Shackles at heart of court review

PALMER — Did jurors asked five years to decide his fate see an accused child-molester’s leg shackles and, if so, did seeing the shackles prejudice them against him?

That’s what Superior Court Judge Eric Smith is in the process of trying to figure out.

Glen Ogletree was convicted in November 2005 on five counts of sexual abuse of a minor and one each of exploiting a minor, burglary, violating a protective order, distributing child pornography and possession of child pornography. Ogletree appealed on a number of grounds and prevailed on one: He should have been sentenced on a single combined count for the distribution and possession charges, rather than on both charges separately.

What landed the case back in Smith’s courtroom, though, was a question the appeals court said it didn’t have enough information to decide — Ogletree’s claim that he shouldn’t have been shackled at trial.

In an opinion the Alaska Court of Appeals issued in August, Judge Robert Coats writes that Smith should have handled the case differently.

“We conclude that Judge Smith erred in failing to consider less restrictive means of controlling Ogletree’s behavior before ordering Ogletree shackled. But the error might have been harmless if the jury did not observe the shackling,” he wrote.

Thus, the case was sent back to Smith to see if the jurors saw the leg irons. They asked Smith to “reconstruct the record” to see if the jurors could have seen the shackles, then figure out whether any jurors actually did see them.

Tuesday, Smith convened court for just that purpose. But how, exactly, to recreate that record was up for debate.

“I guess if I were going to reconstruct the record literally, we would have a two-week trial and have those poor people sit there and we would read the transcript,” Smith said.

But, failing that, they would have to go over exactly what the courtroom looked like at trial and talk to people who were there. So they put up skirting around the table where Ogletree sat and discussed whether it was the exact type of skirting used in 2005. And they talked to the prosecutors who ran the first trial.

Palmer District Attorney Roman Kalytiak spoke about the shackling and whether he was aware of any jurors seeing them. He said Ogletree was dressed for trial in street clothes, not prison garb. He said the shackles were wrapped in cloth to prevent clanking or jingling noises. He said even if jurors caught a glimpse of the cloth they might not automatically assume Ogletree was being restrained.

“I don’t know that that would be the immediate conclusion,” he said.

And then there was the question of whether the jurors should be brought in and asked about what they saw. Ogletree’s attorney, Doug Moody, said he felt pictures of the shackles from various points in the courtroom that Ogletree’s defense team took on the eve of trial spoke for themselves. Those photos, combined with an examination of the courtroom’s setup, Moody said, would be sufficient.

Smith said he disagreed and felt the court of appeals did as well.

“Those pictures were taken very carefully so you could see them. But that doesn’t mean someone did see them or could have seen them,” he said. The appeals court “didn’t think the pictures were a slam dunk.”

He said the jurors would likely have to be questioned. He said it would have to be done carefully, though, since he didn’t want the questioning process to influence the answers.

At the end of the hearing, Smith got up from the bench and took various seats in the courtroom, reporting for the record on whether he could see the shackles. In nearly every position he could not.

The case is due back in court in December.

Contact Andrew Wellner at andrew.wellner@frontiersman.com or 352-2270.