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ND Supreme Court hears challenge over visible restraints in McDermott trial; case taken under advisement
Summary
At oral argument in State v. Travis Everett McDermott, defense counsel argued that prospective jurors saw the defendant in visible restraints and that prejudice is presumed; the state said the issue was waived and pointed to voir dire and record facts. The court took the case under advisement.
The North Dakota Supreme Court heard oral argument in State of North Dakota v. Travis Everett McDermott (No. 20240150) over whether visible physical restraints seen by prospective jurors required reversing McDermott’s conviction. Samuel Jurasick, counsel for McDermott, told the court that potential jurors saw his client in visible restraints despite a district-court order and argued that such a sighting is presumptively prejudicial.
"That is once it's seen, it is per se," Jurasick said, arguing the appearance of restraints creates presumed prejudice and that the state must prove beyond a reasonable doubt the sighting did not affect the outcome. He urged the court to treat the error as structural or, at minimum, to find obvious error warranting reversal or vacatur of the conviction.
Tiffany Sorgan, deputy state's attorney for Ward County and lead trial counsel for the state, countered that the defense had waived the issue at trial and that the record does not show jurors who ultimately served on the panel saw the defendant restrained in the courtroom. Sorgan told the court the only mention in the record of the defendant being seen in restraints came from "potential juror number 43," who said he had seen news footage of the defendant being arrested months earlier.
The justices questioned both sides about timing and remedies: whether the relevant point is when jury selection begins, whether voir dire or a jury instruction could have cured prejudice, and whether the trial judge's on-the-record comments amounted to coercion that would make a waiver invalid. At one point Justice Roberts referenced bond history in the case, saying the bond had been "a half million reduced to a quarter million," a detail discussed in argument as context for counsel's decisions at trial.
Defense counsel argued the trial court had an obligation to inquire of the panel and, if necessary, to call prospective jurors back for questioning or to remove panelists who had seen restraints. The state argued that remedy was not pursued and that the record reflects defense counsel declined to pursue further action at trial.
After extended questioning of both attorneys, the court announced it would take the case under advisement and adjourned until 10:45 a.m. No decision was announced from the bench; as the court stated at the start of argument, written opinions will be posted on the Supreme Court’s website when issued.
