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Defendant forced to wear visible restraints during closing arguments wins habeas relief

Danny Wilber v. Michael Thurmer, Case No. 10-C-179 (E.D. Wis., Aug. 4, 2020).

It’s said that defendants having meritorious postconviction claims are more likely to win relief on a habeas petition in federal court than on direct appeal in Wisconsin’s appellate courts. This decision could be a poster child for that theory.  On Point last reported on Danny Wilber’s case in 2018 when the court of appeals rejected seven §974.06 claims and affirmed his conviction for 1st degree homicide. Judge Griesbach just granted Wilber’s habeas petition and ordered a new trial.

Wilber argued that there was insufficient evidence to support his conviction and that his visible shackling to a wheelchair during the closing arguments of his jury trial denied his due process right to a fair trial. The second claim clicked. The district court held that the Wisconsin court of appeals violated clearly established federal when it upheld the trial court’s decision to restrain Wilber in this manner.  See the court of appeals’ flimsy decision on direct appeal regarding the shackling issue here.

The 5th and 14th Amendments prohibit forcing a defendant to appear before a jury in shackles or other visible restraints unless they are justified by a state interest specific to his trial. Shackles undermine the presumption of innocence and the fairness of the fact-finding process. Deck v. Missouri, 544 U.S. 622, 629 (2005).

In Wilber’s case, the district court seemed skeptical of the circuit court’s reasons for ordering shackling in the first place.  But the real problem is that neither the circuit court nor the court of appeals justified the need for visible shackling. Furthermore, the circuit court appeared to just defer to sheriff’s deputies when ordering the additional restraints. That’s a “no no” under Lopez v. Thurmer, 573 F.3d 484, 493 (7th Cir. 2009).

Believe it or not, the State argued that even if the shackling violated Wilber’s right to due process, he still had to prove prejudice. Wrong, said the district court. It’s the State that must prove beyond a reasonable doubt  that the shackling error did not contribute to the verdict obtained. See Deck, 544 U.S. at 635 (quoting Chapman v. California, 386 U.S. 18, 24 (1967)). It failed to do so here.

High fives to Attorney Rob Henak for this fine, long overdue victory!

{ 1 comment… add one }
  • Lisa Brouillette August 7, 2020, 10:58 am

    High five, Rob! (Though it shouldn’t have taken such a fight!)

    Lisa Brouillette

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