supreme court when they applied a transport standard to a non transport case mr porter was brought into the courtroom by his jailers mr porter was sat down at the fence counsel table mr porter was in handcuffs in front of the entire jury panel some of which were seated in the jury box the jailers then walked away be removed the jailers then stood up walked over to mr porter and escorted him out of the courtroom in the presence of the jury panel this was a  the jury remembered mr porter being escorted sees me the jurors who were paneled or who testified that the evidence you're hearing over two years later i remember mr porter being brought back into the courtroom without han the jury testimony during that evidentiary hearing showed an actual prejudice against mr porter the jurors statement that he was dangerous that he needed to be nobody else would ask your honor the public defender proceeded to ask the jury panel but interrupted himself with another question the judge was not made aware of the me try to make sure i understand this we've got a statement by them in montana supreme court that says that orders failed to establish any prejudice you're telling us of very specific evidence in the record understanding that after you clear and convincing evidence to overcome a factual finding by the state court what evidence is there that you think constitutes clear and convincing evidence that the finding was incorrect the actual statement of the jurors your honor when asked what does it mean to you when this reporter was shown in handcuffs that he needed to be controlled what does it mean to you when a defendant needs to be controlled that he must be dangerous those are actual statements of the jurors that were those statements about order yes or the concept of somebody being in handcuffs during the course of the trial he wasn't and we do believe he inferred the jurors inferred from that he must not be dangerous public defender was objective the unreasonable and his affect in existence of counsel it is standard procedure is recognized by that and by the united states supreme court that is a long held rule but it is inherently prejudiced prejudicial for the jury to bew the defendant in handcuffs that may he may be branded is dangerous and we know anything from composition is wrong there are lots of reasons why somebody might elect not to pursue that objection or the circumstance yes your honor and those would be deemed to be a tactical decision the public defender recognized that it was his ignorance his not knowing of any cases where it would have succeeded and no other reason than that though your honor was an extremely close call the evidence was the what close call there was the cabins in this case the jury acquitted mr porter of one count and which goes to his propensity and character to commit those crimes upon viewing mr porter and restraints the jury how did just did their lens and viewed mr porter in therefore we respectfully ask this court to reverse the court below and to direct that the writ of habeas corpus issue thank you this court the fifth i'm in the due process argument provides an interesting backdrop for this case but in essence this case is a sixth amendment case it concerns the right to the effect of assistance of counsel and it's also hadiths case which means that the focus is properly on the decision of the montana supreme court now with respect to the in effect the system's claims there is clearly established federal law of course in the strickland vs washington case which requires porter to show both official performance and prejudice unreasonable application of the clearly established federal law from the supreme court in the strickland case the court concluded that the court decision was not based on an unreasonable determination of the facts in light of the evidence presented with new respect to opposing counsel i don't think the record reflects quite the same circumstances as  earlier represented how long was mr porter viewed in in handcuffs well it's very uncertain but it was only moments according to defense counsel's testimony that the evidence you're hearing the facts are fairly straightforward and not essentially in dispute mr porter was in jail at the time he was brought into the courtroom by the detention officers and seated counsel table and when  his attorney arrived a few moments later he found his client seated at the table with his hands in handcuffs below the table he saw that he was still in handcuffs restraints and incidentally the montana courts determination that there weren't any other restraints and certainly no shackles belly chains or anything of that sort i think is a fully supported in the record and i don't know that  there's any dispute with respect to the nature of the restraint involved here to the extent that there's a factual dispute appears focused on the reaction of the prospective jurors those who became jurors the potential prejudice from what they saw could you address that yes first of all this occurrence happened before the trial started and there were some of the prospective jurors in the courtroom obviously some of them witnessed the fact that the defendant had been brought in with with handcuffs as far as the court has already noted mr stan and the jury had a perspective your hadn't heard any evidence so that didn't change his view two years or almost two and a half years i guess after the trial in connection with this claim there was a state juror jury a four person darla stay there and she said that she was aware that the defendant had been in handcuffs she thought there might possibly have been other restraints but she had confused the matter in her own mind after seeing a movie called the fugitive with harrison ford and so she wasn't really sure that there was any other shackling involved but it any of that she stated that it did not register register her view of the case in any matter whatsoever and that she recalled that the jurors did not bring the matter of restraints up at any point during your discussions now counsel for mr porter at that point in time asked several hypothetical or speculative type questions what does it mean to to have handcuffs on somebody and and the jurors answered in in like form well that means that most of them at least the two that responded said that they thought it was procedure was just normal procedure for transporting somebody back and forth from the jail but at some point this question turned to whether or not there was a need for control of the inmate and whether or not there could be a possibility of  and chats case which indicated that some sort of actual prejudice would have to be shown in order for there to be a right to in this trial and he chose to explore the matter during war dear rather than i thought he could have brought the matter to the attention of the trial court before the trial commenced and then proceeded with  of some sort of in chambers an examination of the prospective jurors to determine if their view of the defendant had had altered their opinion of him but he didn't do that he decided to explore the matter on for here and he was satisfied from his questioning of the prospective germ that is then that that there was no actual prejudice that could be shown so you're i don't want to put words in a tactical decision made by counsel knowing the montana supreme court case was saying a glimpse of handcuffs is not shackling unconstitutional shackling and rather take my chances actual prejudice and then just make a motion outside the presence of your that's correct i think the record fully supports that view of mr sandison as actions under the circumstances is there a downside the record i think it does not show that you thought to bring a motion would bring some disadvantage he thought the motion wouldn't be but that's not quite the same as a decision which would say and i'll use the same hypothetical attorney could look at the panel and say look i might be able to object to it but i like this handle i like the people like to be out there so i'm going to give up the possibility objecting and wouldn't take my chances with this group but that's one kind of decision it's another kind of decision that can be a valid professional decision but there really wasn't anything to lose as i understand what he said he just didn't think the motion would be successful wasn't conscious of what u s supreme court decisions had with regard to the u s supreme court case guard to two shackling during trial the defendant doesn't have the burden of demonstrating actual prejudice and so and so he wasn't thinking of those cases he was thinking of montana cases and it's inclusion was doing a good to bring that motion to lose something of life and make sure i'm clear on this i'm not aware of anything in the record that the council consciously thought i don't want to bring this motion i'm going to lose them but your understanding counsel didn't think that motion would have had any merit and that he would have been titled to this trial under those circumstances now the montana supreme court decisions of course are based on on federal law this occurred before versus missouri but nonetheless there were indications u s supreme court case law was here before that the real difference as i understand it montana cases focus on on france for taishan that is in transit in this this could be arguably  transit because what probably happened is that whatever officer was responsible just didn't take off the handcuffs when he was supposed to take them off yes but it's from the jurors perspective the jurors didn't see transport the jurors toss them by the sitting of the table in the courtroom this matter up in the form of but i want to stop because i was trying to go for i don't understand this as being a strategic decision where he elects to give up something he knows he can pursue because he doesn't want to lose this battle or for some other reason that's that's the kind of decision we recognise that sometimes you just make the wrong choice in this case he didn't understand that he might have america or u s motion to bring he thought the motion would be unsuccessful and so he didn't bring it and so it's not like reason for why he did what he did and and that was that he has a as a practice in his criminal defense work he did not want to call that the jury's attention and duly the fact that his client was in jail representation was either deficient or that any prejudice resulted from from his decision  the state brings up the fact that the jurors claimed they were not prejudiced but the united states supreme court in holbrook has held quote that little stock need be placed in the jury's crane to the contrary when deciding to inherent prejudice even though the practice may be inherently prejudicial jurors and will not necessarily be fully conscious of the effect it will have on their attitude towards the accused the juror for a person to say they are quoted i can honestly say that if anybody's handled an automatic weapon in his condition under the circumstances if he had a flash temper or if they didn't understand his personality and you've got one policeman on it would seem to me that you would want the man secured for our safety the judge was not given the opportunity to give the curative instructions the judge was not made aware of the fact the jury had seen mr porter in the courtroom in hand the damage had already been done thank you what do we do with you as you know we're we're under deferential standard of review under  failed to take any of the jurors statements of prejudice into account they were not mentioned in their record thank you thank you thank god those helpful counsel to be for their arguments welcome to the ninth circuit we hope to see you back here in the future like that of the law school for the program or for taking on pro bono cases and thank all attorneys for the arguments in this interesting case