Scales v. State

• Court: Supreme Court of Georgia
• Decided: August 26, 2025
• Docket: S25C0749
• Status: Published

Opinion

NOTICE: This opinion is subject to modification resulting from motions for reconsideration under Supreme Court Rule 27, the Court’s reconsideration, and editorial revisions by the Reporter of Decisions. The version of the opinion published in the Advance Sheets for the Georgia Reports, designated as the “Final Copy,” will replace any prior version on the Court’s website and docket. A bound volume of the Georgia Reports will contain the final and official text of the opinion.

SUPREME COURT OF GEORGIA Case No. S25C0749

August 26, 2025

The Honorable Supreme Court met pursuant to adjournment.

The following order was passed:

BERNARD SCALES v. THE STATE

The Supreme Court today denied the petition for certiorari in this case.

All the Justices concur, except Land, J., disqualified.

Court of Appeals Case No. A24A1351

SUPREME COURT OF THE STATE OF GEORGIA Clerk’s Office, Atlanta

I certify that the above is a true extract from the minutes of the Supreme Court of Georgia. Witness my signature and the seal of said court hereto affixed the day and year last above written.

, Clerk LAGRUA, Justice, concurring.

Trial court judges have a difficult job in many respects, but

particularly, when it involves balancing the constitutional rights of a

defendant and the presumption of innocence, while also ensuring that

litigants, witnesses, juries, and the public are safe and secure in the

courtroom. In an era of pervasive threats to judges and court

personnel, it has become increasingly challenging to balance those two

interests.

That said, judges take an oath to follow the law, and the law

mandates that we protect the rights of parties, including defendants,

in the courtroom and elsewhere, especially during trial. That is why I

join fully in the majority’s denial of certiorari, but again caution trial

judges that security within the courtroom is under their control and

cannot be abdicated to law enforcement personnel. See Green v. State,

246 Ga. 598, 600 (1980).

Scales was charged with aggravated child molestation and other

crimes. During trial, the Sheriff’s Department attached a “Band-it”

security device to his person without a hearing laying out fact-specific

1 reasons addressing the need for additional security measures. Scales

was ultimately convicted and sentenced. He then filed a motion for

new trial, alleging for the first time, that among other things, his due

process rights to be present, and meaningfully participate in his own

defense, his right to testify, his right to equal protection, and his right

against abuse of prisoners, had been violated because he was required

to wear the “Band-it” security device.

The Court of Appeals found that

[i]n denying the motion for new trial, the trial court found that Scales failed to demonstrate any harm to his constitutional right to testify and participate in his own defense based on the use of the Band-it, and to the extent the court erred in failing to hold a hearing prior to placing the device on him, any such error was harmless beyond a reasonable doubt because ample grounds existed to authorize the use of the device.

Scales v. State, 374 Ga. App. 257, 258 (2025).

The specific facts of this case are addressed in the opinion of the

Court of Appeals. What concerns me is that the testimony at the

motion-for-new-trial hearing established, and the State does not now

dispute, that use of the “Band-it” security device is controlled by the

Supervisor of Court Services (which in this case was Lt. Richard 2 Harrison with the Carroll County Sheriff’s Office) pursuant to a

written Standard Operating Procedure (“SOP”). The SOP gives the

supervisor the discretion to use additional security measures deemed

appropriate (adhering to certain guidelines) without the court making

specific findings addressing the need for additional security. However,

according to Lt. Harrison’s testimony at the motion-for-new-trial

hearing, the Band-it is used on every incarcerated defendant brought

to trial on a felony charge.

As I have consistently cautioned trial courts: “It is well

established that no person should be tried while shackled except as a

last resort,” Hill v. State, 308 Ga. 638, 644 (2020) (cleaned up), and

should a trial court utilize shackles the trial court must make “case-

specific and individualized findings to support its initial decision.” Id.

That decision should clearly be made with input from the law

enforcement agency tasked with securing the courtroom, but the

ultimate decision remains with the court.

Webster’s dictionary defines shackling as “something that

confines the legs or arms,” as well as “to deprive of freedom especially

3 of action by means of restrictions or handicaps.” Based on the

testimony at the motion for new trial, Lt. Harrison made clear that

the “Band-it,” once activated, would restrict the defendant’s ability to

move around.

Trial courts have a heavy burden to protect the people that enter

the courtroom they supervise, and while that is a trying responsibility

in these times and while it is understandable to want to use

restrictions to ensure a high level of safety and public confidence in

the security of the courtroom, ensuring a defendant’s constitutional

rights remains paramount. When we do not keep that at the very

forefront of our minds, we risk the rights of us all.

I am authorized to state that Justice McMillian joins in this

concurral.