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Defense win: Seventh Circuit affirms grant of habeas relief due to use of visible restraints at trial

Danny Wilber v. Randall Hepp, 7th Cir. Nos. 20-2614 & 20-2703, decided 10/29/21

Danny Wilber was granted a writ of habeas corpus by a federal district judge due to the Wisconsin circuit court’s use of visible restraints during Wilber’s trial in violation of Deck v. Missouri, 544 U.S. 622 (2005). We wrote about that decision here. In a long, thorough opinion, the Seventh Circuit affirms the district court.

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 instead relied exclusively on state precedents, the court recognized that a criminal defendant has a right to a fair trial, that a defendant’s freedom from physical restraints is an important component of a fair trial, that such restraints may nonetheless be appropriate when they are reasonably necessary to maintain order, and that the trial court, in the exercise of discretion, may require that a defendant be restrained so long as it puts its reasons for doing so on the record. Wilber, [2007AP2327-CR, ¶¶35–36]. The framework that the Wisconsin Court of Appeals applied is faithful to Deck’s holding.

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.

(Slip op. at 44-45). In addition to the trial court’s decision being unreasonable, it was prejudicial:

As the Supreme Court’s jurisprudence makes clear, visible restraints have long been deemed to be inherently prejudicial to the accused. …. 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 focused on the defendant, as it considers the charge, weighs the evidence and arguments marshaled by counsel, and begins to ponder the defendant’s fate. Particularly where, as here, a defendant is accused of a violent crime, his sudden ap- pearance in multiple sets of manacles can only signal that the court itself believes he presents a danger to those in the courtroom, including the jury—and by extension, the general public—and must be physically and forcibly separated from them. At the same time, the State’s case, although adequate to support the guilty verdict, was not so overwhelming that we can discount the possibility that the restraints had a substantial adverse effect on the verdict.

(Slip op. at 54-55).

Wilber cross-appealed the district court’s rejection of his claim that state court’s unreasonably concluded the evidence was sufficient under Jackson v. Virginia, 443 U.S. 307 (1979); the Seventh Circuit agrees with the district court’s decision that the state courts reasonably applied Jackson in rejecting Wilber’s sufficiency challenge. (Slip op. at 29-35). So Wilber gets a new trial, rather than a vacatur and dismissal.

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