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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 murder 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 reasons
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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
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by the Supervisor of Court Services (which in this case was Lt.
Richard 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 “casespecific 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
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confines the legs or arms,” as well as “to deprive of freedom
especially 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.
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