Ervine Davenport was shackled without case-specific justification at his murder trial in state court in Kalamazoo, Michigan. The Michigan Supreme Court found a violation of Deck v. Missouri (2005) 544 U.S. 622 and remanded for an evidentiary hearing on prejudice under Chapman v. California (1967) 386 U.S. 18.
“On remand, the trial court conducted an evidentiary hearing in which it heard from all 12 jurors. Five remembered seeing Davenport’s restraints; the remaining seven did not. All 12 testified that Davenport’s shackles did not enter into their deliberations or influence their unanimous verdict. Based on this evidence, the trial court found that the State had carried its burden to show harmlessness beyond a reasonable doubt.” The Michigan Court of Appeals affirmed, and the MSC denied review.
With the state conceding error and contesting only prejudice, the 6th Circuit reversed on habeas corpus in reliance, inter alia, on a concern that the shackling of Davenport raised a “racialized presumption of dangerousness and guilt.”
“If a practice ‘involves such a probability that prejudice will result that it is deemed inherently lacking in due process,’ like shackling a defendant without case-specific reasons, ‘little stock need be placed in jurors’ claims to the contrary. Even though a practice may be inherently prejudicial, jurors will not necessarily be fully conscious of the effect it will have on their attitude toward the accused.’ [Quoting Holbrook.] Since Holbrook was decided, a voluminous body of social-science research has demonstrated support for Holbrook’s conclusion. See generally Jennifer L. Eberhardt, Biased: Uncovering the Hidden Prejudice that Shapes What We See, Think, and Do (2019). This research suggests that the shackling of Davenport, a 6’5” tall Black man weighing approximately 300 pounds, would tend to ‘prime’ racialized presumptions of dangerousness and guilt. See, e.g., Mark W. Bennett & Victoria C. Plaut, Looking Criminal and the Presumption of Dangerousness: Afrocentric Facial Features, Skin Tone, and Criminal Justice, 51 U.C. Davis L. Rev. 745, 785 (2018) (‘Repeated studies indicate Blacks with darker skin tones and stronger Afrocentric facial features “activate automatic associations with negative behavioral stereotypes of Black men, such as aggression, violence, and criminality.”’ (Citations omitted)); Justin D. Levinson et al., Guilty by Implicit Racial Bias: The Guilty/Not Guilty Implicit Association Test, 8 Ohio St. J. Crim. L. 187, 207 (2010) (‘[W]e found that participants held implicit associations between Black and Guilty…. [T]hese implicit associations were meaningful – they predicted judgments of the probative value of evidence.’)” [Footnote integrated into text.]
(Davenport v. MacLaren (6th Cir. 2020) 964 F.3d 448, 466 and footnote 13.)
Although the Davenport case was ultimately reversed by the USSC (Brown v. Davenport, 142 S.Ct. ___ [2022 WL 1177498] (April 21, 2022), the concerns identified by the 6th circuit may enter into counsel’s decision as to whether to request CC 204 or an alternative such as those suggested in FORECITE F 204 Inst 2 (a-g) Cautionary Instruction Regarding Physical Restraints.
