375 Or 614 | Omnilex

Gesamter Gesetzestext

614 	October 1, 2026 	No. 39
IN THE SUPREME COURT OF THE
STATE OF OREGON
QUANDRAY J. NELSON,
Petitioner on Review,
v.
Brad CAIN,
Superintendent,
Snake River Correctional Institution,
Respondent on Review.
(CC 19CV02030) (CA A175380) (SC S071389)
On review from the Court of Appeals.*
Argued and submitted June 5, 2025.
Jason Weber, Equal Justice Law, Portland, argued the
cause and filed the briefs for petitioner on review.
Ryan Kahn, Assistant Attorney General, Salem, argued
the cause and filed the briefs for respondent on review. Also
on the briefs were Dan Rayfield, Attorney General, and
Benjamin Gutman, Solicitor General.
Before 	Flynn, 	Chief 	Justice, 	and 	Duncan, 	Garrett,
DeHoog, Bushong, and Masih, Justices, and Jacquot, Judge,
Justice pro tempore.**
DeHOOG, J.
Bushong, J., dissented and filed an opinion.
The decision of the Court of Appeals is affirmed in part
and reversed in part. The judgment of the circuit court is
reversed, and the case is remanded to the circuit court for
further proceedings.
______________
* On appeal from Malheur County Circuit Court, J. Burdette Pratt, Judge.
334 Or App 326, 556 P3d 1 (2024).
** James, J., did not participate in the consideration or decision of this case.

Cite as 375 Or 614 (2026) 	615

616 	Nelson v. Cain
DeHOOG, J.
Petitioner, who was convicted of various forcible sex
offenses following a jury trial, challenges the denial of a
post-conviction claim in which he asserted that his defense
attorney 	had 	provided 	constitutionally 	inadequate 	and
ineffective assistance of counsel. Petitioner contends that
his attorney failed to exercise reasonable professional skill
and judgment by failing to move for a mistrial or otherwise
make a record after three jurors had seen him, during the
course of trial, in the courthouse hallway in jail clothes, a
belly chain, and shackles. The post-conviction court denied
relief, concluding that petitioner had not established that
counsel’s performance fell below constitutional standards or
that any such deficiency caused him prejudice, and the Court
of Appeals affirmed. We allowed review to consider whether
the jury’s out-of-court observation of petitioner in shack-
les, like unwarranted in-court shackling, obligated defense
counsel to take further action on behalf of petitioner than
counsel did here. As we will explain, we conclude that the
out-of-court observation that occurred during the course of
trial in petitioner’s case required counsel to seek a mistrial.
Specifically, 	we 	conclude 	that, 	given 	the 	then-
existing case law regarding in-court shackling and the
principles underlying that case law, an attorney exercising
reasonable professional skill and judgment would have con-
cluded that, as with most in-court shackling cases, allowing
jurors to see a criminal defendant in shackles outside the
courtroom is grounds for a mistrial. Defense counsel was
therefore obligated to choose a course of action with that
understanding in mind. And under the circumstances of
this case, as reflected in the post-conviction court’s factual
findings and the underlying record, the only reasonable
course of action was for counsel to seek a mistrial on the
record. By failing to do so, counsel prejudiced petitioner by
denying him an opportunity to persuade the trial court that
a mistrial was necessary to ensure his right to a trial by an
impartial jury as guaranteed by Article 1, section 11, of the
Oregon Constitution. Accordingly, the post-conviction court
erred in denying petitioner’s claim for relief on this ground.
We therefore reverse the judgment of the post-conviction

Cite as 375 Or 614 (2026) 	617
court and the decision of the Court of Appeals with respect
to this aspect of its decision.1
I. 	BACKGROUND
We review the denial of post-conviction relief for legal
error. Green v. Franke, 357 Or 301, 312, 350 P3d 188 (2015).
A post-conviction court’s findings of historical fact are bind-
ing on this court if there is evidence in the record to support
them. Lichau v. Baldwin, 333 Or 350, 359, 39 P3d 851 (2002).
If the post-conviction court has not expressly made findings
as to all such facts and there is evidence from which those
facts could be decided in more than one way, we presume that
the court decided the facts consistently with its conclusions of
law. Id. (citing Ball v. Gladden, 250 Or 485, 487, 443 P2d 621
(1968) (so stating)). As background for our analysis, we begin
by describing the general legal standards that govern post-
conviction claims like this one, then provide an overview of
the relevant procedural and factual history from petitioner’s
underlying criminal trial. Finally, we discuss the proceed-
ings in the post-conviction court and the Court of Appeals.
A. 	Legal Standards
A post-conviction court must grant relief if a peti-
tioner establishes a substantial violation of their state or fed-
eral constitutional rights in the proceeding that led to their
conviction. ORS 138.530(1)(a). As relevant here, Article I,
section 11, of the Oregon Constitution guarantees criminal
defendants adequate assistance of counsel. Krummacher v.
Gierloff, 290 Or 867, 871, 627 P2d 458 (1981).2 To be entitled
1 Before the post-conviction court and the Court of Appeals, petitioner alleged
multiple claims that, over the course of two different trials, counsel provided him
with inadequate assistance of counsel in various ways. Before this court, only
counsel’s conduct in connection with the jurors seeing him shackled during the
second trial is at issue; we leave undisturbed the Court of Appeals’ resolution of
petitioner’s other claims on appeal.
2 Throughout these proceedings, petitioner has maintained that counsel’s
alleged deficiencies deprived him of his right to counsel under both Article I, sec-
tion 11, of the Oregon Constitution and the Sixth Amendment to the United States
Constitution. Although the terminology used in connection with each provision
sometimes differs, compare State v. Smith, 339 Or 515, 526, 123 P3d 261 (2005)
(describing right under both constitutions as a right to “adequate assistance”
(internal quotation marks omitted)) with Strickland v. Washington, 466 US 668,
686, 104 S Ct 2052, 80 L Ed 2d 674 (1984) (Sixth Amendment guarantees not just
counsel, but “effective” counsel), this court “has * * * recognized that the stan-
dards for determining the adequacy of legal counsel under the state constitution

618 	Nelson v. Cain
to post-conviction relief on the basis of inadequate assis-
tance of counsel, a petitioner must prove by a preponderance
of the evidence that counsel failed to exercise reasonable
professional skill and judgment. Lichau, 333 Or at 359. If
a petitioner meets that burden, the court must then deter-
mine whether counsel’s failure caused the petitioner prej-
udice. Id. This court has often emphasized that, in deter-
mining whether counsel’s performance was constitutionally
adequate, we “must make every effort to evaluate a lawyer’s
conduct from the lawyer’s perspective at the time, without
the distorting effects of hindsight.” Id. at 360. That, the court
has explained, is because “[t]he constitution gives no defen-
dant the right to a perfect defense—seldom does a lawyer
walk away from a trial without thinking of something that
might have been done differently or that he would have pre-
ferred to have avoided.” Krummacher, 290 Or at 875.
To exercise reasonable professional skill and judg-
ment on behalf of a criminal defendant, counsel must inves-
tigate the facts and familiarize themselves with the appli-
cable law to the extent necessary to enable them to “advise
* * * and represent the defendant in an informed manner.”
Id. Counsel’s recommendations and decisions must be based
on “an evaluation of the nature and complexity of the case,
the likely costs and potential benefits of the contemplated
action, and other factors.” Stevens v. State, 322 Or 101, 109,
902 P2d 1137 (1995). Thus, to determine whether coun-
sel’s investigation and preparation were adequate, a court
“must understand the nature and complexity of the issues
presented,” including “the stakes for petitioner” and what
“defense counsel knew.” Richardson v. Belleque, 362 Or 236,
257, 406 P3d 1074 (2017).
Further, merely investigating the relevant facts and
law does not guarantee that counsel’s tactical decisions will
reflect reasonable professional skill and judgment. As this
court has previously held, even if each of counsel’s choices
are functionally equivalent to those for determining the effectiveness of counsel
under the federal constitution[,]” Montez v. Czerniak, 355 Or 1, 6-7, 322 P3d 487
(2014) (acknowledging court’s ongoing commitment to “interpreting and applying
Article I, section 11, independently of the United States Supreme Court’s inter-
pretation of the Sixth Amendment”). Unless specifically indicated otherwise, ref-
erences to “inadequate” assistance in this opinion encompass both terms.

Cite as 375 Or 614 (2026) 	619
are made with the appropriate facts and law in mind, coun-
sel’s assistance is considered constitutionally inadequate if
their understanding of the facts and law was not reasonably
accurate. See Farmer v. Premo, 363 Or 679, 700, 427 P3d
170 (2018) (where counsel was aware of the relevant facts
but did not fully grasp their significance for the defendant’s
case, counsel did not provide adequate assistance). As we
stated in Farmer, “it would make little sense to demand that
attorneys gather sufficient information to make a decision,
but not require them to reasonably understand and assess
it.” Id. at 697. Thus, we explained, “[a]n appropriate con-
sideration of the risks and benefits of a strategic decision
requires a reasonably accurate and adequate consideration
of the facts produced by an investigation.” Id. at 699.
Where the premise of a post-conviction claim is
that counsel failed to even consider an available option, our
assessment “will turn on, among other things, whether the
strategy that defense counsel did employ was reasonable,
the relationship between the evidence or theory that defense
counsel failed to consider and the strategy that counsel
did pursue, and the extent to which counsel should have
been aware of the strategy that petitioner now identifies.”
Pereida-Alba v. Coursey, 356 Or 654, 674, 342 P3d 70 (2015).
Where a claim is that “counsel should have been aware of”
a particular legal strategy, id., we have explained that the
failure to identify and argue an unsettled or ambiguous
question of law on behalf of a defendant could constitute
inadequate assistance of counsel, at least where the forgone
argument, if successful, would “so obviously offer possible
benefits to a defendant that any lawyer exercising reason-
able professional skill and judgment would raise it,” Burdge
v. Palmateer, 338 Or 490, 500, 112 P3d 320 (2005). And in
assessing such a claim arising from an overlooked statutory
argument, we have elaborated that “the post-conviction
court may grant a petitioner relief * * * if it can say affirma-
tively that a lawyer exercising reasonable professional skill
and judgment would have recognized the statutory ambi-
guity, would have seen an interpretation that could benefit
the defendant, and would have concluded under the circum-
stances that the potential benefits of advancing that inter-
pretation exceeded any risks.” Id. at 497.

620 	Nelson v. Cain
With the legal standards for defense counsel’s per-
formance thus framed, we turn to the specific factual and
procedural history of petitioner’s criminal case.
B. 	Events and Proceedings in Criminal Trial
We take the relevant factual and procedural history
from the post-conviction record, as reflected in the post-
conviction court’s judgment and summarized in the Court of
Appeals’ opinion, Nelson v. Cain, 334 Or App 326, 556 P3d
1 (2024). In 2007, petitioner was tried for charges arising
out of a domestic violence incident “in which he punched his
domestic partner in the face, had sex with her against her
will, and took her vehicle.” Id. at 327. A jury found petitioner
guilty of various charges, including assault, sexual abuse,
rape, and unauthorized use of a motor vehicle, and peti-
tioner appealed. Id. In 2012, the Court of Appeals reversed
and remanded petitioner’s convictions for first-degree rape
and three counts of first-degree sexual abuse because of an
erroneous jury instruction, but it otherwise affirmed. State
v. Nelson, 241 Or App 681, 251 P3d 240 (2011), rev dismissed,
354 Or 62 (2012). In 2013, the state retried petitioner on the
charges of first-degree rape and sexual abuse, ultimately
giving rise to the post-conviction claim now on review.
In that second trial, the jury began deliberations on
a Friday, but they did not reach a verdict by the end of the
day, so the trial court dismissed them for the weekend. As a
group of four or five of petitioner’s jurors were walking down
the stairs towards the courthouse exit, two sheriff’s depu-
ties happened to be leading petitioner out of a courthouse
holding cell into the hallway to be transported back to the
jail. While petitioner was being escorted into the hallway,
at least three of the jurors viewed petitioner as they walked
down the stairs. Upon realizing that some jurors had seen
petitioner, the deputies quickly pulled petitioner back into
the holding cell, where they held him for another ten min-
utes before resuming his transport.
Before the jurors saw petitioner in the hallway, he
had changed out of his courtroom attire and into his jail
clothing, which he described as a blue jumpsuit with a pink
t-shirt and pink socks. 	Petitioner also had been placed in

Cite as 375 Or 614 (2026) 	621
shackles, including handcuffs and ankle restraints that
were attached to a belly chain wrapped around his waist,
all of which were visible outside of his clothing.3 There is
no dispute that petitioner’s jail clothes and shackles were
plainly visible to the jurors.
When the jury returned to resume deliberations the
following Monday, petitioner told defense counsel what had
happened. To the best of counsel’s recollection, he then asked
the sheriff’s deputies about the incident and brought it to
the “court’s attention,” but no discussion of the matter took
place or was memorialized on the record. Further, counsel
neither raised any objections on the record as to what had
occurred nor requested that the trial court declare a mis-
trial, inquire of the jury, or take any other action.
Later that day, the jury returned their verdict. The
jury found petitioner guilty of two counts of first-degree sex-
ual abuse, one count of third-degree sexual abuse as a lesser-
included offense, and one count of first-degree rape. Petitioner
appealed. The Court of Appeals reversed the sexual abuse
convictions on merger grounds, holding that the trial court
should have entered a single conviction for first-degree sexual
abuse, and remanded for sentencing; it otherwise affirmed.
State v. Nelson, 282 Or App 427, 386 P3d 73 (2016). Petitioner
was resentenced, resulting in an amended judgment.
C. 	Post-Conviction Relief Proceedings
Petitioner 	sought 	post-conviction 	relief 	alleging
various 	instances 	of 	inadequate 	assistance 	of 	counsel,
including a claim that counsel during his second trial pro-
vided inadequate assistance of counsel by failing to move
for a mistrial after the jurors viewed him shackled in the
hallway.4 Petitioner testified in support of that claim at his
post-conviction trial:
3 Although handcuffs, belly chains, and ankle cuffs or “leg irons” are distinct
forms of restraints, we use the words “shackled,” “shackles,” and “shackling”
hereafter to describe petitioner’s general disposition when the jury viewed him.
See Webster’s Third New Int’l Dictionary 2083 (unabridged ed 2002) (shackled
means “to confine the limbs of so as to prevent free motion.”).
4 As noted above, petitioner alleged that counsel provided him with inade-
quate assistance of counsel in both trials in various ways. Before this court, only
counsel’s conduct in connection with the jurors seeing him shackled during the
second trial is at issue.

622 	Nelson v. Cain
“[Petitioner’s counsel]: 	On the last day of your second
trial in 2013, after trial was finished, but before delibera-
tions, did something happen to make you think that jurors
had seen you in the hall?
“[Petitioner]: 	Well, yes. When * * * they were escorting
me out of the holding cell, the two guards that were escort-
ing me they—they seen the—the jurors first and was, like,
oh, * * * the jurors see him and then they just opened the
door and snatched me back into the holding cell for about
ten minutes. And then that’s when I * * * realized what had
happened.
“[Petitioner’s counsel]: 	And what had happened? What
was the concern?
“[Petitioner]: 	Well, * * * the concern was that they seen
me in—in cuffs. It was probably about four or five of the
jurors walking down the steps at the time. * * * But that
was it.
“[Petitioner’s counsel]: 	And what * * * cuffs would they
have seen? Where were they on your body?
“[Petitioner]: 	Well, I was shackled with belly chains
that wrap around your belly and cuffs your—around your
wrists and I had shackles on my feet.
“[Petitioner’s counsel]: 	And were those outside of your
clothing or were they inside your clothing?
“[Petitioner]: 	They were outside and I was in the jail
jumpsuit.
“[Petitioner’s counsel]: 	Okay. And what color was the
jumpsuit.
“[Petitioner]: 	I believe it was blue with the orange
t-shirt and orange—orange—pink t-shirt and pink socks.
“* * * * *
“[Petitioner’s counsel]: 	Okay. And how many jurors do
you think saw you in that moment—or those moments?
“[Petitioner]: 	It was about four or five and I * * * remem-
ber seeing probably three of them that actually looked at
me. The other two were just, like, walking. They were still
walking down the steps. But I know three, for sure, seen me.
“* * * * *

Cite as 375 Or 614 (2026) 	623
“[Petitioner’s counsel]: 	Okay. And did you tell [trial
counsel] what had happened when you saw him?
“ [Petitioner]: 	Absolutely.
“[Petitioner’s counsel]: 	What do you recall you said?
“[Petitioner]: 	Well, * * * I explained everything to him
how I just explained it to the court that jurors—a few of the
jurors had seen me coming out in cuffs being escorted by
the officers and how they rushed me back and kind of made
a big commotion. And I told him—he made it—he let the
court[ ] know. He let the—the judge know and the DA know
and that’s about—that’s all that happened.”
In response, the state submitted a declaration from peti-
tioner’s trial counsel, which stated only the following with
regard to that encounter:
“As to my conduct alleged by the petitioner, I have
searched my memory concerning the petitioner’s report to
me that he had been seen by members of his jury while
being escorted to/from court by sheriff’s deputies and that
at that time he was bound by handcuffs and leg irons. I
have no doubt that the petitioner reported that event to me
but I roundly disagree with his assertion that I ‘seemed
unconcerned.’ I am certain that I made inquiries of the dep-
uty sheriffs involved and brought the matter to the court’s
attention. While that may not have been on the record it
surely occurred. If the court declined to take action the
court must have been satisfied that there was no violation
of [petitioner’s] rights.”
Although the same attorney testified at the post-conviction
trial 	regarding 	petitioner’s 	other 	inadequate-assistance
claims, neither party elicited further testimony from coun-
sel about the shackling issue.
In its judgment, the post-conviction court found
that petitioner’s testimony had been credible “except to the
extent that he testified that his trial attorney did nothing
after he repo[r]ted the possible contact with jurors while
restrained in the courthouse hallway.”5 The post-conviction
court also made the following findings of fact:
5 Contrary to the post-conviction court’s implicit understanding, petitioner
never “testified that his trial attorney did nothing after he repo[r]ted the possible
contact with jurors[.]” As indicated above, petitioner testified that, upon being told

624 	Nelson v. Cain
“The second trial went to the jury on Friday April
12, 2013. The jury did not reach verdicts on April 12 and
returned to continue deliberations on Monday April 15. As
Petitioner was leaving the courthouse on Friday, Petitioner
was being escorted out of the holding cell into the court-
house hallway. The guards saw jurors in the hallway and
pulled him back into the holding cell. There were 4-5 jurors
going down the steps. Petitioner testified that three of the
jurors looked at him and saw him. Petitioner was escorted
by guards [wearing] his jail clothing and was in handcuffs
and shackles. Petitioner was kept in the holding cell for
about 10 minutes after the episode and then taken to the
jail. Petitioner reported the incident to [his] attorney on
Monday morning. [Counsel] remembers Petitioner telling
him about the incident and believes that he discussed it
with the guards and then the judge and the district attor-
ney in chambers. No discussion regarding the incident
appears on the record and counsel made no motions on the
record. It does not appear that trial counsel or the court
inquired of jurors to determine whether they had observed
the Petitioner. Petitioner makes no[ ] claim that he was ever
in shackles or cuffs in the courtroom.”
Ultimately, the court denied relief on the basis that peti-
tioner had failed to establish either that defense counsel’s
performance had been deficient or that any such deficiency
had resulted in prejudice to petitioner.
As to counsel’s purportedly deficient performance,
the post-conviction court observed that petitioner had not
cited any Oregon appellate decision that stood for “the prop-
osition that there is basis for a mistrial when a defendant in
cuffs and shackles may have been inadvertently and briefly
seen by jurors in a courthouse hallway.” The court therefore
concluded that petitioner had not established that the law on
that issue was so clear that defense counsel’s decision not to
seek a mistrial had constituted inadequate assistance. The
court also reasoned that counsel’s actions might have been
strategic; that is, counsel might not have wanted a mistrial
that the jurors had seen petitioner in shackles, counsel “let the * * * judge know and
the DA know and that’s about—that’s all that happened.” Conceivably, the court
was referring to the operative petition, in which petitioner asserted that “trial
counsel was not concerned and took no steps to petitioner’s knowledge, [and] did
not request a mistrial.” In any event, there is no contention that counsel did any-
thing beyond passing petitioner’s report on to the judge and prosecuting attorney.

Cite as 375 Or 614 (2026) 	625
or might have anticipated that “a [motion for] mistrial would
not [be] successful.” Thus, the court concluded, petitioner
had not established that “all reasonable trial attorneys in
that situation would have filed a motion for a mistrial.”
With regard to whether petitioner had established
that counsel’s performance had caused him prejudice, the
post-conviction court explained that, for similar reasons,
petitioner had not. The court reasoned that petitioner had
not shown that there was a tendency that the trial court
would have granted a motion for mistrial, nor that the jury’s
sighting of petitioner would have tended to affect the outcome
of deliberations.6 The court cited federal and state case law
from outside Oregon holding that brief and inadvertent juror
sightings of a defendant in restraints outside the courtroom
only entitled a defendant to a mistrial upon a showing of
actual prejudice, which petitioner had not made here. That is,
petitioner had not offered “evidence from the viewpoint of the
jurors” and, therefore, had not made the requisite showing
that the exposure had actually biased the jury against him.
D. 	Appeal
Petitioner appealed the post-conviction court’s judg-
ment, renewing his arguments that counsel in both trials
had provided him with inadequate assistance of counsel.
As relevant on review, petitioner renewed his assertion that
defense counsel had provided inadequate assistance in not
taking appropriate steps to protect petitioner’s right to a
fair trial by moving for a mistrial or making a record of the
jurors’ observation of him in shackles.
Petitioner argued that the post-conviction court’s
assessment of counsel’s performance was erroneous because,
in reasoning that counsel might have made a strategic deci-
sion not to move for a mistrial, the court had necessarily
relied on post hoc rationalization that the record did not
support. That, petitioner argued, was impermissible under
the Court of Appeals’ decision in Delgado-Juarez v. Cain,
6 Although the state argues that the post-conviction court properly denied
relief in petitioner’s case, it perceives the post-conviction court’s ruling as mis-
stating the applicable prejudice standard. We will clarify the applicable standard
below when we address whether counsel’s performance was prejudicial. 375 Or at
643-54.

626 	Nelson v. Cain
in which the court explained that a post-conviction court
may not engage in post hoc rationalization in a manner that
does not reflect “counsel’s actual strategic reasoning.” 307
Or App 83, 96-97, 475 P3d 883 (2020) (internal quotation
marks and citation omitted). Instead, petitioner argued,
the post-conviction court should have recognized that trial
counsel had performed inadequately, because the constitu-
tional and common law rights of a criminal defendant to be
free from shackles during trial was well founded at the time
of petitioner’s trial. Thus, petitioner argued, all reasonable
counsel would, at a minimum, have sought a mistrial so as
to preserve the issue for direct appellate review.
Petitioner further contended that he had estab-
lished prejudice, because, under another decision of the
Court of Appeals, prejudice is presumed when a defendant’s
restraints are visible to the jury. Sproule v. Coursey, 276
Or App 417, 424, 367 P3d 946, rev den, 359 Or 777 (2016)
(“[W]here the record shows that a criminal defendant was
restrained in a manner that could not be effectively shielded
from the jury’s view, there is a presumption that the shack-
les are seen by the jury and prejudice results.” (Internal
quotation marks omitted.)). In petitioner’s view, there was
a “reasonable probability” that, had trial counsel moved
for a mistrial, either the trial court would have granted
the motion or the Court of Appeals would have reversed on
direct appeal under Sproule.7 According to petitioner, the
post-conviction court denied relief based on a distinction not
rooted in Sproule—or in any Oregon decision—that viewing
a defendant in shackles in the courtroom is somehow distin-
guishable from a similar viewing in a courthouse hallway,
such that the principles warranting a presumption of preju-
dice are limited to in-court shackling.
For its part, the state acknowledged there to be
“ample available case law” establishing that criminal defen-
dants have the right to be free from shackling during trial
7 Petitioner’s reference to a “reasonable probability” invokes the standard
for prejudice under the Sixth Amendment. See, e.g., Strickland, 466 US at 694
(stating that standard). We have explained, however, that the federal and state
constitutional tests for prejudice in this context are “functionally equivalent.”
Montez, 355 Or at 6-8 (comparing “reasonable probability” standard under Sixth
Amendment with the “tendency to affect the outcome” standard applicable under
Article I, section 11).

Cite as 375 Or 614 (2026) 	627
and that visible shackling in front of the jury may impair
the defendant’s constitutional rights. Yet, in the state’s view,
the governing case law at the time of petitioner’s trial would
not have led all reasonable attorneys to conclude that a mis-
trial was warranted under the circumstances of petitioner’s
case. Further, like the post-conviction court, the state cited
authority from other jurisdictions holding that a juror’s brief
glimpse of a defendant in shackles outside the courtroom is
not presumptively prejudicial. And without the benefit of a
presumption of prejudice, the state argued, petitioner had
not established actual jury bias. It followed, the state rea-
soned, that he also had not satisfied the prejudice prong of
his post-conviction claim.
The Court of Appeals affirmed the post-conviction
court’s decision to deny relief on all of petitioner’s claims.
Concerning counsel’s performance with regard to the shack-
ling issue, the Court of Appeals reasoned that, because peti-
tioner had cited no Oregon case law addressing “the issue of
jurors briefly observing a criminal defendant in restraints
outside of the courtroom and whether that constitutes
grounds for a mistrial[,]” it was “not clear that every trial
counsel exercising reasonable skill and judgment would have
necessarily sought a mistrial under the circumstances * * *.”
334 Or App at 329. And as to prejudice, the court rejected
petitioner’s contention that, under Sproule, the facts of peti-
tioner’s case gave rise to a presumption of jury prejudice. Id.
at 330. And, because petitioner had presented no direct evi-
dence demonstrating that the jurors who saw him in shack-
les had recognized him and were prejudiced as a result, he
had not established that defense counsel’s acts or omissions
at trial had tended to affect the outcome of his case. Id.
Petitioner sought review in this court, which we
allowed. Before this court, he renews only his argument
that counsel was inadequate in failing to move for a mis-
trial or make a record of the jurors’ observations or resulting
perceptions in his second trial, and he contends that coun-
sel’s failure caused him prejudice. As to the latter conten-
tion, petitioner asks this court to recognize a presumption
of prejudice that arises whenever jurors in a criminal case
see the defendant in shackles during the course of trial,

628 	Nelson v. Cain
regardless of whether that sighting occurs inside or outside
of the courtroom. In petitioner’s view, such a presumption is
necessary to give effect to the right to an “impartial jury”
under Article I, section 11. As we will explain, we do not con-
sider it necessary to recognize a presumption of prejudice to
conclude that petitioner was prejudiced in this case, but we
otherwise agree with petitioner.
II. 	ANALYSIS
A. 	Trial counsel failed to exercise reasonable professional
skill and judgment.
We begin with the performance aspect of petition-
er’s post-conviction claim. That requires us to determine
whether petitioner has established by a preponderance of
the evidence that, by not moving for a mistrial, trial coun-
sel failed to exercise reasonable professional skill and judg-
ment. Lichau, 333 Or at 359. Like the post-conviction court
and the Court of Appeals, we recognize that, at the time
of petitioner’s trial, no Oregon appellate decision had held
that jurors viewing a defendant wearing shackles outside
the courtroom impairs the defendant’s right to an impartial
jury or otherwise implicates the same concerns that in-court
observations raise. Nonetheless, in light of the shackling
case law available to counsel at the time of petitioner’s trial,
as well as the principles underlying that case law, we con-
clude that competent counsel would have both viewed the
circumstances in this case as providing colorable grounds
for a mistrial motion and acted to protect petitioner’s right
to be tried before an impartial jury. We further conclude
that, in failing to move for a mistrial in this case, counsel
failed to provide petitioner with the adequate assistance
that Article I, section 11, guarantees.
1. 	The state of the law at the time of petitioner’s trial
As explained above, when evaluating the adequacy
of trial counsel’s performance, our focus is on the circum-
stances as counsel reasonably understood them to be, and
not how, in retrospect, we conclude counsel might have
perceived them. See Lichau, 333 Or at 360 (in determining
whether counsel’s performance was constitutionally ade-
quate, we “must make every effort to evaluate a lawyer’s

Cite as 375 Or 614 (2026) 	629
conduct from the lawyer’s perspective at the time, without
the distorting effects of hindsight”). With respect to coun-
sel’s understanding of the law that applied under the cir-
cumstances, our approach is similar. That is, when assess-
ing whether trial counsel should have made a particular
legal argument, we look at the law “as a lawyer would have
seen it at the time.” Burdge, 338 Or at 498 (so stating with
regard to whether counsel should have recognized statu-
tory ambiguity later identified by the courts). Thus, in this
case, we begin our assessment of counsel’s performance with
a review of the state of the law regarding shackling as it
existed at the time of petitioner’s trial.
By that time, Oregon case law had firmly estab-
lished that, at least when a criminal defendant is brought
in shackles before the jury within the courtroom, there are
grounds for objection or even a mistrial. That case law dates
back well over a century, to State v. Smith, in which this
court reversed the conviction of a defendant who had been
sentenced to death for murder, because he had been “kept
with irons on his feet during trial * * *.” 11 Or 205, 207, 8 P
343 (1883). During that defendant’s trial, defense counsel
had sought to have the irons removed, but the trial court
had denied that request because the irons had been “put on
the defendant at the penitentiary and could not be removed
without much delay, and it would require the work of a
blacksmith to move them * * *.” Id. (internal quotation marks
omitted). Relying on even older case law from California,
this court held that “it was error to keep the prisoner in
fetters during the trial” in violation of the common law rule
“first * * * considered and enforced” in People v. Harrington,
42 Cal 165, 10 Am Rep 296 (1871). Id.
Then, in State v. Long, we explained that a crimi-
nal defendant has the right to be tried free from shackles
“ ‘unless [the defendant is] shown to be a desperate char-
acter whose restraint is necessary to the safety and quiet
of the trial.’ ” 195 Or 81, 91, 244 P2d 1033 (1952) (quoting
Eaddy v. People, 115 Colo 488, 491, 174 P2d 717, 718 (1946)).
We explained that one rationale for the rule was that “[a]
prejudice might be created in the minds of the jury against a
prisoner who should be brought before them handcuffed and

630 	Nelson v. Cain
shackled, which might interfere with a fair and just decision
of the question of the guilt or innocence of such prisoner.”
Id.8 Long further entrenched the rule that there are grounds
for a mistrial when a defendant is shackled in the presence
of the jury during trial. In adhering to that rule, this court
appears to have recognized that a defendant’s appearance
before the jury in shackles can instill an inference of guilt
in the minds of jurors or, put another way, that appearing
in shackles in the presence of the jury impinges upon the
presumption of innocence afforded all criminal defendants.
Smith, Long, and the common law cases they relied
upon have been cited by Oregon appellate cases to support
the principle that, absent a record showing a substantial
justification for shackling a defendant, it is reversible error
to keep the defendant in shackles during trial. See, e.g.,
State v. Wall, 252 Or App 435, 437-39, 287 P3d 1250 (2012),
rev den, 353 Or 280 (2013) (identifying that case law and
related principles). Indeed, before petitioner’s trial in this
case, the Court of Appeals had also developed its own body
of case law regarding shackling built, in part, upon this
court’s decisions. For example, in State v. Kessler, the Court
of Appeals held that the trial court had erred when it sim-
ply accepted the prosecutor’s assertion that the defendant
presented a security risk warranting shackling during trial
rather than requiring the prosecutor to put on “evidence of
an immediate and serious risk of dangerous and disruptive
behavior.” 57 Or App 469, 473, 645 P2d 1070 (1982) (citing
State v. Moore, 45 Or App 837, 839-40, 609 P2d 866 (1980)).
Without the requisite showing of substantial necessity,
requiring the defendant to wear shackles in the presence
of the jury had deprived him of a fair trial. Id. at 475. In
reaching that conclusion, the Court of Appeals identified
four types of “manifest prejudice” that result when a person
is tried in shackles: first, shackles “impinge on the presump-
tion of innocence”; second, they detract from “the dignity
of the judicial proceedings”; third, shackles “may inhibit
8 In Long, defense counsel assigned error to the trial court’s denial of a
motion to dismiss the jury venire before voir dire “on the grounds that [the] defen-
dant had been shackled in the presence of the panel.” Id. at 89. Ultimately, this
court affirmed the trial court’s ruling, reasoning that, other than bringing the
motion itself, the defendant had offered no support for his assertion that he had
been shackled in the presence of the venire. Id.

Cite as 375 Or 614 (2026) 	631
consultation” with defense counsel; and fourth, they may
inhibit the defendant’s “decision whether to take the stand
as a witness.” Id. at 474.9
In concluding that shackling leads to those harms,
Kessler relied on the following reasoning set forth in People
v. Duran, 16 Cal 3d 282, 290, 545 P2d 1322, 1327 (1976), in
which the California Supreme Court adhered to the princi-
ples first articulated by that court in Harrington:
“We believe that it is manifest that the shackling of a
criminal defendant will prejudice him in the minds of the
jurors. When a defendant is charged with any crime, and
particularly if he is accused of a violent crime, his appear-
ance before the jury in shackles is likely to lead the jurors
to infer that he is a violent person disposed to commit
crimes of the type alleged. * * * The removal of physical
restraints is also desirable to assure that ‘every defendant
is [* * *] brought before the court with the appearance, dig-
nity, and self[-]respect of a free and innocent man.’ Eaddy,
115 Colo at 492 * * *. We believe that possible prejudice in
the minds of the jurors, the affront to human dignity, the
disrespect for the entire judicial system which is incident
to unjustifiable use of physical restraints, as well as the
effect such restraints have upon a defendant’s decision to
take the stand, all support our continued adherence to the
Harrington rule.”
Duran, 16 Cal at 290, 545 P2d at 1327; Kessler, 57 Or App at
472 (quoting that passage from Duran).
The Kessler court made it clear that shackling
invites the jury to consider improper influences—such as
inferring that a defendant has violent tendencies—unre-
lated to the question of guilt or innocence or the evidence
presented at trial. The court further suggested that the
unwarranted shackling of a defendant in front of a jury
can be deemed such an indignity as to detract from jurors’
respect for the judicial system, respect that is essential to
9 In State v. Bates, the Court of Appeals consolidated these four consider-
ations into three, collapsing the first—impinging the presumption of innocence—
and second—detracting from the dignity of the judicial proceedings, into a single
form of prejudice. 203 Or App 245, 251, 125 P3d 42 (2005), rev den, 340 Or 483
(2006). We do not understand Bates as having in any way diminished the signif-
icance of either type of prejudice or as suggesting that each of those harms can
only occur when accompanied by the other.

632 	Nelson v. Cain
a trial court’s ability to ensure a fair and functioning trial.
And it is the need to avoid such consequences that appears
to animate the prohibition against unnecessarily allowing
jurors to view defendants in shackles, a prohibition of suffi-
cient magnitude that disregarding it constitutes reversible
error on direct appeal.
Moreover, by holding that the prejudice resulting
from such a violation is “manifest,” the Kessler court ren-
dered it unnecessary for a defendant who has been shack-
led during trial without a showing of substantial necessity
to prove individualized prejudice—the mere fact that they
were shackled without any apparent justification was suffi-
cient to establish a “violation of [their] due process right to a
fair trial.” Id. at 475.10
At the time of petitioner’s trial, this court had not
expressly considered Kessler’s presumption of prejudice nor
adopted its reasoning as to why shackling a defendant in
the presence of the jury without a showing of substantial
necessity deprives the defendant of a fair trial. It had, how-
ever, relied on Kessler as imposing an obligation on appel-
late counsel to raise the issue when the record shows that a
defendant was brought before the jury in shackles without a
finding of substantial necessity having been made. Guinn v.
Cupp, 304 Or 488, 498, 747 P2d 984 (1987) (stating, in post-
conviction case alleging inadequate assistance of appellate
counsel for failing to raise shackling issue, that a petitioner
can establish a prima facie post-conviction claim simply by
showing that they were “shackled during the trial and that
no record was made in the trial court to support the deci-
sion to shackle” the defendant). In reaching that conclusion,
10 The Court of Appeals has subsequently applied Kessler in a number of
shackling cases, including before 2013, when petitioner’s trial took place. See,
e.g., State ex rel Juv. Dept. v. Millican, 138 Or App 142, 146, 906 P2d 857 (1995),
rev den, 323 Or 114 (1996) (holding that juveniles have the same rights as adult
defendants with regards to shackling); State v. Merrell, 170 Or App 400, 403, 12
P3d 556 (2000), rev den, 331 Or 674 (2001) (observing that Oregon courts have
treated shackling issues similarly under Article 1, section 11, “impartial jury”
clause and federal Due Process Clause); Bates, 203 Or App at 249-50 (holding
that any error in the trial court denying defense counsel’s objection to wearing
a nonvisible stun belt was harmless under Article 1, Section 11, and the federal
Due Process Clause); Wall, 252 Or App at 443 (holding that the trial court erred
in denying defense counsel’s motion to remove nonvisible leg restraint, also under
state and federal constitutions).

Cite as 375 Or 614 (2026) 	633
we reiterated that, “[a]t common law, a criminal defendant
had the right to appear at trial free of restraint, absent a
substantial showing of necessity for confinement[,]” id. at
493 (citing Smith, 11 Or at 205), and we noted that the fed-
eral Due Process Clause likewise protects that right, id.
(citing Estelle v. Williams, 425 US 501, 505, 96 S Ct 1691,
48 L Ed 2d 126 (1976) (trying defendant in prison clothing
impinges upon presumption of innocence, thereby denying
a fair trial); and Illinois v. Allen, 397 US 337, 344, 90 S Ct
1057, 25 L Ed 2d 353 (1970)). By relying on Kessler as hav-
ing established the elements of a prima facie post-conviction
claim in the shackling context, see id. at 498, our opinion
in Guinn effectively endorsed the principles articulated in
Kessler—including its articulation of how shackling can
impair a defendant’s right to a fair trial—and made it clear
that failing to take action to protect that right could consti-
tute inadequate assistance of counsel.11
2. 	Competent counsel would have recognized the serious
constitutional concerns that arose at petitioner’s trial
and moved for a mistrial.
Given the state of Oregon’s shackling case law at
the time of petitioner’s trial, we conclude that, in opting not
to seek a mistrial—and seeming instead to rely on the trial
court to act sua sponte if it believed that petitioner’s rights
had been violated—counsel did not exercise reasonable pro-
fessional skill and judgment. As we will explain, under that
case law, there was, at a minimum, a reasonable argument
to be made that allowing jurors to view a defendant in shack-
les outside the courtroom violates the defendant’s right to
trial before an impartial jury under Article I, section 11,
thereby warranting a mistrial, and all competent counsel
would have seen that argument and recognized its obvious
beneficial value. By not making that argument under the
circumstances of this case and instead simply deferring to
11 This court has since discussed the right to appear free of unnecessary
restraints during trial in other cases decided after the date of petitioner’s trial.
See, e.g., State v. Washington, 355 Or 612, 628, 330 P3d 596, cert den, 574 US
1016 (2014) (announcing, for the first time in our court, that the right to appear
free from shackles is grounded in the “impartial jury” clause, Article 1, section
11); see also State v. Guzek, 358 Or 251, 270-71, 363 P3d 480 (2015) (holding that
evidence supported trial court’s decision to require defendant to a wear stun belt
during penalty phase of capital prosecution).

634 	Nelson v. Cain
the trial court to act if it were so inclined, counsel failed to
provide constitutionally adequate assistance. Petitioner has
therefore satisfied the performance prong of his inadequate
assistance of counsel claim.
To exercise reasonable professional skill and judg-
ment, defense counsel must investigate the facts and famil-
iarize themselves with the applicable law sufficiently to
permit them to make informed decisions on behalf of the
defendant. Krummacher, 290 Or at 875. Here, after peti-
tioner told counsel that three jurors had seen him outside the
courtroom in shackles, counsel was obligated to investigate
those circumstances and familiarize himself—if he were not
already familiar—with Oregon shackling law as discussed
above. See id. (facts and law with which counsel must famil-
iarize themselves depend upon “the nature and complexity
of the case”). The post-conviction court found that counsel
“believe[d] that he discussed it with the guards[,]” and peti-
tioner neither disputes that counsel spoke with the sheriff’s
deputies nor suggests that counsel should have undertaken
some further factual inquiry. Thus, to the extent that coun-
sel provided petitioner with inadequate assistance, peti-
tioner does not appear to contend that counsel did so by fail-
ing to sufficiently investigate the facts.12
The extent to which counsel prepared himself on
the applicable law is less clear. Neither counsel’s declara-
tion nor his oral testimony addressed whether he had ever
conducted any legal research regarding shackling, and the
post-conviction court made no findings as to whether coun-
sel had previously familiarized himself with Oregon shack-
ling law or did so before electing not to move for a mistrial.
The circumstances would have alerted competent counsel
that a potentially significant issue had arisen, and a base-
line understanding of Oregon shackling law would have
been essential for counsel to make an informed choice on
petitioner’s behalf. See Richardson, 362 Or at 257 (counsel’s
12 In the post-conviction court, petitioner alleged that counsel’s performance
had been deficient because, in part, counsel had not “inquire[d] of the court staff
and jury what was observed.” That allegation was made in conjunction with the
allegation that counsel had performed inadequately by not moving for a mistrial,
and petitioner’s briefing does not argue that counsel was independently obligated
to conduct a further factual inquiry, with or without the trial court’s involvement
or, with respect to contacting any of the jurors, the trial court’s authorization.

Cite as 375 Or 614 (2026) 	635
failure to investigate was unreasonable given the factual
information that defense counsel knew and the high stakes
for the petitioner).
Implicit in the post-conviction court’s opinion is an
assumption that counsel would or should have been aware
of Kessler and the general rule that a defendant has a con-
stitutional right to appear in front of the jury free of physi-
cal restraints. Although nothing in the record directly sup-
ports a finding that counsel was, in fact, generally aware
of Oregon shackling law, petitioner does not contend that
counsel was inadequate for not having familiarized himself
with the applicable law to at least that extent. Rather, peti-
tioner contends that, based upon that general shackling law,
constitutionally adequate counsel would have moved for a
mistrial under the circumstances presented here. The post-
conviction court concluded otherwise. As explained above,
that court reasoned that, although cases like Kessler and
Wall left “no doubt” regarding petitioner’s right to be tried
free of physical restraints absent substantial justification, no
Oregon case law would have alerted counsel that he should
move for a mistrial here. Further, because petitioner had
“cite[d] no cases for the proposition that there is basis for a
mistrial when a defendant in cuffs and shackles may have
been inadvertently and briefly seen by jurors in a courthouse
hallway,” petitioner had not established “that the law on the
issue was so clear” that counsel had provided inadequate
assistance in electing not to move for a mistrial.13
The post-conviction court erred in limiting counsel’s obliga-
tion to advancing only “clear” statements of existing law on
behalf of petitioner. As this court has previously explained,
competent representation is not limited to being familiar
with and applying “clear” statements of law; counsel may
also be inadequate for not making an argument based on an
unsettled or ambiguous question of law where the argument,
13 The post-conviction court cited cases from jurisdictions outside Oregon
stating that viewing a defendant in handcuffs outside the courtroom is distin-
guishable from trying the defendant in restraints and therefore not inherently
prejudicial. We discuss some of that case law when we address the prejudice
prong of petitioner’s post-conviction case. For now, we simply note that neither
the post-conviction court nor the state has explained how those nonbinding deci-
sions—or the force of their reasoning—would somehow foreclose the argument
that, under Oregon law, a mistrial was warranted here.

636 	Nelson v. Cain
if successful, would “so obviously offer possible benefits to a
defendant that any lawyer exercising reasonable professional
skill and judgment would raise it.” Burdge, 338 Or at 500.
That is, if (1) a legal issue arises in the course of represent-
ing a defendant; (2) the legal issue has not yet been decided
under controlling case law; (3) the issue is susceptible of an
interpretation that so obviously would offer potential bene-
fits to the defendant that all reasonable counsel would iden-
tify it; and (4) all such counsel would conclude that, under
the circumstances, the potential benefits of advancing that
interpretation exceeded any risks, then the failure to make
that argument constitutes inadequate assistance of counsel.
Id. at 497 (so stating with regard to whether counsel was
inadequate for failing to identify a statutory ambiguity and
argue for resolving ambiguity in favor of the defendant).
We have not limited the principle articulated in
Burdge to unsettled issues of statutory law. See, e.g., Antoine
v. Taylor, 368 Or 760, 775-79, 499 P3d 48 (2021) (discussing
Burdge in connection with potential ambiguity in case law).
Further, we conclude that an attorney exercising reasonable
professional skill and judgment would have argued that, for
much the same reason that having a defendant shackled
in the presence of the jury in the courtroom is grounds for
a mistrial, a mistrial is warranted when jurors observe a
defendant in shackles in the courthouse hallway. Although
this court has never expressly held that the right to be tried
free of physical restraints is applicable outside the court-
room, it also has never limited that right to in-court obser-
vations.14 And at least some of the concerns that Kessler and
Guinn recognized as resulting from in-court shackling could
be reasonably understood to arise in the out-of-court context
as well, and nothing in the reasoning of our shackling cases
compels the conclusion that the right to be free of shackles
14 This court addressed a shackling incident that appears to have occurred
outside the courtroom in State v. Walton, 311 Or 223, 250, 809 P2d 81 (1991),
where a defendant on trial for aggravated murder was seen by a juror and alter-
nate juror while wearing handcuffs and grouped with other prisoners. The trial
court had denied the defendant’s motion for mistrial, but, after questioning those
jurors individually and outside the presence of the other jurors, the court gave a
curative instruction that told them to disregard what they had seen. Id. Although
the viewing in Walton appears to have occurred outside the courtroom, this court
did not address that fact or whether it had any bearing on the defendant’s right
not to be shackled in the presence of the jury. We discuss that case further below.

Cite as 375 Or 614 (2026) 	637
is limited to the in-court setting. Furthermore, although
the post-conviction court described the jurors’ observation
of petitioner in the hallway as brief and inadvertent, neither
that court nor the state in defending its ruling have identi-
fied anything in the record to support an inference that the
jurors would have perceived things differently based upon
petitioner’s location at the time. See Kessler, 57 Or App at
474 (noting that prejudicial inferences that a defendant is
a dangerous person logically follow when the defendant is
“see[n] in shackles at all[,]” not merely when jurors are “con-
stantly exposed” to that sight).
Given the circumstances of petitioner’s trial, a law-
yer exercising reasonable professional skill and judgment
would have recognized an opportunity for “advancing [an]
interpretation” of the law that benefitted petitioner. Burdge,
338 Or at 497. Counsel in petitioner’s case does not appear
to have recognized that opportunity. Instead, rather than
moving for a mistrial on that basis, counsel at most had a
conversation with the judge in chambers, seemingly defer-
ring to whether the trial court thought petitioner’s rights
had been compromised. And because nothing in the record
suggests that counsel was concerned that advancing that
argument would carry any risks for petitioner, much less
any risk that outweighed the benefits of obtaining a mis-
trial, the failure to do so here constituted inadequate assis-
tance of counsel. See id.15
Resisting the conclusion that counsel provided inad-
equate assistance, the state posits that counsel might have
had strategic reasons for not moving for a mistrial or taking
any other action on the record. Echoing the post-conviction
court, the state reasons that counsel may have believed that
a motion for mistrial would not succeed. That argument
15 The state may believe that, by bringing the issue to the trial court’s atten-
tion, counsel satisfied his obligation to advance a favorable shackling argument
on petitioner’s behalf. But whatever argument, if any, counsel advanced to the
court in chambers, that approach fell short of counsel’s obligation to protect peti-
tioner’s interests, as it neither resulted in a mistrial or other corrective action nor
preserved any related argument for appeal. See State v. Williams, 322 Or 620,
624 n 7, 912 P2d 364 (1996) (“Discussion off the record of matters as to which
issues on appeal could arise is ill-advised, either because no official record is
made of the matters or because whatever record that is made often is summary
in nature.”).

638 	Nelson v. Cain
falls short for two reasons. First, nothing in the record sug-
gests that counsel considered moving for a mistrial, weighed
the risks and benefits of doing so, and then made a strate-
gic decision not to seek a mistrial based upon the perceived
likelihood that the motion would simply fail. The record
does not permit us to conclude that counsel’s performance
reflected a reasonable tactical decision when it does not sug-
gest strategic reflection of any kind. Cf. Montez v. Czerniak,
355 Or 1, 27-28, 322 P3d 487, adh’d to as modified on recons,
355 Or 598, 330 P3d 595 (2014) (where there was evidence
of counsel’s actual reasoning, declining to “indulge in post-
hoc rationalizations of trial counsel’s decisions”). Second,
standing alone, the belief that a motion would not succeed
in the trial court does not relieve counsel of their duty to
advance an obviously beneficial argument based on a rea-
sonable interpretation of the law. Even if the motion might
have failed, the state does not suggest that an unsuccessful
motion could in any way have rendered petitioner worse off
at trial. Moreover, as we discuss in greater detail in address-
ing whether counsel’s performance resulted in prejudice to
petitioner, even an unsuccessful mistrial motion could have
led to the trial court taking other protective measures.16
Thus, even if we could impute a tactical rationale to coun-
sel’s decision not to seek a mistrial despite there being no
suggestion of any rationale in the record, we could not con-
clude that counsel’s decision reflected a reasonable exercise
of professional skill and judgment here.
The dissent likewise argues against the conclusion
that petitioner received inadequate assistance of counsel
and contends, among other things, that we have not prop-
erly applied the standard of review. Specifically, the dissent
suggests that we have not properly accounted for the possi-
bility that, after speaking with the transport deputies, the
judge, and the district attorney, “trial counsel * * * concluded
from his investigation that jurors had not recognized the
person being transported” as petitioner and, consequently,
16 In Walton, for example, the trial court had declined the defendant’s motion
for mistrial but, in response to that motion, had taken various protective mea-
sures and offered to take more. 311 Or at 250 (noting that trial court had, among
other things, inquired of the potentially affected jurors, instructed them against
drawing adverse inferences based on what they might have seen, and offered to
replace one juror with an alternate who had not seen the defendant in shackles).

Cite as 375 Or 614 (2026) 	639
opted not to seek a mistrial. 375 Or at 660 (Bushong, J., dis-
senting). The dissent suggests that the post-conviction court
implicitly made that finding, because it would be consistent
with that court’s ultimate legal conclusion that counsel pro-
vided adequate assistance to petitioner. Id. at 659-60.
We disagree. It is true that, had counsel’s limited
investigation led him to conclude that the jurors had either
not seen or not recognized petitioner, then his apparent
decision not to seek a mistrial might well have been rea-
sonable. But the standard that the dissent refers to would
require us to presume that the post-conviction court made
that finding only if it were a disputed factual matter and
the post-conviction record could support it. Ball, 250 Or at
487 (where findings are not made on all relevant historical
facts, “and there is evidence from which such facts could be
decided more than one way,” the court presumes that the
factfinder decided the facts consistently with its ultimate
legal conclusion). In the dissent’s view, there necessarily was
a dispute about what counsel had “learned and concluded
as a result of his investigation, because that undoubtedly
affected his determination that there was ‘no reason’ to
request a mistrial.” 375 Or at 660 (Bushong, J., dissenting).
Respectfully, that view is wrong. It is axiomatic that, for a
fact to be in dispute, there must be evidence of that fact in
the record. See id. at 661 (applying principle when “there is
evidence from which such facts could be decided more than
one way”). And as the dissent acknowledges, there at least
“is no direct evidence of what counsel had learned and con-
cluded from his investigation.” 375 Or at 660. Because the
record is silent as to what counsel concluded after speaking
with petitioner and the others, we cannot manufacture a
factual dispute simply because its resolution in the state’s
favor would support the post-conviction court’s ultimate
ruling.
At best, had the post-conviction court thought at all
about counsel’s conclusion in that regard, it could perhaps
have speculated that, because counsel might have learned
that the transport deputies thought that the jurors might
not have recognized petitioner, counsel might have con-
cluded that the incident had not prejudiced petitioner. We do

640 	Nelson v. Cain
not understand the applicable standard of review to permit
us to endorse that level of speculation, much less require
us to assume that the post-conviction court implicitly made
that finding and to account for it here. That is particularly
so given that, in this case, the post-conviction court’s ulti-
mate legal conclusion does not appear to have relied on what
counsel did or did not conclude about the jurors’ actual per-
ceptions; instead, that court emphasized the state of the law
at the time and potential strategic justifications for coun-
sel’s inaction.17
Thus, we respectfully decline the dissent’s sugges-
tion that we account for the possibility that counsel con-
cluded that the jurors had not recognized petitioner before
opting not to seek a mistrial. Rather, we conclude that coun-
sel’s obligation to act arose when petitioner informed him
that the jurors had seen him in shackles18 and that, given
the record created in the post-conviction court, there is no
nonspeculative basis on which to conclude that counsel’s
failure to seek a mistrial constituted an exercise of reason-
able professional skill and judgment.
The dissent separately appears to argue that not
all reasonable counsel would have recognized an oppor-
tunity under the existing case law to argue that the cir-
cumstances warranted a mistrial, but again we disagree.
The dissent acknowledges that, at the time of petitioner’s
trial, it was well established that a mistrial is warranted
when a criminal defendant is brought before the jury in the
courtroom in shackles. 375 Or at 673 (Bushong, J., dissent-
ing). The dissent emphasizes, however, another undisputed
point that, at that time, it was not so well established what
happens if a juror happens to see a criminal defendant in
17 Although the post-conviction court observed that the record disclosed only
petitioner’s perception, not the perception of any of the jurors, there is no indi-
cation in the court’s written opinion that counsel’s understanding of the event
played any role in its conclusion that counsel’s performance had not been inad-
equate. The opinion’s entire discussion of performance relates to the fact that
petitioner’s encounter with the jurors had been brief and outside the courtroom,
and that the available case law discussing such encounters had distinguished
them from in-court shackling cases.
18 The post-conviction court expressly found that petitioner had reported to
counsel that “three of [his] jurors looked at him and saw him” and that counsel
recalled petitioner telling him about that encounter.

Cite as 375 Or 614 (2026) 	641
shackles outside the courtroom, while being transported to
jail at the end of the day. 375 Or at 673. From that undis-
puted premise, the dissent turns to this court’s opinion in
State v. Walton, 311 Or 223, 809 P2d 81 (1991), and case
law from other jurisdictions, contending that those cases
provide relevant guidance as to whether petitioner met his
burden of proving that counsel failed to exercise reasonable
professional skill and judgment in his case. Id. at 670-73
(Bushong, J., dissenting).
To the extent that the dissent reasons that the
absence of Oregon case law holding that a mistrial was
warranted under petitioner’s circumstances—or the exis-
tence of case law from other jurisdictions distinguishing
between 	in-court 	and 	out-of-court 	encounters—means
that defense counsel provided adequate assistance in this
case, we respectfully disagree. First, as we have explained,
defense counsel’s professional obligations are not limited to
asserting a defendant’s “firmly established” rights; rather,
where there is a legitimate question whether a right exists
under the law, counsel may be obligated under certain cir-
cumstances to advance an argument for that right, and we
have concluded that those circumstances were present here.
Second, nothing in Walton or any other decision that the dis-
sent relies on refutes that principle or precludes its applica-
tion here.
Starting with Walton, counsel in that case, unlike
defense counsel here, had moved for a mistrial after a
sitting juror and an alternate juror saw the defendant,
along with other prisoners, in handcuffs.19 311 Or at 250.
Although we held that the trial court had not erred in deny-
ing the defendant’s motion, Walton is still wholly consistent
with our conclusion in this case. First, although that case,
like petitioner’s, appears to have involved a relatively brief,
out-of-courtroom encounter, this court evaluated the trial
court’s decision whether to grant a mistrial for an abuse of
discretion. See id. (citing State v. Montez, 309 Or 564, 789
19 As previously noted, we agree with the dissent that, although the opinion
in Walton does not state where that observation took place, it is most reasonable
to assume that it took place outside the courtroom, particularly given that the
defendant was seen in the company of other prisoners, something that would be
unlikely to occur in the courtroom during a trial.

642 	Nelson v. Cain
P2d 1352 (1990)); see also Montez, 309 Or at 595 (“A motion
for mistrial is addressed to the sound discretion of the trial
judge[.]”).20 Second, as relevant to both the performance
and prejudice prongs of petitioner’s inadequate-assistance
claim, the trial court in Walton responded to defense coun-
sel’s mistrial motion with action: addressing the potentially
tainted jurors, confirming that they had not been influenced
by the incident and had not discussed it with other jurors,
instructing “both jurors that they were to disregard their
observations, that they were not to discuss their observa-
tions with anyone, and that [the] defendant’s custody status
had no bearing on his guilt or innocence[,]” and, notwith-
standing all those protective measures, further offering to
replace the seated juror with an alternate juror who had not
experienced the concerning exposure. Walton, 311 Or at 250.
Third, because Walton merely held that a mistrial was not
required when those measures had been taken in response
to defense counsel’s motion—including the trial court’s offer
to ensure a jury consisting wholly of jurors who had not seen
the defendant in handcuffs—Walton in no way foreclosed
counsel from arguing on petitioner’s behalf that the circum-
stances in this case warranted a mistrial, especially in the
absence of any protective measures by the trial court.
Similarly, we are not persuaded by the dissent’s
reliance on case law from other jurisdictions holding that,
absent a showing of actual prejudice, jurors’ out-of-court
observations 	of 	defendants 	in 	shackles 	do 	not 	provide
grounds for reversal.21 Cases that apply different prejudice
standards to in-court and out-of-court observations have no
bearing on the adequacy of counsel’s performance, a distinc-
tion that the dissent itself seems to recognize. See 375 Or at
672 (Bushong, J., dissenting) (citing State v. Hardy, 230 Ariz
281, 292, 283 P3d 12 (2012) (“A juror’s inadvertent exposure
to the defendant in handcuffs outside the courtroom * * * is
not inherently prejudicial, and a defendant is not entitled
to a new trial absent a showing of actual prejudice.”)). And
here, the performance-related question is not whether the
trial court would have been required to grant a mistrial had
20 We discuss the significance of the discretion afforded trial courts in evalu-
ating mistrial motions below, when we address the applicable prejudice standard.
21 The state makes the same argument, which we also reject.

Cite as 375 Or 614 (2026) 	643
counsel requested one; the question is whether counsel was
obligated to move for a mistrial under the circumstances,
a question that we have answered affirmatively. Moreover,
as we explain more fully below in addressing prejudice, in
many of the out-of-jurisdiction cases, the trial courts, like
the trial court in Walton, had afforded the defendants at
least some form of relief following an out-of-court shackling
incident where defense counsel had sought relief. Thus, that
nonbinding case law discussing the prejudice standard for
out-of-courtroom encounters fails to provide even persua-
sive authority that counsel’s decision not to seek relief at all
constituted adequate performance in this case.
B. 	Trial counsel’s performance prejudiced petitioner.
Having concluded that petitioner’s trial counsel
failed to exercise reasonable professional skill and judg-
ment, we turn to whether that failure resulted in preju-
dice to petitioner, entitling him to post-conviction relief. To
establish prejudice in an inadequate-assistance-of-counsel
claim under Article I, section 11, a petitioner must demon-
strate that counsel’s deficient performance “had a tendency
to affect the result of his trial.” Green, 357 Or at 312 (inter-
nal quotation marks omitted). And because many things can
affect the outcome of a jury trial, a petitioner is not required
to establish as a matter of probability that counsel’s inad-
equate performance affected that outcome. Id. at 322 (dis-
cussing that principle in reference to the court’s decisions
in Lichau and Stevens). Rather, “the tendency to affect the
outcome standard demands more than mere possibility,
but less than probability.” Id. Thus, to satisfy the prejudice
requirement here, petitioner must show that trial counsel’s
failure to move for a mistrial “could have tended to affect”
the outcome of his case. Id. at 323 (internal quotation marks
and emphasis omitted). We conclude that petitioner has met
that standard. That is, given the state of the law at the time
of petitioner’s trial, there is more than a mere possibility
that the trial court, in its exercise of discretion, would have
granted a mistrial had counsel requested one.
As an initial matter, the state and the dissent each
argue, for slightly different reasons, that we should be cir-
cumspect in applying Green’s “tendency to affect the outcome”

644 	Nelson v. Cain
standard. Both contend that petitioner cannot establish prej-
udice without first showing that the circumstances would
have entitled him to a mistrial had counsel properly moved
for one, but they arrive at that conclusion differently. The
dissent agrees generally that Green’s “tendency to affect the
outcome” standard applies to the trial court’s hypothetical
decision whether to grant a mistrial, had one been request-
ed.22 Where the dissent parts ways with us, however, is in
our understanding that, in this case, a “tendency to affect
the outcome” means that there was “more than a mere pos-
sibility” that the trial court would have granted a mistrial
motion. In the dissent’s view, Green limited the application
of the “more than a mere possibility” articulation to cases
in which “the effect of inadequate assistance of counsel on
the outcome of a jury trial is at issue,” Green, 357 Or at 322
(emphasis added); see id., 357 Or at 323 n 13 (contrasting
cases in which the prejudice inquiry relates to other out-
comes, such the entry of a guilty plea, where the court has
applied a probability standard). 375 Or at 676 (Bushong, J.,
dissenting). Relying on that distinction, the dissent argues,
in relevant part, that “to establish prejudice from counsel’s
failure to move for a mistrial, a petitioner must show that
the trial court would have granted the motion * * *.” 375 Or
at 679. At least for purposes of the present dispute, we dis-
agree with the dissent’s understanding of the “tendency to
affect the outcome” standard.
22 In the state’s view, because what petitioner must show is that there was
a “ ‘tendency to affect the outcome of the prosecution’ ” (quoting Green, 357 Or at
322 (emphasis in state’s brief)), that assessment applies to the jury’s decision, not
the trial court’s decision whether to grant a mistrial in the first instance. Thus,
the state argues, petitioner must first establish that the trial court was legally
obligated to declare a mistrial if requested, only after which the “tendency to
affect the outcome” analysis applies. The state reasons that, as with cases in
which the forgone objection relates to evidence that the jury ultimately hears,
the “tendency” analysis only applies once an appellate court determines that, as
a matter of law, the jury should not have heard certain evidence or should have
been instructed in a specific way. See Peiffer v. Hoyt, 339 Or 649, 660, 125 P3d 734
(2005) (holding that post-conviction petitioner could not establish that counsel’s
failure to file a suppression motion had been prejudicial without first showing
that trial court would have been legally required to suppress the evidence). The
state does not explain, however, why a mistrial motion is comparable to an evi-
dentiary motion—a mistrial motion does not determine what the jury considers
in rendering its verdict; it determines whether the jury renders a verdict at all.
Thus, we disagree with the state’s proposed application of Green and proceed to
discuss the dissent’s proposition.

Cite as 375 Or 614 (2026) 	645
Whatever merit the dissent’s distinction may have
in other contexts, we disagree that Green supports apply-
ing a probability standard in this case. In Green, the peti-
tioner had gone to trial on allegations that he had engaged
in nonconsensual sexual behavior with nine different vic-
tims, some of whom were incapable of consent due to their
age, and some of whom alleged that the petitioner had used
forcible compulsion against them. Green, 357 Or at 303-05.
At issue on post-conviction was whether defense counsel
had performed deficiently by failing to request a limiting
instruction that would require the jury to consider only the
evidence related to each individual victim in determining
whether the state had proved its case as to that victim. Id.
at 312-13. After concluding that neither the post-conviction
court nor the Court of Appeals had had the benefit of this
court’s then recent decision in Pereida-Alba and that it
should reverse and remand the case for further consider-
ation, id. at 320, the court turned to the issue that the dis-
sent focuses on here—the appropriate standard for evaluat-
ing prejudice, id at 321.
In its assessment of prejudice, the Court of Appeals
had required the petitioner “to show that his trial counsel’s
deficient exercise of skill and judgment had a ‘tendency to
affect the result of the prosecution,’ ” relying on a phrase
that this court had first used more than 30 years earlier
in Krummacher. Id. The state had argued in favor of the
probability-based standard that the post-conviction court
had applied, which would have required the petitioner to
show what would have happened had counsel performed
adequately, rather than merely what could have happened.
Id. After a brief survey of its own case law, this court rejected
that argument and held that, “because many different fac-
tors can affect the outcome of a jury trial, in that setting,
the tendency to affect the outcome standard demands more
than mere possibility, but less than probability.” Id. at 322.
The dissent reads into that passage the court’s intent to
apply that standard only to jury outcomes, but the dissent
reads Green too narrowly.
To be sure, this court in Green observed in a foot-
note that, in another context, the court had “described the

646 	Nelson v. Cain
tendency to affect the outcome test in terms of actual prob-
ability.” Id. at 323 n 13 (citing Moen v. Peterson, 312 Or 503,
513, 824 P2d 404 (1991) (discussing standard in context of
petitioner’s decision to enter a guilty plea)). But despite that
observation, the court did not purport to create a bright-
line rule, with the “tendency to affect the outcome” standard
applicable only to jury verdicts. And, to date, no appellate
decision of which we are aware has considered whether such
a limitation should exist, much less held that Green had
established one.23
Here, although the state argues for a nuanced
application of Green, neither it nor any other party or court
besides the author of the dissent has suggested that the
“more than a mere possibility” articulation of the “tendency
to affect the outcome” standard does not apply to petitioner’s
claim; under those circumstances, we are hesitant to begin
that inquiry at this stage. Moreover, to the extent that this
court might someday recognize the limitation that the dis-
sent posits, we would question whether this case is of the
sort in which to make such a distinction. As noted above,
the trial court’s decision whether to grant a mistrial is a
matter of discretion. That is because the trial court is in the
best position to assess prejudice and to determine what, if
any, corrective measures are appropriate. In this case, no
one has suggested that, had the trial court declared a mis-
trial, whether at the request of counsel or on its own motion,
it would have abused its discretion. Nor is this court likely
to have second guessed the trial court’s reasoning if it had
denied such a request. Thus, like the outcome of jury delib-
erations, the outcome of a trial court’s discretionary choice
regarding a mistrial motion can be affected by many dif-
ferent factors. See id. at 322 (reasoning that use of a prob-
ability standard to assess prejudice is inappropriate in the
context of a jury trial because, in that setting, many dif-
ferent—and presumably unknown—factors can affect the
jury’s decision). In that regard, petitioner’s claim is similar
23 The dissent points to Richardson v. Belleque, 362 Or 236, 406 P3d 1074
(2017), as additional support, 375 Or at 677 (Bushong, J., dissenting), but, because
that case, like Green, involved a jury-determination issue, its citation to Green
lends no support to the dissent’s argument that the “more than mere possibility”
standard applies only to jury determinations.

Cite as 375 Or 614 (2026) 	647
to a claim related to a jury verdict—where the reasons for
a decision are largely unknowable—and dissimilar to, for
example, a decision whether to accept a plea offer, a decision
that a post-conviction petitioner is in a unique position to
explain. See id. at 323 n 13 (distinguishing cases involving
decisions to enter guilty pleas). We therefore apply the same
standard here.
Applying Green’s “more than a mere possibility”
standard to counsel’s failure to move for a mistrial, we con-
clude that petitioner has established that counsel’s perfor-
mance resulted in prejudice. Had counsel requested a mis-
trial, there is more than a mere possibility that the trial
court would have declared a mistrial, thereby affecting the
outcome of his case. As we will explain, that conclusion fol-
lows primarily from the nature of mistrial motions—partic-
ularly from the fact that such motions trigger the discretion
of a trial court—and the case law that would have informed
the trial court’s exercise of that discretion.
Here, if counsel had sought a mistrial, it would have
been within the discretion of the trial court to grant that
request. This court has long held that “[w]hether to grant a
mistrial is a determination committed to the sound discre-
tion of the trial court.” State v. Rogers, 313 Or 356, 381, 836
P2d 1308 (1992), cert den, 507 US 974 (1993); id. (citing State
v. Smith, 310 Or 1, 24, 791 P2d 836 (1990) (“The question
thus is not whether this court would have granted a new
trial to [the] defendant, but whether the trial court abused
its discretion in refusing to do so.”)). We afford courts that
discretion because trial judges are in the best position to
“assess and to rectify the potential prejudice to the defen-
dant.” State v. Farrar, 309 Or 132, 164, 786 P2d 161, cert
den, 498 US 879 (1990). The question here, of course, is not
whether the trial court erred in denying a motion for mis-
trial, because no motion was made. Instead, the question for
purposes of post-conviction relief is whether, if defense coun-
sel had moved for a mistrial, there is more than a mere pos-
sibility that the trial court would have granted that request
or, if it concluded that counsel’s concerns could be addressed
through corrective action short of a mistrial, taken such
action. Given the specific circumstances of petitioner’s trial

648 	Nelson v. Cain
and the Oregon case law that then existed, we conclude that
the answer is yes.
As with our assessment of defense counsel’s perfor-
mance, we find it instructive to consider the state of the law
at the time of petitioner’s trial in determining whether peti-
tioner has established that counsel’s performance was prej-
udicial. The post-conviction court and the Court of Appeals
similarly considered the then-existing case law in connec-
tion with both aspects of petitioner’s post-conviction claim.
But unlike those courts, we do not consider that case law to
determine whether the trial court would clearly have been
obligated to declare a mistrial if one had been requested;
rather, we consider the then-existing case law for its rele-
vance in assessing whether the trial court’s potential under-
standing of—and response to—the existing case law means
that counsel’s failure to seek a mistrial had a tendency to
affect the outcome of petitioner’s case.
As we have explained, at the time of petitioner’s trial,
the Court of Appeals had well established case law provid-
ing that, if jurors see a defendant shackled in the courtroom
during trial without a finding of substantial necessity on the
record, the defendant is entitled to a new trial upon request.
Kessler, 57 Or App at 475. Further, in Guinn, this court effec-
tively endorsed Kessler and its underlying rationale in con-
cluding that a post-conviction petitioner makes a prima facie
case of ineffective assistance of counsel by showing that they
were “shackled during the trial and that no record was made
in the trial court to support th[at] decision[.]” 304 Or at 498.
A key concern in Kessler was the potential effect
of such a sighting on the presumption of innocence. And,
as we have noted in this case, the effect that shackling a
criminal defendant has upon the presumption of innocence
is not inherently limited to in-court shackling. Kessler itself
did not suggest such a distinction. See Kessler, 57 Or App at
474 (“It is not a question whether the jury will be constantly
exposed to the vision of a shackled defendant, but whether
they see the shackles at all. If any of the jurors could see the
leg irons, the prejudicial inferences logically follow.”).24
24 Further, we do not understand Walton, which dealt with an encounter
that presumably took place outside the courtroom, as drawing a distinction with

Cite as 375 Or 614 (2026) 	649
Before this case, the only circumstance in which
Oregon courts have limited the application of Kessler’s prin-
ciples is when there was a question whether the defendant’s
restraints had been seen at all, and not when they were seen
in one location as opposed to another. See, e.g., State v. Bowen,
340 Or 487, 496, 135 P3d 272 (2006), cert den, 549 US 1214
(2007) (on a plain error challenge to the use of a stun belt
during a murder trial, declining to find that defendant had
been prejudiced where there was “no evidence in the record
that the stun belt * * * was visible to the jury, and, therefore,
[the] defendant [could not] claim that the jury was biased by
its presence”); State v. Bates, 203 Or App 245, 251, 125 P3d
42 (2005), rev den, 340 Or 483 (2006) (on direct appeal, any
error in compelling the defendant to wear a stun belt was
harmless because the jury was not aware that the defendant
was wearing the belt; therefore, use of belt was not likely to
cause prejudice by “impinging on the presumption of inno-
cence and the dignity of the judicial proceeding”).
In light of that case law, the trial court in petitioner’s
case may not have made the distinction that the state urges
here—that the jury incident could be disregarded because
of where petitioner was seen in shackles. Instead, the trial
court may have understood the relevant question to be only
whether jurors had seen the shackles at all. Although the
court would not have had the benefit of the Court of Appeals’
later decision in Sproule, that case applies both Bowen and
Bates and illustrates why the trial court might have had
that understanding. In Sproule, the court held that the peti-
tioner’s trial counsel had not been inadequate in failing to
object to the use of a leg brace as a restraint when the jurors
had not been aware that the petitioner was restrained. 276
Or App at 426 (“[G]iven that the record supports the post-
conviction relief court’s implicit finding that the jury was not
aware that petitioner was restrained, we will not presume
that the restraint improperly impinged on the presumption
of innocence or the dignity of the proceedings, and thereby
prejudiced petitioner.”). But had the trial court in Sproule not
taken pains to prevent jurors from inadvertently observing
respect to where the encounter took place, because nothing about the court’s con-
clusion was dependent on, or even referenced, the location of the defendant. 311
Or at 250.

650 	Nelson v. Cain
the restraints, the Court of Appeals would have presumed
both that the jury had seen the restraints and that the peti-
tioner had been prejudiced as a result:
“Thus, where the record shows that a criminal defen-
dant was restrained in a manner that could not be effec-
tively shielded from the jury’s view, there is a presumption
that the shackles are seen by the jury and prejudice results.
In contrast, if a defendant is restrained in a manner that is
not visible to the jury, prejudice will not be presumed.”
Id. at 425-26 (internal quotation marks omitted).
That 	reasoning 	reflects 	the 	Court 	of 	Appeals’
understanding of the case law that existed at the time of
petitioner’s trial, and it suggests that prejudice to a defen-
dant occurs when jurors become aware that the defendant
is wearing restraints, which could occur inside the court-
room, in the courthouse hallway, or in some other place.
And even though the court in Sproule was not addressing
an out-of-court encounter, it is not easy to square its focus
on the jury’s awareness that a defendant is shackled with a
limitation on where the jury reaches that awareness. More
significantly for present purposes, we cannot conclude that
a trial court, confronted with the same body of case law that
the Court of Appeals relied on in Sproule, would necessar-
ily choose to focus on something different than the Court of
Appeals focused on there. Once again, as stated in Kessler,
“[i]t is not a question whether the jury will be constantly
exposed to the vision of a shackled defendant, but whether
they see the shackles at all.” 57 Or at 474.
It follows that, if counsel had moved for a mistrial,
the trial court may well have understood that Oregon law
entitled petitioner to a new trial because the jury encoun-
ter had “prejudice[d] him in the minds of the jurors” and
“impinge[d] on the presumption of innocence.” Id. at 472-74
(discussing Duran); see also Long, 195 Or at 91 (explaining
that one rationale for the common law rule prohibiting the
use of shackles at trial was that “[a] prejudice might be cre-
ated in the minds of the jury against a prisoner who should
be brought before them handcuffed and shackled, which
might interfere with a fair and just decision of the ques-
tion of the guilt or innocence of such prisoner”). And that

Cite as 375 Or 614 (2026) 	651
conclusion would be especially understandable in petition-
er’s case, where the risk arising from seeing petitioner in
shackles—namely, that jurors might perceive him to be a
dangerous threat—was closely related to a disputed issue
at trial—whether petitioner had forcibly subjected the vic-
tim to sexual contact.25 See Lichau, 333 Or at 365 (finding
prejudice when omitted evidence could have tended to affect
the jury’s consideration of key credibility issues); cf. Rhoden
v. Rowland, 172 F3d 633, 637 (9th Cir 1999) (where at least
some jurors saw the petitioner in shackles during trial for
violent crimes and disputed issue at trial was whether peti-
tioner had used force or fear to overcome the victim’s will,
the shackles adversely affected the jury’s verdict by “essen-
tially brand[ing]” the petitioner “as having a violent nature
in a case where his propensity for violence was the crucial
issue”; further, jury’s lengthy deliberations “suggest[ed] that
they did not find the case to be clear-cut”).
Arguing against the conclusion that petitioner has
established prejudice here, the state stands by its argument
that, unlike in-court shackling, out-of-court shackling does
not impinge upon the presumption of innocence or warrant
a mistrial. Like the post-conviction court, the state points
to case law from outside jurisdictions to argue that jurors
would know that “any shackling during transport is merely
a precaution that the sheriff ha[s] taken” and “impl[ies] only
that the defendant is being held in custody during trial”
and, thus, petitioner would not have been entitled to a mis-
trial. For two reasons, we are not persuaded.
The first difficulty we have with the state’s argu-
ment is that, like part of its argument related to counsel’s
performance, it is somewhat misguided. As noted above, the
issue in this case is not whether the trial court would have
been obligated under the law to grant a mistrial if defense
counsel had requested one; the issue is whether there is more
than a mere possibility that the trial court would have done
so under the existing circumstances. For the reasons just
25 Petitioner was charged with and ultimately convicted of first-degree rape
and sexual abuse, crimes that include the element of forcible compulsion, ORS
163.375, which requires the jury to find that a person used physical force or
threatened the victim with immediate or future death or physical injury, ORS
163.305.

652 	Nelson v. Cain
stated, we conclude that there is such a possibility and that
petitioner has therefore established that counsel’s omission
had a tendency to affect the outcome.
Our second and related difficulty is that we cannot
conclude, based on the out-of-state case law that the state
and post-conviction court have pointed to, that the trial
court would necessarily have made the distinction that those
cases call for. Most of the cases that the post-conviction court
relied on assert, with limited discussion, that witnessing a
defendant in shackles outside the courtroom is somehow dif-
ferent and unremarkable. See, e.g., State v. Cassel, 48 Wis
2d 619, 625, 180 NW 2d 607, 611 (1970) (stating that “the
situation is psychologically different and less likely to create
prejudice in the minds of jurors”; further, “[p]eople normally
expect to see a prisoner under some restraints in situations
where he is not able to escape if not in restraints”); State
v. Elliott, 137 NC App 282, 285, 528 SE 2d 32, 35, rev’d on
other grounds, 352 NC 663, 535 SE2d 32 (2000) (“The hand-
cuffing of defendants, as they are transferred between the
courtroom and the jail, is a common practice well known by
the general public.”). Because the reasoning of those cases is
somewhat cursory and not particularly persuasive, the trial
court may not have afforded them the weight that the post-
conviction court appears to have given them.
The cases that the state relies on suffer similar
deficiencies. Some of them summarily characterize the
out-of-courtroom encounters as “brief and accidental,” e.g.,
Wharton v. Chappell, 765 F3d 953, 964 (9th Cir 2014), while
others, like those cited by the post-conviction court, reason
that jurors are aware that some defendants are unable to
afford bail, e.g., United States v. Halliburton, 870 F2d 557,
561 (9th Cir 1989), or that “[i]t is a normal and regular as
well as a highly desirable and necessary practice to hand-
cuff prisoners while they are being taken from one place
to another, and the jury is aware of this[,]” United States
v. Leach, 429 F2d 956, 962 (8th Cir 1970). Although some
of those decisions acknowledge that out-of-court encoun-
ters may affect jurors’ perceptions of the presumption of
innocence, they summarily dismiss that concern as being

Cite as 375 Or 614 (2026) 	653
adequately mitigated by the assumed fact jurors know that
some defendants are in custody.26
This court has never discussed the jury’s likely
understanding 	of 	pretrial 	detention 	practices, 	such 	as
shackling detainees during transport, nor has it suggested
that jurors would be indifferent to witnessing it. Cf. State
v. Cavan, 337 Or 433, 447, 98 P3d 381 (2004) (“Our 200-
year American jury trial tradition informs us that” jurors
are not “indifferent to their surroundings.”). Even if we were
to assume that jurors are aware that some defendants are
detained pretrial simply because they cannot post bail, we
are reluctant to further assume that their awareness of that
fact can eliminate the negative consequences of seeing a
defendant in shackles, including the creation of unconscious
bias. For present purposes, however, we need not—and do
not—conclusively decide whether there is a material dif-
ference between in-court and out-of-court viewings for pur-
poses of petitioner’s constitutional and common law rights.
It suffices, instead, to conclude that, although it is possible
that the trial court would have reached the same conclusion
as those out-of-jurisdiction decisions and therefore denied
any request for a mistrial, their persuasive value is not so
great that we can say that there is only the mere possibility
that the trial court would have granted a mistrial if counsel
had requested one. Accordingly, petitioner was prejudiced
by counsel’s failure to do so.
Finally, although we decide petitioner’s case on the
basis of counsel’s failure to move for a mistrial and the pos-
sibility that the trial court would have declared a mistrial
if one had been requested, we briefly address the dissent’s
observation that the trial court might instead have taken
corrective action short of declaring a mistrial. 375 Or at 680-
81 (Bushong, J., dissenting). It is true that, given this court’s
opinion in Walton, the other case law from Oregon and other
jurisdictions, and the discretion afforded trial courts with
regard to mistrial motions, the trial court in this case might
26 The dissent likewise relies on case law from other jurisdictions. 375 Or at
671-73 (Bushong, J., dissenting). From our review of that case law, it is similarly
sparse and conclusory with regard to this issue, and the dissent does not elabo-
rate further as to any other justifications for distinguishing in-court from out-of-
court shackling.

654 	Nelson v. Cain
have chosen to do something other than declare a mistrial
to address what had occurred. See, e.g., State v. Evans, 211
Or App 162, 166, 154 P3d 166 (2007), aff’d, 344 Or 358, 182
P3d 175 (2008) (stating that, “[i]n ruling on a motion for
a mistrial, a trial court must decide whether to grant the
motion, to cure the effect of inappropriate conduct or testi-
mony by giving a proper instruction instead, or to do noth-
ing at all”); see also Walton, 311 Or at 250 (listing corrective
measures taken by trial court to address jurors’ observa-
tion of the defendant in shackles); United States v. Moreno,
933 F2d 362, 368 (6th Cir 1991) (observing that courts have
expressed a preference for remedial action after an acciden-
tal observation of a defendant in custody); id. (approving
instruction to jury “that the custodial status of the defen-
dants was not indicative of guilt or innocence and, therefore,
should be disregarded”); United States v. Pina, 844 F2d 1, 8
(1st Cir 1988) (approving actions taken by the trial court to
ensure jury impartiality, including individual questioning
of potentially tainted jurors, obtaining confirmation from
jurors that they remained unbiased, and instructing jurors
not to discuss the matter with anyone). But the possibility
that the trial court would take different action to address
its concerns that the jury had been tainted does not trans-
form the possibility of a mistrial into a “mere” possibility.
And because any such action would reflect the trial court’s
view that measures were necessary to ensure an impartial
jury, the absence of such measures, like the failure to seek
a mistrial, would, in our view, have a “tendency to affect the
outcome” of the jury trial. Green, 357 Or at 322.
III. 	CONCLUSION
We conclude that, although no Oregon appellate
court had previously held that a mistrial is warranted
when jurors briefly see a defendant in shackles outside the
courtroom, the state of the law at the time of petitioner’s
trial was such that an attorney exercising reasonable pro-
fessional skill and judgment would have seen an opportu-
nity to argue for a mistrial under the circumstances of this
case. Moreover, even if counsel might have had reasonable
tactical or other reasons not to seek a mistrial, the post-
conviction court may not rely on any such reasons when the

Cite as 375 Or 614 (2026) 	655
record cannot support the finding that counsel in fact con-
sidered them.
We further conclude that counsel’s performance
was prejudicial. Had counsel moved for a mistrial, there is
more than a mere possibility that the trial court would have
granted that request or taken other protective measures to
address petitioner’s harms. Thus, petitioner has shown that
counsel’s inadequate performance had a tendency to affect
the outcome and that petitioner therefore suffered preju-
dice. Accordingly, the post-conviction court erred in deny-
ing petitioner’s claim of inadequate assistance of counsel,
and we reverse the post-conviction court’s judgment on that
basis.
The decision of the Court of Appeals is affirmed in
part and reversed in part. The judgment of the circuit court
is reversed, and the case is remanded to the circuit court for
further proceedings.
BUSHONG, J., dissenting.
Today, this court grants petitioner post-conviction
relief, concluding that his criminal defense lawyer rendered
constitutionally inadequate assistance during his criminal
trial. It is well established that, in evaluating whether coun-
sel’s assistance was inadequate in violation of Article I, sec-
tion 11, of the Oregon Constitution, we first must determine
“ ‘whether petitioner demonstrated by a preponderance of the
evidence that his lawyer failed to exercise reasonable profes-
sional skill and judgment.’ ” Montez v. Czerniak, 355 Or 1, 7,
322 P3d 487, adh’d to as modified on recons, 355 Or 598, 330
P3d 595 (2014) (quoting Lichau v. Baldwin, 333 Or 350, 359,
39 P3d 851 (2002) (brackets omitted)). If we conclude that peti-
tioner met that burden, “we further must determine whether
he proved that counsel’s failure had a tendency to affect the
result of his trial,” id.,—or in other words, whether counsel’s
failure “prejudiced” petitioner, Lichau, 333 Or at 363.1
1 Under the Sixth Amendment to the United States Constitution, the peti-
tioner must show that counsel’s performance was deficient, and that the deficient
performance caused prejudice to the defense. Strickland v. Washington, 466 US
668, 687, 104 S Ct 2052, 80 L Ed 2d 674 (1984). We have stated that the standards
for adequacy of counsel under the state and federal constitutions are “function-
ally equivalent.” Montez, 355 Or at 6.

656 	Nelson v. Cain
The majority opinion holds that petitioner met his
burden in both respects. First, the majority opinion concludes
that petitioner’s lawyer failed to exercise reasonable skill and
judgment when he did not move for a mistrial after petitioner
told him that some jurors had seen him in the hallway shack-
led and dressed in jail clothes. Second, the majority opinion
concludes that counsel’s failure was prejudicial, because, if
counsel had requested a mistrial, “there is more than a mere
possibility that the trial court would have declared a mis-
trial, thereby affecting the outcome of his case.” 375 Or at
647. I disagree with both conclusions and the majority opin-
ion’s analysis. Accordingly, I respectfully dissent.
I. 	FAILURE TO EXERCISE REASONABLE SKILL
AND JUDGMENT
As noted, it was petitioner’s burden to establish, by
a preponderance of the evidence, that his trial counsel failed
to exercise reasonable skill and judgment when he did not
move for a mistrial. Montez, 355 Or at 7. The post-conviction
court concluded that petitioner failed to meet his burden. In
determining whether the post-conviction court erred, this
court must “ ‘make every effort to evaluate a lawyer’s con-
duct from the lawyer’s perspective at the time, without the
distorting effects of hindsight.’ ” Id. (quoting Lichau, 333 Or
at 360). This court must not “ ‘second-guess a lawyer’s tac-
tical decisions in the name of the constitution unless those
decisions reflect an absence or suspension of professional
skill and judgment.’ ” Id. (quoting Gorham v. Thompson, 332
Or 560, 567, 34 P3d 161 (2001)). That is because the con-
stitution “ ‘gives no defendant the right to a perfect defense
* * *.’ ” Id. (quoting Krummacher v. Gierloff, 290 Or 867, 875,
627 P2d 458 (1981)).
As I will explain, because petitioner has the bur-
den of proof, this court on review must analyze whether
petitioner established facts showing that moving for a mis-
trial was so obviously beneficial to him that it was the only
acceptable course of action; whether petitioner cited any case
decided before this incident that had clearly held that jurors
seeing a criminal defendant in shackles outside the court-
room required a mistrial; and, if not, whether petitioner
established that the law so obviously foreshadowed such a

Cite as 375 Or 614 (2026) 	657
ruling that all defense attorneys exercising reasonable pro-
fessional skill and judgment would have recognized at that
time that the circumstances required a request for a mis-
trial. I agree with the post-conviction court and the Court
of Appeals that petitioner did not meet his burden. In con-
cluding otherwise, the majority opinion does not, in my view,
fully engage with the required analysis of the facts and law
consistent with petitioner’s burden.
I begin with the majority opinion’s treatment of the
facts. Petitioner’s criminal trial occurred in 2013; his post-
conviction trial was in 2020. Given that seven-year gap, the
factual record related to jurors’ potential exposure to peti-
tioner in shackles and jail clothes at petitioner’s criminal
trial is understandably sparse.
In his testimony at the post-conviction trial, peti-
tioner described the incident, recalling that it happened on
a Friday, after the jury had finished its first day of deliber-
ations without reaching a verdict. Petitioner testified that,
when the deputies began to escort him out of a holding cell
into a courthouse hallway to take him to jail, the deputies
saw the jurors as they were going down the stairs to leave
the courthouse. They then “opened the door and snatched
[petitioner] back into the holding cell for about ten minutes.”
Petitioner described where he was when this happened. He
stated that there were “some real big steps that lead up to
each floor of the courtrooms” and that the holding cells were
“all the way at the end of the hall.” He remembered see-
ing “probably three” jurors who “actually looked at” him,
and that “the other two” jurors that he had seen were “still
walking down the steps.” Petitioner testified that he told his
defense counsel that jurors had seen him in shackles and
jail clothes, that counsel then informed the court and the
prosecutor, but “that’s all that happened.” He testified, that,
at the time, he “didn’t think the jurors seeing [him] in hand-
cuffs was all that serious” and that he was more focused
on the possibility of a “hung jury.”2 Petitioner also testified
that, when the jury came back into the courtroom to return
2 Petitioner’s reference to the possibility of a “hung jury” was likely based on
the jury’s question to the court during the first day of deliberations, which asked
what it should do if there were not enough votes to reach a verdict, noting that the
verdict form did not have a space to indicate a “hung jury.”

658 	Nelson v. Cain
a verdict, he asked his lawyer about a mistrial, and counsel
responded that “there’s no reason” to request one.
Petitioner’s trial counsel—an experienced crimi-
nal defense lawyer3—submitted a declaration stating that
he had “searched [his] memory” and had “no doubt” that
petitioner had told him that jurors had seen him in shack-
les and jail clothes as he was being transported to or from
court. Counsel stated that he was “certain” that he made
inquiries of the sheriff’s deputies and then brought the mat-
ter to the court’s attention, but he did not offer any details
of what was discussed or why he did not move for a mis-
trial. Counsel was called as a witness to testify during the
post-conviction trial, but he was not asked any questions
about this incident or to explain why he did not move for a
mistrial.
The post-conviction court found that counsel’s testi-
mony was credible, and that petitioner’s testimony was also
credible “except to the extent that he testified that his trial
attorney did nothing” after he reported the “possible con-
tact with jurors while restrained in the courthouse hallway.”
Rather, the post-conviction court found that, after petitioner
reported that “possible contact” to his attorney, counsel dis-
cussed it with the deputies and then the trial judge and the
prosecuting attorney in chambers, off the record, but did not
move for a mistrial.
The post-conviction court concluded that petitioner
“did not prove” that his trial attorney failed to exercise rea-
sonable professional skill and judgment by not requesting a
mistrial. In support of that conclusion, the post-conviction
court stated that trial counsel “did investigate the matter”
and discussed it with the judge and prosecutor but took no
action on the record. The post-conviction court also noted
the absence of evidence in the record in several respects.
Specifically, it pointed out that petitioner had “offered only
his perception of the hallway encounter” and that there was
“no evidence from the viewpoint of the jurors.” The court also
noted that there was “no evidence that the jurors recognized
3 Petitioner’s counsel was admitted to the Oregon bar in 1992 and the
Arizona bar in 1985. He practiced continually in criminal defense throughout his
career.

Cite as 375 Or 614 (2026) 	659
[petitioner] or that [the encounter] had any impact on them.”
And although there was no evidence in the record about why
counsel chose not to move for a mistrial, the post-conviction
court observed that counsel “may not have wanted a mis-
trial or may have concluded that a mistrial [motion] would
not have been successful.”4
As 	the 	majority 	opinion 	points 	out, 	the 	post-
conviction court’s findings of historical fact are binding on
this court if there is evidence to support them. 375 Or at 617
(citing Lichau, 333 Or at 359). If the post-conviction court
has not expressly made findings and there is evidence from
which the facts could be decided in more than one way, we
must presume that the court decided the facts in a manner
that is consistent with its conclusions of law. 375 Or at 617
(citing Lichau, 333 Or at 359; Ball v. Gladden, 250 Or 485,
487, 443 P2d 621 (1968)).
The majority opinion cites those standards and
acknowledges that petitioner has the burden of proof, but, as
I will explain, its analysis nevertheless gives petitioner the
benefit of the absence of evidence in some areas. The major-
ity opinion also fails to account for plausible inferences that
could be made from the evidence that would support the
post-conviction court’s conclusions.
For example, as noted, there was no evidence of
what the jurors saw from their viewpoint; whether any
jurors had recognized the person being escorted in shackles
as the defendant in the case they were deliberating; what
trial counsel discussed off the record with the deputies, the
trial court, and the prosecuting attorney; and what trial
counsel concluded from his investigation. There was also no
evidence in the record about why counsel did not move for a
mistrial. That absence of evidence cannot weigh in petition-
er’s favor, because he has the burden of proof.
4 The post-conviction court also made a factual finding that the deputies
escorting petitioner out of the holding cell into the courthouse hallway “saw
jurors in the hallway and pulled [petitioner] back into the holding cell.” That
finding as to what the deputies saw does not mean that the jurors who were going
down the stairs necessarily saw and recognized the person in shackles and cuffs
as the defendant in their case, and, as the post-conviction court noted, there was
“no evidence” from the viewpoint of the jurors and “no evidence that the jurors
recognized” petitioner.

660 	Nelson v. Cain
The post-conviction court found that counsel “did
investigate” this incident. If the three jurors who “looked
at” petitioner saw him, it is plausible to infer that they
may not have recognized the person in shackles wearing
jail clothes emerging from a doorway at the end of the hall
escorted by deputies as the defendant in their case. The
last time the jurors had seen the petitioner was earlier that
day, when they were sent to deliberate. At that time, he
was in the courtroom dressed in street clothes. When the
jurors were heading down the stairs after concluding their
deliberations at the end of the day, it is certainly plausible
that, if they did see a person escorted by deputies emerging
from a doorway at the end of the hall in shackles wearing
jail clothes, they may not have recognized him as the same
person they had seen in street clothes in the courtroom ear-
lier that day.5 That would explain why counsel told peti-
tioner that “there’s no reason” to request a mistrial. If trial
counsel had concluded from his investigation that jurors
had not recognized the person being transported, then his
decision to not request a mistrial was not constitutionally
inadequate.
The majority opinion declines to “account for the
possibility” that defense counsel did not move for a mistrial
because he had concluded that the jurors had not recognized
petitioner in the hallway. 375 Or at 640. The majority opin-
ion ignores that possibility, because, in its view, there was no
“disputed factual matter” in the post-conviction court record
as to counsel’s perception and what he concluded after com-
pleting his investigation. 375 Or at 639. But there was a
factual dispute about what counsel learned and concluded
from his investigation, because that undoubtedly affected
his determination that there was “no reason” to request a
mistrial. It is true that there is no direct evidence of what
counsel had learned and concluded from his investigation—
not surprisingly, given the time between those events and
the post-conviction trial—but the factual dispute is reflected
in counsel’s statement to petitioner that he thought at the
time that there was “no reason” to request a mistrial. The
5 The Court of Appeals stated that “the post-conviction court found that
there was no evidence that the jurors recognized petitioner in the hallway.”
Nelson v. Cain, 334 Or App 326, 330, 556 P3d 1 (2024).

Cite as 375 Or 614 (2026) 	661
majority opinion’s conclusion that the record “contains no
evidence either way as to what counsel concluded” after his
investigation, 375 Or at 639 (emphasis in majority opinion),
overlooks the inference that can be made from counsel’s
statement.6
The majority opinion also states that the applica-
ble standard of review does not permit it “to endorse that
level of speculation,” because the post-conviction court’s
ultimate legal conclusion “does not appear to have relied
on what counsel did or did not conclude about the jurors’
actual perceptions[.]” 375 Or at 639-40. But, as noted, the
standard of review requires this court to presume that the
post-conviction court would have found the facts in a way
that supports the post-conviction court’s conclusion, and it
requires this court to make that presumption in the absence
of any specific factual finding or reliance by the post-
conviction court. See Lichau, 333 Or at 359 (“[I]f findings are
not made on all [historic] facts, and there is evidence from
which such facts could be decided more than one way, we
will presume that the facts were decided in a manner con-
sistent with the post-conviction court’s ultimate conclusion.”
(Emphasis added; internal quotation marks and alterations
omitted)).
As discussed above, although there is no direct
evidence of what counsel learned and concluded from his
investigation, there is evidence from which the facts could
be decided in more than one way. Instead of presuming that
the post-conviction court would have decided the facts in a
manner consistent with its conclusion, the majority opin-
ion declines to “account for” that possibility, 375 Or at 640
choosing instead to view the facts in a manner that is con-
sistent with the majority opinion’s own conclusions. That, in
my view, does not correctly apply the standard of review and
the burden of proof.
6 The majority opinion states that I am “wrong” in concluding that “there is
evidence from which [the] facts could be decided [in] more than one way,” Ball,
250 Or at 487, because “for a fact to be in dispute, there must be evidence of that
fact in the record.” 375 Or at 639. But Ball does not state that there must be
evidence in the record of the fact that is in dispute. It suffices if there is evidence
“from which [the] facts could be decided [in] more than one way,” Ball, 250 Or at
487, which means that evidence of counsel’s statement to petitioner from which
the court could infer what counsel concluded from his investigation is enough.

662 	Nelson v. Cain
As for the post-conviction court’s suggestion that
counsel “may not have wanted” a mistrial—and the state’s
argument on review that counsel may have had “strategic
reasons” for choosing not to move for a mistrial—the major-
ity opinion states that the argument “falls short” because
“nothing in the record suggests that counsel considered
moving for a mistrial” and “then made a strategic decision”
not to do so. 375 Or at 637-38. Again, the record reflects that
counsel told petitioner that there was “no reason” to request
a mistrial, and the absence of additional evidence in the
record cannot favor petitioner, because he has the burden of
proof.
The majority opinion also concludes that request-
ing a mistrial was so “obviously beneficial” to petitioner
that there would be no reason to not request one, as if there
were no potential downsides to requesting a mistrial. 375
Or at 638. However, the benefits to a criminal defendant
of moving for a mistrial are not so obvious that reasonable
defense counsel must always request a mistrial if there are
any arguable grounds for doing so, as this court has recog-
nized. In State v. Moore, 361 Or 205, 390 P3d 1010 (2017), we
issued a peremptory writ of mandamus when a trial court
sua sponte declared a mistrial over a criminal defendant’s
objection. The defense counsel in that case told the court:
“ ‘We don’t want a mistrial. We like this jury; we like how
we’re doing.’ ” Id. at 220. We concluded that “[t]he fact that
[the] defendant and his counsel believed that the jury was
favorably disposed to his case and objected to a mistrial
is an important consideration” in determining whether to
declare a mistrial. Id.
Thus, depending on the case, one potential down-
side to moving for a mistrial is the possibility that the court
may grant the request, leading to a retrial that the defen-
dant may not want. As in Moore, a criminal defendant and
his attorney may not want a mistrial and a retrial if they
“like” the jury or “liked” how the trial had gone. Although
there is no direct evidence in this case that petitioner or his
defense counsel “liked” the jury or how the trial had gone,
there is some evidence that would support that inference.
During the first day of deliberations, the jury asked the

Cite as 375 Or 614 (2026) 	663
court what it should do if there were not ten votes on a par-
ticular charge, noting that the verdict form did not have a
way to express a hung jury.7 Under those circumstances, it is
certainly plausible that a reasonable defense attorney might
not want a mistrial, as the post-conviction court noted.8
Another possible downside to requesting a mistrial
is that, if the court declared a mistrial, the victim would
have to testify again at the resulting retrial. As the Court of
Appeals noted, petitioner “was twice tried for charges aris-
ing out of a domestic violence incident in which he punched
his domestic partner in the face, had sex with her against
her will, and took her vehicle.” Nelson v. Cain, 334 Or App
326, 327, 556 P3d 1 (2024). Testifying about a sexual assault
can be traumatizing. See People v. Cogswell, 48 Cal 4th 467,
478, 227 P3d 409, 414, 106 Cal Rptr 3d 850, 856 (2010) (not-
ing that sexual assault victims “are particularly likely to
be traumatized because of the nature of the offense” and
requiring victims to “relive and to recount in a public court-
room the often personally embarrassing intimate details
of a sexual assault far overshadows the usual discomforts
of giving testimony as a witness”); Vivian Berger, Man’s
Trial, Woman’s Tribulation: Rape Cases in the Courtroom,
77 Colum L Rev 1, 23 (1977) (discussing the possibility that
a rape victim’s “ordeal during the trial unjustly compounds
the trauma of the event and its aftermath”). Although there
is no evidence in this case about how traumatizing it was
to the victim—petitioner’s former domestic partner—to
testify, twice, about this incident, it is possible that, at the
time, petitioner might not have wanted to traumatize her
7 At the time of petitioner’s criminal trial, ten votes were required for a
conviction for felonies other than first-degree murder. Or Const, Art I, § 11; ORS
136.450 (2013), amended by Or Laws 2019, ch 635, § 8, amended again by Or Laws
2021, ch 478, § 11. Seven years later, the United States Supreme Court held that
a unanimous jury verdict was required by the Sixth Amendment to the United
States Constitution for all felony convictions. Ramos v. Louisiana, 590 US 83, 93,
140 S Ct 1390, 206 L Ed 2d 583 (2020).
8 If counsel chose not to move for a mistrial because he liked petitioner’s
chances of prevailing on some or all charges better than his chances of prevailing
on retrial if the court declared a mistrial, the actual verdict in this case provided
at least some support for that optimism. The jury acquitted petitioner of one of
the three counts of first-degree sexual abuse—a Measure 11 crime that carried a
mandatory 75-month prison sentence—finding him guilty of the lesser-included
offense of third-degree sexual abuse (which does not carry a mandatory prison
sentence).

664 	Nelson v. Cain
again by forcing her to relive the incident for a third time on
retrial, especially if he liked how his second trial had gone.
Turning to the majority opinion’s treatment of the
law, it acknowledges that “no Oregon appellate court had pre-
viously held that a mistrial is warranted when jurors briefly
see a defendant in shackles outside the courtroom,” 375 Or
at __ (slip op at 50:22 - 51:1-2), but it concludes that the state
of the law was such that that an attorney exercising reason-
able skill and judgment “would have seen an opportunity to
argue for a mistrial” under the circumstances of this case,
__ Or at __ (slip op at 51:2-4). The majority opinion relies on
Burdge v. Palmateer, 338 Or 490, 112 P3d 320 (2005), for the
proposition that a constitutionally adequate defense counsel
must make an “obviously beneficial” argument even if the
law is unsettled.9
Although I agree with that proposition as a gen-
eral principle, I do not agree that it should be applied in
this case. In Burdge, this court concluded that the defense
attorney’s assistance in the petitioner’s trial was not con-
stitutionally inadequate. 338 Or at 500.10 In fact, this court
has never—before today—applied Burdge to hold that a
defense lawyer’s failure to advance a plausible argument on
an unsettled legal issue amounts to constitutionally inade-
quate assistance of counsel. See Jackson v. Franke, 369 Or
9 The majority opinion concludes that, under Burdge, a failure to make a
legal argument constitutes constitutionally inadequate assistance of counsel
when (1) a legal issue arises in the course of representing a defendant; (2) the
legal issue “has not yet been decided under controlling case law”; (3) the issue
“is susceptible of an interpretation that so obviously would offer potential ben-
efits to the defendant that all reasonable counsel would identify it”; and (4) “all
such counsel would conclude that, under the circumstances, the potential bene-
fits of advancing that interpretation exceeded any risks[.]” __ Or at __ (slip op at
26:9-15).
10 The issue in Burdge was whether a post-conviction petitioner’s criminal
defense lawyer provided constitutionally inadequate assistance when he failed
to object to the application of a statute to increase the petitioner’s sentence. 338
Or at 494. The Court of Appeals concluded that a reasonable lawyer would have
objected, because the argument was plausible, the petitioner “faced no tacti-
cal risks for making” the argument, and the petitioner “would have reaped a
substantial benefit if the argument had succeeded.” Id. (summarizing Court of
Appeals’ decision). We reversed, concluding that the Court of Appeals had failed
to apply the “reasonable professional skill and judgment” test. Id. at 497. Even
if the statute at issue in that case was ambiguous, we explained, it was “not
so obviously ambiguous that any lawyer exercising reasonable professional skill
and judgment necessarily would have seen it.” Id. at 497-98.

Cite as 375 Or 614 (2026) 	665
422, 433-34, 507 P3d 222 (2022) (noting that, “[t]o date, * * *
this court has not been persuaded by a claim * * * that any
lawyer exercising reasonable skill and judgment would have
raised a particular unsettled legal issue”).11
The majority opinion states that this court applied
Burdge in the context of unsettled case law in Antoine v.
Taylor, 368 Or 760, 499 P3d 48 (2021), __ Or at __ (slip op at
27:2-4). Although we cited and applied Burdge in Antoine, we
again held in that case that the petitioner’s criminal defense
lawyer’s assistance was not constitutionally inadequate. 368
Or at 780. Moreover, as I will explain, our analysis in Antoine
demonstrates how this court should analyze the issue con-
sidering the petitioner’s burden of proof. Accordingly, I dis-
cuss Antoine in some detail.
The petitioner in Antoine had been charged with
multiple counts of first-degree sexual abuse and first-degree
sodomy. Id. at 762-63. His defense counsel filed a demur-
rer, arguing that the indictment failed to provide adequate
notice of the basis of the charges. Id. at 763. The trial court
denied the demurrer and the petitioner was convicted. Id.
at 764-65. On direct appeal, the Court of Appeals held that,
under State v. Hale, 335 Or 612, 621, 75 P3d 448 (2003), cert
den, 541 US 942 (2004), the petitioner’s inadequate notice
claim should have been raised in a motion for a pretrial elec-
tion, not in a demurrer. State v. Antoine, 269 Or App 66, 78,
344 P3d 69, rev den, 357 Or 324 (2015). The petitioner later
sought post-conviction relief, alleging that his trial coun-
sel provided inadequate assistance by failing to move for a
11 The Court of Appeals has been persuaded that a defense lawyer exercis-
ing reasonable skill and judgment would have raised an unsettled legal issue
only in limited circumstances, such as when the unsettled issue was whether the
defendant’s convictions would merge. See Bumgarner v. Nooth, 254 Or App 86, 97,
295 P3d 52 (2012) (post-conviction court did not err in granting relief when trial
counsel failed to argue that multiple convictions for first-degree rape and other
sexual offenses should merge given “the obvious possible benefits to [the] peti-
tioner of raising the merger issue”); Ross v. Hill, 235 Or App 340, 349-50, 231 P3d
1185, rev den, 349 Or 56 (2010) (post-conviction court erred in concluding that the
petitioner’s trial counsel was not deficient in failing to argue that two kidnap-
ping convictions should merge). The Court of Appeals was persuaded in another
case that a defense lawyer exercising reasonable skill and judgment would have
sought dismissal of an attempted rape charge on statute of limitations grounds,
“given the obvious possible benefits” of raising the statute of limitations—”dis-
missal of the charge, with no negative strategic impact on the defense of the other
charges[.]” Lamb v. Coursey, 238 Or App 647, 652, 243 P3d 130 (2010).

666 	Nelson v. Cain
pretrial election. The post-conviction court granted relief,
but the Court of Appeals reversed, holding that trial counsel
had not performed deficiently given the state of the law at
the time of the petitioner’s trial. Antoine v. Taylor, 303 Or
App 485, 499, 465 P3d 238 (2020). We allowed review and
affirmed the Court of Appeals. Antoine, 368 Or at 780.
We stated that our decision in Burdge was “the most
pertinent” to the issue presented on review, id. at 768, not-
ing that Burdge’s “analytical approach remains applicable”
even though Antoine did not involve a pure issue of statutory
interpretation, id. at 770. “[T]o address whether [the] peti-
tioner’s trial counsel performed deficiently,” we explained,
the court must “examine the state of the law at the time of
petitioner’s trial to evaluate whether trial counsel’s decision
to litigate the notice issue primarily through a demurrer
was unreasonable.” Id. at 771.
In analyzing that issue, we noted that, under the
case law decided before our decision in Hale, a demurrer had
been considered an appropriate procedural way to challenge
the sufficiency of notice. Id. at 772. The petitioner in Antoine
argued, however, that his trial counsel was constitutionally
inadequate, because Hale had subsequently “foreclosed one
of the two possible ways to obtain pretrial notice—a demur-
rer.” Id. at 775. We rejected that argument, concluding that
“petitioner’s reading of Hale is not so obvious ‘that any law-
yer exercising reasonable professional skill and judgment
necessarily would have seen it.’ ” Id. at 777 (quoting Burdge,
338 Or at 497-98). In reaching that conclusion, we also
noted “what was absent from Hale.” Id. at 778. Specifically,
we noted that Hale did not address earlier cases or other-
wise explain why, “under the statutory scheme concerning
demurrers,” a defendant could not establish that an indict-
ment failed to provide sufficient notice through a demur-
rer. Id. at 779. We also noted that the Court of Appeals had
considered pretrial notice issues raised through a demur-
rer in “at least three decisions issued after Hale” and before
the petitioner’s underlying criminal trial. Id. (emphasis in
original).
In addition, we observed that the petitioner “has
identified no decision available to trial counsel that clearly

Cite as 375 Or 614 (2026) 	667
held that a demurrer was not an appropriate mechanism”
to challenge the sufficiency of pretrial notice, and that the
petitioner “has not presented any evidence that his reading
of Hale was widely shared or even that any other attorney
had read Hale in that manner[.]” Id. at 780. We also noted
that the petitioner’s “theory of deficient performance fails to
account for the longstanding body of authority holding that
a demurrer is an appropriate way to raise a challenge” to
the adequacy of pretrial notice. Id. Thus, we determined in
Antoine, “as in Burdge,” that, “when we take into account the
information available to trial counsel at the time,” we could
not conclude “that any lawyer exercising reasonable profes-
sional skill and judgment necessarily would have seen the
arguable ambiguity in the case law subsequently identified
by the Court of Appeals” on direct appeal in the petitioner’s
case. Id. (citation and internal quotation marks omitted).
Notably, in Antoine, the absence of evidence in the
record showing what other lawyers knew or understood at
the time—and the petitioner’s failure to identify any case
that “clearly held” that his lawyer’s decision to challenge the
adequacy of notice through a demurrer and not a pretrial
motion to elect—weighed against the petitioner, because he
had the burden of proof. Id.
Where—as here—there was no case that “clearly
held” that counsel must take an action that a post-conviction
petitioner contends was required for a constitutionally ade-
quate defense, our cases have examined whether the exist-
ing state of the law “obviously foreshadowed” the legal rule
that the post-conviction petitioner is advocating. The major-
ity opinion does not engage with that required analysis.
For example, the petitioner in Jackson, alleged that
his defense counsel was constitutionally inadequate at the
time of his 2001 trial, because he did not object to an expert
witness’s diagnosis of child sexual abuse in the absence of
corroborating evidence. 369 Or at 424. This court later held
in State v. Southard, 347 Or 127, 142, 218 P3d 104 (2009),
that such expert testimony is inadmissible. We stated that
the issue in post-conviction in Jackson was whether the law
at the time of the petitioner’s criminal trial “so obviously
foreshadowed” the rule subsequently adopted in Southard

668 	Nelson v. Cain
that any lawyer exercising reasonable professional skill and
judgment would have objected to the diagnosis of child sex-
ual abuse in the absence of physical evidence. Jackson, 369
Or at 435-36. We concluded that “our ultimate answer in
Southard was not so obviously foreseeable that an examina-
tion of the existing case law” established that all counsel
exercising reasonable professional skill and judgment would
have objected to the testimony. Id. at 438.12
Thus, our decisions in Antoine and Jackson ana-
lyzed the issue in the way that the majority opinion should
have analyzed it in this case. Because petitioner has the
burden of proof, the court should analyze whether petitioner
presented facts establishing that the only acceptable course
of action was to move for a mistrial; whether petitioner cited
a pre-2013 case that “clearly held” that jurors seeing a crim-
inal defendant in shackles outside the courtroom required a
mistrial; and, if not, whether petitioner established that the
existing law “so obviously foreshadowed” such a ruling that
all defense attorneys exercising reasonable professional
skill and judgment would request a mistrial upon being told
that that had happened. The majority opinion falls short of
that required analysis.
As explained above, there are many important facts
that are missing from this record and there are plausible
inferences that can be made from the facts that were pre-
sented that would make trial counsel’s decision to not move
for a mistrial reasonable. And, as I will explain next, peti-
tioner did not establish that existing law so obviously fore-
shadowed the application of cases addressing jurors observ-
ing a defendant shackled in the courtroom to jurors seeing a
defendant in shackles outside the courtroom. Instead, peti-
tioner’s theory of inadequate assistance, like the petitioner’s
12 Similarly, the issue in Miller v. Lampert, 340 Or 1, 5-6, 125 P3d 1260
(2006), was whether a post-conviction petitioner’s trial counsel was constitution-
ally inadequate by failing to argue that the petitioner could not be punished
with an enhanced sentence based on factual findings made by the court, not the
jury. Two years after the petitioner’s criminal trial, the Supreme Court held that
practice to be unconstitutional in Apprendi v. New Jersey, 530 US 466, 490, 120
S Ct 2348, 147 L Ed 2d 435 (2000). This court rejected the petitioner’s claim for
post-conviction relief, concluding that, under the state of the law that existed
at the time of the petitioner’s trial, counsel “was not required to anticipate” the
Supreme Court’s subsequent ruling in Apprendi and object to the enhanced sen-
tence. Miller, 340 Or at 16.

Cite as 375 Or 614 (2026) 	669
theory in Antoine, “fails to account” for a “longstanding body
of authority” holding that jurors briefly observing a criminal
defendant in shackles outside the courtroom does not neces-
sarily provide grounds for a mistrial. Antoine, 368 Or at 780.
This court has never held—until today’s ruling—that jurors
seeing a criminal defendant in shackles outside the court-
room requires a mistrial, and, as I will explain, the state of
the law in 2013 did not “so obviously foreshadow” such a rul-
ing that all reasonable counsel would have requested one.
The majority opinion states that this court “has
never limited” a defendant’s right to avoid having jurors see
him shackles “to in-court observations.” __ Or at __ (empha-
sis in majority opinion) (slip op at 27:8-11). That is true, but
petitioner has the burden of establishing that existing law
so obviously foreshadowed the application of in-court shack-
ling principles to an out-of-court observation; the state
does not have to establish that existing law was limited to
in-court observations. The majority opinion suggests that
petitioner met his burden, because “at least some of the con-
cerns” arising from in-court shackling “could be reasonably
understood to arise in the out-of-court context as well[.]” __
Or at __ (citing Guinn v. Cupp, 304 Or 488, 497, 747 P2d 984
(1987); State v. Kessler, 57 Or App 469, 473, 645 P2d 1070
(1982)) (slip op at 27:11-13).13 From those observations, the
majority opinion concludes that a defense lawyer exercis-
ing reasonable skill and judgment would have known that
jurors seeing a defendant in shackles outside the courtroom
required a request for a mistrial.
In reaching that conclusion, the majority opinion
states that the only Oregon case to address jurors seeing a
defendant in shackles outside the courtroom—State v. Walton,
311 Or 223, 809 P2d 81 (1991)—“in no way foreclosed” an
argument that “the circumstances in this case warranted a
mistrial.” __ Or __ (slip op at 35:6-8). The question, though,
is not whether the Walton decision foreclosed an argument
13 The majority opinion identifies four types of “manifest prejudice” that
result when a person is tried in shackles: (1) shackles impinge on the presump-
tion of innocence; (2) they detract from the dignity of the judicial proceedings;
(3) they may inhibit a defendant’s ability to consult with defense counsel; and
(4) they may inhibit the defendant’s decision on whether to take the stand as a
witness. __ Or at __ (slip op at 19:17-21 - 20:1). Three of those concerns apply only
to in-court shackling.

670 	Nelson v. Cain
that the circumstances warranted a mistrial. Rather, the
question here is “whether petitioner demonstrated by a pre-
ponderance of the evidence that [his lawyer] failed to exer-
cise reasonable professional skill and judgment[,]” Montez,
355 Or at 7, when he did not move for a mistrial. As in
Antoine, it was petitioner’s burden to establish that, under
the state of the law in 2013, all reasonable counsel would
have requested a mistrial; it was not the state’s burden to
establish that a mistrial was “foreclosed” by the law.
Walton thus provides relevant guidance on the issue
as we framed it in Jackson—whether the law that existed in
2013 “so obviously foreshadowed” today’s ruling that reason-
able criminal defense lawyers would have known then that
they must request a mistrial upon learning that jurors had
seen the defendant in shackles outside the courtroom. As
I will explain, the result in Walton and other cases involv-
ing jurors viewing a criminal defendant in shackles outside
the courtroom did not “obviously foreshadow” the rule of law
that the majority opinion announces today.
The defendant in Walton contended on direct appeal
that “the trial court erred in denying his motion for a mistrial
after a juror and an alternate juror observed him in hand-
cuffs with a group of other prisoners.” 311 Or at 250.14 After
that incident, the trial court questioned the two jurors indi-
vidually outside the presence of other jurors. Id. Both jurors
told the court that, “although they had seen [the] defendant
in handcuffs, they had not discussed their observations with
any other juror and that their observations would not affect
their impartiality.” Id. The trial court then “instructed both
jurors that they were to disregard their observations, that
they were not to discuss their observations with anyone, and
that [the] defendant’s custody status had no bearing on his
guilt or innocence.” Id. The alternate juror “did not partici-
pate further in [the] defendant’s trial[,]” and the trial court
14 Although this court’s opinion in Walton does not expressly state that the
jurors’ observation of the defendant in handcuffs occurred outside the courtroom,
that is the only inference that makes any sense. There would be no reason for a
defendant in a criminal trial to be “in handcuffs with a group of other prison-
ers” inside the courtroom. The majority opinion agrees that it is “reasonable to
assume” that the jurors’ viewing in Walton occurred outside the courtroom, __Or
at __ n 19 (slip op at 34 n 19).

Cite as 375 Or 614 (2026) 	671
“offered to replace the juror” who had seen the defendant in
handcuffs with “an ‘untainted’ alternate.” Id. The defendant
rejected that offer, and he was ultimately convicted. Id.
On appeal, the defendant contended, as noted, that
the trial court had erred in denying his motion for a mistrial.
Id. This court “f[ou]nd no reversible error.” Id. We explained
that the trial court had given a curative instruction, that
jurors “are presumed to follow a trial court’s instructions[,]”
that the defendant “ha[d] not shown that the juror who
served in his case [who had seen him in handcuffs] did not
follow the court’s instructions[,]” and that the defendant had
rejected the court’s offer to replace the juror who had seen
him in handcuffs with an “untainted” juror. Id.
Accordingly, 	the 	only 	Oregon 	case 	addressing
jurors observing a defendant in shackles outside the court-
room does not “obviously foreshadow” that such an obser-
vation would by itself be grounds for a mistrial. Cases from
other jurisdictions prior to 2013 confirm that that was not
the governing rule. Those cases generally make a distinc-
tion between jurors seeing a defendant in shackles in the
courtroom, and jurors inadvertently seeing a defendant in
restraints while being transported to or from the courtroom.
See, e.g., U.S. v. Jones, 468 F3d 704, 709 (10th Cir 2006), cert
den, 565 US 1252 (2012); Williams v. Woodford, 384 F3d 567,
592-93 (9th Cir 2004), cert den, 546 US 934 (2005); Schiro
v. Clark, 963 F2d 962, 976 (7th Cir 1992), aff’d on other
grounds sub nom Schiro v. Farley, 510 US 222, 114 S Ct 783,
127 L Ed 2d 47 (1994); U.S. v. Moreno, 933 F2d 362, 368 (6th
Cir), cert den, 502 US 895 (1991); U.S. v. Pina, 844 F2d 1, 8
(1st Cir 1988); Clark v. Wood, 823 F2d 1241, 1245 (8th Cir),
cert den, 484 US 945 (1987); United States v. Diecidue, 603
F2d 535, 549-50 (5th Cir 1979), cert den, 445 US 946 (1980);
United States v. Taylor, 562 F2d 1345, 1359 (2d Cir), cert den,
432 US 909 (1977); see also Sheldon R. Shapiro, Annotation,
Propriety and Prejudicial Effect of Gagging, Shackling, or
Otherwise Physically Restraining Accused During Course of
State Criminal Trial, 90 ALR 3d 17 § 23[a] (1979) (collecting
state cases standing for that principle).
For example, the Indiana Supreme Court con-
cluded in one case, that, “[b]eing seen by jurors while being

672 	Nelson v. Cain
transported in handcuffs is not grounds for reversal, absent
a showing of actual harm.” Sweet v. State, 498 NE2d 924,
929 (Ind 1986). That court concluded in another case that
a trial court did not abuse its discretion when it denied a
motion for a mistrial after members of the jury “viewed [the
defendant] handcuffed to a police officer in the hallway”
during a recess. Jenkins v. State, 492 NE2d 666, 669 (Ind
1986). The court explained that “reasonable jurors could
expect [the defendant] to be in police custody while in the
hallway of the courthouse.” Id.
Similarly, the Arizona Supreme Court acknowl-
edged that a defendant in a criminal case “has a right to
appear in civilian clothing and be free from visible restraints
in the courtroom during trial.” State v. Hardy, 230 Ariz 281,
292, 283 P3d 12, 23 (2012). But the court concluded that
“[a] juror’s inadvertent exposure to the defendant in hand-
cuffs outside the courtroom * * * is not inherently prejudi-
cial, and a defendant is not entitled to a new trial absent
a showing of actual prejudice.” Id., 283 P3d at 23 (internal
quotation marks omitted). That reasoning “also applies to a
juror’s inadvertent exposure to the defendant in jail garb.”
Id. Thus, the court held that “[t]he trial court did not abuse
its discretion in denying the [defendant’s] motion for mis-
trial.” Id.
In federal court, “ ‘[e]xposure of the jury to a defen-
dant in shackles requires a mistrial only when the expo-
sure is so ‘inherently prejudicial’ as to deny the defendant’s
constitutional right to a fair trial.” Moreno, 933 F2d at 368
(quoting Pina, 844 F2d at 8)). The Sixth Circuit has “dis-
tinguished the inherent prejudice to a defendant who is
shackled while in the courtroom from a defendant who
has been observed in shackles for a brief period elsewhere
in the courthouse.” Id. The Ninth Circuit has held that “a
jury’s brief or inadvertent glimpse of a defendant in physical
restraints outside of the courtroom does not warrant habeas
relief unless the petitioner makes an affirmative showing
of prejudice.” Williams, 384 F3d at 593 (collecting Ninth
Circuit cases). The Eighth Circuit has explained that “it is
a normal and regular as well as highly desirable and nec-
essary practice to handcuff prisoners when they are being

Cite as 375 Or 614 (2026) 	673
taken from one place to another, and the jury is aware of
this.” Clark, 823 F2d at 1245 (emphasis added; brackets and
internal quotation marks omitted).
The majority opinion cites no case holding other-
wise in these or any analogous circumstances. Instead, it is
“not persuaded” by those cases, __ Or at __ (slip op at 35:9-
11), concluding that that “nonbinding case law discussing
the prejudice standard for out-of-courtroom encounters fails
to provide even persuasive authority that counsel’s decision
not to seek relief at all constituted adequate performance
in this case[,]” __ Or at __ (slip op at 36:4-7). Again, that
frames the wrong question given the burden of proof and
the standard of review. The issue is not whether there was
“persuasive authority” supporting the decision to not seek a
mistrial; the question is whether the post-conviction court
erred in concluding that petitioner did not meet his burden
of establishing that, given the state of the law in 2013, all
reasonable defense lawyers would have moved for a mistrial
based on petitioner’s report that jurors had seen him in
shackles outside the courtroom.
The state of the law in 2013 regarding the effect of
jurors seeing a criminal defendant in shackles was as fol-
lows: (1) it was well-established that jurors seeing a defen-
dant in shackles in the courtroom provided grounds for a
mistrial; (2) the only Oregon case addressing jurors seeing
a defendant in shackles during transport outside the court-
room—Walton—held that the trial court did not err in deny-
ing the defendant’s motion for a mistrial based on that inci-
dent; and (3) cases from other jurisdictions had consistently
recognized that jurors seeing a criminal defendant in shack-
les during transport outside the courtroom was not so inher-
ently prejudicial that a mistrial was required, because such
an observation is fundamentally different from seeing the
defendant in shackles in the courtroom. I cannot conclude
that that state of the law “obviously foreshadowed” a rul-
ing that no Oregon court has made or even suggested until
today—that, to provide a constitutionally adequate defense,
a lawyer must request a mistrial upon learning that jurors
had seen the defendant in shackles outside the courtroom.

674 	Nelson v. Cain
Given that state of the law, the factual record in this
case, the burden of proof and persuasion, and the standard
of review, I cannot agree that the post-conviction court erred
when it concluded that petitioner had not met his burden of
demonstrating by a preponderance of the evidence that his
lawyer failed to exercise reasonable professional skill and
judgment when he did not move for a mistrial. There may
be a case where a petitioner for post-conviction relief estab-
lishes that the benefits of requesting a mistrial so obviously
outweighed any possible downside that every reasonable
counsel would request a mistrial under the circumstances
and applicable law. On this factual record and the state of
the law in 2013, I am not convinced that this is that case.
II. 	PREJUDICE TO PETITIONER
We have stated that, to establish prejudice resulting
from a defense lawyer’s failure to exercise reasonable profes-
sional skill and judgment, a petitioner “must demonstrate
a reasonable probability that, but for counsel’s unprofes-
sional errors, the result of the proceeding would have been
different.” Montez, 355 Or at 8 (internal quotation marks
omitted). A reasonable probability “is a probability suffi-
cient to undermine confidence in the outcome.” Id. (inter-
nal quotation marks omitted). Showing that the error “had
some conceivable effect on the outcome of the proceeding[ ]”
is not enough. Id. (internal quotation marks omitted). That
is because “ ‘only those acts or omissions by counsel which
have a tendency to affect the result of the prosecution can
be regarded as of constitutional magnitude.’ ” Lichau, 333
Or at 363 (quoting Krummacher, 290 at 875 (brackets omit-
ted)); see also Johnson v. Premo, 361 Or 688, 710, 399 P3d
431 (2017) (quoting Lichau, 333 Or at 359 (“[T]o obtain post-
conviction relief, a petitioner must show that counsel’s inad-
equacy had ‘a tendency to affect the result of his trial.’ ”)).
The majority opinion states that the tendency to
affect the outcome standard “demands more than mere pos-
sibility, but less than probability[,]” citing Green v. Franke,
357 Or 301, 322, 350 P3d 188 (2015). __ Or at __ (slip op
at 36:18-19). Applying that articulation of the standard,
the majority opinion concludes that petitioner has met the
“tendency to affect the outcome standard” because “there is

Cite as 375 Or 614 (2026) 	675
more than a mere possibility that the trial court, in its exer-
cise of discretion, would have granted a mistrial had counsel
requested one.” __ Or at __ (slip op at 36:22 - 37:1-3). In my
view, the majority opinion errs when it applies Green’s “more
than a mere possibility” standard in this case.
As I will explain, Green expressly limited that artic-
ulation of the standard to post-conviction cases involving
a claim that counsel’s inadequate assistance affected “the
result of the prosecution,” Lichau, 333 Or at 363, that is, the
jury’s guilty verdict. This court has not applied the “more
than a mere possibility” standard outside that context, and,
in my view, the majority opinion errs when it applies that
standard in assessing whether counsel’s failure to move for
a mistrial was unconstitutionally prejudicial.
The issue in Green was whether the petitioner
was entitled to post-conviction relief based on his criminal
defense lawyer’s failure to request an instruction “directing
the jury to consider the evidence concerning each alleged
victim separately and only as that evidence pertained to a
specific charge or charges relating to that victim.” Green,
357 Or at 303. The post-conviction court denied relief, but
the Court of Appeals reversed. Id. We allowed the state’s
petition for review, reversed the Court of Appeals’ decision,
and remanded the case to the post-conviction court. Id.15
We also addressed the state’s argument that “the
Court of Appeals applied the wrong legal standard for prej-
udice[,]” noting that, if we agreed with the state’s argu-
ment, “it would obviate the need for a remand.” Id. at 321.
According to the state, the Court of Appeals had erred when
it evaluated the effect a limiting instruction “could have
had” on the jury’s verdict instead of using “the probability-
based formulation of the prejudice standard” that the post-
conviction court had used. Id. at 321 (emphasis in original).
15 We noted on review that this court had recently decided Pereida-Alba
v. Coursey, 356 Or 654, 342 P3d 70 (2015), a post-conviction case that involved
a trial counsel’s failure to request a jury instruction. Green, 357 Or at 312-13.
We concluded in Green that “the proper course of action” under those circum-
stances would be to reverse the decision of the Court of Appeals, reverse the
post-conviction court’s judgment, and remand the petitioner’s claim to the post-
conviction court “for further consideration in light of this court’s decision in
Pereida-Alba.” Id. at 320.

676 	Nelson v. Cain
We concluded that “the post-conviction court was mistaken”
in applying its “probability-based formulation” of the stan-
dard, but we expressly limited that holding to cases involv-
ing the effect trial counsel’s inadequacy had on the outcome
of a jury trial. Id.
We stated that, under our prior cases, “where the
effect of inadequate assistance of counsel on the outcome of
a jury trial is at issue, it is inappropriate to use a ‘proba-
bility’ standard for assessing prejudice.” Id. at 322 (empha-
sis added). As we explained, “because many different fac-
tors can affect the outcome of a jury trial, in that setting,
the tendency to affect the outcome standard demands more
than mere possibility, but less than probability.” Id. (empha-
sis added). We then distinguished the prejudice standard
in other settings that did not involve an assessment of how
counsel’s inadequacy may have affected the outcome of a
jury trial. Specifically, we stated that, “where the prejudice
inquiry focuses on a different type of outcome, for example,
whether in the absence of inadequate assistance of counsel
the petitioner would have entered a guilty plea, this court
has described the tendency to affect the outcome test in terms
of actual probability.” Id. at 323 n 13 (emphasis added).
The majority opinion cites no case applying its
articulation of the prejudice standard outside the context
of assessing the effect of inadequate assistance of counsel
on the outcome of a jury trial. Instead, the majority opin-
ion states that the Green court “did not purport to create a
brightline rule,” and no other appellate decision “has con-
sidered whether such a limitation should exist[.]” __ Or at
__ (slip op at 39:19-21 - 40:1). It is true that no court has
expressly held that Green’s “more than a mere possibility”
standard is limited to post-conviction cases addressing how
trial counsel’s constitutional inadequacy may have affected
the jury’s outcome, as stated in Green. But no court has
applied that standard outside the context of assessing how
counsel’s inadequate assistance affected the jury’s verdict,
either. Again, because petitioner has the burden of per-
suasion on the prejudice issue, the question is whether he
established that a court has applied that articulation of the

Cite as 375 Or 614 (2026) 	677
standard in other contexts, not whether a court has limited
it to jury verdicts.
Moreover, this court made the same observation
that it made in Green—that the “mere possibility” standard
applies where the disputed issue is the effect of inadequate
assistance of counsel “on the outcome of a jury trial[,]” 357 Or
at 322—in Richardson v. Belleque, 362 Or 236, 406 P3d 1074
(2017). The issue in Richardson was whether the petitioner’s
defense counsel had rendered constitutionally inadequate
representation during the sentencing phase of the petitioner’s
trial. 362 Or at 238. That phase focused on whether the peti-
tioner had a “severe personality disorder” indicating a propen-
sity toward crimes that seriously endanger the life or safety
of others, because ORS 161.725(1)(a) required the jury to find
that the defendant had such a disorder before the court could
sentence him as a dangerous offender. Id. We concluded that
the petitioner’s lawyer had rendered constitutionally inade-
quate assistance “by failing to adequately investigate and to
consult an expert in preparation for the dangerous-offender
hearing.” Id. at 239. We noted that whether the petitioner
had the type of “severe personality disorder” that would sup-
port a dangerous offender sentence was a question for the
jury. Id. at 247-48 (describing the jury instructions). At the
dangerous-offender hearing, the jury “unanimously found”
that the petitioner suffered from such a disorder. Id. at 248.
In assessing whether counsel’s inadequate assis-
tance at that hearing was prejudicial for purposes of post-
conviction relief, we reiterated that, in Green, “this court
explained that when a jury determination is involved, it is
‘inappropriate to use a “probability” standard for assessing
prejudice.’ ” Id. at 265 (quoting Green, 357 Or at 322 (empha-
sis added)). We held that defense counsel’s failure to call an
expert witness or otherwise investigate his client’s mental
condition at the sentencing phase of a dangerous-offender
proceeding was prejudicial, because “there was more than a
mere possibility that the jury could have rejected the state’s
contention that petitioner suffered from a ‘severe personal-
ity disorder.’ ” Id. at 267-68 (emphasis added).
Other cases have applied a different analysis when
the alleged constitutional inadequacy may have affected

678 Nelson v. Cain
something other than a jury verdict. For example, in Peiffer
v. Hoyt, 339 Or 649, 652, 125 P3d 734 (2005), the petitioner
in a post-conviction case alleged that her criminal defense
lawyer was constitutionally inadequate because he had
failed to file a motion to suppress evidence that, according
to the petitioner, had been “seized illegally” from her res-
idence. The petitioner alleged that, if counsel had filed a
motion to suppress, that “would have changed the outcome
of [the petitioner’s] case.” Id. at 652-53. The post-conviction
court denied relief, concluding that, if counsel had filed a
motion to suppress, it “would have been denied.” Id. On
review in this court, the petitioner contended that she would
have prevailed on a motion to suppress, because the officers
had “conducted two separate searches” and the search war-
rant issued by the court “clearly did not authorize the sec-
ond search * * *.” Id. at 660. We disagreed and affirmed the
judgment of the post-conviction court because we could not
say “that the evidence required the post-conviction court to
find that the officers had exceeded the scope of the warrant”
when they seized the evidence in dispute. Id.
Thus, under Peiffer, a post-conviction court address-
ing whether a petitioner was prejudiced by trial counsel’s
failure to file a motion to suppress would need to first deter-
mine whether the trial court would have granted the motion
if counsel had filed it, leading to the suppression of the chal-
lenged evidence. If so, the post-conviction court would then
need to determine whether the suppression of that evidence
would have had a tendency to affect the outcome at trial,
because the court cannot presume that suppression of evi-
dence would always affect the outcome. That same general
approach applies when counsel’s alleged constitutional inad-
equacy was his failure to move for a mistrial, as the Court
of Appeals has recognized.16
16 The majority opinion states that it is “hesitant” to recognize the limita-
tion “that this court might someday” confront, and questions whether this case
“is of the sort in which to make such a distinction[,]” in part because no party
“besides the author of the dissent” has suggested that the “more than a mere
possibility” articulation does not apply to petitioner’s claim. __Or at __ (slip op at
40:2-8). With respect, I disagree. First, this court has an obligation, in my view,
to determine the prejudice standard that governs this case and then apply that
standard, regardless of whether any party has raised the specific issue. Second,
the state asserted in its brief that petitioner “misstates the prejudice standard”

Cite as 375 Or 614 (2026) 	679
To establish prejudice from counsel’s failure to move
for a mistrial, a petitioner must show that the trial court
would have granted the motion and declared a mistrial,
or that it would have granted relief other than a mistrial,
and that such relief would have had a tendency to affect
the outcome in the case. That is how the Court of Appeals
approached the issue in Monahan v. Belleque, 234 Or App
93, 227 P3d 777, rev den, 348 Or 669 (2010). There, the court
stated that a petitioner for post-conviction relief could show
prejudice from trial counsel’s failure to move for a mistrial
by establishing that, if counsel had moved for a mistrial,
“that motion would have had a tendency to cause the court
to either grant the motion or to give a curative instruction
that would have had a tendency to affect the prosecution in
the underlying criminal case.” Id. at 99.
Under that approach, the prejudice analysis requires
the court to assess what would have happened if trial coun-
sel had moved for a mistrial. By 2013, this court had “ ‘con-
sistently held that a motion for a mistrial is addressed to the
sound discretion of the trial judge.’ ” State v. Smith, 310 Or
1, 24, 791 P2d 836 (1990) (quoting State v. Jones, 242 Or 427,
433, 410 P2d 219 (1966)). The reason for that rule is that the
trial judge “is in the best position to ‘assess and rectify the
potential prejudice to the defendant.’ ” Id. (quoting State v.
Farrar, 309 Or 132, 164, 786 P2d 161 (1990)). The majority
opinion acknowledges the trial court’s discretion, __ Or at
__ (slip op at 41:14-22), but it does not fully apply the mis-
trial standards that had been established by the Court of
Appeals in evaluating a trial court’s discretionary decision
when a party requests a mistrial.
For example, in State v. Evans, 211 Or App 162, 166,
154 P3d 166 (2007), aff’d, 344 Or 358, 182 P3d 175 (2008),
the Court of Appeals stated that, “[i]n ruling on a motion for
a mistrial, a trial court must decide whether to grant the
motion, to cure the effect of inappropriate conduct or testi-
mony by giving a proper instruction instead, or to do noth-
ing at all.” In State v. Woodall, 259 Or App 67, 313 P3d 298
(2013), rev den, 354 Or 735 (2014), the Court of Appeals stated
in his opening brief. Thus, the prejudice standard that applies here is an issue
that is in dispute in this case.

680 	Nelson v. Cain
that, “of all the options a court has at its disposal * * * grant-
ing a motion for a ‘mistrial is a drastic remedy to be avoided
if possible.’ ” Id. at 74-75 (quoting State v. Embry, 19 Or App
934, 941, 530 P2d 99 (1974)). In Embry, the Court of Appeals
stated that it had “consistently held” that, before granting a
mistrial based on “a potentially prejudicial impropriety,” it
would be proper for the trial court, in its sound discretion,
“to take no action at all if it determines that the impropriety
is not sufficiently prejudicial as to require the intervention
of the judge, or to take curative action in order to avoid the
granting of a mistrial[.]” Embry, 19 Or App at 941 (internal
citations omitted).
In this case, if petitioner’s trial counsel had moved
for a mistrial in 2013, then, under established Oregon law,
the trial court would have been required to avoid the “dras-
tic remedy” of declaring a mistrial if possible. Id. That would
require the court to consider the alternatives. One obvious
alternative would have been to simply ask the jurors if any
of them had seen petitioner when they were leaving the
courthouse on Friday. If none of the jurors acknowledged
seeing him, that meant that the jurors either did not see
the person being escorted in shackles from a doorway down
the hall, or that they did not recognize that person as the
defendant in their case. Under either circumstance, it would
have been appropriate for the trial court to deny the motion
for a mistrial without taking any further action. In that sce-
nario, trial counsel’s failure to move for a mistrial could not
have been either constitutionally inadequate or prejudicial
to petitioner.
If any jurors stated that they had seen and rec-
ognized petitioner, then the court could have considered a
curative instruction, as in Walton, or it could have offered to
excuse those jurors and replace them with alternate jurors,
as the trial court had offered to do in Walton. If the court
had excused those jurors, and petitioner was then convicted
by jurors who had not seen him in shackles in the hallway,
there would be no prejudice to the petitioner. If the trial
court’s inquiry revealed that one or more jurors had seen
and recognized the person in shackles, and the court had
concluded that it was not possible to excuse those jurors and

Cite as 375 Or 614 (2026) 	681
replace them with alternate jurors, it is still not clear given
the state of the law in 2013 that the trial court would have
exercised its discretion to declare a mistrial. The court might
have declined to declare a mistrial and given a cautionary
instruction, and, under Walton, such a decision would have
been within the trial court’s discretion.
In my view, the existence of multiple alternatives
that could have addressed the situation short of declaring
a mistrial means that petitioner established, at best, that
counsel’s failure to move for a mistrial might have “had
some conceivable effect on the outcome of the proceeding[,]”
Montez, 355 Or at 8 (internal quotation marks omitted). As
we stated in Montez, that “is not enough” to establish preju-
dice. Id.
Accordingly, for all the foregoing reasons, I respect-
fully dissent.

1 printed pages contain little extracted OCR body text; searchable legal-body completeness has not been established for those pages.

OCR transcription for search; preserved printed pages are authoritative

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# IN THE SUPREME COURT OF THE STATE OF OREGON

QUANDRAY J. NELSON,
Petitioner on Review,
v.
Brad CAIN,
Superintendent,
Snake River Correctional Institution,
Respondent on Review.
(CC 19CV02030) (CA A175380) (SC S071389)

On review from the Court of Appeals .*

Argued and submitted June 5, 2025.

Jason Weber, Equal Justice Law, Portland, argued the
cause and filed the briefs for petitioner on review.

Ryan Kahn, Assistant Attorney General, Salem, argued
the cause and filed the briefs for respondent on review. Also
on the briefs were Dan Rayfield, Attorney General, and
Benjamin Gutman, Solicitor General.

Before Flynn, Chief Justice, and Duncan, Garrett,
DeHoog, Bushong, and Masih, Justices, and Jacquot, Judge,
Justice pro tempore .**

DeHOOG, J.

Bushong, J., dissented and filed an opinion.

The decision of the Court of Appeals is affirmed in part
and reversed in part. The judgment of the circuit court is
reversed, and the case is remanded to the circuit court for
further proceedings.

\* On appeal from Malheur County Circuit Court, J. Burdette Pratt, Judge.
334 Or App 326, 556 P3d 1 (2024).

** James, J., did not participate in the consideration or decision of this case.

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DeHOOG, J.

Petitioner, who was convicted of various forcible sex
offenses following a jury trial, challenges the denial of a
post-conviction claim in which he asserted that his defense
attorney had provided constitutionally inadequate and
ineffective assistance of counsel. Petitioner contends that
his attorney failed to exercise reasonable professional skill
and judgment by failing to move for a mistrial or otherwise
make a record after three jurors had seen him, during the
course of trial, in the courthouse hallway in jail clothes, a
belly chain, and shackles. The post-conviction court denied
relief, concluding that petitioner had not established that
counsel's performance fell below constitutional standards or
that any such deficiency caused him prejudice, and the Court
of Appeals affirmed. We allowed review to consider whether
the jury's out-of-court observation of petitioner in shack-
les, like unwarranted in-court shackling, obligated defense
counsel to take further action on behalf of petitioner than
counsel did here. As we will explain, we conclude that the
out-of-court observation that occurred during the course of
trial in petitioner's case required counsel to seek a mistrial.

Specifically, we conclude that, given the then-
existing case law regarding in-court shackling and the
principles underlying that case law, an attorney exercising
reasonable professional skill and judgment would have con-
cluded that, as with most in-court shackling cases, allowing
jurors to see a criminal defendant in shackles outside the
courtroom is grounds for a mistrial. Defense counsel was
therefore obligated to choose a course of action with that
understanding in mind. And under the circumstances of
this case, as reflected in the post-conviction court's factual
findings and the underlying record, the only reasonable
course of action was for counsel to seek a mistrial on the
record. By failing to do so, counsel prejudiced petitioner by
denying him an opportunity to persuade the trial court that
a mistrial was necessary to ensure his right to a trial by an
impartial jury as guaranteed by Article 1, section 11, of the
Oregon Constitution. Accordingly, the post-conviction court
erred in denying petitioner's claim for relief on this ground.
We therefore reverse the judgment of the post-conviction

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court and the decision of the Court of Appeals with respect
to this aspect of its decision.1

## I. BACKGROUND

We review the denial of post-conviction relief for legal
error. Green v. Franke, 357 Or 301, 312, 350 P3d 188 (2015).
A post-conviction court's findings of historical fact are bind-
ing on this court if there is evidence in the record to support
them. Lichau v. Baldwin, 333 Or 350, 359, 39 P3d 851 (2002).
If the post-conviction court has not expressly made findings
as to all such facts and there is evidence from which those
facts could be decided in more than one way, we presume that
the court decided the facts consistently with its conclusions of
law. Id. (citing Ball v. Gladden, 250 Or 485, 487, 443 P2d 621
(1968) (so stating)). As background for our analysis, we begin
by describing the general legal standards that govern post-
conviction claims like this one, then provide an overview of
the relevant procedural and factual history from petitioner's
underlying criminal trial. Finally, we discuss the proceed-
ings in the post-conviction court and the Court of Appeals.

### A. Legal Standards

A post-conviction court must grant relief if a peti-
tioner establishes a substantial violation of their state or fed-
eral constitutional rights in the proceeding that led to their
conviction. ORS 138.530(1)(a). As relevant here, Article I,
section 11, of the Oregon Constitution guarantees criminal
defendants adequate assistance of counsel. Krummacher v.
Gierloff, 290 Or 867, 871, 627 P2d 458 (1981).2 To be entitled

1 Before the post-conviction court and the Court of Appeals, petitioner alleged
multiple claims that, over the course of two different trials, counsel provided him
with inadequate assistance of counsel in various ways. Before this court, only
counsel's conduct in connection with the jurors seeing him shackled during the
second trial is at issue; we leave undisturbed the Court of Appeals' resolution of
petitioner's other claims on appeal.

2 Throughout these proceedings, petitioner has maintained that counsel's
alleged deficiencies deprived him of his right to counsel under both Article I, sec-
tion 11, of the Oregon Constitution and the Sixth Amendment to the United States
Constitution. Although the terminology used in connection with each provision
sometimes differs, compare State v. Smith, 339 Or 515, 526, 123 P3d 261 (2005)
(describing right under both constitutions as a right to "adequate assistance"
(internal quotation marks omitted)) with Strickland v. Washington, 466 US 668,
686, 104 S Ct 2052, 80 L Ed 2d 674 (1984) (Sixth Amendment guarantees not just
counsel, but "effective" counsel), this court "has *** recognized that the stan-
dards for determining the adequacy of legal counsel under the state constitution

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to post-conviction relief on the basis of inadequate assis-
tance of counsel, a petitioner must prove by a preponderance
of the evidence that counsel failed to exercise reasonable
professional skill and judgment. Lichau, 333 Or at 359. If
a petitioner meets that burden, the court must then deter-
mine whether counsel's failure caused the petitioner prej-
udice. Id. This court has often emphasized that, in deter-
mining whether counsel's performance was constitutionally
adequate, we "must make every effort to evaluate a lawyer's
conduct from the lawyer's perspective at the time, without
the distorting effects of hindsight." Id. at 360. That, the court
has explained, is because "[t]he constitution gives no defen-
dant the right to a perfect defense-seldom does a lawyer
walk away from a trial without thinking of something that
might have been done differently or that he would have pre-
ferred to have avoided." Krummacher, 290 Or at 875.

To exercise reasonable professional skill and judg-
ment on behalf of a criminal defendant, counsel must inves-
tigate the facts and familiarize themselves with the appli-
cable law to the extent necessary to enable them to "advise
*** and represent the defendant in an informed manner."
Id. Counsel's recommendations and decisions must be based
on "an evaluation of the nature and complexity of the case,
the likely costs and potential benefits of the contemplated
action, and other factors." Stevens v. State, 322 Or 101, 109,
902 P2d 1137 (1995). Thus, to determine whether coun-
sel's investigation and preparation were adequate, a court
"must understand the nature and complexity of the issues
presented," including "the stakes for petitioner" and what
"defense counsel knew." Richardson v. Belleque, 362 Or 236,
257, 406 P3d 1074 (2017).

Further, merely investigating the relevant facts and
law does not guarantee that counsel's tactical decisions will
reflect reasonable professional skill and judgment. As this
court has previously held, even if each of counsel's choices

are functionally equivalent to those for determining the effectiveness of counsel
under the federal constitution[,]" Montez v. Czerniak, 355 Or 1, 6-7, 322 P3d 487
(2014) (acknowledging court's ongoing commitment to "interpreting and applying
Article I, section 11, independently of the United States Supreme Court's inter-
pretation of the Sixth Amendment"). Unless specifically indicated otherwise, ref-
erences to "inadequate" assistance in this opinion encompass both terms.

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are made with the appropriate facts and law in mind, coun-
sel's assistance is considered constitutionally inadequate if
their understanding of the facts and law was not reasonably
accurate. See Farmer v. Premo, 363 Or 679, 700, 427 P3d
170 (2018) (where counsel was aware of the relevant facts
but did not fully grasp their significance for the defendant's
case, counsel did not provide adequate assistance). As we
stated in Farmer, "it would make little sense to demand that
attorneys gather sufficient information to make a decision,
but not require them to reasonably understand and assess
it." Id. at 697. Thus, we explained, "[a]n appropriate con-
sideration of the risks and benefits of a strategic decision
requires a reasonably accurate and adequate consideration
of the facts produced by an investigation." Id. at 699.

Where the premise of a post-conviction claim is
that counsel failed to even consider an available option, our
assessment "will turn on, among other things, whether the
strategy that defense counsel did employ was reasonable,
the relationship between the evidence or theory that defense
counsel failed to consider and the strategy that counsel
did pursue, and the extent to which counsel should have
been aware of the strategy that petitioner now identifies."
Pereida-Alba v. Coursey, 356 Or 654, 674, 342 P3d 70 (2015).
Where a claim is that "counsel should have been aware of"
a particular legal strategy, id., we have explained that the
failure to identify and argue an unsettled or ambiguous
question of law on behalf of a defendant could constitute
inadequate assistance of counsel, at least where the forgone
argument, if successful, would "so obviously offer possible
benefits to a defendant that any lawyer exercising reason-
able professional skill and judgment would raise it," Burdge
v. Palmateer, 338 Or 490, 500, 112 P3d 320 (2005). And in
assessing such a claim arising from an overlooked statutory
argument, we have elaborated that "the post-conviction
court may grant a petitioner relief *** if it can say affirma-
tively that a lawyer exercising reasonable professional skill
and judgment would have recognized the statutory ambi-
guity, would have seen an interpretation that could benefit
the defendant, and would have concluded under the circum-
stances that the potential benefits of advancing that inter-
pretation exceeded any risks." Id. at 497.

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With the legal standards for defense counsel's per-
formance thus framed, we turn to the specific factual and
procedural history of petitioner's criminal case.

### B. Events and Proceedings in Criminal Trial

We take the relevant factual and procedural history
from the post-conviction record, as reflected in the post-
conviction court's judgment and summarized in the Court of
Appeals' opinion, Nelson v. Cain, 334 Or App 326, 556 P3d
1 (2024). In 2007, petitioner was tried for charges arising
out of a domestic violence incident "in which he punched his
domestic partner in the face, had sex with her against her
will, and took her vehicle." Id. at 327. A jury found petitioner
guilty of various charges, including assault, sexual abuse,
rape, and unauthorized use of a motor vehicle, and peti-
tioner appealed. Id. In 2012, the Court of Appeals reversed
and remanded petitioner's convictions for first-degree rape
and three counts of first-degree sexual abuse because of an
erroneous jury instruction, but it otherwise affirmed. State
v. Nelson, 241 Or App 681, 251 P3d 240 (2011), rev dismissed,
354 Or 62 (2012). In 2013, the state retried petitioner on the
charges of first-degree rape and sexual abuse, ultimately
giving rise to the post-conviction claim now on review.

In that second trial, the jury began deliberations on
a Friday, but they did not reach a verdict by the end of the
day, so the trial court dismissed them for the weekend. As a
group of four or five of petitioner's jurors were walking down
the stairs towards the courthouse exit, two sheriff's depu-
ties happened to be leading petitioner out of a courthouse
holding cell into the hallway to be transported back to the
jail. While petitioner was being escorted into the hallway,
at least three of the jurors viewed petitioner as they walked
down the stairs. Upon realizing that some jurors had seen
petitioner, the deputies quickly pulled petitioner back into
the holding cell, where they held him for another ten min-
utes before resuming his transport.

Before the jurors saw petitioner in the hallway, he
had changed out of his courtroom attire and into his jail
clothing, which he described as a blue jumpsuit with a pink
t-shirt and pink socks. Petitioner also had been placed in

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shackles, including handcuffs and ankle restraints that
were attached to a belly chain wrapped around his waist,
all of which were visible outside of his clothing.3 There is
no dispute that petitioner's jail clothes and shackles were
plainly visible to the jurors.

When the jury returned to resume deliberations the
following Monday, petitioner told defense counsel what had
happened. To the best of counsel's recollection, he then asked
the sheriff's deputies about the incident and brought it to
the "court's attention," but no discussion of the matter took
place or was memorialized on the record. Further, counsel
neither raised any objections on the record as to what had
occurred nor requested that the trial court declare a mis-
trial, inquire of the jury, or take any other action.

Later that day, the jury returned their verdict. The
jury found petitioner guilty of two counts of first-degree sex-
ual abuse, one count of third-degree sexual abuse as a lesser-
included offense, and one count of first-degree rape. Petitioner
appealed. The Court of Appeals reversed the sexual abuse
convictions on merger grounds, holding that the trial court
should have entered a single conviction for first-degree sexual
abuse, and remanded for sentencing; it otherwise affirmed.
State v. Nelson, 282 Or App 427, 386 P3d 73 (2016). Petitioner
was resentenced, resulting in an amended judgment.

### C. Post-Conviction Relief Proceedings

Petitioner sought post-conviction relief alleging
various instances of inadequate assistance of counsel,
including a claim that counsel during his second trial pro-
vided inadequate assistance of counsel by failing to move
for a mistrial after the jurors viewed him shackled in the
hallway.4 Petitioner testified in support of that claim at his
post-conviction trial:

3 Although handcuffs, belly chains, and ankle cuffs or "leg irons" are distinct
forms of restraints, we use the words "shackled," "shackles," and "shackling"
hereafter to describe petitioner's general disposition when the jury viewed him.
See Webster's Third New Int'l Dictionary 2083 (unabridged ed 2002) (shackled
means "to confine the limbs of so as to prevent free motion.").

4 As noted above, petitioner alleged that counsel provided him with inade-
quate assistance of counsel in both trials in various ways. Before this court, only
counsel's conduct in connection with the jurors seeing him shackled during the
second trial is at issue.

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"[Petitioner's counsel]: On the last day of your second
trial in 2013, after trial was finished, but before delibera-
tions, did something happen to make you think that jurors
had seen you in the hall?

"[Petitioner]: Well, yes. When *** they were escorting
me out of the holding cell, the two guards that were escort-
ing me they-they seen the-the jurors first and was, like,
oh, *** the jurors see him and then they just opened the
door and snatched me back into the holding cell for about
ten minutes. And then that's when I *** realized what had
happened.

"[Petitioner's counsel]: And what had happened? What
was the concern?

"[Petitioner]: Well, *** the concern was that they seen
me in-in cuffs. It was probably about four or five of the
jurors walking down the steps at the time. *** But that
was it.

"[Petitioner's counsel]: And what *** cuffs would they
have seen? Where were they on your body?

"[Petitioner]: Well, I was shackled with belly chains
that wrap around your belly and cuffs your-around your
wrists and I had shackles on my feet.

"[Petitioner's counsel]: And were those outside of your
clothing or were they inside your clothing?

"[Petitioner]: They were outside and I was in the jail
jumpsuit.

"[Petitioner's counsel]: Okay. And what color was the
jumpsuit.

"[Petitioner]: I believe it was blue with the orange
t-shirt and orange-orange-pink t-shirt and pink socks.

******

"[Petitioner's counsel]: Okay. And how many jurors do
you think saw you in that moment-or those moments?

"[Petitioner]: It was about four or five and I *** remem-
ber seeing probably three of them that actually looked at
me. The other two were just, like, walking. They were still
walking down the steps. But I know three, for sure, seen me.

******

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"[Petitioner's counsel]: Okay. And did you tell [trial
counsel] what had happened when you saw him?

" [Petitioner]: Absolutely.

"[Petitioner's counsel]: What do you recall you said?

"[Petitioner]: Well, *** I explained everything to him
how I just explained it to the court that jurors-a few of the
jurors had seen me coming out in cuffs being escorted by
the officers and how they rushed me back and kind of made
a big commotion. And I told him-he made it-he let the
court[] know. He let the-the judge know and the DA know
and that's about-that's all that happened."

In response, the state submitted a declaration from peti-
tioner's trial counsel, which stated only the following with
regard to that encounter:

"As to my conduct alleged by the petitioner, I have
searched my memory concerning the petitioner's report to
me that he had been seen by members of his jury while
being escorted to/from court by sheriff's deputies and that
at that time he was bound by handcuffs and leg irons. I
have no doubt that the petitioner reported that event to me
but I roundly disagree with his assertion that I 'seemed
unconcerned.' I am certain that I made inquiries of the dep-
uty sheriffs involved and brought the matter to the court's
attention. While that may not have been on the record it
surely occurred. If the court declined to take action the
court must have been satisfied that there was no violation
of [petitioner's] rights."

Although the same attorney testified at the post-conviction
trial regarding petitioner's other inadequate-assistance
claims, neither party elicited further testimony from coun-
sel about the shackling issue.

In its judgment, the post-conviction court found
that petitioner's testimony had been credible "except to the
extent that he testified that his trial attorney did nothing
after he repo[r]ted the possible contact with jurors while
restrained in the courthouse hallway."" The post-conviction
court also made the following findings of fact:

5 Contrary to the post-conviction court's implicit understanding, petitioner
never "testified that his trial attorney did nothing after he repo[r]ted the possible
contact with jurors[.]" As indicated above, petitioner testified that, upon being told

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"The second trial went to the jury on Friday April
12, 2013. The jury did not reach verdicts on April 12 and
returned to continue deliberations on Monday April 15. As
Petitioner was leaving the courthouse on Friday, Petitioner
was being escorted out of the holding cell into the court-
house hallway. The guards saw jurors in the hallway and
pulled him back into the holding cell. There were 4-5 jurors
going down the steps. Petitioner testified that three of the
jurors looked at him and saw him. Petitioner was escorted
by guards [wearing] his jail clothing and was in handcuffs
and shackles. Petitioner was kept in the holding cell for
about 10 minutes after the episode and then taken to the
jail. Petitioner reported the incident to [his] attorney on
Monday morning. [Counsel] remembers Petitioner telling
him about the incident and believes that he discussed it
with the guards and then the judge and the district attor-
ney in chambers. No discussion regarding the incident
appears on the record and counsel made no motions on the
record. It does not appear that trial counsel or the court
inquired of jurors to determine whether they had observed
the Petitioner. Petitioner makes no[] claim that he was ever
in shackles or cuffs in the courtroom."

Ultimately, the court denied relief on the basis that peti-
tioner had failed to establish either that defense counsel's
performance had been deficient or that any such deficiency
had resulted in prejudice to petitioner.

As to counsel's purportedly deficient performance,
the post-conviction court observed that petitioner had not
cited any Oregon appellate decision that stood for "the prop-
osition that there is basis for a mistrial when a defendant in
cuffs and shackles may have been inadvertently and briefly
seen by jurors in a courthouse hallway." The court therefore
concluded that petitioner had not established that the law on
that issue was so clear that defense counsel's decision not to
seek a mistrial had constituted inadequate assistance. The
court also reasoned that counsel's actions might have been
strategic; that is, counsel might not have wanted a mistrial

that the jurors had seen petitioner in shackles, counsel "let the *** judge know and
the DA know and that's about-that's all that happened." Conceivably, the court
was referring to the operative petition, in which petitioner asserted that "trial
counsel was not concerned and took no steps to petitioner's knowledge, [and] did
not request a mistrial." In any event, there is no contention that counsel did any-
thing beyond passing petitioner's report on to the judge and prosecuting attorney.

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or might have anticipated that "a [motion for] mistrial would
not [be] successful." Thus, the court concluded, petitioner
had not established that "all reasonable trial attorneys in
that situation would have filed a motion for a mistrial."

With regard to whether petitioner had established
that counsel's performance had caused him prejudice, the
post-conviction court explained that, for similar reasons,
petitioner had not. The court reasoned that petitioner had
not shown that there was a tendency that the trial court
would have granted a motion for mistrial, nor that the jury's
sighting of petitioner would have tended to affect the outcome
of deliberations.6 The court cited federal and state case law
from outside Oregon holding that brief and inadvertent juror
sightings of a defendant in restraints outside the courtroom
only entitled a defendant to a mistrial upon a showing of
actual prejudice, which petitioner had not made here. That is,
petitioner had not offered "evidence from the viewpoint of the
jurors" and, therefore, had not made the requisite showing
that the exposure had actually biased the jury against him.

### D. Appeal

Petitioner appealed the post-conviction court's judg-
ment, renewing his arguments that counsel in both trials
had provided him with inadequate assistance of counsel.
As relevant on review, petitioner renewed his assertion that
defense counsel had provided inadequate assistance in not
taking appropriate steps to protect petitioner's right to a
fair trial by moving for a mistrial or making a record of the
jurors' observation of him in shackles.

Petitioner argued that the post-conviction court's
assessment of counsel's performance was erroneous because,
in reasoning that counsel might have made a strategic deci-
sion not to move for a mistrial, the court had necessarily
relied on post hoc rationalization that the record did not
support. That, petitioner argued, was impermissible under
the Court of Appeals' decision in Delgado-Juarez v. Cain,

6 Although the state argues that the post-conviction court properly denied
relief in petitioner's case, it perceives the post-conviction court's ruling as mis-
stating the applicable prejudice standard. We will clarify the applicable standard
below when we address whether counsel's performance was prejudicial. 375 Or at
643-54.

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in which the court explained that a post-conviction court
may not engage in post hoc rationalization in a manner that
does not reflect "counsel's actual strategic reasoning." 307
Or App 83, 96-97, 475 P3d 883 (2020) (internal quotation
marks and citation omitted). Instead, petitioner argued,
the post-conviction court should have recognized that trial
counsel had performed inadequately, because the constitu-
tional and common law rights of a criminal defendant to be
free from shackles during trial was well founded at the time
of petitioner's trial. Thus, petitioner argued, all reasonable
counsel would, at a minimum, have sought a mistrial so as
to preserve the issue for direct appellate review.

Petitioner further contended that he had estab-
lished prejudice, because, under another decision of the
Court of Appeals, prejudice is presumed when a defendant's
restraints are visible to the jury. Sproule v. Coursey, 276
Or App 417, 424, 367 P3d 946, rev den, 359 Or 777 (2016)
("[W]here the record shows that a criminal defendant was
restrained in a manner that could not be effectively shielded
from the jury's view, there is a presumption that the shack-
les are seen by the jury and prejudice results." (Internal
quotation marks omitted.)). In petitioner's view, there was
a "reasonable probability" that, had trial counsel moved
for a mistrial, either the trial court would have granted
the motion or the Court of Appeals would have reversed on
direct appeal under Sproule.7 According to petitioner, the
post-conviction court denied relief based on a distinction not
rooted in Sproule-or in any Oregon decision-that viewing
a defendant in shackles in the courtroom is somehow distin-
guishable from a similar viewing in a courthouse hallway,
such that the principles warranting a presumption of preju-
dice are limited to in-court shackling.

For its part, the state acknowledged there to be
"ample available case law" establishing that criminal defen-
dants have the right to be free from shackling during trial

7 Petitioner's reference to a "reasonable probability" invokes the standard
for prejudice under the Sixth Amendment. See, e.g., Strickland, 466 US at 694
(stating that standard). We have explained, however, that the federal and state
constitutional tests for prejudice in this context are "functionally equivalent."
Montez, 355 Or at 6-8 (comparing "reasonable probability" standard under Sixth
Amendment with the "tendency to affect the outcome" standard applicable under
Article I, section 11).

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and that visible shackling in front of the jury may impair
the defendant's constitutional rights. Yet, in the state's view,
the governing case law at the time of petitioner's trial would
not have led all reasonable attorneys to conclude that a mis-
trial was warranted under the circumstances of petitioner's
case. Further, like the post-conviction court, the state cited
authority from other jurisdictions holding that a juror's brief
glimpse of a defendant in shackles outside the courtroom is
not presumptively prejudicial. And without the benefit of a
presumption of prejudice, the state argued, petitioner had
not established actual jury bias. It followed, the state rea-
soned, that he also had not satisfied the prejudice prong of
his post-conviction claim.

The Court of Appeals affirmed the post-conviction
court's decision to deny relief on all of petitioner's claims.
Concerning counsel's performance with regard to the shack-
ling issue, the Court of Appeals reasoned that, because peti-
tioner had cited no Oregon case law addressing "the issue of
jurors briefly observing a criminal defendant in restraints
outside of the courtroom and whether that constitutes
grounds for a mistrial[,]" it was "not clear that every trial
counsel exercising reasonable skill and judgment would have
necessarily sought a mistrial under the circumstances *** "
334 Or App at 329. And as to prejudice, the court rejected
petitioner's contention that, under Sproule, the facts of peti-
tioner's case gave rise to a presumption of jury prejudice. Id.
at 330. And, because petitioner had presented no direct evi-
dence demonstrating that the jurors who saw him in shack-
les had recognized him and were prejudiced as a result, he
had not established that defense counsel's acts or omissions
at trial had tended to affect the outcome of his case. Id.

Petitioner sought review in this court, which we
allowed. Before this court, he renews only his argument
that counsel was inadequate in failing to move for a mis-
trial or make a record of the jurors' observations or resulting
perceptions in his second trial, and he contends that coun-
sel's failure caused him prejudice. As to the latter conten-
tion, petitioner asks this court to recognize a presumption
of prejudice that arises whenever jurors in a criminal case
see the defendant in shackles during the course of trial,

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regardless of whether that sighting occurs inside or outside
of the courtroom. In petitioner's view, such a presumption is
necessary to give effect to the right to an "impartial jury"
under Article I, section 11. As we will explain, we do not con-
sider it necessary to recognize a presumption of prejudice to
conclude that petitioner was prejudiced in this case, but we
otherwise agree with petitioner.

## II. ANALYSIS

A. Trial counsel failed to exercise reasonable professional
skill and judgment.

We begin with the performance aspect of petition-
er's post-conviction claim. That requires us to determine
whether petitioner has established by a preponderance of
the evidence that, by not moving for a mistrial, trial coun-
sel failed to exercise reasonable professional skill and judg-
ment. Lichau, 333 Or at 359. Like the post-conviction court
and the Court of Appeals, we recognize that, at the time
of petitioner's trial, no Oregon appellate decision had held
that jurors viewing a defendant wearing shackles outside
the courtroom impairs the defendant's right to an impartial
jury or otherwise implicates the same concerns that in-court
observations raise. Nonetheless, in light of the shackling
case law available to counsel at the time of petitioner's trial,
as well as the principles underlying that case law, we con-
clude that competent counsel would have both viewed the
circumstances in this case as providing colorable grounds
for a mistrial motion and acted to protect petitioner's right
to be tried before an impartial jury. We further conclude
that, in failing to move for a mistrial in this case, counsel
failed to provide petitioner with the adequate assistance
that Article I, section 11, guarantees.

1\. The state of the law at the time of petitioner's trial

As explained above, when evaluating the adequacy
of trial counsel's performance, our focus is on the circum-
stances as counsel reasonably understood them to be, and
not how, in retrospect, we conclude counsel might have
perceived them. See Lichau, 333 Or at 360 (in determining
whether counsel's performance was constitutionally ade-
quate, we "must make every effort to evaluate a lawyer's

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conduct from the lawyer's perspective at the time, without
the distorting effects of hindsight"). With respect to coun-
sel's understanding of the law that applied under the cir-
cumstances, our approach is similar. That is, when assess-
ing whether trial counsel should have made a particular
legal argument, we look at the law "as a lawyer would have
seen it at the time." Burdge, 338 Or at 498 (so stating with
regard to whether counsel should have recognized statu-
tory ambiguity later identified by the courts). Thus, in this
case, we begin our assessment of counsel's performance with
a review of the state of the law regarding shackling as it
existed at the time of petitioner's trial.

By that time, Oregon case law had firmly estab-
lished that, at least when a criminal defendant is brought
in shackles before the jury within the courtroom, there are
grounds for objection or even a mistrial. That case law dates
back well over a century, to State v. Smith, in which this
court reversed the conviction of a defendant who had been
sentenced to death for murder, because he had been "kept
with irons on his feet during trial *** " 11 Or 205, 207, 8 P
343 (1883). During that defendant's trial, defense counsel
had sought to have the irons removed, but the trial court
had denied that request because the irons had been "put on
the defendant at the penitentiary and could not be removed
without much delay, and it would require the work of a
blacksmith to move them *** " Id. (internal quotation marks
omitted). Relying on even older case law from California,
this court held that "it was error to keep the prisoner in
fetters during the trial" in violation of the common law rule
"first *** considered and enforced" in People v. Harrington,
42 Cal 165, 10 Am Rep 296 (1871). Id.

Then, in State v. Long, we explained that a crimi-
nal defendant has the right to be tried free from shackles
"'unless [the defendant is] shown to be a desperate char-
acter whose restraint is necessary to the safety and quiet
of the trial."" 195 Or 81, 91, 244 P2d 1033 (1952) (quoting
Eaddy v. People, 115 Colo 488, 491, 174 P2d 717, 718 (1946)).
We explained that one rationale for the rule was that "[a]
prejudice might be created in the minds of the jury against a
prisoner who should be brought before them handcuffed and

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shackled, which might interfere with a fair and just decision
of the question of the guilt or innocence of such prisoner."
Id.8 Long further entrenched the rule that there are grounds
for a mistrial when a defendant is shackled in the presence
of the jury during trial. In adhering to that rule, this court
appears to have recognized that a defendant's appearance
before the jury in shackles can instill an inference of guilt
in the minds of jurors or, put another way, that appearing
in shackles in the presence of the jury impinges upon the
presumption of innocence afforded all criminal defendants.

Smith, Long, and the common law cases they relied
upon have been cited by Oregon appellate cases to support
the principle that, absent a record showing a substantial
justification for shackling a defendant, it is reversible error
to keep the defendant in shackles during trial. See, e.g.,
State v. Wall, 252 Or App 435, 437-39, 287 P3d 1250 (2012),
rev den, 353 Or 280 (2013) (identifying that case law and
related principles). Indeed, before petitioner's trial in this
case, the Court of Appeals had also developed its own body
of case law regarding shackling built, in part, upon this
court's decisions. For example, in State v. Kessler, the Court
of Appeals held that the trial court had erred when it sim-
ply accepted the prosecutor's assertion that the defendant
presented a security risk warranting shackling during trial
rather than requiring the prosecutor to put on "evidence of
an immediate and serious risk of dangerous and disruptive
behavior." 57 Or App 469, 473, 645 P2d 1070 (1982) (citing
State v. Moore, 45 Or App 837, 839-40, 609 P2d 866 (1980)).
Without the requisite showing of substantial necessity,
requiring the defendant to wear shackles in the presence
of the jury had deprived him of a fair trial. Id. at 475. In
reaching that conclusion, the Court of Appeals identified
four types of "manifest prejudice" that result when a person
is tried in shackles: first, shackles "impinge on the presump-
tion of innocence"; second, they detract from "the dignity
of the judicial proceedings"; third, shackles "may inhibit

8 In Long, defense counsel assigned error to the trial court's denial of a
motion to dismiss the jury venire before voir dire "on the grounds that [the] defen-
dant had been shackled in the presence of the panel." Id. at 89. Ultimately, this
court affirmed the trial court's ruling, reasoning that, other than bringing the
motion itself, the defendant had offered no support for his assertion that he had
been shackled in the presence of the venire. Id.

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consultation" with defense counsel; and fourth, they may
inhibit the defendant's "decision whether to take the stand
as a witness." Id. at 474.9

In concluding that shackling leads to those harms,
Kessler relied on the following reasoning set forth in People
v. Duran, 16 Cal 3d 282, 290, 545 P2d 1322, 1327 (1976), in
which the California Supreme Court adhered to the princi-
ples first articulated by that court in Harrington:

"We believe that it is manifest that the shackling of a
criminal defendant will prejudice him in the minds of the
jurors. When a defendant is charged with any crime, and
particularly if he is accused of a violent crime, his appear-
ance before the jury in shackles is likely to lead the jurors
to infer that he is a violent person disposed to commit
crimes of the type alleged. *** The removal of physical
restraints is also desirable to assure that 'every defendant
is [ *** ] brought before the court with the appearance, dig-
nity, and self[-]respect of a free and innocent man.' Eaddy,
115 Colo at 492 ***. We believe that possible prejudice in
the minds of the jurors, the affront to human dignity, the
disrespect for the entire judicial system which is incident
to unjustifiable use of physical restraints, as well as the
effect such restraints have upon a defendant's decision to
take the stand, all support our continued adherence to the
Harrington rule."

Duran, 16 Cal at 290, 545 P2d at 1327; Kessler, 57 Or App at
472 (quoting that passage from Duran).

The Kessler court made it clear that shackling
invites the jury to consider improper influences-such as
inferring that a defendant has violent tendencies-unre-
lated to the question of guilt or innocence or the evidence
presented at trial. The court further suggested that the
unwarranted shackling of a defendant in front of a jury
can be deemed such an indignity as to detract from jurors'
respect for the judicial system, respect that is essential to

9 In State v. Bates, the Court of Appeals consolidated these four consider-
ations into three, collapsing the first-impinging the presumption of innocence-
and second-detracting from the dignity of the judicial proceedings, into a single
form of prejudice. 203 Or App 245, 251, 125 P3d 42 (2005), rev den, 340 Or 483
(2006). We do not understand Bates as having in any way diminished the signif-
icance of either type of prejudice or as suggesting that each of those harms can
only occur when accompanied by the other.

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a trial court's ability to ensure a fair and functioning trial.
And it is the need to avoid such consequences that appears
to animate the prohibition against unnecessarily allowing
jurors to view defendants in shackles, a prohibition of suffi-
cient magnitude that disregarding it constitutes reversible
error on direct appeal.

Moreover, by holding that the prejudice resulting
from such a violation is "manifest," the Kessler court ren-
dered it unnecessary for a defendant who has been shack-
led during trial without a showing of substantial necessity
to prove individualized prejudice-the mere fact that they
were shackled without any apparent justification was suffi-
cient to establish a "violation of [their] due process right to a
fair trial." Id. at 475.10

At the time of petitioner's trial, this court had not
expressly considered Kessler's presumption of prejudice nor
adopted its reasoning as to why shackling a defendant in
the presence of the jury without a showing of substantial
necessity deprives the defendant of a fair trial. It had, how-
ever, relied on Kessler as imposing an obligation on appel-
late counsel to raise the issue when the record shows that a
defendant was brought before the jury in shackles without a
finding of substantial necessity having been made. Guinn v.
Cupp, 304 Or 488, 498, 747 P2d 984 (1987) (stating, in post-
conviction case alleging inadequate assistance of appellate
counsel for failing to raise shackling issue, that a petitioner
can establish a prima facie post-conviction claim simply by
showing that they were "shackled during the trial and that
no record was made in the trial court to support the deci-
sion to shackle" the defendant). In reaching that conclusion,

10 The Court of Appeals has subsequently applied Kessler in a number of
shackling cases, including before 2013, when petitioner's trial took place. See,
e.g., State ex rel Juv. Dept. v. Millican, 138 Or App 142, 146, 906 P2d 857 (1995),
rev den, 323 Or 114 (1996) (holding that juveniles have the same rights as adult
defendants with regards to shackling); State v. Merrell, 170 Or App 400, 403, 12
P3d 556 (2000), rev den, 331 Or 674 (2001) (observing that Oregon courts have
treated shackling issues similarly under Article 1, section 11, "impartial jury"
clause and federal Due Process Clause); Bates, 203 Or App at 249-50 (holding
that any error in the trial court denying defense counsel's objection to wearing
a nonvisible stun belt was harmless under Article 1, Section 11, and the federal
Due Process Clause); Wall, 252 Or App at 443 (holding that the trial court erred
in denying defense counsel's motion to remove nonvisible leg restraint, also under
state and federal constitutions).

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we reiterated that, "[a]t common law, a criminal defendant
had the right to appear at trial free of restraint, absent a
substantial showing of necessity for confinement[,]" id. at
493 (citing Smith, 11 Or at 205), and we noted that the fed-
eral Due Process Clause likewise protects that right, id.
(citing Estelle v. Williams, 425 US 501, 505, 96 S Ct 1691,
48 L Ed 2d 126 (1976) (trying defendant in prison clothing
impinges upon presumption of innocence, thereby denying
a fair trial); and Illinois v. Allen, 397 US 337, 344, 90 S Ct
1057, 25 L Ed 2d 353 (1970)). By relying on Kessler as hav-
ing established the elements of a prima facie post-conviction
claim in the shackling context, see id. at 498, our opinion
in Guinn effectively endorsed the principles articulated in
Kessler-including its articulation of how shackling can
impair a defendant's right to a fair trial-and made it clear
that failing to take action to protect that right could consti-
tute inadequate assistance of counsel.11

2\. Competent counsel would have recognized the serious
constitutional concerns that arose at petitioner's trial
and moved for a mistrial.

Given the state of Oregon's shackling case law at
the time of petitioner's trial, we conclude that, in opting not
to seek a mistrial-and seeming instead to rely on the trial
court to act sua sponte if it believed that petitioner's rights
had been violated-counsel did not exercise reasonable pro-
fessional skill and judgment. As we will explain, under that
case law, there was, at a minimum, a reasonable argument
to be made that allowing jurors to view a defendant in shack-
les outside the courtroom violates the defendant's right to
trial before an impartial jury under Article I, section 11,
thereby warranting a mistrial, and all competent counsel
would have seen that argument and recognized its obvious
beneficial value. By not making that argument under the
circumstances of this case and instead simply deferring to

11 This court has since discussed the right to appear free of unnecessary
restraints during trial in other cases decided after the date of petitioner's trial.
See, e.g., State v. Washington, 355 Or 612, 628, 330 P3d 596, cert den, 574 US
1016 (2014) (announcing, for the first time in our court, that the right to appear
free from shackles is grounded in the "impartial jury" clause, Article 1, section
11); see also State v. Guzek, 358 Or 251, 270-71, 363 P3d 480 (2015) (holding that
evidence supported trial court's decision to require defendant to a wear stun belt
during penalty phase of capital prosecution).

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the trial court to act if it were so inclined, counsel failed to
provide constitutionally adequate assistance. Petitioner has
therefore satisfied the performance prong of his inadequate
assistance of counsel claim.

To exercise reasonable professional skill and judg-
ment, defense counsel must investigate the facts and famil-
iarize themselves with the applicable law sufficiently to
permit them to make informed decisions on behalf of the
defendant. Krummacher, 290 Or at 875. Here, after peti-
tioner told counsel that three jurors had seen him outside the
courtroom in shackles, counsel was obligated to investigate
those circumstances and familiarize himself-if he were not
already familiar-with Oregon shackling law as discussed
above. See id. (facts and law with which counsel must famil-
iarize themselves depend upon "the nature and complexity
of the case"). The post-conviction court found that counsel
"believe[d] that he discussed it with the guards[,]" and peti-
tioner neither disputes that counsel spoke with the sheriff's
deputies nor suggests that counsel should have undertaken
some further factual inquiry. Thus, to the extent that coun-
sel provided petitioner with inadequate assistance, peti-
tioner does not appear to contend that counsel did so by fail-
ing to sufficiently investigate the facts.12

The extent to which counsel prepared himself on
the applicable law is less clear. Neither counsel's declara-
tion nor his oral testimony addressed whether he had ever
conducted any legal research regarding shackling, and the
post-conviction court made no findings as to whether coun-
sel had previously familiarized himself with Oregon shack-
ling law or did so before electing not to move for a mistrial.
The circumstances would have alerted competent counsel
that a potentially significant issue had arisen, and a base-
line understanding of Oregon shackling law would have
been essential for counsel to make an informed choice on
petitioner's behalf. See Richardson, 362 Or at 257 (counsel's

12 In the post-conviction court, petitioner alleged that counsel's performance
had been deficient because, in part, counsel had not "inquire[d] of the court staff
and jury what was observed." That allegation was made in conjunction with the
allegation that counsel had performed inadequately by not moving for a mistrial,
and petitioner's briefing does not argue that counsel was independently obligated
to conduct a further factual inquiry, with or without the trial court's involvement
or, with respect to contacting any of the jurors, the trial court's authorization.

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failure to investigate was unreasonable given the factual
information that defense counsel knew and the high stakes
for the petitioner).

Implicit in the post-conviction court's opinion is an
assumption that counsel would or should have been aware
of Kessler and the general rule that a defendant has a con-
stitutional right to appear in front of the jury free of physi-
cal restraints. Although nothing in the record directly sup-
ports a finding that counsel was, in fact, generally aware
of Oregon shackling law, petitioner does not contend that
counsel was inadequate for not having familiarized himself
with the applicable law to at least that extent. Rather, peti-
tioner contends that, based upon that general shackling law,
constitutionally adequate counsel would have moved for a
mistrial under the circumstances presented here. The post-
conviction court concluded otherwise. As explained above,
that court reasoned that, although cases like Kessler and
Wall left "no doubt" regarding petitioner's right to be tried
free of physical restraints absent substantial justification, no
Oregon case law would have alerted counsel that he should
move for a mistrial here. Further, because petitioner had
"cite[d] no cases for the proposition that there is basis for a
mistrial when a defendant in cuffs and shackles may have
been inadvertently and briefly seen by jurors in a courthouse
hallway," petitioner had not established "that the law on the
issue was so clear" that counsel had provided inadequate
assistance in electing not to move for a mistrial.13

The post-conviction court erred in limiting counsel's obliga-
tion to advancing only "clear" statements of existing law on
behalf of petitioner. As this court has previously explained,
competent representation is not limited to being familiar
with and applying "clear" statements of law; counsel may
also be inadequate for not making an argument based on an
unsettled or ambiguous question of law where the argument,

13 The post-conviction court cited cases from jurisdictions outside Oregon
stating that viewing a defendant in handcuffs outside the courtroom is distin-
guishable from trying the defendant in restraints and therefore not inherently
prejudicial. We discuss some of that case law when we address the prejudice
prong of petitioner's post-conviction case. For now, we simply note that neither
the post-conviction court nor the state has explained how those nonbinding deci-
sions-or the force of their reasoning-would somehow foreclose the argument
that, under Oregon law, a mistrial was warranted here.

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if successful, would "so obviously offer possible benefits to a
defendant that any lawyer exercising reasonable professional
skill and judgment would raise it." Burdge, 338 Or at 500.
That is, if (1) a legal issue arises in the course of represent-
ing a defendant; (2) the legal issue has not yet been decided
under controlling case law; (3) the issue is susceptible of an
interpretation that so obviously would offer potential bene-
fits to the defendant that all reasonable counsel would iden-
tify it; and (4) all such counsel would conclude that, under
the circumstances, the potential benefits of advancing that
interpretation exceeded any risks, then the failure to make
that argument constitutes inadequate assistance of counsel.
Id. at 497 (so stating with regard to whether counsel was
inadequate for failing to identify a statutory ambiguity and
argue for resolving ambiguity in favor of the defendant).

We have not limited the principle articulated in
Burdge to unsettled issues of statutory law. See, e.g., Antoine
v. Taylor, 368 Or 760, 775-79, 499 P3d 48 (2021) (discussing
Burdge in connection with potential ambiguity in case law).
Further, we conclude that an attorney exercising reasonable
professional skill and judgment would have argued that, for
much the same reason that having a defendant shackled
in the presence of the jury in the courtroom is grounds for
a mistrial, a mistrial is warranted when jurors observe a
defendant in shackles in the courthouse hallway. Although
this court has never expressly held that the right to be tried
free of physical restraints is applicable outside the court-
room, it also has never limited that right to in-court obser-
vations.14 And at least some of the concerns that Kessler and
Guinn recognized as resulting from in-court shackling could
be reasonably understood to arise in the out-of-court context
as well, and nothing in the reasoning of our shackling cases
compels the conclusion that the right to be free of shackles

14 This court addressed a shackling incident that appears to have occurred
outside the courtroom in State v. Walton, 311 Or 223, 250, 809 P2d 81 (1991),
where a defendant on trial for aggravated murder was seen by a juror and alter-
nate juror while wearing handcuffs and grouped with other prisoners. The trial
court had denied the defendant's motion for mistrial, but, after questioning those
jurors individually and outside the presence of the other jurors, the court gave a
curative instruction that told them to disregard what they had seen. Id. Although
the viewing in Walton appears to have occurred outside the courtroom, this court
did not address that fact or whether it had any bearing on the defendant's right
not to be shackled in the presence of the jury. We discuss that case further below.

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is limited to the in-court setting. Furthermore, although
the post-conviction court described the jurors' observation
of petitioner in the hallway as brief and inadvertent, neither
that court nor the state in defending its ruling have identi-
fied anything in the record to support an inference that the
jurors would have perceived things differently based upon
petitioner's location at the time. See Kessler, 57 Or App at
474 (noting that prejudicial inferences that a defendant is
a dangerous person logically follow when the defendant is
"see[n] in shackles at all[,]" not merely when jurors are "con-
stantly exposed" to that sight).

Given the circumstances of petitioner's trial, a law-
yer exercising reasonable professional skill and judgment
would have recognized an opportunity for "advancing [an]
interpretation" of the law that benefitted petitioner. Burdge,
338 Or at 497. Counsel in petitioner's case does not appear
to have recognized that opportunity. Instead, rather than
moving for a mistrial on that basis, counsel at most had a
conversation with the judge in chambers, seemingly defer-
ring to whether the trial court thought petitioner's rights
had been compromised. And because nothing in the record
suggests that counsel was concerned that advancing that
argument would carry any risks for petitioner, much less
any risk that outweighed the benefits of obtaining a mis-
trial, the failure to do so here constituted inadequate assis-
tance of counsel. See id.15

Resisting the conclusion that counsel provided inad-
equate assistance, the state posits that counsel might have
had strategic reasons for not moving for a mistrial or taking
any other action on the record. Echoing the post-conviction
court, the state reasons that counsel may have believed that
a motion for mistrial would not succeed. That argument

15 The state may believe that, by bringing the issue to the trial court's atten-
tion, counsel satisfied his obligation to advance a favorable shackling argument
on petitioner's behalf. But whatever argument, if any, counsel advanced to the
court in chambers, that approach fell short of counsel's obligation to protect peti-
tioner's interests, as it neither resulted in a mistrial or other corrective action nor
preserved any related argument for appeal. See State v. Williams, 322 Or 620,
624 n 7, 912 P2d 364 (1996) (“Discussion off the record of matters as to which
issues on appeal could arise is ill-advised, either because no official record is
made of the matters or because whatever record that is made often is summary
in nature.").

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falls short for two reasons. First, nothing in the record sug-
gests that counsel considered moving for a mistrial, weighed
the risks and benefits of doing so, and then made a strate-
gic decision not to seek a mistrial based upon the perceived
likelihood that the motion would simply fail. The record
does not permit us to conclude that counsel's performance
reflected a reasonable tactical decision when it does not sug-
gest strategic reflection of any kind. Cf. Montez v. Czerniak,
355 Or 1, 27-28, 322 P3d 487, adh'd to as modified on recons,
355 Or 598, 330 P3d 595 (2014) (where there was evidence
of counsel's actual reasoning, declining to "indulge in post-
hoc rationalizations of trial counsel's decisions"). Second,
standing alone, the belief that a motion would not succeed
in the trial court does not relieve counsel of their duty to
advance an obviously beneficial argument based on a rea-
sonable interpretation of the law. Even if the motion might
have failed, the state does not suggest that an unsuccessful
motion could in any way have rendered petitioner worse off
at trial. Moreover, as we discuss in greater detail in address-
ing whether counsel's performance resulted in prejudice to
petitioner, even an unsuccessful mistrial motion could have
led to the trial court taking other protective measures.16
Thus, even if we could impute a tactical rationale to coun-
sel's decision not to seek a mistrial despite there being no
suggestion of any rationale in the record, we could not con-
clude that counsel's decision reflected a reasonable exercise
of professional skill and judgment here.

The dissent likewise argues against the conclusion
that petitioner received inadequate assistance of counsel
and contends, among other things, that we have not prop-
erly applied the standard of review. Specifically, the dissent
suggests that we have not properly accounted for the possi-
bility that, after speaking with the transport deputies, the
judge, and the district attorney, "trial counsel *** concluded
from his investigation that jurors had not recognized the
person being transported" as petitioner and, consequently,

16 In Walton, for example, the trial court had declined the defendant's motion
for mistrial but, in response to that motion, had taken various protective mea-
sures and offered to take more. 311 Or at 250 (noting that trial court had, among
other things, inquired of the potentially affected jurors, instructed them against
drawing adverse inferences based on what they might have seen, and offered to
replace one juror with an alternate who had not seen the defendant in shackles).

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opted not to seek a mistrial. 375 Or at 660 (Bushong, J., dis-
senting). The dissent suggests that the post-conviction court
implicitly made that finding, because it would be consistent
with that court's ultimate legal conclusion that counsel pro-
vided adequate assistance to petitioner. Id. at 659-60.

We disagree. It is true that, had counsel's limited
investigation led him to conclude that the jurors had either
not seen or not recognized petitioner, then his apparent
decision not to seek a mistrial might well have been rea-
sonable. But the standard that the dissent refers to would
require us to presume that the post-conviction court made
that finding only if it were a disputed factual matter and
the post-conviction record could support it. Ball, 250 Or at
487 (where findings are not made on all relevant historical
facts, "and there is evidence from which such facts could be
decided more than one way," the court presumes that the
factfinder decided the facts consistently with its ultimate
legal conclusion). In the dissent's view, there necessarily was
a dispute about what counsel had "learned and concluded
as a result of his investigation, because that undoubtedly
affected his determination that there was 'no reason' to
request a mistrial." 375 Or at 660 (Bushong, J., dissenting).
Respectfully, that view is wrong. It is axiomatic that, for a
fact to be in dispute, there must be evidence of that fact in
the record. See id. at 661 (applying principle when "there is
evidence from which such facts could be decided more than
one way"). And as the dissent acknowledges, there at least
"is no direct evidence of what counsel had learned and con-
cluded from his investigation." 375 Or at 660. Because the
record is silent as to what counsel concluded after speaking
with petitioner and the others, we cannot manufacture a
factual dispute simply because its resolution in the state's
favor would support the post-conviction court's ultimate
ruling.

At best, had the post-conviction court thought at all
about counsel's conclusion in that regard, it could perhaps
have speculated that, because counsel might have learned
that the transport deputies thought that the jurors might
not have recognized petitioner, counsel might have con-
cluded that the incident had not prejudiced petitioner. We do

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not understand the applicable standard of review to permit
us to endorse that level of speculation, much less require
us to assume that the post-conviction court implicitly made
that finding and to account for it here. That is particularly
so given that, in this case, the post-conviction court's ulti-
mate legal conclusion does not appear to have relied on what
counsel did or did not conclude about the jurors' actual per-
ceptions; instead, that court emphasized the state of the law
at the time and potential strategic justifications for coun-
sel's inaction.17

Thus, we respectfully decline the dissent's sugges-
tion that we account for the possibility that counsel con-
cluded that the jurors had not recognized petitioner before
opting not to seek a mistrial. Rather, we conclude that coun-
sel's obligation to act arose when petitioner informed him
that the jurors had seen him in shackles18 and that, given
the record created in the post-conviction court, there is no
nonspeculative basis on which to conclude that counsel's
failure to seek a mistrial constituted an exercise of reason-
able professional skill and judgment.

The dissent separately appears to argue that not
all reasonable counsel would have recognized an oppor-
tunity under the existing case law to argue that the cir-
cumstances warranted a mistrial, but again we disagree.
The dissent acknowledges that, at the time of petitioner's
trial, it was well established that a mistrial is warranted
when a criminal defendant is brought before the jury in the
courtroom in shackles. 375 Or at 673 (Bushong, J., dissent-
ing). The dissent emphasizes, however, another undisputed
point that, at that time, it was not so well established what
happens if a juror happens to see a criminal defendant in

17 Although the post-conviction court observed that the record disclosed only
petitioner's perception, not the perception of any of the jurors, there is no indi-
cation in the court's written opinion that counsel's understanding of the event
played any role in its conclusion that counsel's performance had not been inad-
equate. The opinion's entire discussion of performance relates to the fact that
petitioner's encounter with the jurors had been brief and outside the courtroom,
and that the available case law discussing such encounters had distinguished
them from in-court shackling cases.

18 The post-conviction court expressly found that petitioner had reported to
counsel that "three of [his] jurors looked at him and saw him" and that counsel
recalled petitioner telling him about that encounter.

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shackles outside the courtroom, while being transported to
jail at the end of the day. 375 Or at 673. From that undis-
puted premise, the dissent turns to this court's opinion in
State v. Walton, 311 Or 223, 809 P2d 81 (1991), and case
law from other jurisdictions, contending that those cases
provide relevant guidance as to whether petitioner met his
burden of proving that counsel failed to exercise reasonable
professional skill and judgment in his case. Id. at 670-73
(Bushong, J., dissenting).

To the extent that the dissent reasons that the
absence of Oregon case law holding that a mistrial was
warranted under petitioner's circumstances-or the exis-
tence of case law from other jurisdictions distinguishing
between in-court and out-of-court encounters-means
that defense counsel provided adequate assistance in this
case, we respectfully disagree. First, as we have explained,
defense counsel's professional obligations are not limited to
asserting a defendant's "firmly established" rights; rather,
where there is a legitimate question whether a right exists
under the law, counsel may be obligated under certain cir-
cumstances to advance an argument for that right, and we
have concluded that those circumstances were present here.
Second, nothing in Walton or any other decision that the dis-
sent relies on refutes that principle or precludes its applica-
tion here.

Starting with Walton, counsel in that case, unlike
defense counsel here, had moved for a mistrial after a
sitting juror and an alternate juror saw the defendant,
along with other prisoners, in handcuffs.19 311 Or at 250.
Although we held that the trial court had not erred in deny-
ing the defendant's motion, Walton is still wholly consistent
with our conclusion in this case. First, although that case,
like petitioner's, appears to have involved a relatively brief,
out-of-courtroom encounter, this court evaluated the trial
court's decision whether to grant a mistrial for an abuse of
discretion. See id. (citing State v. Montez, 309 Or 564, 789

19 As previously noted, we agree with the dissent that, although the opinion
in Walton does not state where that observation took place, it is most reasonable
to assume that it took place outside the courtroom, particularly given that the
defendant was seen in the company of other prisoners, something that would be
unlikely to occur in the courtroom during a trial.

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P2d 1352 (1990)); see also Montez, 309 Or at 595 ("A motion
for mistrial is addressed to the sound discretion of the trial
judge[.]").20 Second, as relevant to both the performance
and prejudice prongs of petitioner's inadequate-assistance
claim, the trial court in Walton responded to defense coun-
sel's mistrial motion with action: addressing the potentially
tainted jurors, confirming that they had not been influenced
by the incident and had not discussed it with other jurors,
instructing "both jurors that they were to disregard their
observations, that they were not to discuss their observa-
tions with anyone, and that [the] defendant's custody status
had no bearing on his guilt or innocence[,]" and, notwith-
standing all those protective measures, further offering to
replace the seated juror with an alternate juror who had not
experienced the concerning exposure. Walton, 311 Or at 250.
Third, because Walton merely held that a mistrial was not
required when those measures had been taken in response
to defense counsel's motion-including the trial court's offer
to ensure a jury consisting wholly of jurors who had not seen
the defendant in handcuffs-Walton in no way foreclosed
counsel from arguing on petitioner's behalf that the circum-
stances in this case warranted a mistrial, especially in the
absence of any protective measures by the trial court.

Similarly, we are not persuaded by the dissent's
reliance on case law from other jurisdictions holding that,
absent a showing of actual prejudice, jurors' out-of-court
observations of defendants in shackles do not provide
grounds for reversal.21 Cases that apply different prejudice
standards to in-court and out-of-court observations have no
bearing on the adequacy of counsel's performance, a distinc-
tion that the dissent itself seems to recognize. See 375 Or at
672 (Bushong, J., dissenting) (citing State v. Hardy, 230 Ariz
281, 292, 283 P3d 12 (2012) ("A juror's inadvertent exposure
to the defendant in handcuffs outside the courtroom *** is
not inherently prejudicial, and a defendant is not entitled
to a new trial absent a showing of actual prejudice.")). And
here, the performance-related question is not whether the
trial court would have been required to grant a mistrial had

20 We discuss the significance of the discretion afforded trial courts in evalu-
ating mistrial motions below, when we address the applicable prejudice standard.

21 The state makes the same argument, which we also reject.

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counsel requested one; the question is whether counsel was
obligated to move for a mistrial under the circumstances,
a question that we have answered affirmatively. Moreover,
as we explain more fully below in addressing prejudice, in
many of the out-of-jurisdiction cases, the trial courts, like
the trial court in Walton, had afforded the defendants at
least some form of relief following an out-of-court shackling
incident where defense counsel had sought relief. Thus, that
nonbinding case law discussing the prejudice standard for
out-of-courtroom encounters fails to provide even persua-
sive authority that counsel's decision not to seek relief at all
constituted adequate performance in this case.

### B. Trial counsel's performance prejudiced petitioner.

Having concluded that petitioner's trial counsel
failed to exercise reasonable professional skill and judg-
ment, we turn to whether that failure resulted in preju-
dice to petitioner, entitling him to post-conviction relief. To
establish prejudice in an inadequate-assistance-of-counsel
claim under Article I, section 11, a petitioner must demon-
strate that counsel's deficient performance "had a tendency
to affect the result of his trial." Green, 357 Or at 312 (inter-
nal quotation marks omitted). And because many things can
affect the outcome of a jury trial, a petitioner is not required
to establish as a matter of probability that counsel's inad-
equate performance affected that outcome. Id. at 322 (dis-
cussing that principle in reference to the court's decisions
in Lichau and Stevens). Rather, "the tendency to affect the
outcome standard demands more than mere possibility,
but less than probability." Id. Thus, to satisfy the prejudice
requirement here, petitioner must show that trial counsel's
failure to move for a mistrial "could have tended to affect"
the outcome of his case. Id. at 323 (internal quotation marks
and emphasis omitted). We conclude that petitioner has met
that standard. That is, given the state of the law at the time
of petitioner's trial, there is more than a mere possibility
that the trial court, in its exercise of discretion, would have
granted a mistrial had counsel requested one.

As an initial matter, the state and the dissent each
argue, for slightly different reasons, that we should be cir-
cumspect in applying Green's "tendency to affect the outcome"

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standard. Both contend that petitioner cannot establish prej-
udice without first showing that the circumstances would
have entitled him to a mistrial had counsel properly moved
for one, but they arrive at that conclusion differently. The
dissent agrees generally that Green's "tendency to affect the
outcome" standard applies to the trial court's hypothetical
decision whether to grant a mistrial, had one been request-
ed.22 Where the dissent parts ways with us, however, is in
our understanding that, in this case, a "tendency to affect
the outcome" means that there was "more than a mere pos-
sibility" that the trial court would have granted a mistrial
motion. In the dissent's view, Green limited the application
of the "more than a mere possibility" articulation to cases
in which "the effect of inadequate assistance of counsel on
the outcome of a jury trial is at issue," Green, 357 Or at 322
(emphasis added); see id., 357 Or at 323 n 13 (contrasting
cases in which the prejudice inquiry relates to other out-
comes, such the entry of a guilty plea, where the court has
applied a probability standard). 375 Or at 676 (Bushong, J.,
dissenting). Relying on that distinction, the dissent argues,
in relevant part, that "to establish prejudice from counsel's
failure to move for a mistrial, a petitioner must show that
the trial court would have granted the motion *** " 375 Or
at 679. At least for purposes of the present dispute, we dis-
agree with the dissent's understanding of the "tendency to
affect the outcome" standard.

22 In the state's view, because what petitioner must show is that there was
a "'tendency to affect the outcome of the prosecution"" (quoting Green, 357 Or at
322 (emphasis in state's brief), that assessment applies to the jury's decision, not
the trial court's decision whether to grant a mistrial in the first instance. Thus,
the state argues, petitioner must first establish that the trial court was legally
obligated to declare a mistrial if requested, only after which the "tendency to
affect the outcome" analysis applies. The state reasons that, as with cases in
which the forgone objection relates to evidence that the jury ultimately hears,
the "tendency" analysis only applies once an appellate court determines that, as
a matter of law, the jury should not have heard certain evidence or should have
been instructed in a specific way. See Peiffer v. Hoyt, 339 Or 649, 660, 125 P3d 734
(2005) (holding that post-conviction petitioner could not establish that counsel's
failure to file a suppression motion had been prejudicial without first showing
that trial court would have been legally required to suppress the evidence). The
state does not explain, however, why a mistrial motion is comparable to an evi-
dentiary motion-a mistrial motion does not determine what the jury considers
in rendering its verdict; it determines whether the jury renders a verdict at all.
Thus, we disagree with the state's proposed application of Green and proceed to
discuss the dissent's proposition.

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Whatever merit the dissent's distinction may have
in other contexts, we disagree that Green supports apply-
ing a probability standard in this case. In Green, the peti-
tioner had gone to trial on allegations that he had engaged
in nonconsensual sexual behavior with nine different vic-
tims, some of whom were incapable of consent due to their
age, and some of whom alleged that the petitioner had used
forcible compulsion against them. Green, 357 Or at 303-05.
At issue on post-conviction was whether defense counsel
had performed deficiently by failing to request a limiting
instruction that would require the jury to consider only the
evidence related to each individual victim in determining
whether the state had proved its case as to that victim. Id.
at 312-13. After concluding that neither the post-conviction
court nor the Court of Appeals had had the benefit of this
court's then recent decision in Pereida-Alba and that it
should reverse and remand the case for further consider-
ation, id. at 320, the court turned to the issue that the dis-
sent focuses on here-the appropriate standard for evaluat-
ing prejudice, id at 321.

In its assessment of prejudice, the Court of Appeals
had required the petitioner "to show that his trial counsel's
deficient exercise of skill and judgment had a 'tendency to
affect the result of the prosecution,'" relying on a phrase
that this court had first used more than 30 years earlier
in Krummacher. Id. The state had argued in favor of the
probability-based standard that the post-conviction court
had applied, which would have required the petitioner to
show what would have happened had counsel performed
adequately, rather than merely what could have happened.
Id. After a brief survey of its own case law, this court rejected
that argument and held that, "because many different fac-
tors can affect the outcome of a jury trial, in that setting,
the tendency to affect the outcome standard demands more
than mere possibility, but less than probability." Id. at 322.
The dissent reads into that passage the court's intent to
apply that standard only to jury outcomes, but the dissent
reads Green too narrowly.

To be sure, this court in Green observed in a foot-
note that, in another context, the court had "described the

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tendency to affect the outcome test in terms of actual prob-
ability." Id. at 323 n 13 (citing Moen v. Peterson, 312 Or 503,
513, 824 P2d 404 (1991) (discussing standard in context of
petitioner's decision to enter a guilty plea). But despite that
observation, the court did not purport to create a bright-
line rule, with the "tendency to affect the outcome" standard
applicable only to jury verdicts. And, to date, no appellate
decision of which we are aware has considered whether such
a limitation should exist, much less held that Green had
established one. 23

Here, although the state argues for a nuanced
application of Green, neither it nor any other party or court
besides the author of the dissent has suggested that the
"more than a mere possibility" articulation of the "tendency
to affect the outcome" standard does not apply to petitioner's
claim; under those circumstances, we are hesitant to begin
that inquiry at this stage. Moreover, to the extent that this
court might someday recognize the limitation that the dis-
sent posits, we would question whether this case is of the
sort in which to make such a distinction. As noted above,
the trial court's decision whether to grant a mistrial is a
matter of discretion. That is because the trial court is in the
best position to assess prejudice and to determine what, if
any, corrective measures are appropriate. In this case, no
one has suggested that, had the trial court declared a mis-
trial, whether at the request of counsel or on its own motion,
it would have abused its discretion. Nor is this court likely
to have second guessed the trial court's reasoning if it had
denied such a request. Thus, like the outcome of jury delib-
erations, the outcome of a trial court's discretionary choice
regarding a mistrial motion can be affected by many dif-
ferent factors. See id. at 322 (reasoning that use of a prob-
ability standard to assess prejudice is inappropriate in the
context of a jury trial because, in that setting, many dif-
ferent-and presumably unknown-factors can affect the
jury's decision). In that regard, petitioner's claim is similar

23 The dissent points to Richardson v. Belleque, 362 Or 236, 406 P3d 1074
(2017), as additional support, 375 Or at 677 (Bushong, J., dissenting), but, because
that case, like Green, involved a jury-determination issue, its citation to Green
lends no support to the dissent's argument that the "more than mere possibility"
standard applies only to jury determinations.

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to a claim related to a jury verdict-where the reasons for
a decision are largely unknowable-and dissimilar to, for
example, a decision whether to accept a plea offer, a decision
that a post-conviction petitioner is in a unique position to
explain. See id. at 323 n 13 (distinguishing cases involving
decisions to enter guilty pleas). We therefore apply the same
standard here.

Applying Green's "more than a mere possibility"
standard to counsel's failure to move for a mistrial, we con-
clude that petitioner has established that counsel's perfor-
mance resulted in prejudice. Had counsel requested a mis-
trial, there is more than a mere possibility that the trial
court would have declared a mistrial, thereby affecting the
outcome of his case. As we will explain, that conclusion fol-
lows primarily from the nature of mistrial motions-partic-
ularly from the fact that such motions trigger the discretion
of a trial court-and the case law that would have informed
the trial court's exercise of that discretion.

Here, if counsel had sought a mistrial, it would have
been within the discretion of the trial court to grant that
request. This court has long held that "[w]hether to grant a
mistrial is a determination committed to the sound discre-
tion of the trial court." State v. Rogers, 313 Or 356, 381, 836
P2d 1308 (1992), cert den, 507 US 974 (1993); id. (citing State
v. Smith, 310 Or 1, 24, 791 P2d 836 (1990) ("The question
thus is not whether this court would have granted a new
trial to [the] defendant, but whether the trial court abused
its discretion in refusing to do so.")). We afford courts that
discretion because trial judges are in the best position to
"assess and to rectify the potential prejudice to the defen-
dant." State v. Farrar, 309 Or 132, 164, 786 P2d 161, cert
den, 498 US 879 (1990). The question here, of course, is not
whether the trial court erred in denying a motion for mis-
trial, because no motion was made. Instead, the question for
purposes of post-conviction relief is whether, if defense coun-
sel had moved for a mistrial, there is more than a mere pos-
sibility that the trial court would have granted that request
or, if it concluded that counsel's concerns could be addressed
through corrective action short of a mistrial, taken such
action. Given the specific circumstances of petitioner's trial

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and the Oregon case law that then existed, we conclude that
the answer is yes.

As with our assessment of defense counsel's perfor-
mance, we find it instructive to consider the state of the law
at the time of petitioner's trial in determining whether peti-
tioner has established that counsel's performance was prej-
udicial. The post-conviction court and the Court of Appeals
similarly considered the then-existing case law in connec-
tion with both aspects of petitioner's post-conviction claim.
But unlike those courts, we do not consider that case law to
determine whether the trial court would clearly have been
obligated to declare a mistrial if one had been requested;
rather, we consider the then-existing case law for its rele-
vance in assessing whether the trial court's potential under-
standing of-and response to-the existing case law means
that counsel's failure to seek a mistrial had a tendency to
affect the outcome of petitioner's case.

As we have explained, at the time of petitioner's trial,
the Court of Appeals had well established case law provid-
ing that, if jurors see a defendant shackled in the courtroom
during trial without a finding of substantial necessity on the
record, the defendant is entitled to a new trial upon request.
Kessler, 57 Or App at 475. Further, in Guinn, this court effec-
tively endorsed Kessler and its underlying rationale in con-
cluding that a post-conviction petitioner makes a prima facie
case of ineffective assistance of counsel by showing that they
were "shackled during the trial and that no record was made
in the trial court to support th[at] decision[.]" 304 Or at 498.

A key concern in Kessler was the potential effect
of such a sighting on the presumption of innocence. And,
as we have noted in this case, the effect that shackling a
criminal defendant has upon the presumption of innocence
is not inherently limited to in-court shackling. Kessler itself
did not suggest such a distinction. See Kessler, 57 Or App at
474 ("It is not a question whether the jury will be constantly
exposed to the vision of a shackled defendant, but whether
they see the shackles at all. If any of the jurors could see the
leg irons, the prejudicial inferences logically follow.").24

24 Further, we do not understand Walton, which dealt with an encounter
that presumably took place outside the courtroom, as drawing a distinction with

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Before this case, the only circumstance in which
Oregon courts have limited the application of Kessler's prin-
ciples is when there was a question whether the defendant's
restraints had been seen at all, and not when they were seen
in one location as opposed to another. See, e.g., State v. Bowen,
340 Or 487, 496, 135 P3d 272 (2006), cert den, 549 US 1214
(2007) (on a plain error challenge to the use of a stun belt
during a murder trial, declining to find that defendant had
been prejudiced where there was "no evidence in the record
that the stun belt *** was visible to the jury, and, therefore,
[the] defendant [could not] claim that the jury was biased by
its presence"); State v. Bates, 203 Or App 245, 251, 125 P3d
42 (2005), rev den, 340 Or 483 (2006) (on direct appeal, any
error in compelling the defendant to wear a stun belt was
harmless because the jury was not aware that the defendant
was wearing the belt; therefore, use of belt was not likely to
cause prejudice by "impinging on the presumption of inno-
cence and the dignity of the judicial proceeding").

In light of that case law, the trial court in petitioner's
case may not have made the distinction that the state urges
here-that the jury incident could be disregarded because
of where petitioner was seen in shackles. Instead, the trial
court may have understood the relevant question to be only
whether jurors had seen the shackles at all. Although the
court would not have had the benefit of the Court of Appeals'
later decision in Sproule, that case applies both Bowen and
Bates and illustrates why the trial court might have had
that understanding. In Sproule, the court held that the peti-
tioner's trial counsel had not been inadequate in failing to
object to the use of a leg brace as a restraint when the jurors
had not been aware that the petitioner was restrained. 276
Or App at 426 ("[G]iven that the record supports the post-
conviction relief court's implicit finding that the jury was not
aware that petitioner was restrained, we will not presume
that the restraint improperly impinged on the presumption
of innocence or the dignity of the proceedings, and thereby
prejudiced petitioner."). But had the trial court in Sproule not
taken pains to prevent jurors from inadvertently observing

respect to where the encounter took place, because nothing about the court's con-
clusion was dependent on, or even referenced, the location of the defendant. 311
Or at 250.

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the restraints, the Court of Appeals would have presumed
both that the jury had seen the restraints and that the peti-
tioner had been prejudiced as a result:

"Thus, where the record shows that a criminal defen-
dant was restrained in a manner that could not be effec-
tively shielded from the jury's view, there is a presumption
that the shackles are seen by the jury and prejudice results.
In contrast, if a defendant is restrained in a manner that is
not visible to the jury, prejudice will not be presumed."

Id. at 425-26 (internal quotation marks omitted).

That reasoning reflects the Court of Appeals'
understanding of the case law that existed at the time of
petitioner's trial, and it suggests that prejudice to a defen-
dant occurs when jurors become aware that the defendant
is wearing restraints, which could occur inside the court-
room, in the courthouse hallway, or in some other place.
And even though the court in Sproule was not addressing
an out-of-court encounter, it is not easy to square its focus
on the jury's awareness that a defendant is shackled with a
limitation on where the jury reaches that awareness. More
significantly for present purposes, we cannot conclude that
a trial court, confronted with the same body of case law that
the Court of Appeals relied on in Sproule, would necessar-
ily choose to focus on something different than the Court of
Appeals focused on there. Once again, as stated in Kessler,
"[i]t is not a question whether the jury will be constantly
exposed to the vision of a shackled defendant, but whether
they see the shackles at all." 57 Or at 474.

It follows that, if counsel had moved for a mistrial,
the trial court may well have understood that Oregon law
entitled petitioner to a new trial because the jury encoun-
ter had "prejudice[d] him in the minds of the jurors" and
"impinge[d] on the presumption of innocence." Id. at 472-74
(discussing Duran); see also Long, 195 Or at 91 (explaining
that one rationale for the common law rule prohibiting the
use of shackles at trial was that "[a] prejudice might be cre-
ated in the minds of the jury against a prisoner who should
be brought before them handcuffed and shackled, which
might interfere with a fair and just decision of the ques-
tion of the guilt or innocence of such prisoner"). And that

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conclusion would be especially understandable in petition-
er's case, where the risk arising from seeing petitioner in
shackles-namely, that jurors might perceive him to be a
dangerous threat-was closely related to a disputed issue
at trial-whether petitioner had forcibly subjected the vic-
tim to sexual contact.25 See Lichau, 333 Or at 365 (finding
prejudice when omitted evidence could have tended to affect
the jury's consideration of key credibility issues); cf. Rhoden
v. Rowland, 172 F3d 633, 637 (9th Cir 1999) (where at least
some jurors saw the petitioner in shackles during trial for
violent crimes and disputed issue at trial was whether peti-
tioner had used force or fear to overcome the victim's will,
the shackles adversely affected the jury's verdict by "essen-
tially brand[ing]" the petitioner "as having a violent nature
in a case where his propensity for violence was the crucial
issue"; further, jury's lengthy deliberations "suggest[ed] that
they did not find the case to be clear-cut").

Arguing against the conclusion that petitioner has
established prejudice here, the state stands by its argument
that, unlike in-court shackling, out-of-court shackling does
not impinge upon the presumption of innocence or warrant
a mistrial. Like the post-conviction court, the state points
to case law from outside jurisdictions to argue that jurors
would know that "any shackling during transport is merely
a precaution that the sheriff ha[s] taken" and "impl[ies] only
that the defendant is being held in custody during trial"
and, thus, petitioner would not have been entitled to a mis-
trial. For two reasons, we are not persuaded.

The first difficulty we have with the state's argu-
ment is that, like part of its argument related to counsel's
performance, it is somewhat misguided. As noted above, the
issue in this case is not whether the trial court would have
been obligated under the law to grant a mistrial if defense
counsel had requested one; the issue is whether there is more
than a mere possibility that the trial court would have done
so under the existing circumstances. For the reasons just

25 Petitioner was charged with and ultimately convicted of first-degree rape
and sexual abuse, crimes that include the element of forcible compulsion, ORS
163.375, which requires the jury to find that a person used physical force or
threatened the victim with immediate or future death or physical injury, ORS
163.305.

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stated, we conclude that there is such a possibility and that
petitioner has therefore established that counsel's omission
had a tendency to affect the outcome.

Our second and related difficulty is that we cannot
conclude, based on the out-of-state case law that the state
and post-conviction court have pointed to, that the trial
court would necessarily have made the distinction that those
cases call for. Most of the cases that the post-conviction court
relied on assert, with limited discussion, that witnessing a
defendant in shackles outside the courtroom is somehow dif-
ferent and unremarkable. See, e.g., State v. Cassel, 48 Wis
2d 619, 625, 180 NW 2d 607, 611 (1970) (stating that “the
situation is psychologically different and less likely to create
prejudice in the minds of jurors"; further, "[p]eople normally
expect to see a prisoner under some restraints in situations
where he is not able to escape if not in restraints"); State
v. Elliott, 137 NC App 282, 285, 528 SE 2d 32, 35, rev'd on
other grounds, 352 NC 663, 535 SE2d 32 (2000) (“The hand-
cuffing of defendants, as they are transferred between the
courtroom and the jail, is a common practice well known by
the general public."). Because the reasoning of those cases is
somewhat cursory and not particularly persuasive, the trial
court may not have afforded them the weight that the post-
conviction court appears to have given them.

The cases that the state relies on suffer similar
deficiencies. Some of them summarily characterize the
out-of-courtroom encounters as "brief and accidental," e.g.,
Wharton v. Chappell, 765 F3d 953, 964 (9th Cir 2014), while
others, like those cited by the post-conviction court, reason
that jurors are aware that some defendants are unable to
afford bail, e.g., United States v. Halliburton, 870 F2d 557,
561 (9th Cir 1989), or that "[i]t is a normal and regular as
well as a highly desirable and necessary practice to hand-
cuff prisoners while they are being taken from one place
to another, and the jury is aware of this[,]" United States
v. Leach, 429 F2d 956, 962 (8th Cir 1970). Although some
of those decisions acknowledge that out-of-court encoun-
ters may affect jurors' perceptions of the presumption of
innocence, they summarily dismiss that concern as being

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adequately mitigated by the assumed fact jurors know that
some defendants are in custody.26

This court has never discussed the jury's likely
understanding of pretrial detention practices, such as
shackling detainees during transport, nor has it suggested
that jurors would be indifferent to witnessing it. Cf. State
v. Cavan, 337 Or 433, 447, 98 P3d 381 (2004) ("Our 200-
year American jury trial tradition informs us that" jurors
are not "indifferent to their surroundings."). Even if we were
to assume that jurors are aware that some defendants are
detained pretrial simply because they cannot post bail, we
are reluctant to further assume that their awareness of that
fact can eliminate the negative consequences of seeing a
defendant in shackles, including the creation of unconscious
bias. For present purposes, however, we need not-and do
not-conclusively decide whether there is a material dif-
ference between in-court and out-of-court viewings for pur-
poses of petitioner's constitutional and common law rights.
It suffices, instead, to conclude that, although it is possible
that the trial court would have reached the same conclusion
as those out-of-jurisdiction decisions and therefore denied
any request for a mistrial, their persuasive value is not so
great that we can say that there is only the mere possibility
that the trial court would have granted a mistrial if counsel
had requested one. Accordingly, petitioner was prejudiced
by counsel's failure to do so.

Finally, although we decide petitioner's case on the
basis of counsel's failure to move for a mistrial and the pos-
sibility that the trial court would have declared a mistrial
if one had been requested, we briefly address the dissent's
observation that the trial court might instead have taken
corrective action short of declaring a mistrial. 375 Or at 680-
81 (Bushong, J., dissenting). It is true that, given this court's
opinion in Walton, the other case law from Oregon and other
jurisdictions, and the discretion afforded trial courts with
regard to mistrial motions, the trial court in this case might

26 The dissent likewise relies on case law from other jurisdictions. 375 Or at
671-73 (Bushong, J., dissenting). From our review of that case law, it is similarly
sparse and conclusory with regard to this issue, and the dissent does not elabo-
rate further as to any other justifications for distinguishing in-court from out-of-
court shackling.

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have chosen to do something other than declare a mistrial
to address what had occurred. See, e.g., State v. Evans, 211
Or App 162, 166, 154 P3d 166 (2007), aff'd, 344 Or 358, 182
P3d 175 (2008) (stating that, "[i]n ruling on a motion for
a mistrial, a trial court must decide whether to grant the
motion, to cure the effect of inappropriate conduct or testi-
mony by giving a proper instruction instead, or to do noth-
ing at all"); see also Walton, 311 Or at 250 (listing corrective
measures taken by trial court to address jurors' observa-
tion of the defendant in shackles); United States v. Moreno,
933 F2d 362, 368 (6th Cir 1991) (observing that courts have
expressed a preference for remedial action after an acciden-
tal observation of a defendant in custody); id. (approving
instruction to jury "that the custodial status of the defen-
dants was not indicative of guilt or innocence and, therefore,
should be disregarded"); United States v. Pina, 844 F2d 1, 8
(1st Cir 1988) (approving actions taken by the trial court to
ensure jury impartiality, including individual questioning
of potentially tainted jurors, obtaining confirmation from
jurors that they remained unbiased, and instructing jurors
not to discuss the matter with anyone). But the possibility
that the trial court would take different action to address
its concerns that the jury had been tainted does not trans-
form the possibility of a mistrial into a "mere" possibility.
And because any such action would reflect the trial court's
view that measures were necessary to ensure an impartial
jury, the absence of such measures, like the failure to seek
a mistrial, would, in our view, have a "tendency to affect the
outcome" of the jury trial. Green, 357 Or at 322.

## III. CONCLUSION

We conclude that, although no Oregon appellate
court had previously held that a mistrial is warranted
when jurors briefly see a defendant in shackles outside the
courtroom, the state of the law at the time of petitioner's
trial was such that an attorney exercising reasonable pro-
fessional skill and judgment would have seen an opportu-
nity to argue for a mistrial under the circumstances of this
case. Moreover, even if counsel might have had reasonable
tactical or other reasons not to seek a mistrial, the post-
conviction court may not rely on any such reasons when the

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record cannot support the finding that counsel in fact con-
sidered them.

We further conclude that counsel's performance
was prejudicial. Had counsel moved for a mistrial, there is
more than a mere possibility that the trial court would have
granted that request or taken other protective measures to
address petitioner's harms. Thus, petitioner has shown that
counsel's inadequate performance had a tendency to affect
the outcome and that petitioner therefore suffered preju-
dice. Accordingly, the post-conviction court erred in deny-
ing petitioner's claim of inadequate assistance of counsel,
and we reverse the post-conviction court's judgment on that
basis.

The decision of the Court of Appeals is affirmed in
part and reversed in part. The judgment of the circuit court
is reversed, and the case is remanded to the circuit court for
further proceedings.

BUSHONG, J., dissenting.

Today, this court grants petitioner post-conviction
relief, concluding that his criminal defense lawyer rendered
constitutionally inadequate assistance during his criminal
trial. It is well established that, in evaluating whether coun-
sel's assistance was inadequate in violation of Article I, sec-
tion 11, of the Oregon Constitution, we first must determine
"'whether petitioner demonstrated by a preponderance of the
evidence that his lawyer failed to exercise reasonable profes-
sional skill and judgment.'" Montez v. Czerniak, 355 Or 1, 7,
322 P3d 487, adh'd to as modified on recons, 355 Or 598, 330
P3d 595 (2014) (quoting Lichau v. Baldwin, 333 Or 350, 359,
39 P3d 851 (2002) (brackets omitted)). If we conclude that peti-
tioner met that burden, "we further must determine whether
he proved that counsel's failure had a tendency to affect the
result of his trial," id.,-or in other words, whether counsel's
failure "prejudiced" petitioner, Lichau, 333 Or at 363.1

1 Under the Sixth Amendment to the United States Constitution, the peti-
tioner must show that counsel's performance was deficient, and that the deficient
performance caused prejudice to the defense. Strickland v. Washington, 466 US
668, 687, 104 S Ct 2052, 80 L Ed 2d 674 (1984). We have stated that the standards
for adequacy of counsel under the state and federal constitutions are "function-
ally equivalent." Montez, 355 Or at 6.

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The majority opinion holds that petitioner met his
burden in both respects. First, the majority opinion concludes
that petitioner's lawyer failed to exercise reasonable skill and
judgment when he did not move for a mistrial after petitioner
told him that some jurors had seen him in the hallway shack-
led and dressed in jail clothes. Second, the majority opinion
concludes that counsel's failure was prejudicial, because, if
counsel had requested a mistrial, "there is more than a mere
possibility that the trial court would have declared a mis-
trial, thereby affecting the outcome of his case." 375 Or at
647. I disagree with both conclusions and the majority opin-
ion's analysis. Accordingly, I respectfully dissent.

## I. FAILURE TO EXERCISE REASONABLE SKILL AND JUDGMENT

As noted, it was petitioner's burden to establish, by
a preponderance of the evidence, that his trial counsel failed
to exercise reasonable skill and judgment when he did not
move for a mistrial. Montez, 355 Or at 7. The post-conviction
court concluded that petitioner failed to meet his burden. In
determining whether the post-conviction court erred, this
court must "'make every effort to evaluate a lawyer's con-
duct from the lawyer's perspective at the time, without the
distorting effects of hindsight.'" Id. (quoting Lichau, 333 Or
at 360). This court must not "'second-guess a lawyer's tac-
tical decisions in the name of the constitution unless those
decisions reflect an absence or suspension of professional
skill and judgment."" Id. (quoting Gorham v. Thompson, 332
Or 560, 567, 34 P3d 161 (2001)). That is because the con-
stitution "'gives no defendant the right to a perfect defense
*** '" Id. (quoting Krummacher v. Gierloff, 290 Or 867, 875,
627 P2d 458 (1981)).

As I will explain, because petitioner has the bur-
den of proof, this court on review must analyze whether
petitioner established facts showing that moving for a mis-
trial was so obviously beneficial to him that it was the only
acceptable course of action; whether petitioner cited any case
decided before this incident that had clearly held that jurors
seeing a criminal defendant in shackles outside the court-
room required a mistrial; and, if not, whether petitioner
established that the law so obviously foreshadowed such a

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ruling that all defense attorneys exercising reasonable pro-
fessional skill and judgment would have recognized at that
time that the circumstances required a request for a mis-
trial. I agree with the post-conviction court and the Court
of Appeals that petitioner did not meet his burden. In con-
cluding otherwise, the majority opinion does not, in my view,
fully engage with the required analysis of the facts and law
consistent with petitioner's burden.

I begin with the majority opinion's treatment of the
facts. Petitioner's criminal trial occurred in 2013; his post-
conviction trial was in 2020. Given that seven-year gap, the
factual record related to jurors' potential exposure to peti-
tioner in shackles and jail clothes at petitioner's criminal
trial is understandably sparse.

In his testimony at the post-conviction trial, peti-
tioner described the incident, recalling that it happened on
a Friday, after the jury had finished its first day of deliber-
ations without reaching a verdict. Petitioner testified that,
when the deputies began to escort him out of a holding cell
into a courthouse hallway to take him to jail, the deputies
saw the jurors as they were going down the stairs to leave
the courthouse. They then "opened the door and snatched
[petitioner] back into the holding cell for about ten minutes."
Petitioner described where he was when this happened. He
stated that there were "some real big steps that lead up to
each floor of the courtrooms" and that the holding cells were
"all the way at the end of the hall." He remembered see-
ing "probably three" jurors who "actually looked at" him,
and that "the other two" jurors that he had seen were "still
walking down the steps." Petitioner testified that he told his
defense counsel that jurors had seen him in shackles and
jail clothes, that counsel then informed the court and the
prosecutor, but "that's all that happened." He testified, that,
at the time, he "didn't think the jurors seeing [him] in hand-
cuffs was all that serious" and that he was more focused
on the possibility of a "hung jury."2 Petitioner also testified
that, when the jury came back into the courtroom to return

2 Petitioner's reference to the possibility of a "hung jury" was likely based on
the jury's question to the court during the first day of deliberations, which asked
what it should do if there were not enough votes to reach a verdict, noting that the
verdict form did not have a space to indicate a "hung jury."

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a verdict, he asked his lawyer about a mistrial, and counsel
responded that "there's no reason" to request one.

Petitioner's trial counsel-an experienced crimi-
nal defense lawyer3-submitted a declaration stating that
he had "searched [his] memory" and had "no doubt" that
petitioner had told him that jurors had seen him in shack-
les and jail clothes as he was being transported to or from
court. Counsel stated that he was "certain" that he made
inquiries of the sheriff's deputies and then brought the mat-
ter to the court's attention, but he did not offer any details
of what was discussed or why he did not move for a mis-
trial. Counsel was called as a witness to testify during the
post-conviction trial, but he was not asked any questions
about this incident or to explain why he did not move for a
mistrial.

The post-conviction court found that counsel's testi-
mony was credible, and that petitioner's testimony was also
credible "except to the extent that he testified that his trial
attorney did nothing" after he reported the "possible con-
tact with jurors while restrained in the courthouse hallway."
Rather, the post-conviction court found that, after petitioner
reported that "possible contact" to his attorney, counsel dis-
cussed it with the deputies and then the trial judge and the
prosecuting attorney in chambers, off the record, but did not
move for a mistrial.

The post-conviction court concluded that petitioner
"did not prove" that his trial attorney failed to exercise rea-
sonable professional skill and judgment by not requesting a
mistrial. In support of that conclusion, the post-conviction
court stated that trial counsel "did investigate the matter"
and discussed it with the judge and prosecutor but took no
action on the record. The post-conviction court also noted
the absence of evidence in the record in several respects.
Specifically, it pointed out that petitioner had "offered only
his perception of the hallway encounter" and that there was
"no evidence from the viewpoint of the jurors." The court also
noted that there was "no evidence that the jurors recognized

3 Petitioner's counsel was admitted to the Oregon bar in 1992 and the
Arizona bar in 1985. He practiced continually in criminal defense throughout his
career.

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[petitioner] or that [the encounter] had any impact on them."
And although there was no evidence in the record about why
counsel chose not to move for a mistrial, the post-conviction
court observed that counsel "may not have wanted a mis-
trial or may have concluded that a mistrial [motion] would
not have been successful."4

As the majority opinion points out, the post-
conviction court's findings of historical fact are binding on
this court if there is evidence to support them. 375 Or at 617
(citing Lichau, 333 Or at 359). If the post-conviction court
has not expressly made findings and there is evidence from
which the facts could be decided in more than one way, we
must presume that the court decided the facts in a manner
that is consistent with its conclusions of law. 375 Or at 617
(citing Lichau, 333 Or at 359; Ball v. Gladden, 250 Or 485,
487, 443 P2d 621 (1968).

The majority opinion cites those standards and
acknowledges that petitioner has the burden of proof, but, as
I will explain, its analysis nevertheless gives petitioner the
benefit of the absence of evidence in some areas. The major-
ity opinion also fails to account for plausible inferences that
could be made from the evidence that would support the
post-conviction court's conclusions.

For example, as noted, there was no evidence of
what the jurors saw from their viewpoint; whether any
jurors had recognized the person being escorted in shackles
as the defendant in the case they were deliberating; what
trial counsel discussed off the record with the deputies, the
trial court, and the prosecuting attorney; and what trial
counsel concluded from his investigation. There was also no
evidence in the record about why counsel did not move for a
mistrial. That absence of evidence cannot weigh in petition-
er's favor, because he has the burden of proof.

4 The post-conviction court also made a factual finding that the deputies
escorting petitioner out of the holding cell into the courthouse hallway "saw
jurors in the hallway and pulled [petitioner] back into the holding cell." That
finding as to what the deputies saw does not mean that the jurors who were going
down the stairs necessarily saw and recognized the person in shackles and cuffs
as the defendant in their case, and, as the post-conviction court noted, there was
"no evidence" from the viewpoint of the jurors and "no evidence that the jurors
recognized" petitioner.

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The post-conviction court found that counsel "did
investigate" this incident. If the three jurors who "looked
at" petitioner saw him, it is plausible to infer that they
may not have recognized the person in shackles wearing
jail clothes emerging from a doorway at the end of the hall
escorted by deputies as the defendant in their case. The
last time the jurors had seen the petitioner was earlier that
day, when they were sent to deliberate. At that time, he
was in the courtroom dressed in street clothes. When the
jurors were heading down the stairs after concluding their
deliberations at the end of the day, it is certainly plausible
that, if they did see a person escorted by deputies emerging
from a doorway at the end of the hall in shackles wearing
jail clothes, they may not have recognized him as the same
person they had seen in street clothes in the courtroom ear-
lier that day.5 That would explain why counsel told peti-
tioner that "there's no reason" to request a mistrial. If trial
counsel had concluded from his investigation that jurors
had not recognized the person being transported, then his
decision to not request a mistrial was not constitutionally
inadequate.

The majority opinion declines to "account for the
possibility" that defense counsel did not move for a mistrial
because he had concluded that the jurors had not recognized
petitioner in the hallway. 375 Or at 640. The majority opin-
ion ignores that possibility, because, in its view, there was no
"disputed factual matter" in the post-conviction court record
as to counsel's perception and what he concluded after com-
pleting his investigation. 375 Or at 639. But there was a
factual dispute about what counsel learned and concluded
from his investigation, because that undoubtedly affected
his determination that there was "no reason" to request a
mistrial. It is true that there is no direct evidence of what
counsel had learned and concluded from his investigation-
not surprisingly, given the time between those events and
the post-conviction trial-but the factual dispute is reflected
in counsel's statement to petitioner that he thought at the
time that there was "no reason" to request a mistrial. The

5 The Court of Appeals stated that "the post-conviction court found that
there was no evidence that the jurors recognized petitioner in the hallway."
Nelson v. Cain, 334 Or App 326, 330, 556 P3d 1 (2024).

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majority opinion's conclusion that the record "contains no
evidence either way as to what counsel concluded" after his
investigation, 375 Or at 639 (emphasis in majority opinion),
overlooks the inference that can be made from counsel's
statement.6

The majority opinion also states that the applica-
ble standard of review does not permit it "to endorse that
level of speculation," because the post-conviction court's
ultimate legal conclusion "does not appear to have relied
on what counsel did or did not conclude about the jurors'
actual perceptions[.]" 375 Or at 639-40. But, as noted, the
standard of review requires this court to presume that the
post-conviction court would have found the facts in a way
that supports the post-conviction court's conclusion, and it
requires this court to make that presumption in the absence
of any specific factual finding or reliance by the post-
conviction court. See Lichau, 333 Or at 359 ("[I]f findings are
not made on all [historic] facts, and there is evidence from
which such facts could be decided more than one way, we
will presume that the facts were decided in a manner con-
sistent with the post-conviction court's ultimate conclusion."
(Emphasis added; internal quotation marks and alterations
omitted)).

As discussed above, although there is no direct
evidence of what counsel learned and concluded from his
investigation, there is evidence from which the facts could
be decided in more than one way. Instead of presuming that
the post-conviction court would have decided the facts in a
manner consistent with its conclusion, the majority opin-
ion declines to "account for" that possibility, 375 Or at 640
choosing instead to view the facts in a manner that is con-
sistent with the majority opinion's own conclusions. That, in
my view, does not correctly apply the standard of review and
the burden of proof.

6 The majority opinion states that I am "wrong" in concluding that "there is
evidence from which [the] facts could be decided [in] more than one way," Ball,
250 Or at 487, because "for a fact to be in dispute, there must be evidence of that
fact in the record." 375 Or at 639. But Ball does not state that there must be
evidence in the record of the fact that is in dispute. It suffices if there is evidence
"from which [the] facts could be decided [in] more than one way," Ball, 250 Or at
487, which means that evidence of counsel's statement to petitioner from which
the court could infer what counsel concluded from his investigation is enough.

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As for the post-conviction court's suggestion that
counsel "may not have wanted" a mistrial-and the state's
argument on review that counsel may have had "strategic
reasons" for choosing not to move for a mistrial-the major-
ity opinion states that the argument "falls short" because
"nothing in the record suggests that counsel considered
moving for a mistrial" and "then made a strategic decision"
not to do so. 375 Or at 637-38. Again, the record reflects that
counsel told petitioner that there was "no reason" to request
a mistrial, and the absence of additional evidence in the
record cannot favor petitioner, because he has the burden of
proof.

The majority opinion also concludes that request-
ing a mistrial was so "obviously beneficial" to petitioner
that there would be no reason to not request one, as if there
were no potential downsides to requesting a mistrial. 375
Or at 638. However, the benefits to a criminal defendant
of moving for a mistrial are not so obvious that reasonable
defense counsel must always request a mistrial if there are
any arguable grounds for doing so, as this court has recog-
nized. In State v. Moore, 361 Or 205, 390 P3d 1010 (2017), we
issued a peremptory writ of mandamus when a trial court
sua sponte declared a mistrial over a criminal defendant's
objection. The defense counsel in that case told the court:
"'We don't want a mistrial. We like this jury; we like how
we're doing."" Id. at 220. We concluded that "[t]he fact that
[the] defendant and his counsel believed that the jury was
favorably disposed to his case and objected to a mistrial
is an important consideration" in determining whether to
declare a mistrial. Id.

Thus, depending on the case, one potential down-
side to moving for a mistrial is the possibility that the court
may grant the request, leading to a retrial that the defen-
dant may not want. As in Moore, a criminal defendant and
his attorney may not want a mistrial and a retrial if they
"like" the jury or "liked" how the trial had gone. Although
there is no direct evidence in this case that petitioner or his
defense counsel "liked" the jury or how the trial had gone,
there is some evidence that would support that inference.
During the first day of deliberations, the jury asked the

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court what it should do if there were not ten votes on a par-
ticular charge, noting that the verdict form did not have a
way to express a hung jury.7 Under those circumstances, it is
certainly plausible that a reasonable defense attorney might
not want a mistrial, as the post-conviction court noted.8

Another possible downside to requesting a mistrial
is that, if the court declared a mistrial, the victim would
have to testify again at the resulting retrial. As the Court of
Appeals noted, petitioner "was twice tried for charges aris-
ing out of a domestic violence incident in which he punched
his domestic partner in the face, had sex with her against
her will, and took her vehicle." Nelson v. Cain, 334 Or App
326, 327, 556 P3d 1 (2024). Testifying about a sexual assault
can be traumatizing. See People v. Cogswell, 48 Cal 4th 467,
478, 227 P3d 409, 414, 106 Cal Rptr 3d 850, 856 (2010) (not-
ing that sexual assault victims "are particularly likely to
be traumatized because of the nature of the offense" and
requiring victims to "relive and to recount in a public court-
room the often personally embarrassing intimate details
of a sexual assault far overshadows the usual discomforts
of giving testimony as a witness"); Vivian Berger, Man's
Trial, Woman's Tribulation: Rape Cases in the Courtroom,
77 Colum L Rev 1, 23 (1977) (discussing the possibility that
a rape victim's "ordeal during the trial unjustly compounds
the trauma of the event and its aftermath"). Although there
is no evidence in this case about how traumatizing it was
to the victim-petitioner's former domestic partner-to
testify, twice, about this incident, it is possible that, at the
time, petitioner might not have wanted to traumatize her

7 At the time of petitioner's criminal trial, ten votes were required for a
conviction for felonies other than first-degree murder. Or Const, Art I, § 11; ORS
136.450 (2013), amended by Or Laws 2019, ch 635, § 8, amended again by Or Laws
2021, ch 478, § 11. Seven years later, the United States Supreme Court held that
a unanimous jury verdict was required by the Sixth Amendment to the United
States Constitution for all felony convictions. Ramos v. Louisiana, 590 US 83, 93,
140 S Ct 1390, 206 L Ed 2d 583 (2020).

8 If counsel chose not to move for a mistrial because he liked petitioner's
chances of prevailing on some or all charges better than his chances of prevailing
on retrial if the court declared a mistrial, the actual verdict in this case provided
at least some support for that optimism. The jury acquitted petitioner of one of
the three counts of first-degree sexual abuse-a Measure 11 crime that carried a
mandatory 75-month prison sentence-finding him guilty of the lesser-included
offense of third-degree sexual abuse (which does not carry a mandatory prison
sentence).

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again by forcing her to relive the incident for a third time on
retrial, especially if he liked how his second trial had gone.

Turning to the majority opinion's treatment of the
law, it acknowledges that "no Oregon appellate court had pre-
viously held that a mistrial is warranted when jurors briefly
see a defendant in shackles outside the courtroom," 375 Or
at __ (slip op at 50:22 - 51:1-2), but it concludes that the state
of the law was such that that an attorney exercising reason-
able skill and judgment "would have seen an opportunity to
argue for a mistrial" under the circumstances of this case,
Or at __ (slip op at 51:2-4). The majority opinion relies on
Burdge v. Palmateer, 338 Or 490, 112 P3d 320 (2005), for the
proposition that a constitutionally adequate defense counsel
must make an "obviously beneficial" argument even if the
law is unsettled.9

Although I agree with that proposition as a gen-
eral principle, I do not agree that it should be applied in
this case. In Burdge, this court concluded that the defense
attorney's assistance in the petitioner's trial was not con-
stitutionally inadequate. 338 Or at 500.10 In fact, this court
has never-before today-applied Burdge to hold that a
defense lawyer's failure to advance a plausible argument on
an unsettled legal issue amounts to constitutionally inade-
quate assistance of counsel. See Jackson v. Franke, 369 Or

9 The majority opinion concludes that, under Burdge, a failure to make a
legal argument constitutes constitutionally inadequate assistance of counsel
when (1) a legal issue arises in the course of representing a defendant; (2) the
legal issue "has not yet been decided under controlling case law"; (3) the issue
"is susceptible of an interpretation that so obviously would offer potential ben-
efits to the defendant that all reasonable counsel would identify it"; and (4) "all
such counsel would conclude that, under the circumstances, the potential bene-
fits of advancing that interpretation exceeded any risks[.]" __ Or at __ (slip op at
26:9-15).

10 The issue in Burdge was whether a post-conviction petitioner's criminal
defense lawyer provided constitutionally inadequate assistance when he failed
to object to the application of a statute to increase the petitioner's sentence. 338
Or at 494. The Court of Appeals concluded that a reasonable lawyer would have
objected, because the argument was plausible, the petitioner "faced no tacti-
cal risks for making" the argument, and the petitioner "would have reaped a
substantial benefit if the argument had succeeded." Id. (summarizing Court of
Appeals' decision). We reversed, concluding that the Court of Appeals had failed
to apply the "reasonable professional skill and judgment" test. Id. at 497. Even
if the statute at issue in that case was ambiguous, we explained, it was "not
so obviously ambiguous that any lawyer exercising reasonable professional skill
and judgment necessarily would have seen it." Id. at 497-98.

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422, 433-34, 507 P3d 222 (2022) (noting that, "[t]o date, ***
this court has not been persuaded by a claim *** that any
lawyer exercising reasonable skill and judgment would have
raised a particular unsettled legal issue").11

The majority opinion states that this court applied
Burdge in the context of unsettled case law in Antoine v.
Taylor, 368 Or 760, 499 P3d 48 (2021), __ Or at __ (slip op at
27:2-4). Although we cited and applied Burdge in Antoine, we
again held in that case that the petitioner's criminal defense
lawyer's assistance was not constitutionally inadequate. 368
Or at 780. Moreover, as I will explain, our analysis in Antoine
demonstrates how this court should analyze the issue con-
sidering the petitioner's burden of proof. Accordingly, I dis-
cuss Antoine in some detail.

The petitioner in Antoine had been charged with
multiple counts of first-degree sexual abuse and first-degree
sodomy. Id. at 762-63. His defense counsel filed a demur-
rer, arguing that the indictment failed to provide adequate
notice of the basis of the charges. Id. at 763. The trial court
denied the demurrer and the petitioner was convicted. Id.
at 764-65. On direct appeal, the Court of Appeals held that,
under State v. Hale, 335 Or 612, 621, 75 P3d 448 (2003), cert
den, 541 US 942 (2004), the petitioner's inadequate notice
claim should have been raised in a motion for a pretrial elec-
tion, not in a demurrer. State v. Antoine, 269 Or App 66, 78,
344 P3d 69, rev den, 357 Or 324 (2015). The petitioner later
sought post-conviction relief, alleging that his trial coun-
sel provided inadequate assistance by failing to move for a

11 The Court of Appeals has been persuaded that a defense lawyer exercis-
ing reasonable skill and judgment would have raised an unsettled legal issue
only in limited circumstances, such as when the unsettled issue was whether the
defendant's convictions would merge. See Bumgarner v. Nooth, 254 Or App 86, 97,
295 P3d 52 (2012) (post-conviction court did not err in granting relief when trial
counsel failed to argue that multiple convictions for first-degree rape and other
sexual offenses should merge given "the obvious possible benefits to [the] peti-
tioner of raising the merger issue"); Ross v. Hill, 235 Or App 340, 349-50, 231 P3d
1185, rev den, 349 Or 56 (2010) (post-conviction court erred in concluding that the
petitioner's trial counsel was not deficient in failing to argue that two kidnap-
ping convictions should merge). The Court of Appeals was persuaded in another
case that a defense lawyer exercising reasonable skill and judgment would have
sought dismissal of an attempted rape charge on statute of limitations grounds,
"given the obvious possible benefits" of raising the statute of limitations-"dis-
missal of the charge, with no negative strategic impact on the defense of the other
charges[.]" Lamb v. Coursey, 238 Or App 647, 652, 243 P3d 130 (2010).

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pretrial election. The post-conviction court granted relief,
but the Court of Appeals reversed, holding that trial counsel
had not performed deficiently given the state of the law at
the time of the petitioner's trial. Antoine v. Taylor, 303 Or
App 485, 499, 465 P3d 238 (2020). We allowed review and
affirmed the Court of Appeals. Antoine, 368 Or at 780.

We stated that our decision in Burdge was "the most
pertinent" to the issue presented on review, id. at 768, not-
ing that Burdge's "analytical approach remains applicable"
even though Antoine did not involve a pure issue of statutory
interpretation, id. at 770. "[T]o address whether [the] peti-
tioner's trial counsel performed deficiently," we explained,
the court must "examine the state of the law at the time of
petitioner's trial to evaluate whether trial counsel's decision
to litigate the notice issue primarily through a demurrer
was unreasonable." Id. at 771.

In analyzing that issue, we noted that, under the
case law decided before our decision in Hale, a demurrer had
been considered an appropriate procedural way to challenge
the sufficiency of notice. Id. at 772. The petitioner in Antoine
argued, however, that his trial counsel was constitutionally
inadequate, because Hale had subsequently "foreclosed one
of the two possible ways to obtain pretrial notice-a demur-
rer." Id. at 775. We rejected that argument, concluding that
"petitioner's reading of Hale is not so obvious 'that any law-
yer exercising reasonable professional skill and judgment
necessarily would have seen it.'" Id. at 777 (quoting Burdge,
338 Or at 497-98). In reaching that conclusion, we also
noted "what was absent from Hale." Id. at 778. Specifically,
we noted that Hale did not address earlier cases or other-
wise explain why, "under the statutory scheme concerning
demurrers," a defendant could not establish that an indict-
ment failed to provide sufficient notice through a demur-
rer. Id. at 779. We also noted that the Court of Appeals had
considered pretrial notice issues raised through a demur-
rer in "at least three decisions issued after Hale" and before
the petitioner's underlying criminal trial. Id. (emphasis in
original).

In addition, we observed that the petitioner "has
identified no decision available to trial counsel that clearly

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held that a demurrer was not an appropriate mechanism"
to challenge the sufficiency of pretrial notice, and that the
petitioner "has not presented any evidence that his reading
of Hale was widely shared or even that any other attorney
had read Hale in that manner[.]" Id. at 780. We also noted
that the petitioner's "theory of deficient performance fails to
account for the longstanding body of authority holding that
a demurrer is an appropriate way to raise a challenge" to
the adequacy of pretrial notice. Id. Thus, we determined in
Antoine, "as in Burdge," that, "when we take into account the
information available to trial counsel at the time," we could
not conclude "that any lawyer exercising reasonable profes-
sional skill and judgment necessarily would have seen the
arguable ambiguity in the case law subsequently identified
by the Court of Appeals" on direct appeal in the petitioner's
case. Id. (citation and internal quotation marks omitted).

Notably, in Antoine, the absence of evidence in the
record showing what other lawyers knew or understood at
the time-and the petitioner's failure to identify any case
that "clearly held" that his lawyer's decision to challenge the
adequacy of notice through a demurrer and not a pretrial
motion to elect-weighed against the petitioner, because he
had the burden of proof. Id.

Where-as here-there was no case that "clearly
held" that counsel must take an action that a post-conviction
petitioner contends was required for a constitutionally ade-
quate defense, our cases have examined whether the exist-
ing state of the law "obviously foreshadowed" the legal rule
that the post-conviction petitioner is advocating. The major-
ity opinion does not engage with that required analysis.

For example, the petitioner in Jackson, alleged that
his defense counsel was constitutionally inadequate at the
time of his 2001 trial, because he did not object to an expert
witness's diagnosis of child sexual abuse in the absence of
corroborating evidence. 369 Or at 424. This court later held
in State v. Southard, 347 Or 127, 142, 218 P3d 104 (2009),
that such expert testimony is inadmissible. We stated that
the issue in post-conviction in Jackson was whether the law
at the time of the petitioner's criminal trial "so obviously
foreshadowed" the rule subsequently adopted in Southard

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that any lawyer exercising reasonable professional skill and
judgment would have objected to the diagnosis of child sex-
ual abuse in the absence of physical evidence. Jackson, 369
Or at 435-36. We concluded that "our ultimate answer in
Southard was not so obviously foreseeable that an examina-
tion of the existing case law" established that all counsel
exercising reasonable professional skill and judgment would
have objected to the testimony. Id. at 438.12

Thus, our decisions in Antoine and Jackson ana-
lyzed the issue in the way that the majority opinion should
have analyzed it in this case. Because petitioner has the
burden of proof, the court should analyze whether petitioner
presented facts establishing that the only acceptable course
of action was to move for a mistrial; whether petitioner cited
a pre-2013 case that "clearly held" that jurors seeing a crim-
inal defendant in shackles outside the courtroom required a
mistrial; and, if not, whether petitioner established that the
existing law "so obviously foreshadowed" such a ruling that
all defense attorneys exercising reasonable professional
skill and judgment would request a mistrial upon being told
that that had happened. The majority opinion falls short of
that required analysis.

As explained above, there are many important facts
that are missing from this record and there are plausible
inferences that can be made from the facts that were pre-
sented that would make trial counsel's decision to not move
for a mistrial reasonable. And, as I will explain next, peti-
tioner did not establish that existing law so obviously fore-
shadowed the application of cases addressing jurors observ-
ing a defendant shackled in the courtroom to jurors seeing a
defendant in shackles outside the courtroom. Instead, peti-
tioner's theory of inadequate assistance, like the petitioner's

12 Similarly, the issue in Miller v. Lampert, 340 Or 1, 5-6, 125 P3d 1260
(2006), was whether a post-conviction petitioner's trial counsel was constitution-
ally inadequate by failing to argue that the petitioner could not be punished
with an enhanced sentence based on factual findings made by the court, not the
jury. Two years after the petitioner's criminal trial, the Supreme Court held that
practice to be unconstitutional in Apprendi v. New Jersey, 530 US 466, 490, 120
S Ct 2348, 147 L Ed 2d 435 (2000). This court rejected the petitioner's claim for
post-conviction relief, concluding that, under the state of the law that existed
at the time of the petitioner's trial, counsel "was not required to anticipate" the
Supreme Court's subsequent ruling in Apprendi and object to the enhanced sen-
tence. Miller, 340 Or at 16.

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theory in Antoine, "fails to account" for a "longstanding body
of authority" holding that jurors briefly observing a criminal
defendant in shackles outside the courtroom does not neces-
sarily provide grounds for a mistrial. Antoine, 368 Or at 780.
This court has never held-until today's ruling-that jurors
seeing a criminal defendant in shackles outside the court-
room requires a mistrial, and, as I will explain, the state of
the law in 2013 did not "so obviously foreshadow" such a rul-
ing that all reasonable counsel would have requested one.

The majority opinion states that this court "has
never limited" a defendant's right to avoid having jurors see
him shackles "to in-court observations." __ Or at __ (empha-
sis in majority opinion) (slip op at 27:8-11). That is true, but
petitioner has the burden of establishing that existing law
so obviously foreshadowed the application of in-court shack-
ling principles to an out-of-court observation; the state
does not have to establish that existing law was limited to
in-court observations. The majority opinion suggests that
petitioner met his burden, because "at least some of the con-
cerns" arising from in-court shackling "could be reasonably
understood to arise in the out-of-court context as well[.]"
Or at __ (citing Guinn v. Cupp, 304 Or 488, 497, 747 P2d 984
(1987); State v. Kessler, 57 Or App 469, 473, 645 P2d 1070
(1982)) (slip op at 27:11-13).13 From those observations, the
majority opinion concludes that a defense lawyer exercis-
ing reasonable skill and judgment would have known that
jurors seeing a defendant in shackles outside the courtroom
required a request for a mistrial.

In reaching that conclusion, the majority opinion
states that the only Oregon case to address jurors seeing a
defendant in shackles outside the courtroom-State v. Walton,
311 Or 223, 809 P2d 81 (1991)-"in no way foreclosed" an
argument that "the circumstances in this case warranted a
mistrial." __ Or __ (slip op at 35:6-8). The question, though,
is not whether the Walton decision foreclosed an argument

13 The majority opinion identifies four types of "manifest prejudice" that
result when a person is tried in shackles: (1) shackles impinge on the presump-
tion of innocence; (2) they detract from the dignity of the judicial proceedings;
(3) they may inhibit a defendant's ability to consult with defense counsel; and
(4) they may inhibit the defendant's decision on whether to take the stand as a
witness. __ Or at __ (slip op at 19:17-21 - 20:1). Three of those concerns apply only
to in-court shackling.

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that the circumstances warranted a mistrial. Rather, the
question here is "whether petitioner demonstrated by a pre-
ponderance of the evidence that [his lawyer] failed to exer-
cise reasonable professional skill and judgment[,]" Montez,
355 Or at 7, when he did not move for a mistrial. As in
Antoine, it was petitioner's burden to establish that, under
the state of the law in 2013, all reasonable counsel would
have requested a mistrial; it was not the state's burden to
establish that a mistrial was "foreclosed" by the law.

Walton thus provides relevant guidance on the issue
as we framed it in Jackson-whether the law that existed in
2013 "so obviously foreshadowed" today's ruling that reason-
able criminal defense lawyers would have known then that
they must request a mistrial upon learning that jurors had
seen the defendant in shackles outside the courtroom. As
I will explain, the result in Walton and other cases involv-
ing jurors viewing a criminal defendant in shackles outside
the courtroom did not "obviously foreshadow" the rule of law
that the majority opinion announces today.

The defendant in Walton contended on direct appeal
that "the trial court erred in denying his motion for a mistrial
after a juror and an alternate juror observed him in hand-
cuffs with a group of other prisoners." 311 Or at 250.14 After
that incident, the trial court questioned the two jurors indi-
vidually outside the presence of other jurors. Id. Both jurors
told the court that, "although they had seen [the] defendant
in handcuffs, they had not discussed their observations with
any other juror and that their observations would not affect
their impartiality." Id. The trial court then "instructed both
jurors that they were to disregard their observations, that
they were not to discuss their observations with anyone, and
that [the] defendant's custody status had no bearing on his
guilt or innocence." Id. The alternate juror "did not partici-
pate further in [the] defendant's trial[,]" and the trial court

14 Although this court's opinion in Walton does not expressly state that the
jurors' observation of the defendant in handcuffs occurred outside the courtroom,
that is the only inference that makes any sense. There would be no reason for a
defendant in a criminal trial to be "in handcuffs with a group of other prison-
ers" inside the courtroom. The majority opinion agrees that it is "reasonable to
assume" that the jurors' viewing in Walton occurred outside the courtroom, __ Or
at __ n 19 (slip op at 34 n 19).

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"offered to replace the juror" who had seen the defendant in
handcuffs with "an 'untainted' alternate." Id. The defendant
rejected that offer, and he was ultimately convicted. Id.

On appeal, the defendant contended, as noted, that
the trial court had erred in denying his motion for a mistrial.
Id. This court "f[ou]nd no reversible error." Id. We explained
that the trial court had given a curative instruction, that
jurors "are presumed to follow a trial court's instructions[,]"
that the defendant "ha[d] not shown that the juror who
served in his case [who had seen him in handcuffs] did not
follow the court's instructions[,]" and that the defendant had
rejected the court's offer to replace the juror who had seen
him in handcuffs with an "untainted" juror. Id.

Accordingly, the only Oregon case addressing
jurors observing a defendant in shackles outside the court-
room does not "obviously foreshadow" that such an obser-
vation would by itself be grounds for a mistrial. Cases from
other jurisdictions prior to 2013 confirm that that was not
the governing rule. Those cases generally make a distinc-
tion between jurors seeing a defendant in shackles in the
courtroom, and jurors inadvertently seeing a defendant in
restraints while being transported to or from the courtroom.
See, e.g., U.S. v. Jones, 468 F3d 704, 709 (10th Cir 2006), cert
den, 565 US 1252 (2012); Williams v. Woodford, 384 F3d 567,
592-93 (9th Cir 2004), cert den, 546 US 934 (2005); Schiro
v. Clark, 963 F2d 962, 976 (7th Cir 1992), aff'd on other
grounds sub nom Schiro v. Farley, 510 US 222, 114 S Ct 783,
127 L Ed 2d 47 (1994); U.S. v. Moreno, 933 F2d 362, 368 (6th
Cir), cert den, 502 US 895 (1991); U.S. v. Pina, 844 F2d 1, 8
(1st Cir 1988); Clark v. Wood, 823 F2d 1241, 1245 (8th Cir),
cert den, 484 US 945 (1987); United States v. Diecidue, 603
F2d 535, 549-50 (5th Cir 1979), cert den, 445 US 946 (1980);
United States v. Taylor, 562 F2d 1345, 1359 (2d Cir), cert den,
432 US 909 (1977); see also Sheldon R. Shapiro, Annotation,
Propriety and Prejudicial Effect of Gagging, Shackling, or
Otherwise Physically Restraining Accused During Course of
State Criminal Trial, 90 ALR 3d 17 § 23[a] (1979) (collecting
state cases standing for that principle).

For example, the Indiana Supreme Court con-
cluded in one case, that, "[b]eing seen by jurors while being

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transported in handcuffs is not grounds for reversal, absent
a showing of actual harm." Sweet v. State, 498 NE2d 924,
929 (Ind 1986). That court concluded in another case that
a trial court did not abuse its discretion when it denied a
motion for a mistrial after members of the jury "viewed [the
defendant] handcuffed to a police officer in the hallway"
during a recess. Jenkins v. State, 492 NE2d 666, 669 (Ind
1986). The court explained that "reasonable jurors could
expect [the defendant] to be in police custody while in the
hallway of the courthouse." Id.

Similarly, the Arizona Supreme Court acknowl-
edged that a defendant in a criminal case "has a right to
appear in civilian clothing and be free from visible restraints
in the courtroom during trial." State v. Hardy, 230 Ariz 281,
292, 283 P3d 12, 23 (2012). But the court concluded that
"[a] juror's inadvertent exposure to the defendant in hand-
cuffs outside the courtroom *** is not inherently prejudi-
cial, and a defendant is not entitled to a new trial absent
a showing of actual prejudice." Id., 283 P3d at 23 (internal
quotation marks omitted). That reasoning "also applies to a
juror's inadvertent exposure to the defendant in jail garb."
Id. Thus, the court held that "[t]he trial court did not abuse
its discretion in denying the [defendant's] motion for mis-
trial." Id.

In federal court, "'[e]xposure of the jury to a defen-
dant in shackles requires a mistrial only when the expo-
sure is so 'inherently prejudicial' as to deny the defendant's
constitutional right to a fair trial." Moreno, 933 F2d at 368
(quoting Pina, 844 F2d at 8). The Sixth Circuit has "dis-
tinguished the inherent prejudice to a defendant who is
shackled while in the courtroom from a defendant who
has been observed in shackles for a brief period elsewhere
in the courthouse." Id. The Ninth Circuit has held that "a
jury's brief or inadvertent glimpse of a defendant in physical
restraints outside of the courtroom does not warrant habeas
relief unless the petitioner makes an affirmative showing
of prejudice." Williams, 384 F3d at 593 (collecting Ninth
Circuit cases). The Eighth Circuit has explained that "it is
a normal and regular as well as highly desirable and nec-
essary practice to handcuff prisoners when they are being

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taken from one place to another, and the jury is aware of
this." Clark, 823 F2d at 1245 (emphasis added; brackets and
internal quotation marks omitted).

The majority opinion cites no case holding other-
wise in these or any analogous circumstances. Instead, it is
"not persuaded" by those cases, __ Or at __ (slip op at 35:9-
11), concluding that that "nonbinding case law discussing
the prejudice standard for out-of-courtroom encounters fails
to provide even persuasive authority that counsel's decision
not to seek relief at all constituted adequate performance
in this case[,]" __ Or at __ (slip op at 36:4-7). Again, that
frames the wrong question given the burden of proof and
the standard of review. The issue is not whether there was
"persuasive authority" supporting the decision to not seek a
mistrial; the question is whether the post-conviction court
erred in concluding that petitioner did not meet his burden
of establishing that, given the state of the law in 2013, all
reasonable defense lawyers would have moved for a mistrial
based on petitioner's report that jurors had seen him in
shackles outside the courtroom.

The state of the law in 2013 regarding the effect of
jurors seeing a criminal defendant in shackles was as fol-
lows: (1) it was well-established that jurors seeing a defen-
dant in shackles in the courtroom provided grounds for a
mistrial; (2) the only Oregon case addressing jurors seeing
a defendant in shackles during transport outside the court-
room-Walton-held that the trial court did not err in deny-
ing the defendant's motion for a mistrial based on that inci-
dent; and (3) cases from other jurisdictions had consistently
recognized that jurors seeing a criminal defendant in shack-
les during transport outside the courtroom was not so inher-
ently prejudicial that a mistrial was required, because such
an observation is fundamentally different from seeing the
defendant in shackles in the courtroom. I cannot conclude
that that state of the law "obviously foreshadowed" a rul-
ing that no Oregon court has made or even suggested until
today-that, to provide a constitutionally adequate defense,
a lawyer must request a mistrial upon learning that jurors
had seen the defendant in shackles outside the courtroom.

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Given that state of the law, the factual record in this
case, the burden of proof and persuasion, and the standard
of review, I cannot agree that the post-conviction court erred
when it concluded that petitioner had not met his burden of
demonstrating by a preponderance of the evidence that his
lawyer failed to exercise reasonable professional skill and
judgment when he did not move for a mistrial. There may
be a case where a petitioner for post-conviction relief estab-
lishes that the benefits of requesting a mistrial so obviously
outweighed any possible downside that every reasonable
counsel would request a mistrial under the circumstances
and applicable law. On this factual record and the state of
the law in 2013, I am not convinced that this is that case.

## II. PREJUDICE TO PETITIONER

We have stated that, to establish prejudice resulting
from a defense lawyer's failure to exercise reasonable profes-
sional skill and judgment, a petitioner "must demonstrate
a reasonable probability that, but for counsel's unprofes-
sional errors, the result of the proceeding would have been
different." Montez, 355 Or at 8 (internal quotation marks
omitted). A reasonable probability "is a probability suffi-
cient to undermine confidence in the outcome." Id. (inter-
nal quotation marks omitted). Showing that the error "had
some conceivable effect on the outcome of the proceeding[]"
is not enough. Id. (internal quotation marks omitted). That
is because "'only those acts or omissions by counsel which
have a tendency to affect the result of the prosecution can
be regarded as of constitutional magnitude.'" Lichau, 333
Or at 363 (quoting Krummacher, 290 at 875 (brackets omit-
ted)); see also Johnson v. Premo, 361 Or 688, 710, 399 P3d
431 (2017) (quoting Lichau, 333 Or at 359 ("[T]o obtain post-
conviction relief, a petitioner must show that counsel's inad-
equacy had 'a tendency to affect the result of his trial.'").

The majority opinion states that the tendency to
affect the outcome standard "demands more than mere pos-
sibility, but less than probability[,]" citing Green v. Franke,
357 Or 301, 322, 350 P3d 188 (2015). __ Or at __ (slip op
at 36:18-19). Applying that articulation of the standard,
the majority opinion concludes that petitioner has met the
"tendency to affect the outcome standard" because "there is

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more than a mere possibility that the trial court, in its exer-
cise of discretion, would have granted a mistrial had counsel
requested one." __ Or at __ (slip op at 36:22 - 37:1-3). In my
view, the majority opinion errs when it applies Green's "more
than a mere possibility" standard in this case.

As I will explain, Green expressly limited that artic-
ulation of the standard to post-conviction cases involving
a claim that counsel's inadequate assistance affected "the
result of the prosecution," Lichau, 333 Or at 363, that is, the
jury's guilty verdict. This court has not applied the "more
than a mere possibility" standard outside that context, and,
in my view, the majority opinion errs when it applies that
standard in assessing whether counsel's failure to move for
a mistrial was unconstitutionally prejudicial.

The issue in Green was whether the petitioner
was entitled to post-conviction relief based on his criminal
defense lawyer's failure to request an instruction "directing
the jury to consider the evidence concerning each alleged
victim separately and only as that evidence pertained to a
specific charge or charges relating to that victim." Green,
357 Or at 303. The post-conviction court denied relief, but
the Court of Appeals reversed. Id. We allowed the state's
petition for review, reversed the Court of Appeals' decision,
and remanded the case to the post-conviction court. Id.15

We also addressed the state's argument that "the
Court of Appeals applied the wrong legal standard for prej-
udice[,]" noting that, if we agreed with the state's argu-
ment, "it would obviate the need for a remand." Id. at 321.
According to the state, the Court of Appeals had erred when
it evaluated the effect a limiting instruction "could have
had" on the jury's verdict instead of using "the probability-
based formulation of the prejudice standard" that the post-
conviction court had used. Id. at 321 (emphasis in original).

15 We noted on review that this court had recently decided Pereida-Alba
v. Coursey, 356 Or 654, 342 P3d 70 (2015), a post-conviction case that involved
a trial counsel's failure to request a jury instruction. Green, 357 Or at 312-13.
We concluded in Green that "the proper course of action" under those circum-
stances would be to reverse the decision of the Court of Appeals, reverse the
post-conviction court's judgment, and remand the petitioner's claim to the post-
conviction court "for further consideration in light of this court's decision in
Pereida-Alba." Id. at 320.

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We concluded that "the post-conviction court was mistaken"
in applying its "probability-based formulation" of the stan-
dard, but we expressly limited that holding to cases involv-
ing the effect trial counsel's inadequacy had on the outcome
of a jury trial. Id.

We stated that, under our prior cases, "where the
effect of inadequate assistance of counsel on the outcome of
a jury trial is at issue, it is inappropriate to use a 'proba-
bility' standard for assessing prejudice." Id. at 322 (empha-
sis added). As we explained, "because many different fac-
tors can affect the outcome of a jury trial, in that setting,
the tendency to affect the outcome standard demands more
than mere possibility, but less than probability." Id. (empha-
sis added). We then distinguished the prejudice standard
in other settings that did not involve an assessment of how
counsel's inadequacy may have affected the outcome of a
jury trial. Specifically, we stated that, "where the prejudice
inquiry focuses on a different type of outcome, for example,
whether in the absence of inadequate assistance of counsel
the petitioner would have entered a guilty plea, this court
has described the tendency to affect the outcome test in terms
of actual probability." Id. at 323 n 13 (emphasis added).

The majority opinion cites no case applying its
articulation of the prejudice standard outside the context
of assessing the effect of inadequate assistance of counsel
on the outcome of a jury trial. Instead, the majority opin-
ion states that the Green court "did not purport to create a
brightline rule," and no other appellate decision "has con-
sidered whether such a limitation should exist[.]" __ Or at
__ (slip op at 39:19-21 - 40:1). It is true that no court has
expressly held that Green's "more than a mere possibility"
standard is limited to post-conviction cases addressing how
trial counsel's constitutional inadequacy may have affected
the jury's outcome, as stated in Green. But no court has
applied that standard outside the context of assessing how
counsel's inadequate assistance affected the jury's verdict,
either. Again, because petitioner has the burden of per-
suasion on the prejudice issue, the question is whether he
established that a court has applied that articulation of the

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standard in other contexts, not whether a court has limited
it to jury verdicts.

Moreover, this court made the same observation
that it made in Green-that the "mere possibility" standard
applies where the disputed issue is the effect of inadequate
assistance of counsel "on the outcome of a jury trial[,]" 357 Or
at 322-in Richardson v. Belleque, 362 Or 236, 406 P3d 1074
(2017). The issue in Richardson was whether the petitioner's
defense counsel had rendered constitutionally inadequate
representation during the sentencing phase of the petitioner's
trial. 362 Or at 238. That phase focused on whether the peti-
tioner had a "severe personality disorder" indicating a propen-
sity toward crimes that seriously endanger the life or safety
of others, because ORS 161.725(1)(a) required the jury to find
that the defendant had such a disorder before the court could
sentence him as a dangerous offender. Id. We concluded that
the petitioner's lawyer had rendered constitutionally inade-
quate assistance "by failing to adequately investigate and to
consult an expert in preparation for the dangerous-offender
hearing." Id. at 239. We noted that whether the petitioner
had the type of "severe personality disorder" that would sup-
port a dangerous offender sentence was a question for the
jury. Id. at 247-48 (describing the jury instructions). At the
dangerous-offender hearing, the jury "unanimously found"
that the petitioner suffered from such a disorder. Id. at 248.

In assessing whether counsel's inadequate assis-
tance at that hearing was prejudicial for purposes of post-
conviction relief, we reiterated that, in Green, "this court
explained that when a jury determination is involved, it is
'inappropriate to use a "probability" standard for assessing
prejudice.'" Id. at 265 (quoting Green, 357 Or at 322 (empha-
sis added)). We held that defense counsel's failure to call an
expert witness or otherwise investigate his client's mental
condition at the sentencing phase of a dangerous-offender
proceeding was prejudicial, because "there was more than a
mere possibility that the jury could have rejected the state's
contention that petitioner suffered from a 'severe personal-
ity disorder.'" Id. at 267-68 (emphasis added).

Other cases have applied a different analysis when
the alleged constitutional inadequacy may have affected

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something other than a jury verdict. For example, in Peiffer
v. Hoyt, 339 Or 649, 652, 125 P3d 734 (2005), the petitioner
in a post-conviction case alleged that her criminal defense
lawyer was constitutionally inadequate because he had
failed to file a motion to suppress evidence that, according
to the petitioner, had been "seized illegally" from her res-
idence. The petitioner alleged that, if counsel had filed a
motion to suppress, that "would have changed the outcome
of [the petitioner's] case." Id. at 652-53. The post-conviction
court denied relief, concluding that, if counsel had filed a
motion to suppress, it "would have been denied." Id. On
review in this court, the petitioner contended that she would
have prevailed on a motion to suppress, because the officers
had "conducted two separate searches" and the search war-
rant issued by the court "clearly did not authorize the sec-
ond search *** " Id. at 660. We disagreed and affirmed the
judgment of the post-conviction court because we could not
say "that the evidence required the post-conviction court to
find that the officers had exceeded the scope of the warrant"
when they seized the evidence in dispute. Id.

Thus, under Peiffer, a post-conviction court address-
ing whether a petitioner was prejudiced by trial counsel's
failure to file a motion to suppress would need to first deter-
mine whether the trial court would have granted the motion
if counsel had filed it, leading to the suppression of the chal-
lenged evidence. If so, the post-conviction court would then
need to determine whether the suppression of that evidence
would have had a tendency to affect the outcome at trial,
because the court cannot presume that suppression of evi-
dence would always affect the outcome. That same general
approach applies when counsel's alleged constitutional inad-
equacy was his failure to move for a mistrial, as the Court
of Appeals has recognized.16

16 The majority opinion states that it is "hesitant" to recognize the limita-
tion "that this court might someday" confront, and questions whether this case
"is of the sort in which to make such a distinction[,]" in part because no party
"besides the author of the dissent" has suggested that the "more than a mere
possibility" articulation does not apply to petitioner's claim. __ Or at __ (slip op at
40:2-8). With respect, I disagree. First, this court has an obligation, in my view,
to determine the prejudice standard that governs this case and then apply that
standard, regardless of whether any party has raised the specific issue. Second,
the state asserted in its brief that petitioner "misstates the prejudice standard"

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To establish prejudice from counsel's failure to move
for a mistrial, a petitioner must show that the trial court
would have granted the motion and declared a mistrial,
or that it would have granted relief other than a mistrial,
and that such relief would have had a tendency to affect
the outcome in the case. That is how the Court of Appeals
approached the issue in Monahan v. Belleque, 234 Or App
93, 227 P3d 777, rev den, 348 Or 669 (2010). There, the court
stated that a petitioner for post-conviction relief could show
prejudice from trial counsel's failure to move for a mistrial
by establishing that, if counsel had moved for a mistrial,
"that motion would have had a tendency to cause the court
to either grant the motion or to give a curative instruction
that would have had a tendency to affect the prosecution in
the underlying criminal case." Id. at 99.

Under that approach, the prejudice analysis requires
the court to assess what would have happened if trial coun-
sel had moved for a mistrial. By 2013, this court had "'con-
sistently held that a motion for a mistrial is addressed to the
sound discretion of the trial judge.'" State v. Smith, 310 Or
1, 24, 791 P2d 836 (1990) (quoting State v. Jones, 242 Or 427,
433, 410 P2d 219 (1966)). The reason for that rule is that the
trial judge "is in the best position to 'assess and rectify the
potential prejudice to the defendant.'" Id. (quoting State v.
Farrar, 309 Or 132, 164, 786 P2d 161 (1990)). The majority
opinion acknowledges the trial court's discretion, __ Or at
(slip op at 41:14-22), but it does not fully apply the mis-
trial standards that had been established by the Court of
Appeals in evaluating a trial court's discretionary decision
when a party requests a mistrial.

For example, in State v. Evans, 211 Or App 162, 166,
154 P3d 166 (2007), aff'd, 344 Or 358, 182 P3d 175 (2008),
the Court of Appeals stated that, "[i]n ruling on a motion for
a mistrial, a trial court must decide whether to grant the
motion, to cure the effect of inappropriate conduct or testi-
mony by giving a proper instruction instead, or to do noth-
ing at all." In State v. Woodall, 259 Or App 67, 313 P3d 298
(2013), rev den, 354 Or 735 (2014), the Court of Appeals stated

in his opening brief. Thus, the prejudice standard that applies here is an issue
that is in dispute in this case.

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that, "of all the options a court has at its disposal *** grant-
ing a motion for a 'mistrial is a drastic remedy to be avoided
if possible.'" Id. at 74-75 (quoting State v. Embry, 19 Or App
934, 941, 530 P2d 99 (1974). In Embry, the Court of Appeals
stated that it had "consistently held" that, before granting a
mistrial based on "a potentially prejudicial impropriety," it
would be proper for the trial court, in its sound discretion,
"to take no action at all if it determines that the impropriety
is not sufficiently prejudicial as to require the intervention
of the judge, or to take curative action in order to avoid the
granting of a mistrial[.]" Embry, 19 Or App at 941 (internal
citations omitted).

In this case, if petitioner's trial counsel had moved
for a mistrial in 2013, then, under established Oregon law,
the trial court would have been required to avoid the "dras-
tic remedy" of declaring a mistrial if possible. Id. That would
require the court to consider the alternatives. One obvious
alternative would have been to simply ask the jurors if any
of them had seen petitioner when they were leaving the
courthouse on Friday. If none of the jurors acknowledged
seeing him, that meant that the jurors either did not see
the person being escorted in shackles from a doorway down
the hall, or that they did not recognize that person as the
defendant in their case. Under either circumstance, it would
have been appropriate for the trial court to deny the motion
for a mistrial without taking any further action. In that sce-
nario, trial counsel's failure to move for a mistrial could not
have been either constitutionally inadequate or prejudicial
to petitioner.

If any jurors stated that they had seen and rec-
ognized petitioner, then the court could have considered a
curative instruction, as in Walton, or it could have offered to
excuse those jurors and replace them with alternate jurors,
as the trial court had offered to do in Walton. If the court
had excused those jurors, and petitioner was then convicted
by jurors who had not seen him in shackles in the hallway,
there would be no prejudice to the petitioner. If the trial
court's inquiry revealed that one or more jurors had seen
and recognized the person in shackles, and the court had
concluded that it was not possible to excuse those jurors and

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replace them with alternate jurors, it is still not clear given
the state of the law in 2013 that the trial court would have
exercised its discretion to declare a mistrial. The court might
have declined to declare a mistrial and given a cautionary
instruction, and, under Walton, such a decision would have
been within the trial court's discretion.

In my view, the existence of multiple alternatives
that could have addressed the situation short of declaring
a mistrial means that petitioner established, at best, that
counsel's failure to move for a mistrial might have "had
some conceivable effect on the outcome of the proceeding[,]"
Montez, 355 Or at 8 (internal quotation marks omitted). As
we stated in Montez, that "is not enough" to establish preju-
dice. Id.

Accordingly, for all the foregoing reasons, I respect-
fully dissent.

S071389, Opinion — Nelson v. Cain

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