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People v. Hernandez (Cal. Ct. App. - July 10, 2009)

By Shaun Martin

I would have thought that everyone could agree that you can't let the jury see a uniformed and armed bailiff following the defendant in a criminal case wherever he goes -- at least if there's not an actual security risk. I'd have thought that everyone would recognize the prejudice inherent in having the bailiff follow around this one particular individual -- at his seat, on the witness stand, etc. -- in the eyes of a jury. I'd have thought that to do this in every single criminal case would be clearly improper, and that everyone would recognize this fact.

I'd have been wrong.

The Court of Appeal does reverse the conviction here. But it's over the dissent of Justice Haerle. Moreover, the trial judge -- Judge Nancy Stark up in Contra Costa County -- apparently does indeed have the bailiff follow the defendant around wherever he goes (and conspicuously, at that).

The analogy to making 'em wear shackles and/or an orange jumpsuit seems pretty strong to me.

Do I have a problem with ordering a bailiff to follow around a defendant who's known to be at risk of trying to escape or commit violence? Nope. Not at all. (Though a curative instruction on this point to the jury seems appropriate as well.) Would I have a problem with ordering the bailiff to sit beside every witness on the stand just to play it safe? Nope. That's good too.

But singling out the defendant and having the bailiff follow him and him alone around seems incredibly prejudicial, especially in an assault case. You're sending a message to the jury, whether you intend to send that message or not. And they'll hear it loud and clear.

An appropriate reversal of an inappropriate procedure.

Full post as published by California Appellate Report on July 17, 2009 (boomark / email).