Nelson v. Cain

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, C.J., and Duncan, Garrett, DeHoog, Bushong, and Masih, JJ., 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 enti- 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 tled 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. ___ Or at ___ (slip op at 36:9 - 50:20) 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 a