thank you for please the court my name is michael bigelow and i represent petition here eric for it seems to me that when you hook someone up to fifty thousand volts of electricity without justification or security concerns security concerns it can not be that the test is whether or not the device was seen by the jury nor can it be that if they jury returns a verdict of guilty the  harmless or in the words of practice that's had no substantial or injurious effect on the verdict the test has got to be something else otherwise there's no reason for us to be here an argument for  per se rule with no examination of prejudice no well that is of course the rule that i would like that's not the rule the court is going to adopt but the burden  given these circumstances no examination or hearing on the part in an unjustified and unjustified imposition of either shackling or the reactor belt but here we're just dealing with the react  built unjustified imposition of that particular device the burden of prejudice has got to be on the prosecution it's got to be on the government and justice o'connor spoke very well to this very same sort of issue in riggins any prejudice is speculative how can we how can we know what the prejudice is when the jury doesn't see the device when the jury sees when the jury can't see what is in the mind of the of the defendant who is affected by the device i handed up the case and i apologize i panicked i handed up the case to the court that i did not think i had actually cited in fact that case a string cited in march and it is cited in my brief but the prejudice of this device and we're talking about the stun bell just that particular device the prejudice of the device is well known to this court it's acknowledge this court it's acknowledged by other courts the psychological effect of the device the chilling effect now in every other constitutional case i've ever read chilling equ to prejudice there's prejudice there's no way to get around the prejudice it is there now this court and other cases has held that shuttling near  the what i say isn't taken that way but this court has on other occasions the supreme court has on other occasions other courts have said that  chains that sort of thing is a last resort and shouldn't be imposed but as a last resort but we know trial lawyers know that shackling if this court knows shackling is a first resort they do it as a matter of course without thinking about it they just do it what concerns me as lawyer as a humanitarian i think i am is that this court will come out and say well this is an extreme form of shackling it is an extreme form of security and we're going to give you these guidelines that under which we will permit it to be imposed but courts are now paying lip service to what the this court and other courts have said years ago about about change only as a last resort did you try the case i'm sorry did you try this case i did not try that i was not trial of counsel in this case it was a sta to put on the record exactly how the presence of this device is affecting the attorney's ability to present evidence the defendants his clients would be able to communicate with him and observe freely what's going on in the trial and that sort of thing i can think of a dozen things that could be put on a record although i would help establish prejudice sure it helps establish prejudice ten years down the road or three years down the road for the it's not structural aren't that's correct so where does that leave us in this case it leaves us we can't presume prejudice that's not when that's not what we can do in this case so we have to look at the record and we as some of us may have concerns and ma share your concerns about that but this is a because we don't have to look at the record justice o'connor says we don't have to look at the record looking at the record is futile you look at the record you don't get anything that's what she said and reagan said she that's exactly what she said in riggins she said looking at a record doesn't tell us the prejudice doesn't give us the prejudice i'm paraphrasing and i sure hope i'm right but so you're getting back to judge hawkins question was the and other cases involving shackling and react out so that you have attorneys objecting they're making a record they're saying look i can't communicate with my client my client is in pain my client is has to sit up in the chair that's the kind of record that that is made it contemporaneously so getting back to judge hawkins question why does that relieve trial counsel responsibility to make the kind of  we can drop prejudice because in the case of the react belt and this is this is a very old this is a of a very old case not that  the ninth circuit has recognized the ninth circuit has recognized the chilling the fact of the reactor built it seems to me that no more need be said he did make a record he didn't articulate it particularly well i'll grant you that he did make a reality he did make a record to the extent that he objected to it but as to the prejudice itself i i think the court is correct it doesn't you know he did not say i can't communicate i can't do this i can't do the other thing it's only recently that we as trial counsel as trial lawyers know what to put on the record because this court and other courts have told us what to put on the record with with respect to that but within the court setting itself it was apparently if the record is to believed in the testimony of mr burke is to be believed and mr bertram is to be believed trial counsel is to be  believed the prejudice within the courtroom itself is palpable they sat apart from each other they did not interact with each other they did not speak mr berg identifies and how he had to sit in the chair that is all they are that is all in front of the in front of the jury but again i go back to the burden it seems to me is the prosecutions to prove that there was under these circumstances that there was no prejudice and i think under these circumstances the the the prosecution can't do that it ought to be reversed and it ought to be reversed with a real strong and clear language to the courts the follow up so that ten years down the road we're not well anyway thank you for your email you have about a minute left you can use a provider if you like thank you counsel make sure that it's not set off i don't know if you try to run out of the courtroom or something like that but you have to remain pretty much still on set straight up and not move at all there was an advisement  much like a miranda card that probably three times as long it was read into the evidentiary hearing record by i can't remember which officer it was but it was a witness for the respondent  i'm sorry i can't direct you to the exact page but i believe that advisement was also attached as an exhibit to the evidentiary hearing transcript and that would describe what what an individual wearing or react could do or not do it was given to the appellant by one of the officers i don't know how many times but at least on the initial fitting and it was the circumstances which would cause officers to activate the belt now even though it was a medium sized paragraph or maybe even longer of things that would cause officers to activate the belt those terms warrant further defined for the defendant counsel with that cause the bill could that cause the bill in my opinion absolutely not but it's a very different signals absolutely there does nothing in the record that shows that but these are the first of sorts of movements that that would cause a it's a very subjective thing i'll admit that basically a clicker button held by the officer and if the officer feels that the defendant is violating one of those numerated a list of things not to do then the officer is if a defendant had a visceral reaction to a statement made by a witness on the stand i and i would assume no but what happens with the bill to activate i believe the record says fifty thousand volts of electricity a transfer to the defendant and what happens for about eight seconds i recall and it mobilizes the person wearing it and different things could happen it could cause heart palpitations it could cause a defendant to lose control of  interact with your lawyer answer no i couldn't even sit in the chair three act that would sit on my left side right here the chair thing right here i'd have to sit up like this all the time on the edge of the chair because i couldn't sit back because we're high and you're dejected akash have difficulty something and this is what the record is if you're trying to say disbelieve the record i don't think you're going to get very far no my question is given that record why isn't that enough if the if the if we believe in credit the testimony that he is unable to interact with his lawyer because of this the the use of the strong and felt was not and this is the point i'm trying to make now he's saying that i couldn't even sit in my chair back at trial a two week long trial any point assuming these kinds of facts or what does the burden shift of the government to the state has the burden to show prejudice got lost in a hypothetical case let's say the trial defense counsel gets up and says this reacting to all your honor i can't communicate with my client he can't take notes he can't slip me a note telling me when he thinks  witness is lying or a question i might ask in cross he's intimidated on my paralegal and i are watching the jury they are very distressed by the fact that he sits not on emotionally and doesn't respond to any of this testimony at what point in time is trial court required in that kind of circumstance you say to shift the burden to the state to show lack of prejudice that's a risk that ever occur at the risk of creating law i would imagine that the trial court would then be under some sort of obligation to reopen the evidence you're hearing and consider as this court has as set forth what the alternatives prejudice i believe that the shackling cases go as the court is well aware and just recently indecorous is missouri the prejudice analysis is it's the three forms of harm which are the jury's perception of the defense right now and i thought of this hypothetical right talking about communication in the last one if we can we can throw that out the middle and those are all factors to consider whether or not there was prejudice and here we see two of the factors are not even president because so brian i'm focusing on the one factor is that is the one factor enough is that what you're after is that one factor and i believe that the reviewing court has to look at th circumstances in finding whether or not there is prejudice so you think it might be because you're not answering my question i think i can imagine that possibly there might be a situation if a defendant was gagged could two week long trial they talk during recesses they talked evenings at the jail they got to talk to each other there was an abundance of communication now i can only imagine that maybe a felon this is arguing that there needed to be contemporaneous communication  holding all the evidence that would prove whether or not he didn't get to tell his attorney something it wasn't such a time i wanted to tell my attorney to object to that that wasn't true i didn't get so we haven't heard any of that when  i believe that this court reviews a district court's findings to no right thank you ok thank you for your comply with a verbal command for movement on your person any attempt to escape custody any loss of vision of your hands by the custodial officer that's a big that's a big one because guys are moving their hands i mean move in front of my they move in front of my client causing the officer to lose sight of his hands he may get zapped that really is just a scary thing because we move around in the court that was  him it was not given to him he did not sign it according to the testimony at the at the hay vs hearing and docket speaks to saqlain except in an extreme form is harmless error it might be structural under these circumstances there was no hearing on it so the magistrate court found there was no hearing it is an extreme form let's make it structural under these circumstances