In some jury trials, defendants are shackled—but not loudly. The chains are wrapped in duct tape, so jurors won’t hear the sound of restraint.

This week’s separate statements by Justices Thomas and Welch in People v Borton, ___ Mich ___ (2025) (Docket No. 168596) sent me down an unexpected rabbit hole of curiosity.

The case raised a familiar question: what happens to due process when a judge orders a defendant to be shackled during a jury trial?

Courts have worried about shackling for decades.

The U.S. Supreme Court warned in Deck v Missouri, 544 US 622 (2005) that visible restraints undermine the presumption of innocence. Michigan echoed those concerns in People v Dunn, 446 Mich 409 (1994), and later, former Chief Justice McCormack emphasized them and other concerns in her dissent in People v Horton, 506 Mich 966, 967 (2020). Many of her concerns eventually hardened into rule form after she retired from the Court. The Michigan Supreme Court adopted MCR 6.009, effective January 1, 2024, sharply limiting when restraints may be used.

Even when restraints are hidden from view—covered by a shroud or counsel table—they are not necessarily hidden from sound.

As Justice Welch recently noted in her Borton dissenting statement, the clink of chains can reach and alert jurors whenever a defendant shifts in their seat.

Part of the fix, it turns out, might not be constitutional doctrine or courtroom architecture. It’s duct tape.

In at least two reported federal cases, marshals taped the restraint chains to silence them.

Those proceedings will cap a week during which Henrikson has sat in dress clothes at the defense table, shackled underneath in chains that are muffled by duct tape to keep jurors from hearing. U.S. Marshals insisted on the shackles because of Henrikson’s two alleged escape attempts…. United States v James Henrikson. See https://www.spokesman.com/stories/2016/jan/28/fourth-day-jury-seated-murder-hire-trial-james-hen

All counsel tables will be skirted. No Defendant will be moved in or out of the courtroom while the jury is present. Shackle chains are to be taped for sound proofing. March 29, 2012 order in United States v Courtney Davis Wilson, MD of Alabama 3:11-cr-0008, n 10. See https://cases.justia.com/federal/appellate-courts/ca11/12-14449/12-14449-2015-12-16.pdf

The gap between doctrine and practice is sometimes wide. And sometimes it is about two-inches wide as fabric tape—but still wrapped around a chain.