Wilber v. Hepp (7th Cir. October 2021)

The Federal Docket

December 13, 2021

Danny Wilber was charged with murder in a Wisconsin state court for a shooting that arose out of a physical confrontation at a house party. During his jury trial, Wilber was progressively restrained more and more completely on the order of the trial court. Though the restraints were initially not visible to the jury, by the end of the trial, Wilber was shackled into a wheelchair with visible fetters and a stun bracelet on his arm in addition to the ankle shackle that connected him to the floor beneath the skirted defense table.

Wilber was convicted and sentenced to life in prison. After unsuccessfully exhausting all his state-level appeals, Wilber filed an application for a federal writ of habeas corpus under 28 U.S.C. § 2254, arguing that his due process rights under the Fourteenth Amendment were violated when he was visibly shackled during the last part of his trial. The district court agreed and ordered that Wilbur should be released if the State did not provide notice within 90 days of their intention to retry his case.

The State appealed, but the Seventh Circuit upheld the district court’s ruling. Even if Wilber’s restraints had been necessary, the record does not support a finding that it was necessary for them to be visible. Nearly all of Wilber’s alleged misconduct took place outside of the courtroom, and the few incidents that did occur in the room were instances of “disrespectful” words and gestures, all of which were outside of the presence of the jury. There was no reason that the measures taken by the court earlier in the trial would not have adequately protected the others in the courtroom.

This error was not harmless. Visible restraints are inherently prejudicial under Deck v. Missouri, and Wilber’s were even more so because he was restrained during the prosecutor’s closing argument, during which the State portrayed Wilber as violent and out-of-control. The visible shackling of Wilbur acted as confirmation of this allegation and gave the appearance that the court agreed with the State’s characterization.

Appeal from the Eastern District of Wisconsin

Opinion by Rovner, joined by Manion and Kanne

Click here to read the opinion

Tom Church - Tom is a trial and appellate lawyer focusing on criminal defense and civil trials. Tom is the author of "The Federal Docket" and is a contributor to Mercer Law Review's Annual Survey in the areas of federal sentencing guidelines and criminal law. Tom graduated with honors from the University of Georgia Law School where he served as a research assistant to the faculty in the areas of constitutional law and civil rights litigation. Read Tom's reviews on AVVO. Follow Tom on Linkedin.

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