U.S. Supreme Court

SCOTUS should hear case in which shackled defendant reenacted murder, with no defense objection, Sotomayor says

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U.S. Supreme Court Justice Sonia Sotomayor dissented Monday when the high court refused to hear a case in which a shackled defendant reenacted a murder during his sentencing, with no objection from his defense lawyer.

The shackling was all too evident during petitioner Frederick R. Whatley’s reenactment, Sotomayor asserted in her dissent to the cert denial.

“Whatley’s chains clanked and rattled with every move, constantly reminding the jury that the court apparently believed he might do more than just pretend to kill someone in the courtroom if left unrestrained,” Sotomayor wrote.

Whatley reenacted the murder at the prosecutor’s request during a sentencing hearing. Whatley had been convicted of robbing and killing the owner of a Georgia bait shop and liquor store. Before Whatley’s sentencing testimony, the prosecutor “sensibly asked” whether the jury should be excused while Whatley walked to the stand in shackles, Sotomayor said.

“Defense counsel waved off the prosecutor’s concern,” concluding, “‘well, he’s convicted now,’” Sotomayor wrote.

During his testimony, Whatley contested the state’s claim that he killed the store owner and nearly shot an employee to eliminate witnesses to the crime. Whatley said he reflexively fired a shot when the store owner pulled out a gun immediately after giving Whatley the money.

On cross-examination, the prosecutor asked Whatley to demonstrate his version of events with a toy pistol.

“Now, this is not the type of gun you had that day,” the prosecutor said. “I hope you’ll understand why I don’t want to give you a real gun.”

Whatley’s lawyer did not object to the reenactment. The next day, the prosecutor argued that Whatley deserved the death penalty because he posed a severe threat of future violence. The judge gave no curative instruction about the shackling to jurors, who deliberated only 90 minutes before imposing the death penalty.

“Whatley’s chains, fresh in the jury’s mind from the previous afternoon’s spectacle, powerfully corroborated the prosecutor’s argument. It is hard to imagine a more prejudicial example of needless shackling,” Sotomayor wrote.

“On these facts, defense counsel’s failure to object to Whatley’s unnecessary shackling renders his death sentence not only unreliable, but unconstitutional.”

The case is Whatley v. Warden, Georgia Diagnostic and Classification Prison.

Sotomayor also issued an opinion in a second case Monday in which a pretrial detainee was subjected to a “physically penetrative” body cavity search. During the search, a male doctor spread open a woman’s vagina and anus with a speculum and shined his headlamp inside to look for contraband.

The doctor conducted the search after two inmates accused the woman of hiding drugs in her body.

Lawyers for the female detainee, a shoplifting suspect, had argued that the more invasive search required probable cause and a warrant or exigent circumstances. Sotomayor said the petition raises important questions, but she agreed with the decision to deny cert to allow more courts to consider the issue.

“It bears emphasis, however, that the degree of suspicion required for a search should be substantially informed by the availability of less intrusive alternatives,” Sotomayor wrote. “This court does not lightly permit an entire category of warrantless, invasive searches when less offensive options exist.”

The case is Brown v. Polk County.

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