good morning counsel your honour's may it please the court my name is john barwell and with me is antonio over saatchi together we represent the appellant emmanuelle over to noah and we would like to reserve five minutes of our time for the bott the most visible and public manifestation of our justice system is the courtroom or palaces of justice imbued with the majesty that reflects the gravity of the proceedings a member of the public who wanders into a court room must immediately perceive it as a place where justice is administered fairly and without regard to a person's status the perception cannot prevail if a party is presented as a law breaker a person who cannot be trusted when this is allowed to happen it creates an unacceptable risk of prejudice which violates party's constitutional right to a fair trial of our well i appreciate your  and take them to heart but even the supreme court has recognized that there may be times when the necessity of maintaining the security of the courtroom trumps the right of a defendant to appear without restraints or even an a in a prison jumpsuit and what we have here is a case where the district court was presented with information from the assistant warden of the prison as to the concerns with regard to the security of the courtroom given the nature of your client and the length of his sentence and so on why doesn't this case fall into that category of cases that the court has recognized that we have to give discretion to the trial judge in order to determine the reasonable ness of the security measures taken in our particular case just tom and thank you for the question in this particular case we had no evidence that our client was of a security risk or a flight risk at all what are you referring to evidence in the form of sworn testimony because we certainly have the it says that warden on the telephone making providing the core with information we can look at the record and see what information prompted the district court to act or we talking about procedure here or we're talking about it in the record your honor there is no admitted miscible evidence other than the one sworn testimony of the assistant that there's a flight risk but and but does it have have to be i mean there's an awful lot that goes into trial judge's determination as to what needs to happen in the courtroom and as long as there's a record of it are you suggesting that the warden was lying about your client's background i mean he was serving was he not a very long prison sentence from the state of hawaii in the custody of the c c a yes our client was convicted of second degree murder and was serving a lengthy prison sentence but but that's all that we know so i'm willing to allow that the district judges intitled in a circumstance such as this to take it testimony but the word of the prison warden has a circumstance i don't think it needs to be sworn so what the district judge knows is that he's serving time for second degree murder he's got a very sentence do we know anything other than that from the warden that would say he's a flight risk i mean i understand anyone who is a prisoner is potentially a flight risk but i'm trying to figure out what specifically the district court knew about this defendant conviction for second degree murder long sounds anything more that's particularized to this defendant judge pleasure as as far as i know there was nothing else that was brought up as far as information shackles that is say he's got the ankle braces that's correct yes your honor and i'm told that there were three armed guards how were they positioned in the courtroom there were they were not armed or unarmed but uniformed uniformed guards from the private us in the gallery and how disabling were the ankle shackles in terms of allowing your client to move around quickly we freely whatever he had to shuffle your honor they were tied with a chain between two of them his ankles were tied the chain which which which were taped together so they would not make noise if he did have to shift his feet and i think it's important that with the shackles visible to the jury you know and it's an important point that we did not have a problem with the shackles because we recognize there may be a concern and so because the shackles were obscured with the drape that went around the table that's normal procedure correct your honor and the expressed concern of the warden was that if he somehow were able to move quickly enough to escape the three guards by his shackles if he were in plain clothes he could sort of sort of melt into the end of the general population once he gets up outside the courtroom  how difficult is it to get out of those shackles i've personally never worn any your honor thankfully but but i can't imagine how a prisoner can get out of those shackles while being observed by a court and it security well the warden did say that inmates can slip shackles that they can get out of that is what the warden said but i just no evidence that that occurs there was no testimony on that and we don't know if our client had ever tried to do that well i mean why can't the district court rely on that there's no challenge to the warden statement your honor the day before we heard the warning this morning the warden statement defendant perez is counsel had stipulated to allowing our client wear a suit and the judge had ordered it it was the next morning right before we called the jury in for deer that that suddenly there was an objection and we called the warden up and we didn't have any information to we didn't have any evidence i had come into this case well after discovery had closed for the purpose of preparing for trial and taking it to trial so we had no evidence as far as the security issue we were learned that the private prison facility where our client was housed at the time the correctional facility is a medium security prison in fact the private prison industry in arizona doesn't have that he was in this sort of segregation he was in some type of segregation unit within the medium security facility that he was held but isn't that a high security you know i don't know that's what i understand it ministry of segregation to mean in the prison in not i'm not even sure that it's crew true that he was administrative segregation i know he was in a segregation unit but i think that's because at least according to our client as he represented to us because there was a protection over him in fact he wasn't even supposed to be with another cellmate at the time so that was a ministry of error at the prison i understand but that's not an issue here what about that the court decided at  five in terminating weighing the prejudicial effect of the jumpsuit that first that this is not a criminal case it's a civil case and given the nature of the claim the jury is going to know he's incarcerated particularly when they learn the circumstances the basis of his claim which was the extraction from the cell when the window got to cover you know that's a little bit of a mystery and i think it's a misunderstanding of the judge at the trial court judge at the time this incident occurred november two of two thousand and ten we did this trial may of two thousand and sixteen nearly six years later the only thing that was relevant was that he was a prisoner at the time the incident occurred is a prisoner's but i thought i thought the jury learned through the testimony and there was no objection to this he was referred to as inmate and that he was serving a life or very long sentence for murder i don't believe the jury ever learned the length of a sentence or of the fact that it was murder but the fact i think i read that in the record did i miss it i miss i believe that may have been said that you may i think you might have made reference to it in your opening statement oh yes yes trotter at the at this point our client was already forced to be in his orange prison jumpsuit he's clearly a current we had no reason to disguise that it this point it was an attempt for us to try to draw the sting on the issue that he's still an inmate six years after this incident occurred and we think that's exactly where the prejudice comes in and we think it's inherent prejudice it's actually interesting to me out of the very passage that you pointed out at the top of you are zero six five from the court the court is acknowledging literally acknowledging the prejudicial effect and somehow she's trying to balance i mean i understand what she's doing at that point she's trying to determine whether or not this is an overreaction on the part of the the correctional officers or you know and part of that equation has to consider what the jury's go learn based on the nature of this claim isn't that a relevant consideration well i i question what the judge thought was probative of the issue we think it is entirely irrelevant that the prisoner was still that our client was still this is a security issue that she's trying to resolve here so we're not looking at it in terms of probative with regard to the nature of the claim the question is whether or not the prejudice from the jury in this fashion given the nature of this case five nine bottom of that toward or and zero zero six zero a little further halfway down the page at line fifteen the court expresses that this is somewhat of a an oddity it is not unusual that we have more than one u s marshal the courtroom there are generally not wearing uniforms although the security officers are sometimes with three people in the courtroom so that's fine i'm not quite sure i understand the security issue with respect to the clothing and you know that's what we're here for we did not object to  just the shackles right we were put in but then she goes on to say in the next sentence but i will say mr barwell that the jury is going to know he's still incarcerated so i'm not quite sure what difference it makes that was that was in correct honor we did not contemplate telling the jury that he was still incarcerated we knew it might come out depending on how our client testified but no testimony came out about our client's current incarceration or what he was incarcerated for there may have been some medical records that indicated what he was incarcerated for but even those records don't we're not current records to the timeframe that were in trial so we don't believe there was any reason to let the his opponents wearing law enforcement uniforms is likely to influence the jury against the prisoner and has been a long recognized as highly prejudicial and what you're ignoring some of our ninth circuit cases are you know or we have approved in appropriate cases these sorts of security measures that are this court back in just may just a few months ago and we may do a supplement supplemental authority for this but in may courtrooms is is not the way it's done the judges should be doing that but adopting what the judge was doing that here i mean i don't i don't see an abdication by the trial judge in making the determination as to whether or not she was going to permit it this is not like that other seven circuit case where the magistrate judge basically shrugged his shoulders and said to the correctional officer you're in charge you make the call that's not what happened here is that i think the judge did clearly defer to the prison but i'd like to begin if i may so i think it's a reasonable starting point by providing a little perspective a little context because i think because plaintiff does not argue actual are actual prejudice in the record there's a risk of a lot of the content a lot of the record being lost in abstraction so to cry out provide perspective and a little factual background for for my responses to the points made i'd like to point out that the record shows that this case was presided over a senior district judge she adopted this practice of issuing orders or having the veneer answer a questionnaire and that's important because it shows that she was aware of potential prejudice and where it might lurk and the questionnaire was a useful tool for her as she found and she adopted this practice because it allowed the members of the veneer to candidly and  this jury was well aware of the fact that plaintiff was a current inmate suing corrections officers for allegations of excessive force and requesting damages and asked the jury members whether that would affect their ability to decide the case fairly and impartially and so the questioner was actually the first thing that this the jury the jurors saw in this us and do we know when the questionnaire was drawn up meaning the argument from the other side as well once it's once it's clear that he's in where the jumpsuit they have absolutely zero interest in britain anything other than an interest rate inma once he's in the jumpsuit it's a perfectly sensible thing to ask but i'm not sure that it does anything other than sort of ask the normal jury questions about potential bias when was the questionnaire circulated before the before the  it was it was sent to the potential members of the near and based on the answers were submitted to the attorneys or counsel had the opportunity to directly question the veneer when they showed  questionnaire that's handed out is the questionnaire as it's being handed out drafted for the plaintiffs the plate of lawyer knew that he was going to be on the jump drive who us it was ok but what plaintiff wore at trial really didn't matter and that's because the questionnaire as an inmate would would would trump his right not to come in the courtroom in the in the colors no that's i mean you know the words that wasn't a question on the on the questionnaire out to the area that is whether or not a person wearing a orange uniform would be offensive or whatever that was not the question just simply the question having to do with whether or not as an inmate he would get a fair hearing right does make a difference because if the question is would it make any difference to you that he was an inmate when this happened well that's obvious yes the question is does it make a difference to you that he's currently an inmate that's the relevant question and was that the question that was asked of the language is this it's supplemental excerpts of record seven sixty four seven sixty four hang on a second supplemental seventy six form y question presented this case involves a dispute between an inmate and a correctional officer that occurred at a correctional facility owned and operated by a private prison company inmate alleges that the correction officer used excessive force against him during resulting in physical and emotional injuries the defendant denies the allegation the jury will be asked to decide whether the inmates constitutional rights were violated and whether they made was subjected to assault battery and intentional and infliction of emotional punch so that the blow is less and now this is what here's here's what really bothers me about this case it strikes me that the security concern is real i mean you just you have an inmate in the courtroom there is a real security question is do you need the additional security of an orange jumpsuit throughout the trial i've never heard of a case in which we've had to have all of those including the jumpsuit that i presided over a civil trial couple years ago if guards there that strikes me that this is excessive and one of the things that bothers me and i'm not sure whether it's legally relevant corporate to the imprisoning authority is a private company and so you get the warden of the private company calling up on the phone trying to get what is to some extent an advantage in the trial by dread by addressing the point the plaintiffs in what is an orange jump suit that will the the security reasons that justified these measures were never really disputed she's a high custody and mate serving high custody in the mean and what did the district judge know about high custody and well there's plaintiffs trial exhibit seven which was later admitted in simulating is the evidence that so the statements by the plaintiff  please go ahead and it it shows an inmate who who is very dangerous i've met or i'm sorry admits homicide attempt in the past i am here for murder in second degree degree next line two lines down so i started gangbanging later in that line incarcerated for murder i've been incarcerated since two thousand and three serving life with eligible for parole after eighty years i don't think i'll make it arrived here at s c c in two thousand and seven has been in sag for eighteen months for protecting myself another inmate who was a separte started hit me i was convicted shooting his brother which i am still fighting that's why i'm trying to prove so that doesn't really tell us a lot more than the fact that he's been convicted for murder i mean that he says yeah that's what i that's what i did that's what i'm in for and i'm in ads apparently the brother of the guy killed is in here and he doesn't like me well he has a reason to escape if he wanted to but i don't see if this tells us really beyond the fact that this is a man who's been in prison with a very long stands prisoners as generic category are flight risks but your point but your point i think is that he's got nothing to lose he's got nothing to lose and it would just be easier in mates the according to this strategy ordered fan it's in and doing this although i'm not sure about the strategy i'm quite sure about the advantage in the question is how how much an advantage and wasn't an unfair advantage well if there was no intent to obtain an advantage to us purely for security reasons and how do you know that well because count we had no reason to object to the bright color but whatever color blood as it had done identified him as an inmate still but why did why does that matter this that makes him inherently dangerous people are convicted of not violent crimes yes you do too right and there's a reason they do that and every every lawyer also says behave yourself don't commit any disciplinary violations in the next forty eight hours right and there's a maybe that  looking at the scene he's wearing them so we don't know if it's brightly you know it's a it's red or orange that's all we know because orange came from council statement actually so  jury were to infer that he was dangerous why is some material to any house that prejudicial it wasn't as a rhetorical question it wasn't because the jury did not have to decide any issue cellmate was the violent aggressive one that wanted to provoke to sell attraction to fight with his staff but that he was just passive a passive participant and when he and when the  point ok well there was no this that she was not he did not actively physically or resist restraints he was not violent so it didn't affect any determination that they made so even if they th to perceive him as a dangerous inmate now and say well he must have been dangerous then it didn't affect any issue that they really had to decide i was determined of the outcome of this case  d time for the question ok thank you very thank you but only two minutes on thank your honor i'm not sure that it matters of the color of the jumpsuit but just for the record i'd like to point out on you are zero six for at line sixteen through twenty where i explained to the district court we still believe that he should have the opportunity to wear the street clothes having the visual errors and that standard the supreme court says this is the standard for analyzing whether courtroom security measures violate a criminal defendants a right to a fair trial but this i think can apply equally to a civil trial as well and it says first we look to the scene presented to the jurors and determine whether what they saw was so inherently prejudicial prejudicial as to pose an unacceptable threat the defendant's right to a fair trial is your  your position then that we should announce a rule that under no circumstances in a civil trial even if it has to do with the vents of excessive force in a prison may point to be required to  wear prison clothing we're not advocating for that your honor what we're advocating is something similar to what the ninth circuit recently did and unbox and gomez sanchez which is to require a particular allies a finding of a need for if we're if we're judging the ruling by the district judge on an abuse of discretion standard how did she abuse her discretion here she made no actual finding for a particular life need for a heightened security measure she did she credited the statement by the assistant warden that if he was able to somehow escape the courtroom that he would be able to blend into the people outside on the street much more easily if he was wearing street clothes than if he were in an orange jumpsuit so what how did the district court abused its discretion in making that conclusion under united states versus hinks and the other standards that we have articulated for aging  writer to me it's an inherently factual determination and as long as the district court articulate reasonable reasons for its ruling it's hard for me to say that there's an abuse of discretion got or how do we had the opportunity we would have been able to discover information evidence to present to the trial court that showed that there was no need for any heightened security measures in this case well i mean you were there and she asked you to respond after you heard what the medium security facility but that doesn't answer the question as to whether or not this particular inmate given the nature and circumstances of his offense and the nature of the case he was drawing posed a security risk in the  just had a case last month where the client stabbed his lawyer with a pencil in the hand i mean it's difficult sometimes to to anticipate when you're going to have a problem you know this is this is a an individual whether he was going to be in prison for the rest of his life or not that was trying to redress these constitutional wrongs he's not just trying to fight the guards he felt if we were to adopt the rule that i think you're really asking us to adopt what would prevent an inmate as part of an escape plan from filing a civil rights action against the correctional facility or thought in order to get out of administrative segregation and get to a courthouse where their chances of escaping might be much better than escaping from a prison i think of several reasons your honor first time and patience i can't imagine that one would have planned something out for that long when they're in italy when you're serving a life sentence with nothing else to do but more importantly  honor this is a situation in which our client was seeking to correct a wrong that he felt occurred to him and people generally aren't going to just make up something like that and go through the procedure it took him three three or four years just to get just to find me and get to trial so this is something that he was working on for a very very long time and i think that if there was a standard that required a particular life finding just like the ninth circuit recently did in the gomez such as case and that case was about the immigrant detainees being brought in all the same time all in chains for arain  and any other type of procedure but those are people who have just been arrested and were about to rain this is a convicted offender who is serving a long prison and he has brought a claim of wrongdoing that he alleges a civil action that occurred inside the prison while he was there or it's all very different situation from the presumption of innocence that individuals who've just been arrested were being brought in for an initial here and i think it's point a point to note your honor that there is no good constitutional guarantee that a prisoner can testify at his own civil trial well and there's no presumption of innocence either correct but in this situation from an ok we think that if if if a prisoner plaintiff can get over the hurdle of getting to court in order to testify at his own civil trial then why not have some evidentiary hearing to determine the scope of that prisoner's threat the district court agreed to what what additional evidence would you have offered to the district judge if there had been a more full hearing than what we have reflected in the r is hard to it's hard to know your honor we did had no discovery on whether our client was a current threat this point you can't really cite me any other evidence of the courtship of well what i would what i would say is what we did find just recently on my own was a  public record in the arizona department of corrections website from the c c a that describes the facility as a medium security council have you ever been in a prison have you ever taken a two or a yes you are ok and even in medium security prisons they have to have cells called administrative segregation because even medium security prisoners sometimes act out of the attack other inmates or correctional officers just because you're in a medium secure minimum or medium security prison doesn't mean that those sorts of  advocating we're asking for a standard that requires some type of evidence or a finding that there's a need for the heightened security measures before just and then you don't think that it's over did that on this record you know your honor not appropriately and not with enough notice to us to be able to fully prepare for that type of battle again the day before you can help me with something what's the timeline with respect to the dismissal of corrections corporation of america what point was that when they dismissed the case that was before my involvement and it was a lack of service i believe your honor and it may have been a motion to the early motion to dismiss i don't i don't i'm less familiar with the pre procedure who'd been out for quite a