibility we agree with that it's not it's not up to the security officials record does not show that the as responsive argument that the circuit were deprived of his counsel an opportunity to examine that that's exactly the opposite the record shows that or asked response counsel whether she had had the opportunity to look at it as she said she had not and then he stated for the record the name of the document the record doesn't affirmatively show that he then said well i'm not going to let you see it or you have no opportunity to object with sufficiency to support restraints and in the record it's somehow the circuit court's job to protect and perfect the appeal of a pardon if one of the cases courts don't always just call the balls and strikes but sometimes it's incumbent upon an opponent to make a record perfect in a field be taken under advisement as agenda number one mr whose are the spawn thank you for your arguments this morning your excuse