Jasper Phillip Rushing v. Arizona

Preserving a constitutional claim “does not demand the incantation of particular words, rather it requires that the lower court be fairly put on notice as to the substance of the issue.” Nelson v. Adams USA, Inc., 529 U.S. 460, 469 (2000). In Deck v. Missouri, 544 U.S. 622 (2005), this Court held that a capital defendant may not be visibly shackled before his sentencing jury absent a casespecific finding of necessity. Before jury selection, Jasper Rushing told the trial court that visible shackles used on him were “arbitrary,” because the decision to use them was based solely on his decision to wear jail clothing. The Arizona Supreme Court held that the trial court violated Deck, when it allowed the visible shackles, but nevertheless affirmed Mr. Rushing’s death sentence. It held that Mr. Rushing’s statement was “an observation, not an objection,” reviewed the issue for fundamental error – Arizona’s analogue to plain error review – and then required Mr. Rushing to prove “separate prejudice.”

1. Did the Arizona Supreme Court err in concluding that Mr. Rushing failed to preserve below?

2. If the claim was unpreserved, did the unjustified visible shackling constitute reversible error, nonetheless?