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  • WisBar Court Review
    December 22, 2021

    Failure to Justify Defendant’s Visible Shackling Violated Fourteenth Amendment

    Placing visible restraints on a criminal defendant absent a determination that specific circumstances related to courtroom security or escape warrant it violates the Fourteenth Amendment, the U.S. Court of Appeals for Seventh Circuit has ruled.

    Jeff M. Brown

    Drunk Driving 

    Dec. 22, 2021 – Placing visible restraints on a criminal defendant absent a determination that specific circumstances related to courtroom security or escape warrant it violates the Fourteenth Amendment, the U.S. Court of Appeals for Seventh Circuit has ruled.​​

    In Wilber v. Hepp, 16 4th 1232 (Oct. 29, 2021), the court granted a habeas corpus petition filed by Danny Wilber.

    Disrespect to the Court

    Police arrested Wilber in January 2004, after David Diaz was shot to death at an after-hours house party attended by Wilber.

    Jeff M. Brown Jeff M. Brown is a legal writer for the State Bar of Wisconsin, Madison. He can be reached by email or by phone at (608) 250-6126.

    For the first three days of his trial in Milwaukee County Circuit Court, Wilber wore an ankle manacle connected to an eye bolt in the floor. The manacle was not visible to the jury because the defense table was skirted.

    On the fourth day of the trial, the judge ordered that Wilber be fitted with a stun belt under his shirt, after Wilber had become agitated with other defendants in the courtroom area and with his lawyer.

    On the fifth day, during a discussion over a prosecution motion, Wilber let out an audible sigh. The judge told defense counsel to warn Wilber and to explain to him to how to behave properly in court.

    On the last day of the trial, the judge announced that Wilber had been placed in a secure wheelchair. Two-inch-wide black straps around Wilber’s wrists and upper arms secured him the chair. Additionally, his wrists were chained together.

    Earlier that day, the judge announced Wilber had sworn at the deputies and fought with them. She was worried what Wilber would do once the prosecution began its closing argument, the judge said, so she was unwilling to have Wilber any less secure than he was by being strapped into the wheelchair.

    Motion for Mistrial Denied

    Wilber’s lawyer requested that the visible restraints be removed. The judge denied the request, on the basis that Wilber presented a security threat.

    After the jury left to begin its deliberations, Wilber’s lawyer moved for a mistrial based on the judge’s decision to order the visible restraints. The judge denied the request, and said she’d offered to give the jury an instruction admonishing jurors not to base their decision on Wilber’s appearance.  

    The jury convicted Wilber on the sole count of first degree intentional homicide.

    Wilber appealed his conviction in state court, claiming that the state’s evidence was insufficient and that the imposition of visible shackles violated his constitutional rights. A state court of appeals upheld Wilber’s conviction.

    Wilber filed a habeas corpus petition in federal district court. The court granted the relief, basing its ruling on the weakness of the state’s evidence and the trial court’s decision to impose visible restraints on Wilber.

    Specific Determination Required

    The U.S. Court of Appeals for the Seventh Circuit held that the trial judge’s imposition of visible restraints on Wilber violated the Fourteenth Amendment’s due process clause.

    In Deck v. Missouri, 544 U.S. 622 (2005), the U.S. Supreme Court held that ordering visible shackles to be placed upon a criminal defendant in front of a jury without tying the decision to specific circumstances that made the defendant a security risk violated the Fourteenth Amendment.

    Visible restraints invariably imply to the jury that the court regards the defendant as dangerous, Justice Stephen G. Breyer wrote in Deck, and in turn adversely affects jurors’ opinion of the defendant’s character.

    Therefore, a trial judge may order a defendant to appear in shackles only after making a specific determination as to the need for special security or the risk of escape related to the defendant. Furthermore, under Deck a defendant is relieved of the burden of showing any prejudicial effect when the shackling error is raised on direct review.

    In an opinion written by Judge Ilana Rovner, the U.S. Court of Appeals for the Seventh Circuit held that the state court of appeals was wrong to affirm the decision to impose visible shackles on Wilber. That court reasoned that the shackling was justified by Wilber’s altercation with the deputies outside the courtroom on the trial’s last day.

    “But, like the trial court the appellate court never articulated why, to the extent the additional restraints, were justified, they must be restraints that were visible to the jury,” Rovner wrote.

    Shackles Were Prejudicial  

    The trial judge was justified in imposing non-visible restraints on Wilber, even if the behavior that impelled the judge to do so occurred outside the courtroom, Rovner wrote. But the trial judge failed to provide an explanation why the additional visible restraints were necessary.

    Deck allows visible restraints to be imposed on a criminal defendant only as a last resort, Rovner wrote. In Wilber’s case, the trial judge’s “wholesale omission to address the necessity of visible restraints cannot be reconciled with Deck’s repeated recognition that it is the visibility of such restraints that is injurious to the presumption of a defendant’s innocence and to the dignity of a judicial proceeding.”

    The imposition of visible restraints on Wilber was not harmless error, the court ruled. The U.S. Supreme Court has consistently held that visible restraints are inherently prejudicial.

    The fact that Wilber was placed in visible restraints on the last day of the trial magnified, rather than reduced, that prejudicial effect, Rovner wrote.

    “As [the federal district court] pointed out, it is at this stage of the trial that a jury is most likely to be focused on the defendant, as it considers the charge, weighs the evidence and arguments marshalled by counsel, and begins to ponder the defendant’s fate.”

    This was even more so given the emphasis placed by the prosecutor in his closing arguments on Wilber’s belligerent behavior on the night of the shooting, Rovner wrote.

    “The visible shackles reinforced the very argument that the prosecutor was making as to why Wilber must have been the person who shot Diaz, effectively signaling that the court itself agreed with the State’s characterization of Wilber as ‘[a] guy who couldn’t control himself.’ It is difficult to imagine a more prejudicial action the court could have taken at that point in the trial.”   




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    WisBar Court Review, published by the State Bar of Wisconsin, includes summaries and analysis of decisions from the Wisconsin Supreme Court, the Wisconsin Court of Appeals, and the U.S. Court of Appeals for the Seventh Circuit, as well as other court developments. To contribute to this blog, contact Joe Forward.

    Disclaimer: Views presented in blog posts are those of the blog post authors, not necessarily those of the Section or the State Bar of Wisconsin. Due to the rapidly changing nature of law and our reliance on information provided by outside sources, the State Bar of Wisconsin makes no warranty or guarantee concerning the accuracy or completeness of this content.

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