New trial ordered for man bound to wheelchair in front of jury

Rovner

By Gretchen Schuldt

​More than 16 years after the Milwaukee County judge presiding over Danny Wilber's murder trial ordered him shackled to a wheelchair during closing arguments, a federal appeals court ordered a new trial because the visible shackling was prejudicial to the jurors.

The ruling by a three-judge panel of the Seventh Circuit Court of Appeals upheld a decision by U.S. District Judge William Griesbach, who last year granted Wilber's habeas corpus petition. The Seventh Circuit decision also overturned a 2008 State Court of Appeals' decision sustaining the shackling. (For more on the case, see WJI's previous post here.)

​"The visible shackles reinforced the very argument that the prosecutor was making as to why Wilber must have been the person who shot (David) Diaz, effectively signaling that the court itself agreed with the State’s characterization of Wilber as a “guy who couldn’t control himself,” U. S. Circuit Judge Ilana Rovner wrote for the panel. "It is difficult to imagine a more prejudicial action the court could have taken at that point in the trial."

She was joined in her decision by U.S. Circuit Judges Daniel Manion and Michael Kanne.

Both Griesbach and the appeals panel said the state's physical evidence tying Wilber to the 2004 crime was problematic, but that it was not so weak that the case should be dismissed on that basis. Both ruled, though, that Milwaukee County Circuit Judge Mary Kuhnmuench – now retired – erred seriously in February 2005 when she ordered Wilber visibly shackled.

"For over 50 years, the Supreme Court has recognized that the fairness of a trial is brought into question when a defendant is made to appear before a jury bearing the badges of restraint," Rovner wrote. "This is the very sort of circumstance that can divert the jury’s attention and lead it to convict the defendant based on something other than the evidence put forward against him at trial."

In a 2005 case, Deck v. Missouri, the U.S. Supreme Court set a standard for when defendants could be visibly shackled. Judges may need to order shackles  "to prevent courtroom attacks, or the need to give trial courts latitude in making individualized security determinations," the Supreme Court said.

The court also said, however, that the the reason for visible shackling must be tied to the specific circumstances of a particular case. 

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Wilber bound in the wheelchair. Source: U.S. Seventh Circuit Court of Appeals

That is where both Kuhnmuench and the state appellate court failed, Rovner said. Neither specifically stated why visible shackling was necessary.

Wilber's ankle was manacled and attached to a bolt in the floor during the trial. That shackle could not be seen by the jury. During the trial, after Wilber grew angry outside the presence of the jury, Kuhnmuench ordered additional deputies for the courtroom and that a stun belt be attached to Wilber's arm. The stun belt also was hidden from the jury's view.

At different times during the trial, Wilber fought and argued with deputies outside the courtroom, asked them questions that suggested he might be planning an escape attempt, accused the judge of aiding the prosecution, and made facial and other gestures that Kuhnmuench took as signs of disrespect. In addition, three men in the courtroom made comments to court staff that could be heard as threats and one person was caught listening at the door of the judge's private office.

Kuhnmuench, based on Wilber's disruptive behavior, "could reasonably conclude that restraints were warranted," Rovner said. Yet, until the trial's closing arguments, Kuhnmuench ensured that Wilber's shackleswere not visible to the jury. 

"Although the trial court articulated a justification for its decision to impose still more restraints at the closing-argument stage of the trial, it offered no explanation – none – as to why these additional restraints had to be visible to the jury, even when Wilber’s counsel objected repeatedly...." Rovner said. 

Likewise, the state appeals panel "never articulated why, to the extent the additional restraints
were justified, they must be restraints that were visible to the jury," she said.

"When the jury heard these (closing) arguments, Wilber was in a courtroom, sitting at the defense table, on trial for murder...." she wrote. "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."