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 burden of proof, this court on review must analyze whether petitioner established facts showing that moving for a mistrial 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 see- ing a criminal defendant in shackles outside the courtroom for adequacy of counsel under the state and federal constitutions are "function- ally equivalent." Montez, 355 Or at 6.
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Cite as 375 Or 614 (2026) 657 required a mistrial; and, if not, whether petitioner estab- lished that the law so obviously foreshadowed such a ruling that all defense attorneys exercising reasonable professional skill and judgment would have recognized at that time that the circumstances required a request for a mistrial. I agree with the post-conviction court and the Court of Appeals that petitioner did not meet his burden. In concluding 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."2Petitioner also testified
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
44
658 Nelson v. Cain that, when the jury came back into the courtroom to return 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 criminal defense lawyer3—submitted a declaration stating that he had "searched [his] memory" and had "no doubt" that peti- tioner had told him that jurors had seen him in shackles 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 matter to the court's attention, but he did not offer any details of what was discussed or why he did not move for a mistrial. 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 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."
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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Cite as 375 Or 614 (2026) 659
"no evidence from the viewpoint of the jurors." The court also noted that there was "no evidence that the jurors recognized [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. __ Or at __ (citing Lichau, 333 Or at 359) (slip op at 2:10-12). 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. __ Or at __ (citing Lichau, 333 Or at 359; Ball v. Gladden, 250 Or 485, 487, 443 P2d 621 (1968)) (slip op at 2:12-16). 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
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.
46
660 Nelson v. Cain mistrial. That absence of evidence cannot weigh in petition- er's favor, because he has the burden of proof. 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 door- way 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 earlier that day.5That would explain why counsel told petitioner that
"there's no reason" to request a mistrial. If trial counsel had concluded from his investigation that jurors had not recog- nized 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. __ Or at __ (slip op at 32:7-9). The majority opinion 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 completing his investigation. __ Or at __ (slip op at 31:2-9). 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
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).
47
Cite as 375 Or 614 (2026) 661 to petitioner that he thought at the time that there was "no reason" to request a mistrial. The majority opinion's conclu- sion that the record "contains no evidence either way as to what counsel concluded" after his investigation, __ Or at __ (emphasis in majority opinion) (slip op at 31:14-15), 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[.]" __ Or at __ (slip op at 31:22 - 32:1-6). 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 opinion declines to "account for" that possibility, __ Or at __ (slip op at 32:7-9) choosing instead to view the facts in a manner that is consistent with the majority opinion's own conclusions.
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." __ Or at __ (slip op at 31:9-11). But Ball does not state that there must be evidence in the record of the fact that is in dispute. It suf- fices 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.
48
662 Nelson v. Cain That, in my view, does not correctly apply the standard of review and the burden of proof.
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. __ Or at __ (slip op at 29:5-8). Again, the record reflects that counsel told petitioner that there was "no rea- son" to request a mistrial, and the absence of additional evi- dence 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. __ Or at __ (slip op 29:13-17). However, the benefits to a criminal defen- dant of moving for a mistrial are not so obvious that reason- able defense counsel must always request a mistrial if there are any arguable grounds for doing so, as this court has rec- ognized. 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 defen- dant'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,
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Cite as 375 Or 614 (2026) 663 there is some evidence that would support that inference. During the first day of deliberations, the jury asked the 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.7Under 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
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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664 Nelson v. Cain testify, twice, about this incident, it is possible that, at the time, petitioner might not have wanted to traumatize her 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 previously held that a mistrial is warranted when jurors briefly see a defendant in shackles outside the courtroom,"
__ 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 reasonable skill and judgment "would have seen an oppor- tunity to argue for a mistrial" under the circumstances of this case, __ Or at __ (slip op at 51:2-4). The majority opin- ion 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" argu- ment 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 500.10In fact, this court has never—before today—applied Burdge to hold that a defense lawyer's failure to advance a plausible argument on
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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Cite as 375 Or 614 (2026) 665 an unsettled legal issue amounts to constitutionally inade- quate assistance of counsel. See Jackson v. Franke, 369 Or 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
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
52
666 Nelson v. Cain sought post-conviction relief, alleging that his trial counsel provided inadequate assistance by failing to move for a pre- trial 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).
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Cite as 375 Or 614 (2026) 667 In addition, we observed that the petitioner "has identified no decision available to trial counsel that clearly 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
54
668 Nelson v. Cain at the time of the petitioner's criminal trial "so obviously foreshadowed" the rule subsequently adopted in Southard 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
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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Cite as 375 Or 614 (2026) 669 defendant in shackles outside the courtroom. Instead, peti- tioner's theory of inadequate assistance, like the petitioner's 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).13From 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
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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670 Nelson v. Cain mistrial." __ Or __ (slip op at 35:6-8). The question, though, is not whether the Walton decision foreclosed an argument 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 250.14After 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
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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Cite as 375 Or 614 (2026) 671 guilt or innocence." Id. The alternate juror "did not partici- pate further in [the] defendant's trial[,]" and the trial court
"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).
58
672 Nelson v. Cain For example, the Indiana Supreme Court concluded in one case, that, "[b]eing seen by jurors while being trans- ported 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 defen- dant] 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
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Cite as 375 Or 614 (2026) 673 a normal and regular as well as highly desirable and nec- essary practice to handcuff prisoners when they are being 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,
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674 Nelson v. Cain a lawyer must request a mistrial upon learning that jurors had seen the defendant in shackles outside the courtroom. 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
61
Cite as 375 Or 614 (2026) 675 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 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
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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676 Nelson v. Cain 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). 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 ver- dict, either. Again, because petitioner has the burden of
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Cite as 375 Or 614 (2026) 677 persuasion on the prejudice issue, the question is whether he established that a court has applied that articulation of the 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).
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678 Nelson v. Cain Other cases have applied a different analysis when the alleged constitutional inadequacy may have affected 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
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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 standard, regardless of whether any party has raised the specific issue. Second, the state asserted in its brief that petitioner "misstates the prejudice standard"
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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680 Nelson v. Cain (2013), rev den, 354 Or 735 (2014), the Court of Appeals stated 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
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Cite as 375 Or 614 (2026) 681 concluded that it was not possible to excuse those jurors and 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.
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