DANNY WILBER, Petitioner-Appellee, Cross-Appellant, v. RANDALL HEPP, Warden, Respondent-Appellant, Cross-Appellee.
Nos. 20-2614 & 20-2703
United States Court of Appeals For the Seventh Circuit
ARGUED FEBRUARY 10, 2021 — DECIDED OCTOBER 29, 2021
Before MANION, KANNE, and ROVNER, Circuit Judges.
Appeals from the United States District Court for the Eastern District of Wisconsin. No. 1:10-cv-00179-WCG — William C. Griesbach, Judge.
I.
Wilber was convicted for the murder of David Diaz in Milwaukee Circuit Court, Judge Mary M. Kuhnmuench presiding. Wilber attended an after-hours house party at Diaz‘s home in Milwaukee during the night of January 30-31, 2004. According to witness statements made to the police in the days after the incident, Wilber had been acting belligerently at the party; when his belligerence escalated into a physical confrontation with other guests, several men attempted to subdue him and persuade him to leave the party. At that
At trial, all of the witnesses called by the State denied seeing who shot the victim, including Jeranek, who disclaimed the statement attributed to him by the police. But the trial testimony nonetheless did point the finger at Wilber as the likely shooter. Our summary of this testimony derives verbatim from the Wisconsin Appellate Court‘s decision resolving Wilber‘s post-conviction appeal.
* * *
Milwaukee Police Officer Thomas Casper testified that he created a diagram of the crime scene showing the locations of all the physical evidence. Diaz‘s body was facedown in the kitchen with his head facing north. Bullet fragments were found behind the stove in the northeast corner of the kitchen. During the investigation, the eyewitnesses from the kitchen explained to detectives where everyone had been standing by
Investigator William Kohl testified about the layout and dimensions of the kitchen. Kohl testified as to where the appliances were located, which portions of the kitchen were visible from different angles and from other parts of the house, and where Diaz‘s body was found in relation to the measurements of the kitchen.
Wilber‘s sister, Antonia, testified that she, Wilber, and other family members went to the house party in the early morning hours of the shooting following a night out at a local bar. Antonia denied saying “[y]ou shot him. Get out of here” to Wilber, but told the jury that she had to tell Wilber to “calm down” multiple times because Wilber “got into it” with another party-goer, Oscar Niles. Antonia also testified that Wilber grabbed and choked another man in the kitchen. Antonia said someone tried to grab Wilber from behind to stop the choking. Antonia was also in the kitchen at the time of the choking incident. She said the next thing she remembered was the sound of the gunshot coming from Wilber‘s direction.
Wilber‘s cousin, Donald Jennings, told the jury that he also attended the house party and was standing in the kitchen when Wilber got into an altercation with Niles. He testified that Wilber got aggressive with Niles and Jeranek intervened. Jennings said the parties “got to tussling and they grabbed each other. And that‘s when the shot was fired, hitting the man that was [found] laying on the ground.” Jennings did not say that he saw Wilber shoot Diaz, but stated that he “yelled” at Antonia when they left the party because “she was saying, my brother, my brother, I can‘t believe this shit[.]” Jennings
Two other witnesses, Lea Franceschetti and Jaimie Williams, also testified that they heard Antonia say “I can‘t believe he did that,” and “I can‘t believe he shot him.” Franceschetti stated that she interpreted Antonia‘s statement to mean that Antonia knew the shooter.
Torres testified that he was also in the kitchen at the time Diaz was shot. He stated that immediately after the shooting he saw Wilber with a gun. Torres stated that Wilber, while in the kitchen, was acting aggressively towards other guests. Diaz, who was also in the kitchen, told Jeranek to ask Wilber to leave. Wilber “didn‘t want to hear that” and started choking Jeranek, who was standing next to Diaz. Torres intervened and got into his own altercation with Wilber. Wilber hit Torres, causing Torres to “black out a little bit” and “lean[ ] up against the ... sink.” Torres said he then heard a gunshot from “the right side of my ... ear,” where he said Wilber was standing. Torres said that he saw Wilber with a gun after the shooting “in a crouched position.” Torres stated that he heard someone in the kitchen yell “you shot the guy,” and then Wilber ran out. Torres stated that he tried to chase Wilber but lost him in the chaos.
Torres also testified that he saw a man named “Ricky” at the party with a gun, but that he did not see Ricky in the kitchen at the time of the shooting. Torres stated that there was no tension between Diaz and Ricky, but that the two exchanged “dirty looks” the week before. Torres stated that there did not appear to be tension between Diaz and Ricky at the party and that Torres was not concerned about Ricky‘s possession of a gun.
Jill Neubecker testified that she lived in the upper portion of a duplex above Wilber‘s sister, Wanda Tatum. She testified that police came to the house looking for Wilber on February 1, 2004. She told them that the night before, she smelled something on fire and saw smoke coming from an old grill in the back yard. Detective Joseph Erwin found the soles of a pair of shoes burnt in the grill.
The police officers who had interviewed Antonia, Williams, Niles, and Jeranek testified about statements they gave that were inconsistent with their trial testimony.
Mark Bernhagen, a shoe store manager, testified for the defense about shoe sizing. He testified that Wilber‘s feet were size fourteen and one-half. The soles of the burnt shoes found in the grill were size twelve, which were smaller than the shoes Wilber was wearing at trial.
Shortly after the defense rested, defense counsel asked for an adjournment, telling the trial court that during the break, an eyewitness approached counsel and said that he saw “another person shooting the shot that struck the head of David Diaz.” Counsel told the court that neither he nor Wilber was aware of the potential witness until that moment. The trial court allowed defense counsel to make an offer of proof.
Defense counsel called two of Wilber‘s sisters, Tatum and Monique West. Tatum told the court that six days after the trial began, Monique told Tatum “if my brother was found guilty this person was supposed to give a confession saying he did it.” She stated that this information came from Monique‘s boyfriend, Roberto Gonzalez, who told Monique that if Wilber was convicted, another person would come forward and confess to the shooting. According to Tatum,
Monique also testified, telling the trial court that her boyfriend, Gonzalez, told her that he witnessed Isaiah shoot Diaz. Monique stated that she told Tatum about Gonzalez‘s observation on the fourth day of trial, but could not explain why she did not tell counsel or anyone else. When asked whether she heard of the plan for someone else to confess if Wilber was convicted, Monique said she heard it from Tatum. The State asked, “So the notion or the idea or the fact that Isaiah‘s going to confess to this came from Wanda to Monique, not from Monique to Wanda?” Monique answered, “Right.”
The trial court denied defense counsel‘s request to investigate the matter, stating that the sisters’ testimony was inconsistent, lacked corroborating evidence, and was an “attempt to manipulate proceedings.”
State v. Wilber, 385 Wis.2d 513, 2018 WL 6788074, at *1–3 ¶¶ 3–16 (Wis. App. Dec. 26, 2018) (unpublished).
* * *
To the foregoing summary of the evidence from the state appellate court‘s decision we offer a few additional observations about the State‘s case against Wilber.
The physical evidence posed some difficulties for the State‘s theory. At the moment of the shooting, Diaz evidently
But the State was not wholly without answers to the questions posed by this evidence. Among other points, the State noted in closing arguments that the relatively small kitchen was crowded with people at the time of the shooting; the moments immediately before and after the shooting were chaotic; those in the kitchen bolted after the shooting, presenting the possibility that Diaz‘s body was jostled as or after it fell to the floor; the trajectory of the bullet through Diaz‘s head was in a downward direction, indicating that the gun was pointed in a downward direction when he was shot; Wilber, who was six feet, seven inches tall, stood significantly taller than Diaz (five feet, eight inches) or anyone else in the kitchen and, assuming Diaz was standing upright at the time of the shooting,
One of Wilber‘s ankles was manacled and connected to an eye bolt on the courtroom floor throughout the trial, but until the final day of the trial, no restraints were visible to the jury—both counsel tables were draped so as to hide the restraints. This remained true even after the judge subsequently increased the number of deputies stationed inside and outside of the courtroom and ordered a stun belt added to Wilber‘s restraints. But on the last day of trial, just prior to final jury instructions and closing arguments, the judge ordered that the restraints be expanded to include wrist and shoulder restraints, both of which were visible to the jury. These visible restraints are what give rise to Wilber‘s due process claim.
To set the stage for our analysis of this claim, we think it important to set out in some detail the events that culminated in the trial court‘s decision to visibly shackle Wilber and the court‘s rationale for the escalating measures it took to restrain Wilber during the trial. With minor modifications, we incorporate the following account from the district court‘s thorough opinion.
* * *
Beginning the first day of trial before jury selection had even begun, the trial judge cautioned Wilber that he would
You can‘t do that. You have to face frontwards at all times. You‘re not allowed to look back into the gallery. You‘re not allowed to turn back and make faces or gestures at the State table. You‘re supposed to be sitting straight in front in your chair, eyes forward, confer with your lawyer, but always facing this direction.
Id. at 5. The court offered two reasons why such behavior would not be allowed:
One, because it‘s disrespectful, and I‘m going to have to take some steps to stop you if you don‘t do it, if you don‘t stop, and I don‘t want to have to do that. And the second thing is it‘s—it‘s bad for you and it looks bad in front of a jury. So I‘m going to ask you to be careful about how you act and how you react to the different things that happen during a trial here.
Id. at 6. Wilber‘s attorney explained to the judge that his client meant no disrespect but had worked closely with counsel on
On the second day of trial, the court also noted that it had taken all the necessary steps to make sure this is “a safe proceeding.” R. 61-18 at 75. The court noted that Wilber was to remain shackled throughout the trial. A bracelet had been attached to one of Wilber‘s ankles and anchored to the floor beneath the defense table. The court also noted that steps had been taken to prevent jurors from becoming aware that Wilber was shackled and maintain the presumption of innocence to which he was entitled. Both the prosecution and the defense tables were skirted to prevent the shackles from being visible to the jury. Id. at 75–76. In addition, the court noted that the defendant was allowed a change in the civilian clothes he was wearing “so all steps—reasonable steps are being made to continue to have the presumption of innocence for the defendant protected.” Id. at 76.
At the same time, however, the court expressed its view “that even if jurors do see an individual defendant secured in some fashion that that sight or that observation in and of itself is not enough for a default of that particular juror or that they are somehow exempted.” Id. at 76. “There has to be something about those observation[s],” the court continued, “that ha[s] affected them one way or the other that they articulate to the
After two days of jury selection and several lengthy discussions of legal issues, the attorneys gave their opening statements on the third day and began the presentation of evidence. When the jury was released for lunch, the court granted the prosecution‘s request over the objection of the defense that two of the State‘s witnesses be instructed to review their prior written statements to the police over the break so that their direct examinations could proceed more efficiently. In response to the court‘s ruling, Wilber stated, “It‘s not new.” R. 61-20 at 116. The court instructed Wilber to “[s]top it,” to which Wilber responded, “You are granting everything the D.A. is throwing at you.” Id. at 116. As the court ordered the courtroom deputies to remove Wilber from the courtroom, the discussion continued:
THE DEFENDANT:What haven‘t you denied, that‘s nothing new. Put that on the record. I‘m speaking up on my behalf. This is my life.
THE COURT: Mr. Chernin, please talk to your client.
MR. CHERNIN: I will, Your Honor.
THE COURT: Thank you.
THE DEFENDANT: You don‘t intimidate me with that shit, man.
THE COURT: Mr.—Mr. Wilber.
THE DEFENDANT: You gonna hold me in contempt? What, you gonna hold me in contempt. It‘s my life right here.
THE COURT: Mr. Wilber, I‘m going to if you don‘t –
THE DEFENDANT: Do it.
THE COURT: Settle down and behave.
MR. CHERNIN: Danny, please relax.
THE COURT: If you don‘t behave—
THE DEFENDANT: It ain‘t doing me no good her overruling—sustaining everything he throw out whether it is bogus or not.
THE COURT: Mr. Wilber, you are doing yourself no good.
Id. at 116–17.
After lunch, before the trial resumed, the trial court again cautioned Wilber that he had to stay in control when he was in front of the jury. R. 61-21 at 3. Wilber stated he understood and was “all right.” Id. at 4. The court then stated that it wanted to make a record of the fact that it had added additional security in the courtroom. It added two additional deputies in the courtroom, bringing the total to four, and had also added a stun belt to Wilber‘s arm that one of the deputies would control as “a way of keeping you safe, everybody around you safe, the staff safe and the jury safe so that the trial
On the fourth day of the trial, as the morning session was ending, the trial court advised the jury that they would be sequestered during the day over their breaks and when coming to and leaving the courtroom. R. 61-22 at 104–07. The sequestration was “to avoid even the appearance of somebody suggesting that the jury was somehow tainted, talking or overhearing conversations in the hallway, talking to people.” Id. at 106. After the jury left the courtroom, the court set forth the reasons for the sequestration order and additional measures that were being implemented.
The court noted that specific issues had arisen over the course of the trial requiring that additional security measures be taken and that the jury be sequestered. Id. at 107. Referring back to Wilber‘s outburst at the court‘s ruling the previous day, the judge stated that Wilber had been highly agitated, not only with the court, but according to the deputies, also with anyone who was in the holding or “bullpen” area and even with his own attorney. The judge noted that the deputies had advised her that Wilber made certain statements to them, such as “[I am] not going down for this, you might as well use your gun and kill me now.” Id. at 110–11. Wilber also asked detailed questions about the paths he would walk to the
The court also expressed concern that three men had approached the trial court‘s clerk and made comments that were ill-advised at best, and a possible threat at worst. The three men had also watched the trial and were seen near witnesses who were under a sequestration order. Although Wilber denied any connection with the men (and the court did not find that there was a connection), the court noted their presence as an additional reason for its sequestration order and concern for security. Id. at 114–16, 120. The court added later that an individual had been caught by sheriff‘s deputies listening at a door that the judge used to access the courtroom; the deputies had to warn him away from the door multiple times. The court ultimately ordered him excluded from the courtroom along with another spectator who had been observed using his cell phone in the courtroom and loitering near trial witnesses. R. 61-23 at 155–58.
As a result, in consultation with the deputies, the court had decided that certain security measures would be added. First, two additional deputies would be added inside the courtroom and at least one outside. In addition, the court had agreed with the recommendation that a stun belt be placed on Wilber‘s arm under his shirt which would allow one of the deputies to administer a shock to him if he became disruptive. Id. at 110:03–16. The court explained that it wanted Wilber to continue to have the use of his hands, while continuing to be “fully restrained” with the ankle bracelet connected to the bolt on the floor. But the court also warned Wilber that, if any
At the beginning of the fifth day of trial, the court returned to a discussion of an issue that the prosecutor had raised earlier—whether Wilber could be directed to participate in a courtroom demonstration intended to show the State‘s theory of how Wilber, given his height (six feet, seven inches), could have fired a gun at an angle at which the bullet would have caused the entrance and exit wounds to Diaz‘s head. R. 61-24 at 4–13. Wilber‘s attorney strenuously objected to forcing his client to, in effect, reenact the crime he was accused of committing before the jury. Id. at 32–33; 42. The question arose as to whether doing so might expose the stun belt around his arm. Id. at 44–45. As the court engaged Wilber‘s counsel in a discussion on that point, the court apparently heard Wilber sigh, which the court interpreted as a sign of disrespect. The court directed his attorney to warn him:
Mr. Chernin, please advise him about his conduct in this court, because as I said the other day, I‘m not going to have you folks mistake my kindness for weakness. I have been doing this as restrained as I can outside the presence of the jury, and given his outburst the other day, he‘s lucky he hasn‘t been charged with threatening a judge, that he hasn‘t been charged with
disorderly conduct, that he hasn‘t been charged with contempt. And you know whereof I speak.
Id. at 46. As counsel attempted to explain that his client meant no disrespect, the court continued:
And I am not going to continue to run my court with this gentleman, you know, being disrespectful to me from the minute he comes in the court till the minute he leaves. I‘m not going to tolerate it and I don‘t have to, quite honestly. I don‘t have to. Tell me if I have to. I don‘t think I do. I don‘t think there‘s anything in the rules of judicial conduct that require a judge to be disrespected and do nothing about it. Tell me if I‘m wrong. I‘m not going to. Today‘s the end. You do it again, we are going to add additional restraints to you in front of the jury.
Id. at 46–47. The court directed Wilber‘s counsel to explain to Wilber the proper way of behaving in court and took a ten-minute break to decide the issue before it and to allow counsel to converse with his client. Id. at 48–49.2
The trial proceeded to its conclusion with no further comments on the record about Wilber‘s behavior. It was after the
At that point, before the jury was brought back into the courtroom for final instructions and closing arguments, the court announced that Wilber had been placed “in a secured wheelchair with—not only secured at his ankles but at his wrists.” R. 61-28 at 100. His ankle remained attached to a bolt on the floor, but now his hands were chained together at the wrists and two-inch wide black straps secured him to the wheelchair at his right wrist and at both of his upper arms just below the shoulder. Id. at 197; R. 69–73. (See the appendix at the end of this opinion for a photograph of Wilber so shackled.) The court stated that “Mr. Wilber is responsible for his own predicament and for his own position, that is to be restrained and to have that obvious restraint being shown to the jury.” R. 61-28 at 100. His behavior throughout the trial, the court stated, “has been contemptible.” Id. at 100.
The trial court went on to summarize Wilber‘s previous behavior and the measures taken to ensure the trial would proceed in an orderly and safe manner. Describing Wilber‘s previous behavior, the court stated:
This defendant, through his gestures, through his facial gestures at the court, through his facial expressions, through his body language, through his tone, and most particularly through
his language, including the tirade that he had at the end of the second day or the end of the second morning of this trial, directed at this court, and challenging this court, quite honestly, to find him in contempt, thereby setting the stage for his defiance throughout the proceedings.
Id. at 101. The court then noted that in response to this behavior, additional deputies had been stationed in the courtroom and a stun belt had been placed on Wilber‘s right arm. This was in addition to the bracelet around his ankle that was anchored to the floor under the defense table where Wilber was seated.
The judge stated that she had thought these measures, along with her words of advice, would be enough “to get him to understand that such disrespect to the court to these proceedings was not going to be tolerated.” Id. at 103. “Apparently,” the judge concluded, “it was not a sufficient amount of restraint[.]” Id. at 103. She then explained why:
[O]n today‘s date the defendant used absolutely inappropriate, vulgar, profane language to the deputies who were in charge of security of this courtroom, and will not be tolerated or accepted. He also physically fought with the deputies, such that they had to decentralize him in the back hallway leading back to the bullpen.
That conduct will not be rewarded, it will not be tolerated, and I will not be manipulated into
allowing a defendant, by his actions, to dictate how I run this court.
Id. at 103–04.3
The court noted that “we‘re at the stage where we charge the jury, we have closing arguments, where quite honestly the State is going to be making their closing argument that I‘m sure is going to have parts of it that the defendant is going to simply find annoying, wrong, incorrect, lying, disrespectful of him, and if he was already demonstrating to me at the very beginning of these proceedings that he didn‘t agree with my rulings and was going to act out, God only knows how he‘s going to react when the State starts making its closing argument and summing up what it believes the evidence is showing or not showing in this case.” Id. at 104. Not wanting to risk any “further physical outburst of any kind by this defendant in the presence of the jury,” id. at 105, the judge stated, “I will not be dissuaded from having him in any less secure form than he is right now.” Id. at 105.
Wilber‘s attorney objected, noting that Wilber‘s appearance in the wheelchair was “disturbing because it looks absolutely horrible” and that there were constitutional problems with the restraints. Id. at 105. The trial court reminded counsel that Wilber had been admonished for his behavior and that the restraints had been progressive. Id. at 106–07. It explained that there was precedent for taking these extra measures and described an incident years earlier in which another defendant, who was not restrained, was shot and killed by law enforcement upon the reading of a verdict in that courtroom. Id.
* * *
After the jury retired to deliberate, the defense moved for a mistrial based on the decision to place Wilber in restraints that were visible to the jury. Wilber‘s counsel argued that the decision violated his rights under the
I am not certain if there is any instruction that could be fashioned, that would take away the impact of what Mr. Wilber was presenting to the jury as a result of the physical constraints placed upon him, and that is my concern. ... I am not certain what you can tell the jury that would take away the stain of what is visible.
The jury convicted Wilber on the sole charge submitted to it: first degree homicide with a dangerous weapon. The court ordered him to serve a life term in prison with the possibility of release on extended supervision after 40 years.
Wilber subsequently sought post-conviction relief, arguing, inter alia, that it was improper to order that he be visibly restrained during closing arguments. The trial court denied the petition without a hearing. R. 61-2.
Wilber then appealed his conviction, as relevant here renewing his contention that the trial court had abused its discretion in requiring him to appear before the jury in visible restraints and that he was denied a fair trial as a result of the court‘s decision.
The Wisconsin Court of Appeals affirmed his conviction. State v. Wilber, 314 Wis.2d 508, 2008 WL 4057798 (Wis. Ct. App. Sept. 3, 2008) (unpublished). With respect to Wilber‘s shackling claim, the court observed that the trial judge had engaged in a deliberate exercise of discretion and had been careful to explain her rationale each time she took additional
Wilber then pursued postconviction relief pursuant to
The appellate court affirmed the denial of his request for postconviction relief. State v. Wilber, supra, 2018 WL 6788074. In addressing Wilber‘s claim that defense counsel was ineffective for failing to challenge, on direct appeal, the sufficiency of the evidence underlying his conviction, the court found that the evidence was sufficient to support the conviction, such that it did not need to address this claim of attorney ineffectiveness. Id., at *7. The Wisconsin Supreme Court again denied review. R. 69-13.
Judge Griesbach granted the petition in part. Wilber, 476 F. Supp. 3d 785. He rejected, in the first instance, Wilber‘s claim that the Wisconsin Appellate Court had unreasonably applied Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979), in finding the evidence sufficient to support the conviction. 476 F. Supp. 3d at 797-99. The state court had, consistently with Jackson, considered the record as a whole and found that a reasonable trier of fact could have found Wilber guilty beyond a reasonable doubt. Multiple witnesses had described Wilber‘s “aggressive[ ] and violent[ ]” behavior at the party just before Diaz was shot; two witnesses (Jeranek and Torres) had seen a gun in Wilber‘s hand just before and just after the shooting, and although Jeranek and other witnesses denied their prior statements at trial, those statements were admitted both to impeach their trial testimony and as
But Judge Griesbach went on to conclude that Wilber was entitled to relief on his claim that the decision to visibly shackle him during closing arguments constituted a violation of his
Initially, the district court did not think it necessary to consider whether Wilber had demonstrated that he was prejudiced by the visible shackles he wore during closing argument and jury instruction. Deck itself observed that visible shackles are inherently prejudicial, such that when a court
The court therefore granted Wilber relief under section 2254 and ordered him released from custody unless the State decided, within 90 days of the court‘s decision, to retry him. The court subsequently stayed that decision pending the resolution of this appeal and denied Wilber‘s motion for release on bond.
In successfully seeking a stay from the district court, the State pointed out as to the matter of prejudice resulting from a shackling error that Deck was a direct-review case, whereas this is a section 2254 habeas proceeding in which harmless-error review applies in virtually all cases of trial error. Brecht v. Abrahamson, 507 U.S. 619, 637-38, 113 S. Ct. 1710, 1722 (1993). Thus, once a constitutional error has been established in a habeas proceeding, a court must consider whether the error “had substantial or injurious effect or influence in determining the jury‘s verdict.” Id. at 637, 113 S. Ct. at 1722 (quoting Kotteakos v. United States, 328 U.S. 750, 776, 66 S. Ct. 1239, 1253 (1946)); see also Davis v. Ayala, 576 U.S. 257, 267-68, 135 S. Ct. 2187, 2197-98 (2015); Fry v. Pliler, 551 U.S. 112, 121-22, 127 S. Ct. 2321, 2328 (2007). And it is the habeas petitioner who
There must be more than a reasonable probability that the error was harmful. The Brecht standard reflects the view that a State is not to be put to the arduous task of retrying a defendant based on mere speculation that the defendant was prejudiced by trial error; the court must find that the defendant was actually prejudiced by the error.
Ayala, 576 U.S. at 268, 135 S. Ct. at 2198 (cleaned up). Ultimately, a court may grant habeas relief only if it is in “grave doubt” as to whether the federal error had a substantial or injurious effect in determining the jury‘s verdict. Id. at 267-68, 135 S. Ct. at 2197-98.
Acknowledging that the Brecht standard as to prejudice applies here, the district court concluded that Wilber had adequately established prejudice from the shackling error. The court noted the physical evidence at the scene of the murder did pose difficulties for the State‘s case against Wilber. R. 100 at 3-4. In addition, none of the State‘s witnesses testified before the jury that they saw Wilber shoot Diaz. In that regard, the State relied on the out-of-court statements of Torres and Jeranek. But Torres had told the police, as he did the jury, simply that he saw Wilber with a gun and apparently assumed that Wilber had shot Diaz. Jeranek had indicated to the police that Wilber was the shooter, but he never signed a
II.
The parties have filed cross-appeals from the district court‘s decision. The State has appealed the finding that Wilber was deprived of due process by being made to appear before the jury in visible shackles. Wilber has cross-appealed, challenging the court‘s holding that the state court reasonably applied Jackson in deeming the evidence sufficient to support his conviction. The district court issued a certificate of appealability as to that claim. R. 94. Wilber also pursues on appeal a claim that his trial counsel was ineffective, which the district court did not reach.
As relevant here, the Antiterrorism and Effective Death Penalty Act authorizes relief under section 2254 only when the state court‘s decision on the merits of a claim is “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of
We affirm the court‘s decision to issue a writ of habeas corpus. Although, like the district court, we find no fault with the Wisconsin appellate court‘s decision as to the sufficiency of the evidence, we agree with the district court that the state court unreasonably applied Deck in sustaining the decision to order Wilber visibly shackled during final jury instruction and closing arguments. Whatever risks Wilber may have posed to the security and dignity of the trial proceeding, neither the trial judge nor the appellate court ever cited a reason why the additional restraints ordered for the final phase of the trial had to be restraints that were visible to the jury, nor is such a reason otherwise apparent from the record. Deck and its antecedents make clear that visible restraints are so
A. Sufficiency of the evidence
Although, as we discuss below, Wilber is entitled to relief on his due process claim, that relief takes the form of a new trial. His claim as to the sufficiency of the evidence, on the other hand, would if successful bring his prosecution to a definitive end now. As the district court recognized, 476 F. Supp. 3d at 796, a finding that the evidence was insufficient to support a defendant‘s conviction “is in effect a determination that the government‘s case against the defendant was so lacking that the trial court should have entered a judgment of acquittal rather than submitting the case to the jury.” Lockhart v. Nelson, 488 U.S. 33, 39, 109 S. Ct. 285, 290 (1988) (citing Burks v. United States, 437 U.S. 1, 16-17, 98 S. Ct. 2141, 2149-50 (1978)). As a result, when an appellate court finds on direct review of a conviction that the evidence leading to that conviction was insufficient, the double jeopardy clause of the
To start, there can be no doubt that the Wisconsin Court of Appeals applied the correct standard. Although that court did not cite Jackson or a Wisconsin precedent that sets forth the same rule, a review of the appellate court‘s decision reveals that it conducted the appropriate inquiry. It canvassed the testimony given at Wilber‘s trial, considered the record as a whole in a light favorable to the State, and concluded that a reasonable factfinder could have found Wilber guilty beyond a reasonable doubt.6 So the court‘s decision was not “contrary to” Jackson.
To be sure, the physical evidence posed certain problems for the State‘s case as we noted earlier. The position of Diaz‘s body on the kitchen floor, coupled with the discovery of bullet fragments at the north end of the kitchen, suggested that he was shot (and fell) in a south-to-north direction. But Wilber
But, as we have also discussed, the State‘s case was not entirely without answers to the questions posed by this evidence. Although Jeranek had told the police that he saw Wilber pointing a gun at Diaz, neither he nor any other witness admitted at trial that he saw the actual shooting, and thus there was no testimony in the trial record as to how Wilber and Diaz were positioned relative to one another at the precise moment of the shooting or as to how Diaz‘s body fell to the floor of the kitchen after he was struck by the bullet (whether his body may have spun around or instead fell straight downward, for example). As the State argued in closing, the kitchen was crowded with people and the moments just before and after the shooting were chaotic. Jeranek told the police that Diaz had turned away from and had his back to Wilber before the shooting, which would explain how Wilber could have shot him in the back of the head, if not how Diaz‘s body ended up facedown on the kitchen floor in a south-north direction. It is possible that Diaz‘s body was jostled while it was falling or after it fell to the floor. We also know from the testimony of multiple witnesses that Wilber‘s height relative to Diaz and the other individuals in the kitchen at the time made him a more likely candidate for having shot Diaz from above, in a downward direction consistent with the trajectory of the bullet. And although the witnesses who saw Wilber with a gun described it as a semi-automatic weapon, which is inconsistent with the forensic evidence, witnesses frequently are mistaken as to such details. So the jury might
On this record, the Wisconsin Court of Appeals reasonably concluded, consistently with Jackson, that a rational factfinder could have found Wilber guilty beyond a reasonable doubt. At least one eyewitness had effectively identified Wilber as the shooter to the police, and a second had seen a gun in Wilber‘s hand immediately after the shooting, and although the trial testimony of these and other witnesses was not as directly inculpatory as their out-of-court statements were, it still pointed the finger at Wilber as the shooter. Moreover, multiple witnesses had described Wilber‘s belligerent behavior at the party, which escalated to physical violence with multiple individuals just prior to the time at which Diaz was shot. The evidence was sufficient to support the conviction.
B. Use of visible restraints
The due process clause of the
In Illinois v. Allen, 397 U.S. 337, 90 S. Ct. 1057 (1970), the Court sustained a trial court‘s decision to remove a perpetually disruptive defendant from the courtroom against a
Trying a defendant for a crime while he sits bound and gagged before the judge and jury would to an extent comply with that part of the Sixth Amendment‘s purposes that accords the defendant an opportunity to confront the witnesses at the trial. But even to contemplate such a technique, much less see it, arouses a feeling that no person should be tried while shackled and gagged except as a last resort. Not only is it possible that the sight of shackles and gags might have a significant effect on the jury‘s feelings about the defendant, but the use of this technique is itself something of an affront to the very dignity and decorum of judicial proceedings that the judge is seeking to uphold.
Moreover, one of the defendant‘s primary advantages of being present at the trial, his ability to communicate with his counsel, is greatly reduced when the defendant is in a condition of total physical restraint. It is in part because of these inherent disadvantages and limitations in this method of dealing with disorderly defendants that we decline to hold with the Court of Appeals that a defendant cannot in any possible circumstances be deprived of his right to be present at trial. However, in some situations which we need not attempt to foresee, binding and gagging might pos[s]ibly be the fairest and most reasonable way to handle a defendant who acts as Allen did here.
Id. at 344, 90 S. Ct. at 1061. See also id. at 345, 90 S. Ct. at 1062 (noting that option of imprisoning unruly defendant for civil contempt “is consistent with the defendant‘s right to be present at trial, and yet it avoids the serious shortcomings of the use of shackles and gags“); id. at 350-51, 90 S. Ct. at 1064 (Brennan, J., concurring) (noting that dealing with a disorderly defendant by binding and gagging him “is surely the least acceptable” of the options available to a judge: “It offends not only judicial dignity and decorum, but also that respect for the individual which is the lifeblood of the law.“).
In Estelle, the Court concluded that compelling a defendant to appear before the jury in prison garb posed comparable difficulties. The court emphasized that the presumption of innocence is “a basic component of a fair trial,” 425 U.S. at 503, 96 S. Ct. at 1692, and forcing a defendant to stand trial in jailhouse clothing tends to undermine that presumption:
“[T]he constant reminder of the accused‘s condition implicit in such distinctive, identifiable attire may affect a juror‘s judgment. The defendant‘s clothing is so likely to be a continuing influence throughout the trial that ... an unacceptable risk is presented of impermissible factors coming into play.” Id. at 504-05, 96 S. Ct. at 1693. The Court went on to add that “[u]nlike physical restraints, permitted under Allen, ... compelling an accused to wear jail clothing furthers no essential state policy.” Id. at 505, 96 S. Ct. at 1693.7
By way of contrast, the Court concluded in Holbrook that the presence of multiple uniformed state troopers in the front row of the spectator section of a courtroom did not jeopardize the presumption of innocence in the same way as visible shackling and prison attire:
The chief feature that distinguishes the use of identifiable security officers from courtroom practices we might find inherently prejudicial is the wider range of inferences that a juror might reasonably draw from the officers’ presence. While shackling and prison clothes are unmistakable indications of the need to separate a defendant from the community at large, the presence of guards at a defendant‘s trial need not be interpreted as a sign that he is particularly dangerous or culpable. Jurors may just as easily believe that the officers are there to guard against
disruptions emanating from outside the courtroom or to ensure that tense courtroom exchanges do not erupt into violence. Indeed, it is entirely possible that jurors will not infer anything at all from the presence of the guards. If they are placed at some distance from the accused, security officers may well be perceived more as elements of an impressive drama than as reminders of the defendant‘s special status. Our society has become inured to the presence of armed guards in most public places; they are doubtless taken for granted so long as their numbers or weaponry do not suggest particular official concern or alarm.
475 U.S. at 569, 106 S. Ct. at 1346.
Not until its 2005 decision in Deck v. Missouri did the Court actually articulate a rule as to when visible restraints may be used. Although its prior decisions had recognized the prejudice that visible shackling poses to a fair trial, Deck was the first case in which the Court confronted head-on the question of whether and when the use of visible restraints during a criminal trial are consistent with the Constitution.
The defendant in Deck was compelled to appear in visible restraints—including leg irons, handcuffs, and a belly chain—during the penalty phase of his capital murder trial. During the guilt phase of the trial, the defendant had been restrained solely by leg braces that were not visible to the jury; but following his conviction, the additional restraints were added and no attempt was made to hide them. The defense objected to the visible restraints, but the trial court overruled the objection, with little explanation beyond the observation that the
The U.S. Supreme Court reversed, concluding that the shackling decision had deprived the defendant of a fair trial at the penalty phase. Although the Court acknowledged that visible shackling may be permissible in limited circumstances, the trial court had never identified a circumstance that warranted shackling Deck, let alone the need for visible shackling. 544 U.S. at 634-35, 125 S. Ct. at 2015.
The Court began its analysis by finding it “clear” that the Constitution did not authorize the use of visible shackles as a routine matter during a criminal trial: “The law has long forbidden routine use of visible shackles during the guilt phase; it permits a State to shackle a defendant only in the presence of a special need.” Id. at 626, 125 S. Ct. at 2010. The Court traced the “deep roots” of this rule to Blackstone, who wrote more than 250 years ago that a defendant “must be brought to the bar without irons, or any manner of shackles or bonds; unless there be evident danger of an escape.” Ibid. (quoting 4 W. Blackstone, Commentaries on the Laws of England 317 (1769) (footnote omitted)). After surveying American precedents on the subject, including its own observations in Allen, Williams, and Holbrook, the Court summarized:
[I]t is clear that this Court‘s prior statements gave voice to a principle deeply embedded in the law. We now conclude that those statements
Id. at 629, 125 S. Ct. at 2012.
The Court went on to explain that the disfavor of visible shackling was animated by “three fundamental legal principles“: the presumption that a defendant is innocent until proven guilty, a defendant‘s right to counsel to help him mount a meaningful defense, and a judge‘s obligation to “maintain a judicial process that is a dignified process.” Id. at 630–31, 125 S. Ct. at 2013. With respect to the first of these principles, “[v]isible shackling undermines the presumption of innocence and the related fairness of the factfinding process. It suggests to the jury that the justice system itself sees a “need to separate a defendant from the community at large.“” Id. at 630, 125 S. Ct. at 2013 (quoting Holbrook, 475 U.S. at 569, 106 S. Ct. at 1346). Second, restraints can interfere with the right to defend oneself against the charge by making it more difficult for a defendant to communicate with his counsel and imposing an additional cost on the decision to give testimony in his own behalf. Id. at 631, 125 S. Ct. at 2013. And third, with respect to judicial decorum, the use of shackles tends to undermine “[t]he courtroom‘s formal dignity, which includes
The Court allowed that there will be cases in which the dangers of shackling cannot be avoided: “We do not underestimate the need to restrain dangerous defendants to prevent courtroom attacks, or the need to give trial courts latitude in making individualized security determinations.” Id. at 632, 125 S. Ct. at 2014.
However, the decision to compel a defendant to appear before a jury in shackles is one that must be tied to the specific circumstances of the case at hand, including any security risks that the individual defendant might pose. “[G]iven their prejudicial effect, due process does not permit the use of visible restraints if the trial court has not taken account of the circumstances of the particular case.” Ibid.
The Court went on to apply this rule to the penalty phase of Deck‘s trial. Although of course the presumption of innocence was no longer at issue once Deck had been convicted, the deployment of visible shackles still presented perils to the fairness of the proceeding:
The appearance of the offender during the penalty phase in shackles ... almost inevitably implies to a jury, as a matter of common sense, that court authorities consider the offender a danger to the community—often a statutory aggravator and nearly always a relevant factor in jury decisionmaking, even where the State does not specifically argue the point. It also almost
inevitably affects adversely the jury‘s perception of the character of the defendant. And it thereby undermines the jury‘s ability to weigh accurately all relevant considerations—considerations that are often unquantifiable and elusive—when it determines whether a defendant deserves death. In these ways, the use of shackles can be a thumb on death‘s side of the scale.
Id. at 633, 125 S. Ct. at 2014 (citations and internal quotation marks omitted). Thus, at the penalty phase as well as the guilt phase of a trial, a judge may only require a defendant to appear in shackles if the circumstances warrant. “But any such determination must be case specific; that is to say, it should reflect particular concerns, say, special security needs or escape risks, related to the defendant on trial.” Id., 125 S. Ct. at 2015.
Having set out the rule that visible restraints at either phase of a criminal trial must be justified by case-specific circumstances, the Supreme Court rejected Missouri‘s assertion that the trial court had acted within its discretion in requiring Deck to be visibly shackled during the penalty phase of his trial. The Court observed in the first instance that there was no confirmation in the record that the trial judge saw the matter as one calling for the exercise of discretion. Id. at 634, 125 S. Ct. at 2015. The Court pointed out that the trial judge had not cited a risk of escape or a threat to courtroom security as a reason for the shackles. Instead, the judge had justified the shackles on the ground that Deck had already been convicted. Ibid. The judge had additionally remarked that the shackles might take fear out of the jurors’ minds but had not cited any particular reason for the jurors to be afraid. Ibid. “Nor did he
The Court concluded its decision with a rejection of Missouri‘s contention that the decision to shackle Deck was harmless. Shackling is “inherently prejudicial,” the Court emphasized, although typically its negative effects will not be evident from the trial transcript. Ibid. (quoting Holbrook, 475 U.S. at 568, 106 S. Ct. at 1345). “Thus, where a court, without adequate justification, orders the defendant to wear shackles that will be seen by the jury, the defendant need not demonstrate actual prejudice to make out a due process violation. The State must prove “beyond a reasonable doubt that the [shackling] error complained of did not contribute to the verdict obtained.“” Id., 125 S. Ct. at 2015–16 (quoting Chapman v. California, 386 U.S. 18, 24, 87 S. Ct. 824, 828 (1967)).
The Wisconsin Court of Appeals’ decision affirming the shackling decision in this case cannot be reconciled with Deck. That court reasoned that, in view of Wilber‘s altercation with sheriff‘s deputies outside of the courtroom on the final day of trial, shackling Wilber was justified by his disruptive behavior and security concerns. 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.
To be clear, the state court‘s decision is not contrary to Deck. Although the appellate court did not cite Deck and
But the state court‘s analysis nonetheless represents an objectively unreasonable application of the rule set forth in Deck. As we discuss below, the state court lost sight of the inherent prejudice that visible shackles pose and wholly neglected to address why, in this case, the restraints imposed on Wilber had to be visible rather than concealed.
Deck makes clear that the
Clearly the behavior of Wilber (and, of course, the other individuals present at the trial who engaged in suspicious behavior) posed potential threats to the security and orderliness of the courtroom that warranted the imposition of restraints. Wilber had engaged in multiple altercations with the sheriff‘s deputies who escorted him to and from court, at one point suggesting that he wanted them to kill him; his inquiries about the route the deputies would take in escorting him to
But for closing arguments, the court concluded that additional restraints—over and above the ankle restraint and stun belt—were warranted by a recent verbal and physical altercation between Wilber and the deputies (outside of the courtroom); and in a departure from the care the court had taken with respect to the restraints previously imposed, no effort was made to hide these wrist and arm restraints from the jury‘s sight. The photograph of Wilber shackled to a wheelchair we have attached to this opinion leaves no doubt that the wrist and arm restraints were readily visible to the jury. Indeed, the state appellate court so found. 2008 WL 4057798, at *7 (“At issue is the visible, physical restraint of Wilber during closing arguments.“). The wheelchair itself, which had not been used previously and which immobilized Wilber to the extent that he could not even stand up, would only have highlighted Wilber‘s enhanced state of restraint.
The appellate court, for its part, sustained the trial court‘s decision as appropriate given the circumstances we have discussed, without ever addressing the distinction between visible and concealed restraints or identifying why the trial court legitimately might have concluded that visible restraints were necessary. Like the trial court, its analysis focused on the propriety of ordering additional restraints, with no mention of whether these restraints could have been kept out of sight or why it was not feasible to do so.
The State goes so far as to suggest that, apart from justifying why additional restraints were necessary at the closing-argument stage, it was unnecessary for the court to explain why visible restraints, in particular, were necessary. But in two ways, Deck leaves no doubt that such an explanation is necessary. First, the entirety of the Deck decision hinges on the inherent prejudice posed by visible, as opposed to concealed, restraints. See, e.g., 544 U.S. at 630, 125 S. Ct. at 2013 (“Visible shackling undermines the presumption of innocence and the related fairness of the factfinding process.“); cf. Holbrook, 475 U.S. at 568–69, 106 S. Ct. at 1345–46 (distinguishing the presence of uniformed troopers in courtroom, which support a benign inference, from shackling and prison clothes, which “are unmistakable indications of the need to separate a defendant from the community at large“). Second, lest there be any doubt on this point, the Court concluded that the Missouri trial judge‘s shackling decision could not be sustained as a
The district court also expressed concern about the possibility that the trial judge may have ordered Wilber to be visibly shackled as punishment for what she perceived to be his disrespect for her authority. That is one way to read the record. When the judge explained her decision to impose the additional restraints, she declared that “Wilber is responsible for
As Judge Griesbach emphasized, the key point here is that neither the trial judge nor the state appellate court ever explained why they believed it necessary or unavoidable that such additional restraints be visible to the jury. One can readily accept the trial judge‘s determination, seconded by the
Certainly there will be cases in which it may not be possible to hide physical restraints. If a defendant is representing himself and has a need to move around the courtroom, for example, there may be no practical way of keeping the restraints hidden. E.g., United States v. Van Sach, 458 F.3d 694, 699–700 (7th Cir. 2006). And if a defendant is particularly disruptive and/or uncooperative with measures to cloak the restraints, a court may have no alternative than to allow the jury
The state courts’ 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. Indeed, the Supreme Court found visible restraints so inherently prejudicial to a defendant that it relieved the defendant of having to show (on direct review) that he was actually prejudiced by a shackling error and instead assigned the burden to the State to prove the harmlessness of the error. Although Deck acknowledges that visible restraints may be appropriate when the specific circumstances of a case warrant them, it leaves no doubt that a court‘s balancing of the need for restraints against the resulting prejudice to the defendant must include consideration of whether the restraints can be concealed from the jury‘s view: thus the Court‘s express observation that the Missouri court had never explained why, to the extent restraints were necessary, they must be visible. Confronted with a record that is utterly silent as to the necessity of visible restraints, Deck compels a finding that error
This leaves us with the question of prejudice. The State has argued that the district court erroneously placed the burden on the State to show that the shackling error was harmless beyond a reasonable doubt under Chapman rather than placing the burden on Wilber to show that the error had a substantial and injurious effect on the verdict under Brecht. But the district court obviated any issue in this regard when it addressed the State‘s motion to stay its order granting the writ and ordering Wilber‘s release absent a decision to retry him within 90 days. The court expressly found that Wilber had met the Brecht test by raising a “grave doubt” as to whether visibly shackling him at the closing of the trial had a substantial and injurious impact on the jury‘s verdict. R. 100 at 3-4.
We agree with the district court‘s finding in this regard. As the Supreme Court‘s jurisprudence makes clear, visible restraints have long been deemed to be inherently prejudicial to the accused. It was for that very reason that the Court in Deck relieved the defendant of having to document the prejudice when a shackling error is raised on direct review. 544 U.S. at 635, 125 S. Ct. at 2015; see also United States v. Cooper, 591 F.3d 582, 588 (7th Cir. 2010) (noting that “the Court [in Deck] saw nothing even potentially benign in shackles, nor did it suggest that a jury might feel sympathy rather than fear or aversion for a shackled defendant“). It is true enough that Wilber was only confined for the closing phase of the trial, as the attorneys delivered their closing arguments and the judge gave the jury its final instructions. But as Judge Griesbach pointed out, it is at this stage of the trial that a jury is most likely to be
To the district court‘s rationale we would add the point that Wilber‘s belligerent and violent behavior on the night that Diaz was killed was mentioned repeatedly by the State‘s witnesses and was a subject of emphasis in the State‘s closing arguments. As noted earlier, prior to the house party, Wilber had been drinking at a local bar with family and friends. When the bar closed, patrons were invited to continue socializing—in what witnesses called an “after set“— at the house where Diaz and his family lived. By the time Wilber‘s group left the bar, he was intoxicated and had already shown the first signs of hostile behavior. Jamie Williams was at the bar and testified that Wilber seemed drunk. He had asked her to buy him a beer, and when she declined, he responded, “[F]uck you, bitch.” R. 61-23 at 135. Later, at the after party, he walked into the living room of the house and, unprovoked, threatened Leah Franceschetti, “Bitch, I will slap you.” Id. at 123. Antonia West, Wilber‘s sister, who herself was intoxicated, described Wilber as being “pretty buzzed up” at the party. R. 61-20 at 96. When Wilber‘s behavior subsequently escalated from verbal abuse to physical violence, it apparently
It comes as no surprise that the State highlighted the descriptions of Wilber‘s behavior in its closing arguments to the jury. The emphasis was entirely appropriate, given the defense‘s own focus on the lack of first-hand testimony
But this only serves to confirm why the decision to visibly shackle Wilber at a stage of the trial when the State‘s counsel was recounting and emphasizing Wilber‘s behavior was necessarily prejudicial. When the jury heard these arguments, Wilber was in a courtroom, sitting at the defense table, on trial for murder. He was not drunk, at an after-hours party, arguing with other inebriated guests. He had every incentive to behave himself in front of the jury charged with deciding his fate. Yet the visible shackles that he wore for closing arguments signaled to the jury that Wilber was incapable of self-control even when his own freedom was at stake, that the court itself perceived him to pose such a danger that he must be physically strapped to a wheelchair in order to protect everyone else in the courtroom. See Deck, 544 U.S. at 630, 125 S. Ct. at 2013 (visible shackling “suggests to the jury that the justice system itself sees a “need to separate a defendant from the community at large““) (quoting Holbrook, 475 U.S. at 569, 106 S. Ct. at 1346). 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.” R. 61-28 at 130. It is difficult to imagine a more prejudicial action the court could have taken at that point in the trial.
For all of the foregoing reasons, we agree with the district court that the Wisconsin Court of Appeals’ decision finding the evidence sufficient to support Wilber‘s conviction was not an unreasonable application of Jackson. However, we also agree with the district court that the state appellate court‘s decision sustaining the restraints imposed on Wilber represented an objectively unreasonable application of Deck. In the absence of any rationale justifying a need for visible restraints, the decision to visibly shackle Wilber deprived him of his due process right to a fair trial. We sustain the district court‘s decision to grant a writ of habeas corpus (allowing the State time in which to decide whether to re-try Wilber) on that basis. Like the district court, we find it unnecessary to reach, and do not reach, Wilber‘s claim of trial counsel ineffectiveness.
AFFIRMED