Johnny Spain v. Ruth L. Rushen, Director, California Department of Corrections

883 F.2d 712, 1989 U.S. App. LEXIS 13139, 1989 WL 95253

• Court: Court of Appeals for the Ninth Circuit
• Decided: August 22, 1989
• Docket: 86-2687
• Status: Published

Opinions

CYNTHIA HOLCOMB HALL, Circuit Judge:

Ruth Rushen, Director of the California Department of Corrections, appeals from the district court’s grant of a writ of habe-as corpus to Johnny Spain. Rushen contends that the district court erred in determining that the state trial court violated Spain’s constitutional rights by shackling Spain during his criminal trial. We affirm.

I

In 1971, Johnny Spain was imprisoned in San Quentin Prison and was a member of the Black Panther Party.¹ Spain was serving a life sentence for a 1967 conviction for first degree murder. In May of 1971, Spain was transferred to the Adjustment Center at San Quentin, a three-story structure primarily used to segregate and discipline disruptive prisoners.

On August 21, 1971, there was an outburst of deadly violence at the Adjustment Center. George Jackson, also a member of the Black Panther Party, returned to the Adjustment Center after meeting with his lawyer, Stephen Bingham. When guards found a bullet clip on Jackson, Jackson removed a gun from under his wig and forced one of the guards present to open the cells of other prisoners. Many of the prisoners, including Spain, emerged from their cells. There was testimony that Spain played a role in binding guards and placing them in the cells where they subsequently were assaulted. He was seen approaching the guards with an earphone cord in his hands. The cord was of the type used to bind the guards. There also was testimony that at one point he held Jackson’s gun, which was used to murder two of the guards.

When an alarm was sounded, Jackson and Spain fled from the Adjustment Center, Jackson with a gun in his hand and Spain with some keys. Jackson was shot by guards and was killed instantly. Spain dove into some bushes where he was found hiding. When order was restored the aftermath of the violence was revealed: one officer had bled to death from a neck wound; two had been shot to death in the head; three others had their throats slashed, but survived; and two prisoners died of similar wounds. The Director of Corrections called the incident the worst in her eight years as Director.

Officials found a number of weapons and knives in their subsequent search. In Spain’s back pocket, officials found a six inch long vial wrapped in tape, which Spain identified as an explosive. A search of Spam’s cell revealed a road map with an escape route and, hidden inside bars of soap, thirteen rounds of .38 caliber ammunition, four .410 gauge shotgun shells, and one .22 caliber magnum shell.

Spain was charged with five murder counts, one conspiracy count, and one assault count. The prosecution attempted to show that the Black Panther Party had organized the escape attempt and that Spain was linked to the conspiracy by his membership in the Black Panthers. Spain did not testify; his defense was that he could not recall anything from the time his cell door opened to the time he ended up outside the Adjustment Center.

In a trial with five other prisoners, Spain was found guilty of two counts of first degree murder and of conspiracy to escape by force or violence; he was acquitted of the other four counts. In the courtroom during the trial, Spain was shackled. He wore leg irons, a waist chain to which each of his hands was bound by individual chains about eight inches long, and chains that apparently held him to his chair.² Spain, already serving a life term for murder, was sentenced to another term of life imprisonment in 1976.

On June 29, 1982, the District Court for the Northern District of California issued Spain a writ of habeas corpus because it determined that Spain’s constitutional rights were violated by ex parte communications between the trial judge and a juror. Spain v. Rushen, 543 F.Supp. 757 (N.D.Cal.1982), aff'd mem., 701 F.2d 186 (9th Cir.), vacated, 464 U.S. 114, 104 S.Ct. 453, 78 L.Ed.2d 267 (1983). Although a challenge to the constitutionality of Spain’s shackling was raised in his habeas petition, the district court did not reach that issue. We affirmed the district court in an unpublished decision. 701 F.2d 186. The Supreme Court reversed and vacated the judgment, 464 U.S. 114, 104 S.Ct. 453, 78 L.Ed.2d 267 and noted that Spain’s argument that his constitutional rights were violated when he was shackled was to be resolved on remand, id. at 117 n. 1, 104 S.Ct. at 455 n. 1. On remand, the district court referred the case to a magistrate for an evidentiary hearing to determine the effect Spain’s shackling during the trial had on his ability to cooperate with his trial attorney and to testify in his own defense. The magistrate made the following findings of fact:

1. Petitioner’s shackling at trial aggravated his existing medical and psychological problems, and pained and preoccupied him during that time.

2. Petitioner’s shackling interfered with his ability to communicate with his trial counsel and to participate in the preparation of his own defense.

3. Petitioner’s shackling impeded his ability to testify on his own behalf.

Evidentiary Report at 6-7, Spain v. Rushen, No. 0-81-4858 TEH (JSB) (N.D.Cal. Oct. 9, 1985) [hereinafter Evidentiary Report]. The district court virtually adopted these findings,³ Spain v. Rushen, No. C-81-4858 TEH, at 5 (N.D.Cal. Sept. 22, 1986), determined that Spain’s due process right to a fair trial was violated by being shackled at trial, and issued a second writ of habeas corpus.⁴ From this writ, Rushen appeals.

II

We review de novo the district court’s decision to grant a petition for writ of habeas corpus. Carter v. McCarthy, 806 F.2d 1373, 1375 (9th Cir.1986), cert. denied, 484 U.S. 870, 108 S.Ct. 198, 98 L.Ed.2d 149 (1987).

A

Generally, a criminal defendant has a constitutional right to appear before a jury free of shackles. See Wilson v. McCarthy, 770 F.2d 1482, 1484 (9th Cir.1985). However, a trial judge’s decision to shackle a defendant is not per se unconstitutional. Stewart v. Corbin, 850 F.2d 492, 497 (9th Cir.1988), cert. denied, — U.S. —, 109 S.Ct. 1737, 104 L.Ed.2d 175 (1989). “The trial court has discretion to use shackles or other security measures when circumstances dictate.” Wilson, 770 F.2d at 1484. Thus, we review for an abuse of discretion a trial judge’s decision to shackle a defendant. Stewart, 850 F.2d ; Wilson, 770 F.2d at 1485.⁵

B

As mentioned, the district court below adopted the magistrate’s factual findings. Before we can determine whether the trial court abused its discretion, we must first examine these findings, which are reviewed for clear error. Fed.R.Civ.P. 52(a).

Rule 52(a) provides: “Findings of fact ... shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses.” Because in this case the findings in large measure depend on credibility determinations, we must accord particularly wide-ranging latitude, or “special deference,” to the district court. See Anderson v. Bessemer City, 470 U.S. 564, 574, 575, 105 S.Ct. 1504, 1511, 1512, 84 L.Ed.2d 518 (1984).

In Anderson, the Court sent a clear message to the courts of appeals warning us not to “reverse the finding of the trier of fact simply because [we are] convinced that [we] would have decided the case differently.” Id. at 573,105 S.Ct. at 1511. This is a principle we “must constantly have in mind.” Id. (quoting Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U.S. 100, 123, 89 S.Ct. 1562, 1576, 23 L.Ed.2d 129 (1969)). And

when a trial judge’s finding is based on his decision to credit the testimony of one of two or more witnesses, each of whom has told a coherent and facially plausible story that is not contradicted by extrinsic evidence, that finding, if not internally inconsistent, can virtually never be clear error.

Id. 470 U.S. at 575, 105 S.Ct. at 1512.

We believe that the emphatic sentiments expressed in Anderson command us to accept the district court’s findings. The magistrate considered medical reports, which included Spain’s medical history and his prison medical records, and the live testimony of Spain, Charles R. Garry (Spain’s counsel), and two experts in psychology. In considering the live testimony, the magistrate did not accept each witness’s account uncritically. Compare Henson v. CIR, 835 F.2d 850 (11th Cir.1988). She properly discounted the weight of the witnesses’ testimony as appropriate.

Spain called Dr. Delman, a psychologist, and the state called Dr. Sutton, a psychiatrist, in an attempt to reconstruct Spain’s state of mind during the trial. The magistrate provided the following background:

Dr. Delman ... has seen Spain four times in the last couple of years, each interview spanning 2-3 hours. Delman did not interview anyone other than Spain, his friends, and supporters. Although Delman did review Spain’s prison psychiatric file, Delman did not speak to any correctional officers, prison officials, or persons involved in Spam’s prosecution. Delman’s opinion was that “Spain was so depressed and pessimistic and beaten by the chains, that I don’t believe he was capable of cooperating [in his defense] in a reasonable way.”

Dr. Sutton [is] a staff psychiatrist at San Quentin.... Sutton examined Spain before and at the time of trial. She testified that she saw Spain on “several occasions,” but one of those occasions was a group interview with three of his co-defendants. Moreover, Sutton had no recollection of speaking with Spain when he was in shackles or discussing the subject with him.

Evidentiary Report, supra, at 6-7. The magistrate then concluded that the value of the experts’ testimony was “limited.” Id. at 7. She did not indicate, however, that this testimony would be dismissed entirely.

The magistrate also commented about the testimony of Garry. She found some of his testimony “marked by hyperbole” and his recollection of the events hazy at times. Id. at 6-7. Accordingly, the magistrate did not give it “substantial weight.” Id. But nor did she dispense with his testimony altogether. For example, the magistrate found exaggeration in Garry’s assertion that “there was no way in the world I could communicate with [Spain].” Id. at 10 (quoting Garry’s testimony). However, she then concluded that “Garry’s statement that ‘more than three-quarters of ... [their time together] was [spent] talking about how he was being treated ... how degraded he felt [when he walked into the courtroom]’ [was] probably close to the truth.” Id. (quoting Garry’s testimony).

Spain testified at length before the magistrate. His testimony spanned more than 100 pages of transcript. He claimed to have experienced great physical and mental pain during both the pretrial proceedings and trial. He explained:

I could feel the pain before the chains were ever applied, and that is an hour or two hours before these chains were put on. I could feel those chains and the pain of it, two and three hours after they were removed when we returned to the prison. And in terms of pain, we are talking about 14 and 15 hours a day of having to deal with this. That consumed every aspect of my life at that point.

Spain claimed that the pain impeded his ability to concentrate on the trial proceedings. The issue of pain was relevant not only to Spain’s ability to participate at trial and cooperate with his counsel, but also to Spain’s decision not to testify at trial. Spain later testified about the effect the chains had on this decision. On redirect examination, Spain’s attorney attempted to introduce the testimony Spain had given years earlier before Judge Zirpoli, the federal district judge in the 1983 action, and the government objected on relevancy grounds. The magistrate overruled the objection and admitted the evidence, explaining: “Well, it seems to me there is a certain amount of relevance with regard to the issue before me in the mere fact he testified before Judge Zirpoli when he was not shackled.”⁶

In assessing the veracity of Spain’s complaints of experiencing disruptive pain and humiliation during trial, the magistrate apparently factored in the extent and duration of the chaining as well. The magistrate devoted an entire section to this subject, methodically detailing the type, number, and weight of the chains Spain wore and for how long. Of course, this is a reasonable consideration. The truthfulness of Spain’s complaints must be gauged by the circumstances he suffered.

After thoroughly reviewing the magistrate’s evidentiary report, we find no basis for disturbing her findings, having accorded them appropriate deference. Spain’s story is “coherent and facially plausible.” Anderson, 440 U.S. at 575, 105 S.Ct. at 1512. It is not implausible that a man shackled with 25 pounds of chains ten to twelve hours a day for almost five years would experience debilitating pain and degradation. Indeed, the government concedes that Spain’s “physical ailments [were] ... painful,” and only disagrees with the magistrate’s conclusion that the pain was debilitating. Brief of Appellants 46; see also id. at 38-39. Nor is Spain’s story “internally inconsistent” or “contradicted by extrinsic evidence.” Anderson, 440 U.S. at 575, 105 S.Ct. at 1512.⁷ All this is not to say that were we the magistrate we would have made the same findings. But what we might have done or not have done as factfinders does not matter. Id. at 573, 105 S.Ct. at 1511. Our inquiry is of a different order.

Ill

A cumulation of factors, not just any single one, provided the trial judge in the case at bench with ample justification for taking some sort of action to protect the jury, the courtroom personnel, the spectators, the defendants, and himself. See Zygadlo v. Wainright, 720 F.2d 1221, 1223 (11th Cir.1983), cert. denied, 466 U.S. 941, 104 S.Ct. 1921, 80 L.Ed.2d 468 (1984). On trial were six men, already serving time for committing acts of extreme violence, who were accused of perpetrating one of the bloodiest prison escapes of all time. The trial judge, therefore, undoubtedly was concerned that Spain might try to escape. See United States v. Kress, 451 F.2d 576, 577 (9th Cir.1971) (shackles may be necessary to prevent escape), cert. denied, 406 U.S. 923, 92 S.Ct. 1789, 32 L.Ed.2d 123 (1972); United States v. Apodaca, 843 F.2d 421, 431 (10th Cir.), cert. denied, — U.S. —, 109 S.Ct. 325, 102 L.Ed.2d 342 (1988); Zygadlo, 720 F.2d at 1223. Adding to the judge’s concern was the potentially explosive political atmosphere surrounding the trial⁸ and a previous courthouse shoot-out involving Spain’s accomplice Jackson that left three men dead, including the presiding judge.⁹ Finally, Spain repeatedly interrupted the pretrial proceedings and often was sent to a holding cell where he continued to cause disruptions.¹⁰

We conclude that under these circumstances the trial court appropriately determined that some measure was needed to maintain the security of the courtroom. The remaining inquiry, therefore, is whether the actual measure taken — shackling Spain — was constitutional.

IV

An analysis of the trial court’s decision to shackle Spain throughout his trial properly begins with the Supreme Court’s decision in Illinois v. Allen, 397 U.S. 337, 90 S.Ct. 1057, 25 L.Ed.2d 353 (1970). The Court used Allen as an opportunity to provide appropriate guidelines for maintaining judicial control of the courtroom. Id. at 351, 90 S.Ct. at 1064 (Douglas, J., dissenting). The Court provided that faced with a contumacious defendant, the trial judge has at least three constitutionally permissible options. He may “(1) bind and gag him, thereby keeping him present; (2) cite him for contempt; (3) take him out of the courtroom until he promises to conduct himself properly.” Id. at 343-44, 90 S.Ct. at 1061.

Upon discussing the possibility of binding and gagging a defendant, the Court admonished that this option should be employed only “as a last resort.” Id. at 344, 90 S.Ct. at 1061 (“But even to contemplate such a technique, much less see it, arouses a feeling that no person should be tried while shackled and gagged except as a last resort.”).¹¹ Numerous reasons were offered for holding that shackling and gagging be used only in extraordinary cases:

Not only is it possible that the sight of shackles and gags might have a significant effect on the jury’s feelings about the defendant, but the use of this technique is itself something of an affront to the very dignity and decorum of judicial proceedings that the judge is seeking to uphold. Moreover, one of the defendant’s primary advantages of being present at the trial, his ability to communicate with his counsel, is greatly reduced when the defendant is in a condition of total restraint.

Id.

The Court in Allen, therefore, identified three “inherent disadvantages and limitations” in this method of maintaining judicial control. The lower federal courts have observed two further weaknesses in imposing physical restraints: they may confuse and embarrass the defendant, thereby impairing his mental faculties; and they may cause him pain. See Zygadlo, 720 F.2d at 1223 (shackles may impair mental faculties); United States ex rel. Boothe v. Superintendent, Woodbourne Correctional Facility, 506 F.Supp. 1337, 1340 (E.D.N.Y.) (pain may result from shackling), rev’d on other grounds, 656 F.2d 27 (2d Cir.1981). The list of problems that should be considered in a decision to shackle may be summarized as follows:

(1) Physical restraints may cause jury prejudice, reversing the presumption of innocence;

(2) Shackles may impair the defendant’s mental faculties;

(3) Physical restraints may impede the communication between the defendant and his lawyer;

(4) Shackles may detract from the dignity and decorum of the judicial proceedings; and

(5) Physical restraints may be painful to the defendant.

See Kennedy v. Cardwell, 487 F.2d 101, 105-06 (6th Cir.1973), cert. denied, 416 U.S. 959, 94 S.Ct. 1976, 40 L.Ed.2d 310 (1974).

Because of the problems accompanying a decision to shackle, reviewing courts require that trial judges pursue less restrictive alternatives before imposing physical restraints. See Woodard v. Perrin, 692 F.2d 220, 221 (1st Cir.1982); Kennedy, 487 F.2d at 111; Wilson, 770 F.2d at 1486;¹² Tyars v. Finner, 709 F.2d 1274, 1284-85 (9th Cir.1983); Elledge v. Dugger, 823 F.2d 1439, 1452 (11th Cir.) (per curiam), opinion withdrawn in part on other grounds, 833 F.2d 250 (11th Cir.1987) (per curiam), cert. denied, — U.S. —, 108 S.Ct. 1487, 99 L.Ed.2d 715 (1988). In weighing the merits of physical restraints, the trial judge must consider the particularities of the case before him. See Allen, 397 U.S. at 343-44, 90 S.Ct. at 1060-61 (recognizing the need for an ad hoc approach to maintaining judicial control). The trial judge must assess the extent of the limitations that would be present if shackles were applied, taking into consideration the five potential problems listed above. The trial judge then must weigh the benefits and burdens of shackling against other possible alternatives.

An analysis of the facts in the present case demonstrates that applying shackles to Spain throughout the entire trial presented many difficulties. The proceedings were unusually long and involved the simultaneous trial of six defendants. During the trial, each defendant was required to appear before the jury with numerous physical restraints.

It is axiomatic that our criminal justice system affords every accused individual a presumption of innocence. Coffin v. United States, 156 U.S. 432, 453, 15 S.Ct. 394, 402, 39 L.Ed. 481 (1895), cited in Kennedy, 487 F.2d at 104. When an accused is forced to appear before his peers in chains, this presumption is seriously jeopardized. See Holbrook v. Flynn, 475 U.S. 560, 569, 106 S.Ct. 1340, 1346, 89 L.Ed.2d 525 (1986); United States v. Samuel, 431 F.2d 610, 614-15 (4th Cir.1970), cert. denied, 401 U.S. 946, 91 S.Ct. 964, 28 (1971); Kennedy, 487 F.2d at 104; Apodaca, 843 F.2d at 430-31; Zygadlo, 720 F.2d at 1223. Despite this hazard, shackling sometimes may be appropriate because of the public’s competing interest in courtroom security and the just administration of law. Allen, 397 U.S. at 344, 90 S.Ct. at 1061.

The amount of prejudice that may flow from a decision to impose physical restraints is not constant. The degree of prejudice is a function of the extent of chains applied and their visibility to the jury. In other words, the greater the intensity of shackling and the chains’ visibility to the jurors, the greater the extent of prejudice. In the instant case, Spain was subjected to maximum restraints: he wore leg irons, a waist chain to which each hand was bound by individual chains about eight inches long, and chains that apparently held him to his chair. Moreover, the shackles were conspicuous; the jury was able to appreciate the full extent of the chaining. Given the number of defendants on trial in shackles, the extent of restraints, and the long duration of the trial, the trial judge was powerless to conceal the chains. In sum, shackling Spain in this manner exposed him to a serious threat of prejudice.

Another danger inherent in imposing physical restraints is the possibility that the defendant may feel confused, frustrated, or embarrassed, thus impairing his mental faculties. Zygadlo, 720 F.2d at 1223. Along with his habeas corpus petition in July 1975 to have the shackles removed, Spain filed a declaration in which he described the effects of his being physically restrained: “I get exasperated and cannot concentrate.... These shackles and chains must be removed.” The magistrate below found that the subject of shackles practically consumed Spain’s attention and significantly detracted from his ability to prepare for his own defense. Evidentiary Report, supra, at 8-10. The magistrate also noted that Spain went so far as to undertake a course of study of the history of shackling. Evidentiary Report, supra, at 9.

The state trial judge was on notice that the shackling might be having this effect on Spain. At various points Spain complained about the shackles and made motions to have them removed. On one occasion, on December 11,1973, he filed a handwritten affidavit describing the toll exacted by the restraints, concluding: “[A]ll of the above is a severe physical and psychological strain. I have not been able to understand the court proceedings, in which I’ve been made to go through; I do not understand my attorneys_” Clerk’s Transcript (CT) 2087.

“[O]ne of the defendant’s primary advantages of being present at the trial, his ability to communicate with his counsel, is greatly reduced when the defendant is in a condition of total restraint.” Allen, 397 U.S. at 344, 90 S.Ct. at 1061. While Spain was not gagged, he otherwise was totally restrained by the shackles. According to the magistrate’s findings, the chains “grossly interfer[ed] with his ability to cooperate with counsel.” Evidentiary Report, supra, at 12. This finding is consistent with the magistrate’s determination that the chains seriously impaired Spain’s mental faculties.

Perhaps the least weighty concern involved in deciding whether or not to shackle a defendant is the affront caused to the dignity and decorum of the judicial proceedings. See Kennedy, 487 F.2d at 106 n. 8 (concern about judicial dignity and decorum is based purely on policy and does not directly affect defendant). Nonetheless, this is yet another factor that the Supreme Court has suggested trial courts consider before making a shackling ruling. See Allen, 397 U.S. at 344, 90 S.Ct. at 1061.

It is hard to imagine a case in which the dignity and decorum of the judicial proceedings were disrupted more than they were in the present case. Not only was Spain extensively shackled, he stood trial with five other defendants who were similarly restrained.

Long ago it was recognized that a high cost of shackling is the pain imposed and the consequential burden placed on the body and mind of the defendant. Coke, apparently paraphrasing (and expanding upon) Bracton, observed:

Bracton saith ... if felons come in judgment to answer they shall be out of irons, and all manner of bonds, so that their pain shall not take away any manner of reason.... And in another place he saith ... It is an abuse that prisoners be charged with irons, or put to any pain before they be attainted.

3 Coke Inst. 34 (1797), quoted in Kraus-kopf, Physical Restraint of the Defendant in the Courtroom, 15 St. Louis Univ.L.J. 351 (1971). While today’s shackles are themselves less painful than they were in Coke’s day, see Boothe, 506 F.Supp. at 1340, they may inflict enough pain in certain circumstances to call into question the propriety of their use, see United States v. Whitehorn, 710 F.Supp. 803, 840 (D.D.C.1989) (employing plexiglass partition instead of shackles, which are “obviously less desirable” because of their “punitive nature” and the long duration of pretrial confinement). Conceivably, in a given case the chains may be so numerous and the trial so lengthy that shackling is not a viable option.

This is such a case. Spain was heavily chained. The magistrate concluded that the total weight of the shackles was 25 pounds. In addition, the judicial proceedings were unusually long. The pretrial proceedings, during which Spain was restrained, lasted almost four years. The trial itself spanned seventeen months, almost a year and a half. Of course, the mere sight of the chains gave the trial judge some indication of their weight; and the trial judge realized at the outset that the trial would be lengthy.

Spain’s complaints about the pain caused by the chains were immediate, chronic, and impassioned. He began to complain of pain soon after he was first shackled. At his arraignment on October 15, 1971, Spain requested the court to examine his wrists because his handcuffs were too tight. The court ordered the guards to inspect Spain’s wrists and to loosen his handcuffs if necessary. Spain then asked to be unshackled; the court denied this request. On January 17, 1972, at a hearing on Spain’s motion to have his assigned counsel replaced by counsel of his choice (which was denied), Spain requested that his chains be removed so he would be able to take notes. This request also was denied.

As the lengthy pretrial period continued, Spain’s pain increased and his requests for unshackling grew more frequent and more urgent. At a May 11, 1973, hearing on another of Spain’s motions to substitute counsel of his choice, Spain again complained of pain in his wrists. On June 1, 1973, Spain, now wearing bandages under his handcuffs, called the court’s attention to the pain caused by his arm restraints. By November, Spain’s condition had deteriorated markedly. He complained to the trial court that he was “physically unable and unwilling to endure the pain of the chains digging into [his] skin.” ¹³ Spain’s requests for unshackling and his complaints of pain continued. He complained of pain at a hearing on December 17, 1973. On January 11, 1974, Spain requested an opportunity to testify as to his pain and his deteriorating health. The court did not permit Spain to testify. On November 29, 1974, a doctor examined Spain after Spain reported rectal pain, lower back pain, and weight loss. The doctor recommended, in a report addressed to the Chief Medical Officer at San Quentin Prison, that Spain “in no event be chained during his trial, in view of the weight loss and the evidence of intestinal and/or nutritional disorder.” CT 2508. The doctor’s recommendation was ignored.

In the month before the beginning of trial, there was a rapid succession of pain reports and requests for unshackling. On February 11, 1975, at the request of Spain’s lawyer, a second doctor examined Spain and recommended that the chains be removed because they were “aggravating] the patient’s back pathology.” CT 2502. Spain refused to attend a February 21 hearing because he was suffering from constant pain. At a hearing on February 27, Spain’s counsel advised the court that Spain was unable to sit without pain and accordingly was forced to either stand or lie down. On March 3, Spain requested to be removed from the courtroom because he was in pain. On March 4, the second doctor noted that the chains “may have been the stress which precipitated the onset of pain in a spine, which was already deformed. It is almost certain that a return to the Marin court, fettered as he has been in the past, would exert more stress on his injured back and aggravate his problem.” CT 2499.

On March 10, Spain’s counsel filed a declaration stating that Spain was unable to cooperate in his defense, because “most of the time, Mr. Spain has been either under heavy sedation, absent from the court room due to his inability to sit in the restraints, or in extreme pain both in and out of the court room.” CT 2494-95. Apart from its response to the March 3 request for removal from the courtroom (which apparently was granted only as to that day), the court ignored Spain’s complaints.

On March 18, 1975, one week before trial, Spain filed a handwritten affidavit summarizing his condition:

I, johnny larry spain, depose and say: I That I have been advised by my attorney to state my reasons for waiving the right to be present at the hearing of March 18, 1975, and make this statement under the penalty of perjury. The major reasons are as follows:

A.) First and foremost, I have been continuously subjected to anywhere from 7 to 10 hours of being chained and shackled, sometimes to the floor (if in the holding cell), and always to a fixed position if in the courtroom, while most of the time being in pain and/or under heavy medication; in either instance I have found it almost impossible to understand the proceedings and the court has constantly refused to remedy (in fact, the court has profoundly imposed) the conditions under which I suffer pain as a result of multiple medical problems of the severe nature.

B.) Under the latter circumstances I do not feel it is worth chancing any further and perhaps irreversible physical damage to my person just to claim some phony “due process” rights, when, under the above circumstances, “due process” really means being subjected to pain in a sham and mockery of justice.

C.) I have been examined by private doctors — Dr. Betty Jo Smith, who is a surgeon in chief; Dr. Peter La Riviere, and Dr. Corey Weinstein — and all the doctors have made reports that clearly indicate (or rather specifically state) that my being chained and shackled and otherwise subjected to the conditions which exist in the court building in Marin county, for the defendants in People vs. Bing-ham, are necessarily harmful to my already bad health condition.

D.) I have requested medical attention from the prison medical staff for specific problems and I have been denied any medical attention at all in specific instances, particularly regarding the severe pain in the sciatica (right side) area. I have been given shots in my back (from my shoulders to my lower back) by Dr. White, a prison doctor, and these shots were specifically for the pain I’m having in my back, and yet the prison claims that there is “nothing wrong” with me, and the court claims there is “nothing wrong” with me, but that is an idiotic supposition simply because one does not receive shots unless something is wrong with a person. Moreover, the shots have become increasingly ineffectual for the purpose which they are supposed to serve. The court’s position (which is always the prison’s position) is obviously biased.

II That the above are the major reasons I do not wish to be present at the hearing on March 18, 1975, which means, in sum: that I’m forced to select “due process” or severe pain, both of which mean the same thing in the case of People vs. Bingham.

/s/johnny larry spain

CT 2635-36 (emphasis in original). On March 24, the day before trial, the court denied the defendants’ motions to be unshackled at trial.

Spam’s condition did not improve. On July 23, a third doctor, who conducted an examination when Spain was taken to San Francisco General Hospital for evaluation of weight loss, abdominal pain, rectal bleeding and lower back pain, recommended “that the patient be permitted adequate exercise and more importantly that he not be restrained with chains for court appearances which will aggravate his chronic back problem.” CT 4461. This doctor’s report, like those of the two doctors before him, was ignored by the court. On July 24, Spain once again filed a declaration attesting to his pain:

By order of the trial Judge, I am shackled and chained to my chair like a wild animal.

I am in constant pain and discomfort. After sitting in the stationary manner for a period of twenty minutes, I am just beside myself. I get exasperated and cannot concentrate and get to the point of complete emotional breakdown.

At one time, when the jury was chosen in the case, at approximately 4:00 p.m. I was so distraught with pain and the thought of having to endure a period from six months to nine months was more than I was able to endure. Without thinking, and in complete frustration, I threw my files. I know I meant no harm to anyone.

These shackles and chains must be removed. I cannot endure the pain. If I were permitted to stand up and move my body for a moment or two every fifteen or twenty minutes, then I could endure the trial. Otherwise, I am not able to do so.

I make this promise to the Court that, if the chain and shackles were removed and I could sit in that Courtroom as a human being instead of a wild animal, my conduct would be more than exemplary-

/s/ johnny larry spain

CT 4459-60. Like all others, this plea was ignored.

In sum, Spain repeatedly voiced his complaints of pain, which were corroborated by uncontested medical reports. The magistrate, after an evidentiary hearing, concluded that the pain was real and substantially interfered with his ability to participate in his own defense.¹⁴ On the present state of the record, we have no basis for contesting this finding.

The decision to shackle Spain throughout the trial in order to maintain courtroom security clearly posed many serious drawbacks. All the limitations and disadvantages that accompany a decision to impose physical restraints were maximally present in this ease. As a result, the trial court abused its discretion if there was available any option that did not present the same dangers. See Allen, 397 U.S. at 344, 90 S.Ct. at 1061.

1

The trial court never really considered the alternatives to shackling the defendants in order to secure the courtroom. Instead, the court believed the solution was to be found between the two extremes of total restraint and total freedom from shackles. The court revealed its mindset on January 11, 1974, when it stated: “I have to consider all of the options from the total release of restraint to continuation of the existing restraint.” In its March 24, 1975, order denying the motion for unshackling, the court once again exposed its limited focus: “The Court has considered every possible opportunity between freeing all or some inmate-defendants entirely from restraint, to full restraint for all inmate-defendants.” These statements make it plain that the trial court actually did not consider “all of the options.” Rather, it considered only the options involving the degree of shackling.

The Allen decision suggested at least two other possible options other than shackling: a trial court could cite the defendant for contempt; or it could remove him from the courtroom and conduct the trial in his absence.¹⁵ Because Spain was serving a life sentence for first degree murder at the time of the trial, citing Spain for contempt would have been meaningless. Hence, this suggested alternative to shackling was not feasible in the context of this case. However, the same cannot be said of excluding Spain from trial.

An accused has a well-established right to be present at his own trial. Badger v. Cardwell, 587 F.2d 968, 970 (9th Cir.1978). Ordinarily, his presence secures other fundamental guarantees — the right to confront witnesses, the right to help prepare his own defense by assisting counsel during trial, the right to listen to testimony, and the right to testify on his own behalf. See United States v. Gagnon, 470 U.S. 522, 526, 105 S.Ct. 1482, 1484, 84 L.Ed.2d 486 (1985) (“The constitutional right to presence is rooted to a large extent in the Confrontation Clause of the Sixth Amendment, e.g., Illinois v. Allen, 397 U.S. 337, 90 S.Ct. 1057, 25 L.Ed.2d 353 (1970), but we have recognized that this right is protected by the Due Process Clause in some situations where the defendant is not actually confronting witnesses or evidence against him.”) (per curiam); Badger, 587 F.2d at 970-71; United States v. Latham, 874 F.2d 852, 856 (1st Cir.1989).

Nevertheless, removing the defendant from trial may be a permissible option in certain eases. Allen, 397 U.S. at 343-44, 90 S.Ct. at 1060-61. Indeed, the Court in Allen specifically noted that removal from trial in some instances may be a preferable alternative to shackling and gagging. After discussing the drawbacks associated with shackling and gagging, the Court concluded:

It is in part because of these inherent disadvantages and limitations in this method of dealing with disorderly defendants that we decline to hold with the Court of Appeals that a defendant cannot under any possible circumstances be deprived of his right to be present at trial.

Id. at 344, 90 S.Ct. at 1061.¹⁶

On several occasions, Spain raised the possibility of being absent from trial. In a handwritten motion filed on November 30, 1973, Spain requested that he be permitted to remain at San Quentin rather than to be transported to the courtroom in pain:

Motion by johnny larry spain:

I I would now like to move this court for an order allowing me to remain at San Quentin Prison rather than be brought to this courtroom.

II I am often chained for 9 or 10 hours a day while in court and I am physically unable and unwilling to endure the pain of the chains digging into my skin, and of having blood-flow infringed upon by my being chained in a manner such as would and does keep me in a fixed position.

Ill Per paragraph “II,” I’m under physical compulsion to make a decision, a choice between being in utterly unnecessary pain or giving up constitutional rights.

I give them (the rights) up

/s/ johnny 1 spam

CT 2078. The court never ruled on Spain’s request; he continued to be shackled and brought to the courtroom daily.

Spain renewed his request to be absent from the trial at a pretrial hearing on January 11, 1974. During the hearing, the court and Spain’s counsel addressed the issue of shackles. The court inquired whether Spain would be satisfied if the manacles were removed, while leaving the other chains in place. Spain’s counsel responded:

I can tell you this: My client told me ... that in the event that there is any shackling whatsoever, any restraint where he cannot have even the semblance of a fair trial, he does not care to come into this courtroom. He does not care to come into this building, and he would just as soon remain in his cell at San Quentin, because that’s what he has told me to do.

He has ordered me to proceed in that regard, and I have tried to convince him that at least we get these pretrial matters over with and probably we can have an atmosphere that we can really work in. I have made that assurance to him.

Now, he has told me unequivocally without any reservation that if there is any form of restraint in the courtroom where that jury looks upon him as though he is a demon, that he will not come into the courtroom or he will not come into the building at all. He will not go into the holding cell. He will remain in San Quentin where he’s housed now.

I just want your Honor to know that that is the transmission that Mr. Spain has given to [me].

R.T. 2949-50.

On April 11, 1975, Spain once again raised the possibility of being excluded from trial instead of appearing in shackles. In a handwritten affidavit, Spain attested that he had signed a “Waiver of Defendant’s Personal Presence” because of the physical and psychological duress imposed by the chains. CT 2861. He claimed that he was “not physically able to stand trial according to doctors and specialists who examined [him]” and that the chains subjected him to “severe back pain,” “severe pain in the right sciatica nerve,” and “muscle cramps, spasms, and pulled muscles with increasing frequency.” Further, he alleged that “[t]he shackles and chains cause[d] [him] to be of little or no assistance in [his] defense ... because [he could not] concentrate while in pain and, thus, most of the time [he could not] follow the proceedings in the case.” ¹⁷ Id. at 2861-62. The court conducted a hearing concerning this matter and concluded that Spain may be excused from personally appearing during pretrial matters, but not during jury selection or the trial.¹⁸ CT 2882. Accordingly, Spain was forced to attend the trial for seventeen months in a physically and mentally debilitated condition.

We conclude that Spain gave the trial judge the option of excluding him from trial. Exclusion from trial would have been a less restrictive alternative. At a minimum, Spain would have been better able to assist in his own defense. Without the chains, he would not have experienced the pain and humiliation that the district court concluded prevented him from meaningfully participating in aiding his counsel. At least two of the five drawbacks associated with a decision to shackle, therefore, would have been eliminated. At the same time, courtroom security would not have been jeopardized in the least.

The trial court also might have had an alternative short of total exclusion; the court might have allowed Spain to be absent on selected days when he was not feeling well. Perhaps with limited periods of rest without being shackled, Spain could have endured the days of trial in physical restraints. Spain fairly raised this possibility, but the court failed to explore it.¹⁹

Consequently, the trial judge committed constitutional error²⁰ in failing to employ shackling as a “last resort.”²¹

V

Due process requires that shackles be imposed only as a last resort. In determining whether shackling is a last resort, a trial judge must consider the benefits and burdens associated with imposing physical restraints in the particular case. If the alternatives are less onerous yet no less beneficial, due process demands that the trial judge opt for one of the alternatives. In the present case, which is unparalleled in the extent and duration of shackling, the trial judge failed to employ the less restrictive alternative of excluding Spain from trial. This failure deprived Spain of his right to due process.²² The district court’s decision to grant the writ of habeas corpus is therefore AFFIRMED.

1 . The Black Panther Party was a revolutionary group founded in 1966 in Oakland, California that reached its peak by the early 1970s. The group adopted a platform calling for, among other things, the arming of all blacks, the release of all blacks from prison, and the trial of blacks by all-black juries. The platform also stated, "We will protect ourselves from the force and violence of the racist police and the racist military by whatever means necessary." R. Major, A Panther Is a Black Cat 285-88 app. A (1971); D. Schanche, The Panther Paradox: A Liberal's Dilemma 88-90 (1970). Throughout the Party’s history, its members were involved in numerous violent altercations with police. See R. Major, supra, at 296-302 app. E.

2 . A neck chain was applied during transportation to and from prison. It is unclear whether Spain wore this neck chain before the jury.

At argument, Spain's counsel said he had no recollection that the neck chain was used in view of the jury, although it was used for transportation and at certain pretrial proceedings. On January 11, 1974, Lt. Campbell, a security officer for the California Department of Corrections, described for the court the restraints that were in place in the courtroom. He explained that the neck chain was removed once the defendant was in his seat in the courtroom and that the neck chain was used to lock the leg irons chain to the base of the chair. On cross-examination, Spain’s counsel did not challenge this account.

The magistrate who held an evidentiary hearing on the effect of the shackling did not resolve this factual matter. The magistrate recognized that the photographs Spain introduced showed him in the courtroom without the neck chain, but with two added chains: one that attached his leg irons to the base of the chair, and one around Spain's waist that attached to the back of the chair. This is consistent with the testimony of Lt. Campbell on the use of the neck chain in the courtroom. Spain testified that the photograph showing him with leg shackles, the waist chain, a chain connecting the leg shackles to the base of the chair, and another chain connecting his waist to the back of the chair, but without the neck chain, depicted basically the same chains he wore during trial. However, he also testified that the neck chain was removed while in the holding cell, but it was “reapplied in the courtroom itself.”

Nor did the district court resolve this dispute. Nevertheless, we need not remand for a finding of fact because the resolution of this dispute does not affect the result in this case.

3 . Spain and other inmates housed in the Adjustment Center (AC) at San Quentin prison filed a section 1983 action claiming that their confinement and treatment at the AC infringed upon their constitutional rights. 408 F.Supp. 534, 537 (N.D.Cal. 1976), modified in part, affirmed in part, and reversed in part, 600 F.2d 189 (9th Cir.1979). This action overlapped with Spain’s state court criminal trial. The district court focused exclusively on the impact of the internal functioning of the AC on the plaintiffs, id. at 537, 538, stating emphatically: “All that the court is now called upon to decide is the constitutionality of the length and conditions of their confinement and treatment at the AC,” id. at 539. In so doing, the court reviewed "the physical plant of the AC and its cells, noise levels, heating and ventilation, exercise, discipline, use of tear gas, use of restraints, medical care and attention, diet, clothing, hygiene, access to counsel, access to the media, and visitor and mail privileges and procedures." Id. at 538. Judge Zirpoli himself inspected San Quentin, paying particular attention to the conditions of the AC. Id.

The district court held that "the abhorrent and shocking use of excessive restraints in the combined form of hand manacles, waistbelt, leg chains, and neck chains for all of plaintiffs’ out-of-prison movements constitutes cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments to the Constitution of the United States.” Id. at 545 (footnotes omitted). The court, however, rejected plaintiffs’ first and sixth amendment claims that the prison conditions at the AC denied them access to the effective assistance of counsel, to the courts and to the media, invaded their privacy, and deprived them of medical care and adequate nutrition. Id. at 546. The court concluded that these claims "are not of such constitutional dimensions as to justify intervention by a federal court." Id. Upon rejecting the plaintiffs’ first and sixth amendment bases for section 1983 relief, the court, apparently referring to the quality of medical care and nutrition, noted that the "[pjlaintiffs were found to be in good physical condition.” Id.

The dissent seizes upon this finding in an attempt to circumvent the district court’s findings below. This attempt is futile. The dissent’s first error is to substitute its own factual determinations for those of the district court in this habeas action. The dissent thus improperly assesses the credibility of Spain’s testimony. Post, at 734-35. The dissent compounds this error with yet another: it fails to acknowledge the critical distinction in the inquiries facing Judge Zirpoli and the district court below. It is this failure that causes the dissent erroneously to perceive inconsistency in the findings of the district judges.

Judge Zirpoli examined only the question whether the conditions inside the prison infringed upon Spain’s constitutional rights to require relief under section 1983. He did not even purport to address whether the excessive chaining inside the criminal courtroom deprived Spain of a fair trial. In fact, Judge Zirpoli recognized the different concerns involved in the state criminal trial, as indicated by his modified order halting the use of shackles in the AC, which specifically ‘‘[did] not apply to state trial proceedings in the courthouse and courtroom of Marin County." This recognization is also evident in his finding that “[t]hough the evidence reveals incidents which have resulted in an invasion of plaintiffs' right of privacy in their attorney-client relationship ..., no pattern emerges which necessitates injunctive relief.” 408 F.Supp. at 546 (emphasis in original). We see no irreconcilable inconsistency between Judge Zirpoli’s general finding of good health and the more specific finding in this case that Spain suffered from back problems severe enough to cause him great discomfort when he was required to wear twenty-five pounds of chain ten to twelve hours a day for five years.

Indeed, Judge Zirpoli’s findings dovetail neatly with the district court’s findings in this case. Upon concluding that the excessive chaining constituted cruel and unusual punishment, Judge Zirpoli stated that “[m]anacles, shackles, waistbelts, leg and neck chains are painful devices which inflict corporal punishment on those wearing them. They engender pain, humiliation, rage, and resentment_” Id, at 545 n. 15. The district judge then noted: ‘‘The cruel and unusual character of the punishment resulting from the combined restraints employed was clearly evident from the court room demonstration in the course of the hearings in this case.” Id. This last observation, in particular, disposes of the dissent’s attempt to avoid the consequences of the district court’s findings in this habeas action.

4 . In attacking the underlying factual basis for granting the writ, the dissent asserts that Spain had a "full opportunity to challenge [before Judge Zirpoli] the conditions to which he was subject at the time.” Post, at 735. The plain suggestion is that Judge Zirpoli was fully empowered to enjoin the state trial court from chaining Spain.

However, this ignores fundamental principles of comity and federalism, which were forcefully espoused in Younger v. Harris, 401 U.S. 37, 46, 91 S.Ct. 746, 751, 27 L.Ed.2d 669 (1971) (underscoring "the fundamental policy against federal interference with state criminal prosecutions”). See also Middlesex Ethics Comm. v. Garden State Bar Ass'n, 457 U.S. 423, 102 S.Ct. 2515, 73 L.Ed.2d 116 (1981). Under Younger, a federal court should abstain if, at the time the plaintiff initiated the federal action, (1) a state judicial proceeding was ongoing; (2) that proceeding implicated important state interests; and (3) the proceeding presented an adequate opportunity to raise constitutional challenges. DeSpain v. Johnston, 731 F.2d 1171 (5th Cir.1984) (citing Middlesex Ethics Comm., 457 U.S. at 432, 102 S.Ct. at 2521). Hence, the Younger doctrine would have placed before Spain a virtually impenetrable barrier to challenge in federal court the manner in which the state court conducted its criminal proceeding. See Mann v. Jett, 781 F.2d 1448, 1449 (9th Cir.1986) (abstention appropriate in 1983 action where plaintiff could "adequately litigate in the ongoing state criminal proceedings his underlying claim of unconstitutional deprivation of counsel”).

5 . The dissent recognizes that Wilson unequivocally sets forth an abuse of discretion standard. See post, at 729. Nevertheless, the dissent proceeds to assert that Stewart has "liberated” us from this purportedly incorrect phrasing of the standard. This is derived from Stewart’s admonition that the "[i]ssue ... is not whether in retrospect, the trial court could have handled the matter better, but rather, whether the trial court denied appellant a fair trial under the circumstances.” 850 F.2d at 497.

However, the quoted language is consistent with the abuse of discretion standard; that language only clarifies the standard in the context of a trial court’s decision to impose shackles. That is, federal courts are not to find an abuse of discretion merely by second-guessing state trial courts. Indeed, Stewart stated that the balancing of competing interests "is left to the discretion of the trial court.” Id. at 499 (emphasis added).

6 . The magistrate's basis for admitting Spain’s former testimony indicates that she considered this evidence insofar as it was pertinent to Spain’s decision not to testify. The dissent overstates the importance of this evidence to the magistrate's findings:

For hard evidence as to the effect of the chains on Spain’s health and on his ability to communicate with Garry and prepare his defense, the magistrate relied on Spain’s own declaration in connection with his earlier ha-beas corpus petition and his testimony before Judge Zirpoli in that proceeding.

Post, at 734. The dissent then draws the following conclusion: “Spain’s declaration and testimony in that proceeding are indeed the chief basis for the findings in the present case.” Post, at 734. This is unsupportable. Apart from the magistrate’s expressed understanding of the relevance of this evidence, this part of Spain’s testimony occupied but five pages of a transcript that numbered more than 100 pages. Finally, the magistrate in no way suggested in her evidentiary report that she placed such emphasis on Spam’s former testimony. The magistrate cited Spain’s statements before Judge Zir-poli only to establish his preoccupation with the subject of shackles. Evidentiary Report, supra, at 8-9. The two citations are but facts showing that Spain was preoccupied. The magistrate adverted to other indications of preoccupation: Spain undertook a course of study of the history of shackling, and Spain focused first on his shackling in his personal statement to the sentencing court. Id. at 9. The government acknowledges this: "Appellant does not dispute the existence of the foregoing facts, for the record does establish that appellee complained about his restraints.” Brief of Appellant at 38. Instead, the government disagrees that “the evidence proves an obsessive distraction which prevented petitioner from participating in his own defense.” Id. The dissent also acknowledges Spain’s preoccupation with the shackles: "What is most apparent in Spain's deeply felt and continuing complaint about the chains is that he perceived them as an affront to his dignity as a human being.” Post, at 738.

7 .The dissent asserts that Judge Zirpoli’s findings in the section 1983 action contradict the district court’s adopted findings below, post, at 734, 735-36, and "bear heavily on the credibility of Spain’s present contentions,” post, at 734. We disproved this assertion in footnote 3. In that footnote, we established that Judge Zirpoli’s findings are not inconsistent with the magistrate’s, because the two factfinders were focusing on different constitutional inquiries. The dissent refuses to acknowledge this difference, and its inevitable ramifications. Furthermore, we cannot agree with the dissent’s characterization of the scope of the inquiry before Judge Zirpoli. The dissent asserts that Spain complained to Judge Zirpoli that impermissible interferences with his right to effective assistance of counsel were "caused by the conditions of his confinement and by 'certain practices’ of the defendants, including their use of chains.” Post, at 734 (quoting Spain v. Procunier, 408 F.Supp. at 536). The phrase "including their use of chains” is the dissent’s own extrapolation.

8 . We note once again that Spain was affiliated with the Black Panther Party, a revolutionary movement that advocated violence as part of its political platform. See supra note 1. In deciding whether to secure the courtroom in some manner, the trial court properly considered this as a factor.

9 . On August 7, 1970, during the murder trial of three San Quentin inmates, including George Jackson (the San Quentin prisoner and Black Panther leader who initiated the violence for which Spain was on trial), Jackson’s brother entered the Marin County courthouse and took the trial judge hostage in an attempt to exchange hostages for the inmates on trial. Judge Harold Haley was killed in the parking lot during a gun battle between his abductors and the police. The proceedings in Spain’s case, which also were held in the Marin County courthouse, began in 1971.

10 . Spain interrupted the pretrial proceedings on the following dates:

April 7, 1972: Spain was removed from the courtroom because he was interrupting the proceedings.

April 14, 1972: Spain and others were removed from the courtroom at 9:26 a.m. because of disturbances. They were brought back into court at 10:50 a.m. Spain and others were removed again at 11:17 a.m. because of further disruptions.

On either April 7 or 14, 1972, the district court noted that several defendants, including Spain, spat on the presiding judge.

May 12, 1972: Spain and others were removed because of disturbances.

May 11, 1973: Spain was in the holding cell at his request. His kicking the holding cell door interrupted argument.

June 1, 1973: Spain refused to enter the courtroom and was left in the holding cell. Later, he was joined by all the defendants. Loud noises from the holding cell interrupted court proceedings numerous times.

June 29, 1973: Spain refused to leave the holding cell to go to court. While he was in the cell with others, loud pounding from the cell interrupted the court.

July 27, 1973: Spain was in the holding cell on his own volition. He was heard shouting in his cell.

September 21, 1973: Spain requested to be removed from the court. After an outburst from Spain, the court recessed and had him put in the holding cell.

December 17, 1973: Spain was removed to the holding cell for persistently interrupting the court.

February 27, 1975: Spain and other defendants were in the holding cell. Loud pounding emanated from the holding cell and Spain requested a doctor. Forty-five minutes later more loud pounding interrupted the court. Later, three defendants including Spain were in the cell. The loud pounding drowned out the proceedings, compelling the court to remove the three to a more distant holding cell.

March 14, 1975: Spain ignored the court’s repeated admonition to be quiet and the court ordered him removed.

11 . In his separate concurrence, Justice Brennan noted his agreement with Justice Black's majority opinion that "these three methods are not equally acceptable.” Allen, 397 U.S. at 350, 90 S.Ct. at 1064 (Brennan, J., concurring). "In particular,” he continued, "shackling and gagging a defendant is surely the least acceptable of them." Id.

12 . Wilson involved review of a decision denying the writ of habeas corpus. The court in its review noted: "Ultimately, however, it is incumbent upon the defendant to show that less drastic alternatives were available and that the trial judge abused his discretion by not implementing them." 770 F.2d at 1486. The dissent quotes only the first half of this sentence and construes it as a statement of the burden of proof. The dissent concludes: "The burden was on Spain to produce the evidence to show whether absence as an alternative to shackling continued to be open to him.” Post, at 738.

We read the full sentence in Wilson differently. The court simply was restating the standard of review on appeal — abuse of discretion — and the concomitant burden this stringent standard placed upon the defendant. While we agree that the district court's basis for granting the writ was in error, we may affirm a judgment on any ground supported in the record. See Pedro v. Oregon Parole Bd., 825 F.2d 1396, 1399 (9th Cir.1987), cert. denied, 484 U.S. 1017, 108 S.Ct. 726, 98 L.Ed.2d 675 (1988); James v. Reese, 546 F.2d 325, 327 (9th Cir.1976); see also Dunne v. Henman, 875 F.2d 244, 247 (9th Cir.1989); Bowen v. U.S. Parole Commission, 805 F.2d 885, 887 (9th Cir.1986).

13 . Spain lodged this complaint in a handwritten motion dated November 30, 1973, in which he sought to waive his right to be present at trial. The motion is quoted in full infra.

14 . The state trial court unfortunately never bothered to conduct an evidentiary hearing to explore this problem. When a shackled defendant complains of pain, the trial court is not free to ignore it. Instead, the court must ascertain the legitimacy of those complaints and then consider the feasibility of shackling as an option. In the ordinary case, imposition of shackles is not likely to cause much pain to the defendant. This is no ordinary case.

The dissent accuses us of substituting our discretionary judgment for that of the state trial court. Post, at 739. This is not so. The state trial court simply did not exercise its discretion; it completely ignored Spain’s complaints of pain and thus did not assess the factor of pain in making its shackling ruling. Under these circumstances, we are not second-guessing the informed judgment of the trial court, but making a constitutional judgment where the state trial judge failed in his duty to do so.

15 . Recently, in Stewart v. Corbin, 850 F.2d 492 (9th Cir.1988), we reviewed a trial court’s decision to shackle and gag the defendant. In applying the least restrictive alternative analysis, we inquired whether citing the defendant for contempt or expelling him from trial were feasible options and concluded that they were not. Id. at 499-500.

16 . The Court in Allen upheld the trial court's decision to expel the defendant from trial.

17 . The prosecution opposed this motion, arguing that the waiver was not a voluntary relinquishment of his rights because Spain stated that he was being forced to choose between shackles and his presence at trial.

We disagree. Unquestionably, Spain confronted a choice: either remain at trial with physical restraints or be absent from trial. It is critical, however, that this choice was not unlawfully imposed. Spain himself, not the trial court, was the cause of his dilemma. That is, the violent nature of the crimes charged, the political atmosphere surrounding the case, and Spain’s disruptive conduct prompted the trial court to take some action to secure the courtroom. Under these circumstances, appearing at trial wholly unfettered was not feasible. Thus, some form of shackling and removal from trial were among the options to be considered. A deliberative decision among unpleasant choices does not render the decision involuntary. See Brady v. United States. 397 U.S. 742, 749-50, 90 S.Ct. 1463, 1469-70, 25 L.Ed.2d 747 (1970) (defendant's guilty plea, even if entered to avoid possibility of death penalty, was voluntary).

18 . At the hearing on April 11, 1975, the court explored the scope of the requested waiver, which from the affidavit appeared to cover the entire trial. Initially, Spain’s counsel was unsure and sought to have Spain testify to the extent of the request. The court would not permit Spain to testify. Spain’s counsel then stated that his client wished to be able to waive his presence on selected days when he was not feeling well. The court refused to allow Spain to execute a waiver once trial had begun, stating: “Once the evidence commences, it would seem to me that there is no way that he can waive his personal presence.” [R.T. 5194-95]

This exchange between the court and counsel is noteworthy for two reasons. First, the trial judge incorrectly believed that Spain could not waive his right to be present at trial. Allen specifically provides removal from trial as a possible alternative to shackling. To the extent that California law prevents absence from trial in this case and absence is less restrictive than shackling, federal law must prevail. U.S. Const, art. VI, cl. 2. Second, it would appear that Spain was not seeking to effectuate a complete waiver of his presence from trial. However, Spain may have been capitulating to the trial judge’s view of the law. That is, at the outset of the April 11th hearing, the court made it clear that Spain could not be absent during the trial. Spain then limited the scope of the waiver, which in his affidavit seemed all encompassing. See CT at 2861 ("I am not physically able to stand trial....”).

19 .The record indicates that despite the trial court's ruling that Spain must attend trial, Spain refused to appear in court on a couple of occasions. CT 3405; 4006. However, there is no indication that this very brief absence served to alleviate the pain Spain suffered throughout his long trial.

20 . Our conclusion is that the state trial court committed constitutional error, not torture. We disagree with the dissent’s contrary reading of the majority’s position. Post, at 735, 738. A defendant’s right to due process may be violated even if the shackles impose mental and physical pain short of torture.

21 . There was perhaps another less restrictive alternative: the reduction in the number of the chains, which would have alleviated Spain's pain and concomitant mental impairment. The trial judge never pursued this possibility, perhaps because he believed that Spain was taking the position that either all or none of the chains be removed. However, the trial judge could have rejected this position and reduced the number of the chains by concluding that Spain's constitutional right to a fair trial so demanded.

22 . The dissent speculates that had the trial court granted Spain’s wish to be absent from trial, Spam’s habeas claim instead would be that he was deprived of his sixth amendment right of confrontation and his right to confer with counsel. Post, at 738. Perhaps this is true. However, this in no way detracts from our holding. Of course, there are many cases in which the exercise of a trial court’s discretion will result in an appeal, no matter how that discretion is exercised. In the present case, if the trial court had determined that shackling Spain was not a feasible alternative and that granting Spain's request to be absent from trial was the least restrictive alternative, an appeal based on his absence would be meritless.