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February 3, 1981

UNITED STATES ex rel. Michael BOOTHE, Petitioner,
SUPERINTENDENT, WOODBOURNE CORRECTIONAL FACILITY; and Honorable Robert Abrams, Attorney General of the State of New York, Respondents

The opinion of the court was delivered by: WEINSTEIN


When petitioner became obstreperous he was bound and gagged in full view of the jury. The trial judge sought to minimize prejudice by utilizing relatively inexpensive electronic equipment that would have enabled petitioner to participate in his trial from outside the courtroom. Because no funds were available the judge was precluded from exercising this discretion. Failure of the state to supply the trial court with facilities it believed were required to provide a fair trial constituted a denial of due process. Courts cannot adequately protect constitutional rights if they are denied the tools to do their job. For the reasons indicated below, petitioner's conviction must be set aside.


 A. Binding and Gagging in Full View of Jurors

 In 1974, petitioner was tried in Kings County Supreme Court on charges arising out of a grocery store robbery. During the examination of prospective jurors, defendant, a black, voiced his objection to the prosecutor's use of his peremptory challenges to exclude blacks from the panel, an objection not unknown to the law. Cf. Swain v. Alabama, 380 U.S. 202, 222, 85 S. Ct. 824, 837, 13 L. Ed. 2d 759 (1965) (upholding peremptory challenges alleged to have been made on basis of race); People v. Thompson, 79 A.D.2d 87, 435 N.Y.S.2d 739 (2d Dep't 1981) (District Attorney's exclusion of blacks voids conviction). The trial judge instructed him to be silent, but defendant later again questioned the justice of being made to go to trial before an all-white jury. At this point the court indicated that it would invoke one of the techniques for dealing with an unruly defendant discussed by the Supreme Court in Illinois v. Allen, 397 U.S. 337, 90 S. Ct. 1057, 25 L. Ed. 2d 353 (1970). After the defendant repeated his objection the court recessed "to find out whether there are any facilities available in this building so that the defendant, if he continues his disruptive tactic, will be placed in that room and we will continue with this trial with some electronic units that will permit him to hear what is going on although he won't be able to see what is going on." No such facilities were available. Understandably upset, the court complained bitterly about the lack of support for the court:

We have been promised but this is the usual politician's promise nonsense that doesn't mean anything, that the Federal Government would give this court a grant of money to provide that kind of equipment. But like all of the political promises, we have nothing. There has been no such funding, no such equipment has been forthcoming and we do not have the facilities.

 Reluctantly, the judge indicated that as a result of the failure to provide the necessary equipment he would "probably have to resort" to "binding and gagging" the defendant. Defense counsel objected to swearing any jurors from that panel beyond the four who had already been chosen. The defendant repeated a question about the procedure challenging jurors and indicated his belief that his lawyer had not correctly informed him. The judge answered that he would not speak to the defendant, ordered the jury out and had the defendant bound. When the defendant complained that a guard was stepping on him, he was gagged, ungagged and regagged, whereupon the jury panel was brought in. As defendant attempted to speak, the judge, before the sworn and prospective jurors, instructed the court officer to gag him "more effectively." An altercation thereupon ensued and the gag slipped off defendant's mouth. The trial judge rebuked a court officer for removing the gag. After sporadic interjections by the defendant complaining of his counsel, the judge ordered him gagged again. The gag loosened and the defendant requested a challenge. When the court allowed him one peremptory challenge, the defendant indicated he wanted "to challenge the whole panel." Thereupon the trial judge ordered him regagged. Before the entire jury, defendant repeated, apparently while still gagged, his objection to the whole panel, and the jury was sworn.

 The altercation in the courtroom and the binding and gagging of the defendant had a marked impact on the prospective jurors. One expressly stated that the events were "stirring (him) up. Bothering (his) stomach." Another asked to be excused "much for the same reasons given before by the other jurors."

 While conceding that a trial conducted when defendant was bound was "unseemly ... ungamely", the trial court nevertheless denied defense motions to excuse the panel. In an attempt to reduce prejudice the court did instruct the jury:

... Your judgment should not be affected one way or the other by prejudice or sympathy.
No prejudice. No prejudice against the defendant for what is happening and what happened just a second ago while I was speaking to you. No sympathy for him. You see? It works both ways.
Now ... just eliminate from your minds anything which you hear said from the well of the courtroom and certainly forget what transpired here.
As I said, what happened could very well be considered a normal reaction of one under strain.

 Convicted of robbery, grand larceny, assault and possession of weapons, petitioner was sentenced to an indeterminate sentence of up to twenty-five years. He is presently in custody for a parole violation.

 B. Equipment

 As the trial judge indicated, there would have been no need for physical restraints in open court had there been available closed circuit equipment to enable petitioner to observe the proceedings while physically away from the courtroom. Both parties agree that the requisite equipment could have been quickly and inexpensively installed.

 A system allowing defendant to hear proceedings and communicate with his counsel can be purchased and permanently installed for between $ 1400 and $ 1730. For an additional eight or nine hundred dollars, a video system can be made operational that would allow defendant to visually observe the proceedings. The amount of time involved for installation was estimated at one day. Renting such equipment as needed the method used by the federal court in this district reduces cash outlay. It should be noted that these calculations do not reflect the countervailing savings that would be generated by eliminating the need for a large number of guards in the courtroom to control a disruptive defendant.

 This court takes judicial notice of the stringency of city and state budgets. F.R.Evid.R. 201. See also Rhem v. Malcolm, 507 F.2d 333 (2d Cir. 1976) (court considers financial condition of New York City). Yet the amount in question is relatively quite small since the budget for fiscal 1980-81 for the New York court system is $ 408,719,980. Budget, N. Y. State Office of Court Administration.


 A. Physical Restraint

 Illinois v. Allen, 397 U.S. 337, 90 S. Ct. 1057, 25 L. Ed. 2d 353 (1970), exemplifies our legal system's ancient disdain for physically restraining defendants in the courtroom. "In an unbroken line of precedents and treatises from Hale to Hawkins through Blackstone ..., the principle is reiterated that the defendant shall not be shackled or manacled during his trial." Krauskopf, Physical Restraint of the Defendant in the Courtroom, 15 St. Louis Univ.L.J. 351, 352 (1971). According to the earliest writers, binding and shackling a defendant is improper because it ...

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