Shackling question sent back to trial court

JOHN DAVIDSON\Frontiersman reporter

In addition to his challenge of Alaska's DNA collection statute, Mark Nason, 37, filed a separate appeal in which he argued that Palmer Superior Court Judge Beverly Cutler erred in allowing him to be handcuffed and placed in leg shackles in front of a jury during his trial.

The Court of Appeals, citing a lack of information about the nature of the shackles and the circumstances of the court trial, sent the case back to Palmer Superior Court for further proceedings.

Nason was convicted of first-degree assault for shooting his 19-year-old girlfriend, Heather Gillespie, after an argument at the couple's Montana Creek cabin in December 1999. Gillespie was more than four months pregnant at the time.

In 2001, Cutler sentenced Nason to 15 years for the assault conviction and an additional three years for a conviction on another charge, felon in possession of a firearm.

Nason's wrists were handcuffed and his ankles shackled throughout the trial. Although his attorney objected to Nason being handcuffed and shackled in front of the jury, Cutler said it was up to the state troopers, not the court, to decide on security arrangements for prisoners.

The shooting at Montana Creek was not the first time Nason had been in trouble with the law.

In 1994, Nason was charged with attempted murder when he fired two rounds from a .38-caliber handgun at an Alaska Regional Hospital security guard after the guard refused to let him enter the hospital through a locked door.

According to court records, Nason went back to his car and began spinning "doughnuts" in the parking lot while firing at the guard; he was convicted of a lesser charge of misdemeanor reckless endangerment.

Since 1989, Nason has been convicted of second-degree burglary once, second-degree theft twice and reckless endangerment twice.

In the first of two appeals Nason filed with the state, he argued that allowing him to be placed in leg shackles in front of the jury unfairly prejudiced him in front of the jury during his trial.

Although Cutler said it was important that the jury not see Nason handcuffed or shackled in a demeaning way, she also said there was skirting around the counsel tables and the jury would not be able to see the shackles, according to the decision.

But even if they did see the shackles, Cutler said, the jury was going to know from testimony that Nason was in custody and, therefore, observation of the shackles would not be prejudicial.

Nason argues that Cutler should have held a hearing before the trial to determine whether the restraints were necessary.

The Court of Appeals agreed that Cutler erred in failing to conduct a hearing about the matter, but stated the record is inadequate to determine the nature of the restraints and whether they were necessary.

Citing a 1974 case, Anthony v. State, which says shackles and other restraints may only be used, "to protect the safety and decorum of the court, to prevent a threatened escape, or to respond to some other manifest necessity," the Court of Appeals ruled that Cutler erred in failing to hold a hearing to decide what level of restraint was necessary to provide court security.

In Anthony, the state supreme court stated the reason to limit shackling is to allow the defendant the presumption of innocence: "He should be permitted to face the jury with the appearance and dignity of a free man."

However, the appeals court ruled that the record is too limited to determine if Nason was prejudiced by this. The trial court must reconstruct the record and make findings, the appellate court ruled, "including findings as to whether Nason was prejudiced by this or any other aspect of the shackling. If the court concludes that Nason was prejudiced, the court shall grant Nason a new trial."

Contact John Davidson at john.davidson@frontiersman.com.