Motion Bank # M-3009 (Re: F 1.04 n19 [Courtroom Security: Challenged Use Of Electric Shock Belt As Compromising Defendant’s Ability To Participate In His Or Her Own Defense].)
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Law Office of the Public Defender
for the County of San Joaquin
GERALD GLEESON, Public Defender
Jonathan Grossman 154452
102 South San Joaquin St., Room 1
Stockton, CA 95202
209-468-2767
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF SAN JOAQUIN
—oOo—
The People of the State of California,
Plaintiff,
v.
_________________________________,
Defendant.
_______________________________________)
NOTICE OF MOTIONS AND MOTIONS IN LIMINE AND POINTS AND
AUTHORITIES IN SUPPORT THEREOF NOT TO USE ELECTRIC BELT
TO THE DISTRICT ATTORNEY OF SAN JOAQUIN COUNTY AND HIS REPRESENTATIVE:
PLEASE TAKE NOTICE that on ___________, 19__, at _____a.m. or as soon thereafter as the matter may be heard in a Department to be assigned of the above-entitled court, the defendant will move the court for an order denying the use of electric belt capable of administrating an electric shock to the defendant.
The motion is based on this Notice Of Motion and Points and Authorities, the papers and pleadings on file herein, and such further oral and written pleadings, evidence and argument as may be received by the court, article I, sections 7, 13, 15, 16, and 17 of the California Constitution, and the Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution.
Wherefore defendant moves for an order prohibiting the defendant from wearing the electric shock belt or similar device during trial and other proceedings in this case. Defendant hereby submits the following points and authorities:
I.
HOW THE ELECTRIC SHOCK BELT WORKS
The electric shock belt operates by administering 50,000 volts of electricity to the defendant for eight seconds whenever a sheriff’s officer presses a button. (People v. Garcia (1997) 56 Cal.App.4th 1349, 1354.) It consists of two large electrodes placed against the defendant’s kidneys. A belt secures the device. Two batteries are attached which stores the energy. It can be worn completely under the defendant’s clothing. Thus, the jury cannot see the belt as long as it is never actually used. (Ibid.)
The shock is designed to be so powerful that it immobilizes the defendant. Frequently, the shock induces self-defecation and self-urination. (Ibid.) The electric current will “completely short-circuit the skeletal muscle nerve system…. Skeletal muscle is reduced to a functionless mass and the body will be unable to move or retain posture. The victim simply collapses.” (J. M. Robinson, et al., “Electric Shock Devices and their Effects on the Human Body,” 30 Medicine, Science and the Law 285, 299 (Oct 1990 British Academy of Forensic Science). [Footnote 1]) The electric shock belt and other electric stun devices evolved from the electric cattle prod. Powerful cattle prods were developed to stun and paralyze livestock so that ranchers could administer medication, among other things. (Id., at pp. 292-293, 297.)
The electric shock belt on humans creates intense pain and prolonged disorientation. A much less powerful shock of only 1000 volts is enough to inflict pain. (Id., at p. 298.) A short shock of only 3 to 5 seconds will leave the person “dazed and weak for at least five, perhaps fifteen minutes. [Footnote 2] Such effects are readily claimed by the manufacturers in advertising and instruction sheets and have been verified by American police [Citation].” (Ibid.)
Besides paralysis and pain, there are lasting adverse health effects. The fall and convulsions from the shock can lead to head injuries and a variety of wounds from impacts with nearby blunt objects. (See Id., at pp. 295-296.) The electrodes often leave welts which can take up to six months to heal. (Anne-Marie Cusac, “Stunning Technology,” The Progressive (July 1996) p. 18.) “Secondly, since the shock is transmitted throughout the body including the chest region one cannot discount the possibility of ventricular fibrillation [heart attack] if only a few microamps are conducted through the heart for a prolonged period.” [Footnote 3] (30 Med. Sci. Law, supra, at p. 299.) “Anyone in contact with the victim’s body at the time of shocking is also likely to receive a shock as well.” (Ibid.)
Because of the possibility of heart attack, it is the policy of the Federal Bureau of Prisons that the electric shock belt should not be used for inmates with heart disease, multiple sclerosis, muscular dystrophy, or epilepsy. Nor should it be used on pregnant females. But early pregnancy, heart disease, and cerebral or aortic aneurysms are notoriously difficult to detect.
In 1995, Texas prison officer Harry Landis volunteered to be shocked by an electric shield in a training session. He died after receiving his second shock. It was the conclusion of the Coryell County justice of the peace was that the electric shocks directly led to the officer’s death. (Anne-Marie Cusac, “Stunning Technology,” The Progressive (July 1996) p. 18.)
The electric shock belt is as much a psychological weapon as it is a physical weapon. Jim Kronke, a Stun Tech distributer and trainer, said “at trials, people notice that the defendant will be watching whoever has the monitor.” (The Progressive, supra.) Stun Tech president Dennis Kaufman said the electric shock belt creates “a tremendous amount of anxiety. The fear will elevate blood pressure as much as the shock will.” (Id.)
II.
THE ELECTRIC SHOCK BELT IS A FORM OF TORTURE CONSTITUTING
CRUEL AND UNUSUAL PUNISHMENT
Cruel and unusual punishment exists when there is “the unnecessary and wanton infliction of physical pain.” (Hudson v. McMillian (1992) 503 U.S. 1, 5.) The Eighth Amendment [Footnote 4] can be violated even when no physical injury is present. (Id., at pp. 8-9.) The central purpose of the Eighth Amendment is to permanently prohibit the torture of Americans.
Restraints “engender pain, humiliation, rage and resentment” and can amount to “corporal punishment” for those who wear them. (Spain v. Rushen (9th Cir. 1989) 883 F.2d 712, 716.) A trial court cannot ignore one’s repeated complaints of pain when making an order to restrain a defendant. (Id., at p. 725 fn. 14.) Thus, unwarranted use of restraints can constitute cruel and unusual punishment. (Id., at p. 716.)
For 150 years the Sheriffs Office of San Joaquin have been able to adequately secure the courthouse with the use of leg braces which cannot be seen by the public, and the use of armed bailiffs with tools such as batons, guns, mace, and trained fighting skills. No scenario has been forwarded where already existing measures would be inadequate. Use of the electric shock belt would only inflict gratuitous pain and humiliation as well as the risk of great bodily harm when less drastic measures would be adequate for court security.
The electric shock belt is simply a tool of torture. In fact, it is the ideal instrument of torture. The electric shock belt inflicts intense, debilitating pain, often without leaving a mark! Merely because the device does not break bones and does not normally cause death does not make it benign. Most instruments of torture, in order to be effective, inflict intense prolonged pain while not breaking bones or causing death. Merely because the electric shock belt is novel and does not look like an old fashioned torture device does not make it any less oppressive.
Cattle prods, from which electric shock belts evolved, have been used as tools of torture for many years. It is little wonder that several countries use devices such as cattle prods, stun guns, and electric shock belts during questioning of detainees. Use of the electric shock belt is cruel and unusual punishment prohibited by the Eighth and Fourteenth Amendments.
III.
USE OR THREATENED USE OF ELECTRIC BELT IS
EXCESSIVE DISPROPORTIONATE FORCE AND AN
UNLAWFUL SEIZURE OF THE PERSON
Under the Fourth and Fourteenth Amendments to the federal Constitution and article I, section 13 of the state constitution, only the minimal force necessary may be applied when a person is in custody or taken into custody. (Tennessee v. Garner (1985) 471 U.S. 4.) The state cannot use or threaten to use deadly force to arrest a suspect unless the suspect poses a real and immediate threat. (Id.) Nor can the state use non-deadly force greater than what is necessary to restrain someone who should be in custody. (Id.)
Under the Eighth and Fourteenth Amendments to the federal Constitution and article I, section 17 of the state constitution, punishment cannot be disproportionate. (Solem v. Helm (1983) 463 U.S. 277, 290; In re Lynch (1972) 8 Cal.3d 410.) For punishment to be proportional, the severity of the punishment must increase with the severity of the forbidden act. Punishment is disproportionate if a minor transgression is punished the same as a major one. (Solem, supra, at pp. 290-291; Lynch, supra, at pp. 425-426.)
The current, voltage and duration of the electric shock cannot be varied. 50,000 volts of electric current must be applied for 8 seconds whenever it is used. This must be done even though a shock of only 1000 volts is sufficient to cause pain, a shock of only one second is usually sufficient to immobilize a person, and a greater and longer shock becomes more dangerous.
Thus, the defendant is threatened with the prospect of an equally harsh jolt regardless of how minor his perceived transgression is. The belt is intended to stop a defendant who is actually in the process of attacking a victim with deadly force or running out the door. But exactly the same restraint would be used against the defendant for far less threatening actions when less force would be appropriate.
IV.
THE ELECTRIC SHOCK BELT IS A PSYCHOLOGICAL WEAPON
INTERFERING WITH DEFENDANT’S RIGHT TO FAIR TRIAL
AND EFFECTIVE ASSISTANCE OF COUNSEL
It has long been recognized that physical restraints tends to “reverse[ ] the presumption of innocence,” impair the defendant’s mental capabilities, impede communication between the defendant and counsel, and interfere with the defendant’s ability to focus on proceedings because of pain inflicted from the restraints. (Spain v. Rushen (9th Cir. 1989) 883 F.2d 712, 715, 721.) Restraints also offends the confrontation clause and the right to a fair jury. (Illinois v. Allen (1970) 397 U.S. 337, 338.) The electric shock belt was specifically designed to exasperate the problems inherently posed by restraints.
The stated purpose of the electric shock belt is to be as much of a psychological weapon as a physical one. Jim Kronke, a Stun Tech distributer and trainer, admitted that “at trials, people notice that the defendant will be watching whoever has the monitor.” (The Progressive, supra.) Stun Tech president Dennis Kaufman said the electric shock belt creates “a tremendous amount of anxiety. The fear will elevate blood pressure as much as the shock will.” (Id.) A defendant wearing the electric shock belt during trial will be pre-occupied with the possibility of being shocked.
A defendant has a right to not only be physically present but also mentally present at the trial. When the state interferes with the defendant’s ability to concentrate on the matters in the case and to assist counsel, it interferes with the right to a fair trial.
Furthermore, because counsel is often in physical contact with defendant, counsel is as much at risk of being shocked as the defendant. (30 Med. Sci. Law, supra, at p. 299.) Thus, the same concerns pre-occupying defendant will justly pre-occupy counsel. For counsel to be protected from the pain and adverse health effects of the electric shock belt, counsel must necessarily shun the client and cut off all meaningful confidential courtroom communication. Thus, the electric shock belt interferes with the right to a fair trial and to effective assistance of counsel under the Fifth, Sixth and Fourteenth Amendments to the United States Constitution and Article I, section 15 of the California Constitution.
V.
DEFENDANT CANNOT RECEIVE A FAIR TRIAL WHEN
THE ELECTRIC SHOCK BELT IS USED
Although the electric shock belt is inconspicuous when not used, it was undisputed using the belt would cause the defendant to collapse in utter pain and possibly result in self-defecation and self-urination. (Garcia, supra, at p. 1354.) Under the Sixth and Fourteenth Amendment to the federal Constitution and under Article I, section 16 of the state constitution, a fair trial by an impartial jury requires that the jury evaluate the defendant based on the evidence. (People v. Blackwell (1987) 191 Cal.App.3d 925, 929.) The jury must not be influenced by irrelevant evidence or by evidence presented by someone other than the prosecution or defense attorneys. (Ibid.)
When a bailiff uses the electric shock belt, the state communicates to the jury, though not under oath and not subject to cross-examination, that the defendant is a violent person predisposed to commit the crime charged. Nothing can make a greater impression on the jurors that the defendant is a dangerous and violent person if he appears to be so dangerous and so violent that no bailiff would even dare handle him closely, [Footnote 5] that he must be violently shocked in front of their eyes, leaving him dazed and disoriented, for even minor transgressions. [Footnote 6]
In People v. Garcia, (1997) 56 Cal.App.4th 1349, the Court of Appeal upheld the use of the electric shock belt. [Footnote 7] The decision in Garcia was inaccurate in describing the electric shock belt as “‘absolutely invisible'” to the jury causing “‘no prejudice to the defendant at all . . . ‘” (Id., at pp. 1354-1355, 1356.) The court correctly noted that the law requires that every effort must be made to avoid treating the defendant in such a matter that may lead the jurors to infer that he is a violent person disposed to commit the crimes of the type alleged. (Id., at p. 1355, citing Duran, supra, 16 Cal.3d at p. 290.) But the electric shock belt is “invisible” only as long as it is never used. The spectacle of watching a defendant drop in agony and be disoriented will irreparably prejudice the jury and, therefore, deprive the defendant of a fair trial.
VI.
PRE-AUTHORIZED USE OF THE ELECTRIC SHOCK BELT BEFORE
ANY ACT BY THE DEFENDANT IS A VIOLATION OF DUE PROCESS
Under the Fifth and Fourteenth Amendments to the United States Constitution and article I, section 7 of the California Constitution, the state cannot punish an individual without due process. At the root of American jurisprudence is that an individual’s life, liberty, or property cannot be put in jeopardy without due process. (Morrissey v. Brewer (1972) 408 U.S. 471.) Due process, at a minimum, requires notice of the allegations and an opportunity to be heard before an impartial arbiter prior to the implementation of an irreversible act by the state. (See, e.g., United States v. James Daniel Good Real Property (1994) 114 S.Ct. 492; Goss v. Lopez (1975) 419 U.S. 565, 577-582.)
The court is requested to authorize the administration of a powerful electric shock whenever law enforcement deems appropriate. It is not sufficient that the defendant is told in advance what perceived actions would result in an electric shock Due process requires that after an alleged transgression but before the execution of the electric shock, the defendant be told what the alleged transgression was and given the opportunity to meaningfully respond before an impartial judge before the administration of the electric shock.
VII.
AN ORDER TO RESTRAIN DEFENDANT MUST BE JUSTIFIED
BY A HEARING SHOWING MANIFEST NEED AND NO LESS
RESTRICTIVE MEANS AVAILABLE
It has long been held that a “defendant cannot be subjected to physical restraints of any kind in the courtroom while in the jury’s presence, unless there is a showing of a manifest need for such restraints.” (People v. Duran (1976) 16 Cal.3d 282, 290; see also People v. Hill (1998) 17 Cal.4th 800, 839-842; People v. Harrington (1871) 42 Cal. 165, 168; Illinois v. Allen (1970) 397 U.S. 337, 344; Penal Code section 688.) The burden is on the prosecution to establish in the record the need for restraints. (People v. Prado (1977) 67 Cal.App.3d 267, 275.)
“Physical restraints” include “all forms of handcuffs, shackles, manacles, leg irons, and other restraining devices.” (Id., at p. 288 fn 5.) It is proposed that the electric shock belt be used in this case in order to restrain the defendant from attacking others and to confine him from escaping. By definition, the electric shock belt is being used here as a “restraining device.” [Footnote 8]
The “manifest need” for restraining the defendant must address the likelihood that the defendant would attempt escape or violence in the courtroom. (People v. Stankewitz (1990) 51 Cal.3d 72, 94.) A criminal record of escape or violence, the fact the defendant may be facing an enormously long sentence are not sufficient justifications for restraining defendant. (People v. Hawkins (1995) 10 Cal.App.4th 920, 944; People v. George (1994) 30 Cal.App.4th 262, 268, 272.) Nor is a budget shortage or inadequate court facilities justification for restraints. (People v. Prado (1977) 67 Cal.App.3d 267, 274.) There must be evidence that the defendant has affirmatively indicated in some way the likelihood of attempted escape or violence in the courtroom in this case. (See, e.g., People v. Pride (1992) 3 Cal.4th 195, 233 [series of violent outbursts over six months]; People v. Price (1991) 1 Cal.4th 324, 402 [defendant tried repeatedly to provoke fights with guards]; People v. Jacobo (1991) 230 Cal.App.3d 1416, 1425 [punched attorney in courtroom].)
The decision on whether to restrain a defendant and what restraints to be used must be made by the judge, not security personnel, and the decision must be supported by the record. (Duran, supra, at p. 292; People v. Cisneros (1992) 26 Cal.App.4th 266, 278; People v. Jackson (1993) 14 Cal.App.4th 1818, 1825.) The court’s decision cannot be based on a general policy; a case-by-case determination must be made. (Duran, supra, at p. 293.)
The rules not to be restrained without manifest need have been expanded beyond jury trials to include other evidentiary hearings, such as preliminary examinations. (Solomon v. Superior Court (1981) 122 Cal.App.3d 532, 536; see also People v. Fierro (1991) 1 Cal.4th 173, 219.)
There has not been a sufficient showing to justify the use of any restraints in this case.
VII.
CONCLUSION
For the reasons stated above, the defendant moves this court to order that the defendant not be forced to wear the electric shock belt or similar device.
DATED:
LAW OFFICES OF THE PUBLIC DEFENDER
GERALD L. GLEESON, Public Defender
JONATHAN GROSSMAN
Deputy Public Defender
Attorneys for Defendant
FOOTNOTES:
Footnote 1: Little forensic testing has been done to research the safety and hazards of electric shock devices such as electric shock belts, tasers, and stun guns. The article addressed stun guns which are less powerful than electric shock belts because they carry less voltage and less current over less time. (See id., at pp. 289, 298.)
Footnote 2: An even shorter shock of only one half second is, on average, all that is necessary to immobilize a human. The Progressive, supra.)
Footnote 3: More than enough electrical energy is administered in an electric shock belt to light three 60 watt light bulbs for the same 8 seconds. But a greater danger of the electric current derives from the possibility of electric current reaching the heart. Only a few microamps of current can immobilize the heart muscles. (Id., at p. 296.) The longer and greater the electricity applied, the less the heart can be insulated from incapacitating current:
“The possible lethality of a current can be considered against the threshold of ventricular fibrillation. Ventricular fibrillation occurs when the regular beating of the heart is interrupted during the vulnerable period of the cardiac cycle by, for example, an electric shock. The heart stops beating and blood pressure drops rapidly.” (Id., at p. 295.) “The likelihood of ventricular fibrillation increases if the shock continues for a complete cardiac cycle.” (Id., at p. 296.)
Footnote 4: The proscription against cruel and unusual punishment applies to the states under the Fourteenth Amendment. (Hudson, supra.) Article I, section 17 of the California Constitution also prohibits cruel or unusual punishment. (In re Lynch (1972) 8 Cal.3d 410.)
Footnote 5: As long as the defendant wears the electric shock belt, a bailiff cannot physically touch or restrain the defendant for fear that he too may be shocked. (30 Med. Sci. Law, supra, at p. 299.) This actually creates a security risk.
Footnote 6: If the same guidelines are used, the electric shock can be used for simply not “comply[ing] with officer direction[s],” or for “[a]ny outburst or quick movement . . . [a]ny hostile movement” or whenever the officer cannot see the defendant’s hands. (Garcia, supra, at p. 1354.)
Footnote 7: Even under the ruling of Garcia, the court cannot authorize the use of the electric shock belt without a hearing to determine whether there is a manifest need. (Garcia, supra, 56 Cal.App.4th at pp. 1357-1358.) Also, the record in Garcia was incomplete. (Garcia, supra, at pp. 1356-1357.) Issues raised at trial and on appeal in Garcia were not the issues that are being raised here. Case law does not resolve issued which were not raised. (People v. Dillon (1983) 34 Cal.3d 441, 473-474.)
Footnote 8: The court in People v. Garcia, (1997) 56 Cal.App.4th 1349, took the position that the electric shock belt is not a “restraining device” under the definition announced in Duran because the defendant is free to walk around. (Garcia, supra, at p. 1356.) The opinion of the Court of Appeal is at odds with the rulings of the supreme court that state cannot “impose[] physical burdens, pains and restraints” without a showing of manifest necessity. (Harrington, supra at p. 168). (Duran, supra, at p. 290.) In this case, it is proposed that the electric shock belt be used specifically to restrain defendant’s actions.
In either event, even the court in Garcia has continued to require “[t]here must be a showing of good cause based upon a totality of the facts and circumstances” to justify authorizing the use of the electric shock belt, just as is required for other restraining devices. (Id., at p. 1357.)
