Danny Wilber v. Randall Hepp ( 2021 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
Nos. 20-2614 & 20-2703
DANNY WILBER,
Petitioner-Appellee,
Cross-Appellant,
v.
RANDALL HEPP, Warden,
Respondent-Appellant,
Cross-Appellee.
____________________
Appeals from the United States District Court for the
Eastern District of Wisconsin.
No. 1:10-cv-00179-WCG — William C. Griesbach, Judge.
____________________
ARGUED FEBRUARY 10, 2021 — DECIDED OCTOBER 29, 2021
____________________
Before MANION, KANNE, and ROVNER, Circuit Judges.
ROVNER, Circuit Judge. A jury convicted Danny Wilber of
murder in Wisconsin state court, and he was sentenced to a
life term in prison. After unsuccessfully challenging his con-
viction in state court, Wilber sought relief in federal court pur-
suant to 28 U.S.C. § 2554, arguing among other things that he
was deprived of his right to due process under the Fourteenth
2 Nos. 20-2614 & 20-2703
Amendment when he was visibly shackled before the jury
during closing arguments. The district court issued a writ of
habeas corpus on that claim, concluding that the Wisconsin
Court of Appeals decision sustaining the shackling order
amounted to an unreasonable application of the United States
Supreme Court’s decision in Deck v. Missouri, 544 U.S. 622, 125
S. Ct. 2007 (2005). Because neither the trial judge nor the state
appellate court ever articulated a reason why Wilber had to
be visibly restrained in the jury’s presence, we agree with the
district court that the shackling decision ran afoul of Deck.
And because Wilber was visibly restrained at a key phase of
the trial, when the State highlighted evidence that, in the mo-
ments leading up to the murder, Wilber’s behavior was
“wild,” “crazy,” “possessed,” and “out of control,” we also
agree with the district court that Wilber was prejudiced by the
shackling error. The restraints would have suggested to the
jury that the court itself perceived Wilber to be incapable of
self-control and to pose such a danger that he must be mana-
cled in order to protect others in the courtroom, including the
jurors. We therefore affirm the district court’s decision to
grant a writ of habeas corpus.
I.
Wilber was convicted for the murder of David Diaz in Mil-
waukee Circuit Court, Judge Mary M. Kuhnmuench presid-
ing. 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
Nos. 20-2614 & 20-2703 3
point, a shot rang out, Diaz fell dead to the floor, and partygo-
ers fled the house. Jeranek Diaz (no relation to the victim) (“Je-
ranek”) reported that he saw Wilber pointing a gun at Diaz
just prior to the shooting. When Jeranek heard the gunshot,
he turned in Wilber’s direction and saw Diaz’s body strike the
floor and Wilber tucking the gun under his coat. He believed
that Wilber fired the shot because the sound came from where
Wilber was standing several feet away. A second witness,
Richard Torres, told police that he saw Wilber with a gun in
his hand immediately after the shooting. Both men also re-
ported that in the aftermath of the shooting, they heard Anto-
nia West, Wilber’s sister, cry out, “[O]h my God. You shot
him. Get out of here. You shot him.” Having seen Wilber with
a gun, Torres assumed that he was the shooter. When Torres
heard West’s exclamation, “[i]t convinced me more that he
did.” R. 61-24 at 282–83.
At trial, all of the witnesses called by the State denied see-
ing who shot the victim, including Jeranek, who disclaimed
the statement attributed to him by the police. But the trial tes-
timony 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 Wil-
ber’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
4 Nos. 20-2614 & 20-2703
placing “x’s” with people’s names or initials on diagrams of
the kitchen.
Investigator William Kohl testified about the layout and
dimensions of the kitchen. Kohl testified as to where the ap-
pliances were located, which portions of the kitchen were vis-
ible from different angles and from other parts of the house,
and where Diaz’s body was found in relation to the measure-
ments 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 an-
other party-goer, Oscar Niles. Antonia also testified that Wil-
ber 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
Nos. 20-2614 & 20-2703 5
interpreted Antonia’s statement to mean that Antonia saw her
brother shoot Diaz.
Two other witnesses, Lea Franceschetti and Jaimie Wil-
liams, also testified that they heard Antonia say “I can’t be-
lieve he did that,” and “I can’t believe he shot him.” Frances-
chetti 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 chok-
ing Jeranek, who was standing next to Diaz. Torres inter-
vened 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 Wil-
ber 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 ex-
changed “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.
6 Nos. 20-2614 & 20-2703
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 some-
thing 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, Wil-
liams, 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 “an-
other 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 for-
ward and confess to the shooting. According to Tatum,
Nos. 20-2614 & 20-2703 7
Gonzalez told Monique that he and “Isaiah” were at the party
the night of the shooting. Gonzalez told Monique that he
heard Diaz tell his girlfriend to go get a gun, and in response,
Isaiah pulled out a gun that went off and hit Diaz. Monique
conveyed this information to Tatum. Tatum said she first
learned that Gonzalez claimed to be at the house “a while
ago,” but she did not tell defense counsel because she did not
“know that that was relevant.”
Monique also testified, telling the trial court that her boy-
friend, Gonzalez, told her that he witnessed Isaiah shoot Diaz.
Monique stated that she told Tatum about Gonzalez’s obser-
vation 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 inves-
tigate the matter, stating that the sisters’ testimony was incon-
sistent, 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 observa-
tions 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
8 Nos. 20-2614 & 20-2703
had been standing in a doorway between the living room and
the kitchen. The living room was in the middle of the house,
with the kitchen to its north. Diaz was shot at close range in
the back of the head, and the position of his body on the floor
of the kitchen was consistent with the possibility that he had
fallen forward (from south to north) into the kitchen. Bullet
fragments were found on the north side of the kitchen, which
was also consistent with the possibility that Diaz was shot
from behind in a south-to-north direction. By all witness ac-
counts, however Wilber had been standing in the kitchen—in
front of where Diaz was standing, not behind him—at the
time of the shooting. Also, according to witnesses, the gun
that Wilber was seen holding was a semi-automatic, which
would have ejected a casing; but no such casing was found,
and a firearms examiner testified that Diaz was shot with a
revolver. No forensic evidence was presented as to the likely
trajectory of the bullet after it left Diaz’s body or as to the ex-
istence of any indication of bullet ricochet, blood-spray pat-
terns, or the like.
But the State was not wholly without answers to the ques-
tions 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 mo-
ments immediately before and after the shooting were cha-
otic; 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, as-
suming Diaz was standing upright at the time of the shooting,
Nos. 20-2614 & 20-2703 9
was likely the only person who could have shot him in a
downward direction; Jeranek had told the police that Diaz
had turned away from Wilber just prior to the shooting,
which would explain how Wilber could have shot him in the
back of the head; and although bullet fragments had been
found on the north side of the kitchen, as police testimony had
indicated, bullets often strike other objects and ricochet before
coming to rest in unexpected places.
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 re-
straints. This remained true even after the judge subsequently
increased the number of deputies stationed inside and out-
side of the courtroom and ordered a stun belt added to Wil-
ber’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 incor-
porate the following account from the district court’s thor-
ough opinion.
***
Beginning the first day of trial before jury selection had
even begun, the trial judge cautioned Wilber that he would
10 Nos. 20-2614 & 20-2703
not be allowed to make “facial gestures,” “sounds,” “act im-
prudently,” or “be disrespectful” to the court. R. 61-17 at 4.
The judge stated that she had noticed during the morning ses-
sion that Wilber was reacting inappropriately to the argu-
ments of the prosecutor: “[E]very time Mr. Griffin would
make some comment that—in terms of how he was going to
couch this—this evidence, and why he thought it was admis-
sible, your head was straining at the bit at times looking back
at him and—and maybe it was just a reflex on your part.” Id.
at 5. When “we’re in front of the jury,” the court warned, this
would not be allowed:
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
Nos. 20-2614 & 20-2703 11
preparing his defense, was familiar with the legal arguments,
and strongly disagreed with the court’s ruling. Id. at 6. Disa-
greement was fine, the judge noted, but “[w]hat I’m trying to
tell you is it’s a disrespect to the court to show you disagree.”
Id. at 7. “You have to keep a poker face,” she continued, not-
ing that it was in his interest to do so because it “looks bad in
front of the jury.” Id. at 7.
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 pro-
ceeding.” R. 61-18 at 75. The court noted that Wilber was to
remain shackled throughout the trial. A bracelet had been at-
tached to one of Wilber’s ankles and anchored to the floor be-
neath the defense table. The court also noted that steps had
been taken to prevent jurors from becoming aware that Wil-
ber was shackled and maintain the presumption of innocence
to which he was entitled. Both the prosecution and the de-
fense 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 be-
ing 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
12 Nos. 20-2614 & 20-2703
parties and to the court—that would cause them to be an un-
suitable juror.” Id. at 76. 1
After two days of jury selection and several lengthy dis-
cussions of legal issues, the attorneys gave their opening
statements on the third day and began the presentation of ev-
idence. When the jury was released for lunch, the court
granted the prosecution’s request over the objection of the de-
fense 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.
1The court was referring to a prior incident which had given rise to
concern that two jurors might have seen Wilber with his ankle restraint
exposed. The court had questioned the jurors and was satisfied that nei-
ther had seen anything that might affect his or her ability to remain im-
partial. R. 61-18 at 4, 21-26, 73–74.
Nos. 20-2614 & 20-2703 13
THE DEFENDANT: You don’t intimidate me
with that shit, man.
THE COURT: Mr.—Mr. Wilber.
THE DEFENDANT: You gonna hold me in con-
tempt? 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 your-
self 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 addi-
tional security in the courtroom. It added two additional dep-
uties 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
14 Nos. 20-2614 & 20-2703
can continue without hopefully any additional incidences.”
Id. at 4–5. These steps were necessitated, the court explained,
“because of some of the statements that you made to the court
and to the deputies in—I’m hoping was a moment of anger,
but when you make those kinds of statements and you indi-
cate that you don’t really have any respect for my authority
or for the authority of the deputies, it becomes a—a real safety
concern, an issue for everyone involved in the trial, and it
doesn’t do anybody any good.” Id. at 5.
On the fourth day of the trial, as the morning session was
ending, the trial court advised the jury that they would be se-
questered during the day over their breaks and when coming
to and leaving the courtroom. R. 61-22 at 104–07. The seques-
tration was “to avoid even the appearance of somebody sug-
gesting that the jury was somehow tainted, talking or over-
hearing 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
Nos. 20-2614 & 20-2703 15
courtroom each morning, what floors they would be on, and
who would have access to that same path. These questions
alarmed the deputies and suggested that Wilber might at-
tempt to flee, potentially with the help of others. Id. at 111.
The court also expressed concern that three men had ap-
proached 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 de-
nied 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 depu-
ties 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 wit-
nesses. 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
16 Nos. 20-2614 & 20-2703
further disruptions occurred, the court might order his hands
secured and would instruct him to keep them out of sight be-
low the defense table. And if that proved insufficient, the
court might order him removed from the courtroom for the
duration of the trial and have him participate in the proceed-
ings via video. At the same time, the court acknowledged that
there had been no problems with Wilber since his outburst the
previous day. Id. at 112–13.
At the beginning of the fifth day of trial, the court returned
to a discussion of an issue that the prosecutor had raised ear-
lier—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 com-
mitting 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 con-
duct 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
Nos. 20-2614 & 20-2703 17
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 disre-
spectful 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 disre-
spected 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 re-
straints 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 com-
ments on the record about Wilber’s behavior. It was after the
2 A similar exchange and admonition had taken place on the day be-
fore, when the court was discussing the misbehavior of witness Oscar
Niles, who among other things had winked at the defendant during his
testimony. When the court raised the issue with Niles and with counsel
after the jury was excused, it made clear that it was not attributing any
misconduct on the part of Niles to Wilber. But while the judge was airing
the issue, the judge observed Wilber smiling or laughing at one point and
chastised him for evidently finding the situation humorous. R. 61-23 at 70–
73, 159–61.
18 Nos. 20-2614 & 20-2703
evidence was closed and just before closing arguments were
to begin when defense counsel moved to reopen the case and
allow him to investigate a report by Wilber’s sisters that there
was an eyewitness who saw someone else shoot David Diaz.
The jury was excused from the courtroom while the defense
made its offer of proof and the trial court delivered its ruling
denying the defense’s motion to reopen the case and its fol-
low-on motion for a mistrial.
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 shack-
led.) The court stated that “Mr. Wilber is responsible for his
own predicament and for his own position, that is to be re-
strained 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
Nos. 20-2614 & 20-2703 19
his language, including the tirade that he had at
the end of the second day or the end of the sec-
ond 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 behav-
ior, 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 an-
chored 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 pro-
ceedings was not going to be tolerated.” Id. at 103. “Appar-
ently,” 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 ac-
cepted. He also physically fought with the dep-
uties, 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
20 Nos. 20-2614 & 20-2703
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 argu-
ment and summing up what it believes the evidence is show-
ing 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 appear-
ance in the wheelchair was “disturbing because it looks abso-
lutely 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 defend-
ant, who was not restrained, was shot and killed by law en-
forcement upon the reading of a verdict in that courtroom. Id.3
The record does not supply any further details concerning Wilber’s
behavior with the deputies apart from what the court itself reported.
Nos. 20-2614 & 20-2703 21
at 107. The court determined that it was “taking the appropri-
ate measures” in this case, “given this gentleman’s behavior
and his tone and tenor with the court.” Id. at 108. Counsel re-
quested that the court proceed without the visible restraints
and instead limit the restraints to those he had worn prior to
that day, noting that it was in his interest to avoid misconduct
in front of the jury and reminding the court that Wilber had
not engaged in any misconduct in front of the jury up to that
point. Id. at 110, 111–12. The court denied the request, noting
that Wilber was someone who “by his own language and con-
duct” toward the court and court staff posed a security threat.
Id. at 111. Shortly thereafter, the trial court instructed deputies
to bring the jury into the courtroom. As they moved to do so,
the prosecutor offered to see if his office had a sport coat or
blazer that Wilber could wear, presumably to cover the visible
restraints. Id. at 113. The trial court, without explanation, re-
sponded, “That’s not necessary.” Id. at 113. The jury there-
upon entered the courtroom, and the closing arguments pro-
ceeded without incident. The court then directed the jury to
begin deliberations. Id. at 197. See Wilber v. Thurmer, 476
F. Supp. 3d 785, 790–95 (E.D. Wis. 2020).
***
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 Fifth, Sixth, and Eighth
Amendments of the United States Constitution and Article I,
section 7 of the Wisconsin Constitution. R. 61-28 at 199. The
court denied the motion. The court noted for the record that
it had offered to give a cautionary instruction admonishing
the jurors to make their decision based on the evidence rather
22 Nos. 20-2614 & 20-2703
than the appearance of the defendant, but the defense had de-
clined the court’s offer. Id. at 200–01. Wilber’s counsel
acknowledged the offer, but added:
I’m not certain if there’s 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’s my concern. … I’m not cer-
tain what you can tell the jury that would take
away the stain of what’s visible.
Id. at 201.
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, argu-
ing, 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 re-
newing his contention that the trial court had abused its dis-
cretion 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
Nos. 20-2614 & 20-2703 23
security measures, including imposing restraints on Wilber’s
person. The judge had reasonably concluded that the re-
straints on Wilber’s wrists and arms were warranted by his
verbal and physical altercation with the sheriff’s deputies on
the final day of trial. The appellate court rejected Wilber’s con-
tention that the judge had given undue weight to the shooting
incident that had taken place in the same courtroom several
years earlier, noting that the shooting was but one of myriad
factors that the judge cited for her decision to order the addi-
tional restraints. The court found that the judge’s decision
was amply supported by the record and did not amount to an
abuse of discretion. Finally, it did not believe that Wilber was
denied a fair trial as a result of the visible restraints on his
wrists and arms. Id., at *7–8. The Wisconsin Supreme Court
subsequently declined to hear the case. R. 61-7.
Wilber then pursued postconviction relief pursuant to
Wis. Stat. § 974.06. As relevant here, Wilber asserted that there
was insufficient evidence to support his conviction and that
defense counsel was ineffective for failing to challenge the
sufficiency of the evidence on direct appeal. The circuit court
denied his section 974.06 motion. Wilber again appealed.
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 inef-
fective for failing to challenge, on direct appeal, the suffi-
ciency of the evidence underlying his conviction, the court
found that the evidence was sufficient to support the convic-
tion, 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.
24 Nos. 20-2614 & 20-2703
Wilber also sought relief pursuant to 18 U.S.C. § 2254 in
the district court. He filed his original petition in March 2010,
but at his request, proceedings in federal court were stayed
while he continued to pursue remedies in state court for the
various errors he alleged. Those remedies were fully ex-
hausted in April 2019 with the Wisconsin Supreme Court’s
denial of his second petition for review. The habeas proceed-
ing then moved forward in the district court. As relevant here,
Wilber’s amended habeas petition asserted the following two
claims: (1) his right to due process was violated because there
was insufficient evidence to support his conviction; and
(2) the trial court violated his right to due process as set forth
in Deck v. Missouri by ordering him visibly shackled to a
wheelchair for closing arguments. 4
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, con-
sistently 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 de-
scribed 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
4
Wilber also asserted claims of attorney ineffectiveness that neither
Judge Griesbach nor we find it necessary to reach.
Nos. 20-2614 & 20-2703 25
substantive evidence. Although Wilber had a reasonable ar-
gument (which his counsel had made to the jury) that the
problematic physical evidence was inconsistent with the
State’s theory that Wilber was the shooter, the State itself had
put forward testimony and argument responding to that ar-
gument. “While Wilber’s evidence on its own, may paint one
picture, the court of appeals reviewed the record in its entirety
and came to the reasonable conclusion that the evidence was
sufficient to sustain the conviction. That is all that is required
of it, and thus, Wilber is not entitled to relief on this claim.”
Id. at 799.
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 Fourteenth Amendment right to due process. Id. at 800–
04. He reasoned that the Wisconsin Court of Appeals’ failure
to explain why visible restraints were necessary rendered its
decision affirming the shackling order not only inadequate
but an unreasonable application of federal law to the undis-
puted facts of the case. Id. at 802–03. Although, as the appel-
late court had pointed out, the trial judge addressed Wilber’s
behavior and the need for security on some eight occasions
during the trial and her comments in that regard were exten-
sive, a careful review of the record revealed no misconduct
that warranted visible restraints. Only two instances of mis-
conduct had taken place in the courtroom itself: Wilber’s non-
verbal reactions to the prosecutor’s remarks on the first day
of trial, and his argument with the judge on the third day of
trial; both incidents had taken place outside of the jury’s pres-
ence. There were no further incidents between the third and
final days of trial. Although Wilber on the last day did engage
in another altercation with the sheriff’s deputies, that
26 Nos. 20-2614 & 20-2703
incident, like his prior run-ins with them, had taken place out-
side of the courtroom. Even taking that incident into account,
the judge gave no indication why the existing security
measures—which by this time included the restraint on Wil-
ber’s ankle, which was anchored to the courtroom floor, the
stun belt on his arm, four deputies in the courtroom, and one
more stationed outside the courtroom door—were insuffi-
cient to address any safety threat to the judge, her staff, or the
public. Id. at 800–01, 802. The district court expressed concern
that some of the judge’s comments justifying the new re-
straints suggested she was simply deferring to the wishes of
the sheriff’s deputies in that regard. Id. at 802–03. It was also
troubled that other remarks suggested she viewed the addi-
tional, visible shackles as punishment for the disrespect Wil-
ber had shown her over the course of the trial. Id. at 803. But
even assuming the record supported the decision to order the
additional restraints, the trial judge, like the state appeals
court, had never explained why it was necessary for such re-
straints to be visible to the jury. Id. Supreme Court precedent
on courtroom restraints made clear that visible restraints pre-
sent a substantial risk of prejudice to the defendant and must
be justified by case-specific reasons that justify visible re-
straints. Id. at 799–800. And yet the state courts had never ex-
plained why, if additional restraints on Wilber were neces-
sary, they could not be concealed from the jury’s sight. Id. at
800, 803. This omission was inconsistent with the Supreme
Court’s decision in Deck.
Initially, the district court did not think it necessary to con-
sider whether Wilber had demonstrated that he was preju-
diced by the visible shackles he wore during closing argu-
ment and jury instruction. Deck itself observed that visible
shackles are inherently prejudicial, such that when a court
Nos. 20-2614 & 20-2703 27
imposes such shackles on the accused without adequate ex-
planation, he need not make a showing of actual prejudice in
order to prevail on a due process claim; instead, the burden
falls to the State to demonstrate beyond a reasonable doubt
that the error did not contribute to the guilty verdict. 544 U.S.
at 635, 125 S. Ct. at 2015 (citing Chapman v. California, 386 U.S.
18, 24, 87 S. Ct. 824, 828(1967)). “Respondent cannot meet his
burden. Given the inconsistent testimony of the eyewitnesses
and the physical evidence suggesting Wilber could not have
fired the fatal shot, the error may well have contributed to
Wilber’s conviction.” Wilber, 476 F. Supp. 3d at 804.
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 res-
olution 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 er-
ror “had substantial or injurious effect or influence in deter-
mining the jury’s verdict.” Id. at 637, 113 S. Ct. at 1722 (quot-
ing 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
28 Nos. 20-2614 & 20-2703
bears the burden of demonstrating that the error had such an
effect or influence. Brecht, 407 U.S. at 637, 113 S. Ct. at 1722.
There must be more than a reasonable probabil-
ity that the error was harmful. The Brecht stand-
ard 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). Ulti-
mately, a court may grant habeas relief only if it is in “grave
doubt” as to whether the federal error had a substantial or in-
jurious 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 ad-
equately 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 be-
fore 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 as-
sumed that Wilber had shot Diaz. Jeranek had indicated to the
police that Wilber was the shooter, but he never signed a
Nos. 20-2614 & 20-2703 29
written statement to that effect 5 and in his subsequent testi-
mony denied having told the detective any such thing. R. 100
at 4. Additionally, the witnesses who saw Wilber with a gun
described it as a semiautomatic weapon rather than a re-
volver. R. 100 at 4. Although the court did not question the
sufficiency of the evidence to support Wilber’s conviction, the
weaknesses in the State’s case caused it to have grave doubt
whether the decision to shackle Wilber during closing argu-
ments—“the very point in the trial where the jury’s attention
was likely most focused closely upon him”—had a substantial
and injurious effect on the jury’s verdict. R. 100 at 4.
II.
The parties have filed cross-appeals from the district
court’s decision. The State has appealed the finding that Wil-
ber was deprived of due process by being made to appear be-
fore 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 appeal-
ability 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 estab-
lished Federal law, as determined by the Supreme Court of
5 A written summary of Jeranek’s oral statements to the police was
prepared and orally approved by Jeranek, but he nonetheless refused to
sign it.
30 Nos. 20-2614 & 20-2703
the United States.” § 2254(d)(1). A state court decision is “con-
trary to” Supreme Court precedent if it either did not apply
the proper legal rule or did apply the correct rule but reached
the opposite result from the Supreme Court on materially in-
distinguishable facts. E.g., Brown v. Finnan, 598 F.3d 416, 421–
22 (7th Cir. 2010). A state court decision amounts to an unrea-
sonable application of Supreme Court precedent when it ap-
plies that precedent in a manner that is “objectively unreason-
able, not merely wrong.” Woods v. Donald, 575 U.S. 312, 316,
135 S. Ct. 1372, 1376 (2015) (per curiam); Renico v. Lett, 559 U.S.
766, 773, 130 S. Ct. 1855, 1862 (2010). This is by design a diffi-
cult standard to meet. Donald, 575 U.S. at 316, 135 S. Ct. at
1376. A state court’s application of Supreme Court precedent
is not objectively unreasonable simply because we might dis-
agree with that application, but rather only when no reasona-
ble jurist could agree with it. Ayala, 576 U.S. at 269–70, 135
S. Ct. at 2199; Donald, 575 U.S. at 316, 135 S. Ct. at 1376; Lett,
559 U.S. at 773, 130 S. Ct. at 1862; Williams v. Taylor, 529 U.S.
362, 409–11, 120 S. Ct. 1495, 1521–22 (2000).
We affirm the court’s decision to issue a writ of habeas cor-
pus. 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, nei-
ther 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
Nos. 20-2614 & 20-2703 31
prejudicial to the defendant that they may be required only as
a last resort. As Judge Griesbach reasoned, the decision to
compel Wilber to be visibly shackled at a time in the trial
when the jurors’ attention was most likely to be focused on
the defendant, was necessarily prejudicial. As we explain be-
low, the restraints would have lent the court’s implicit en-
dorsement to witness accounts—highlighted by the prosecu-
tor in his closing arguments—that Wilber was out of control
at the time of the shooting. He is entitled to a new trial.
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 de-
finitive end now. As the district court recognized, 476 F. Supp.
3d at 796, a finding that the evidence was insufficient to sup-
port 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 acquit-
tal rather than submitting the case to the jury.” Lockhart v. Nel-
son, 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 Fifth Amend-
ment precludes a retrial on the same charge. Burks, 437 U.S.
18, 98 S. Ct. at 2150–51. This same rule applies in habeas pro-
ceedings as well. See McDaniel v. Brown, 558 U.S. 120, 131, 130
S. Ct. 665, 672 (2010); Piaskowski v. Bett, 256 F.3d 687, 694–95
(7th Cir. 2001). For this reason, we are obligated to address the
sufficiency challenge first.
32 Nos. 20-2614 & 20-2703
The rule of Jackson v. Virginia is a familiar one: A reviewing
court must uphold a conviction so long as the trial evidence,
viewed in the light most favorable to the prosecution, would
permit a reasonable trier of fact to find the defendant guilty
beyond a reasonable doubt. 443 U.S. at 319, 99 S. Ct. at 2789.
It is difficult enough for a defendant to prevail on a challenge
to the sufficiency of the evidence on direct review; it is even
more so in a section 2254 proceeding, where the only question
for a federal court is whether the state court’s application of
Jackson was objectively unreasonable. Coleman v. Johnson, 566
U.S. 650, 651, 132 S. Ct. 2060, 2062 (2012) (per curiam). Like
Judge Griesbach, we find nothing objectively unreasonable
about the Wisconsin Court of Appeals’ decision finding the
evidence sufficient to support Wilber’s conviction.
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 tes-
timony 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.
6As noted, the court considered the sufficiency of the evidence in the
course of addressing a claim that Wilber made in his postconviction ap-
peal, asserting that defense counsel was ineffective in failing to challenge
the sufficiency of the evidence underlying Wilber’s conviction on direct
appeal. See 2018 WL 6788074, at *4 ¶ 23. The court made its finding in
passing; but its conclusion as to the sufficiency of the evidence was un-
mistakable. Id., at *7 ¶ 43 (“Because we have concluded that the evidence
Nos. 20-2614 & 20-2703 33
The state court’s decision also represents a reasonable ap-
plication of Jackson. Viewed favorably to the State, there was
ample evidence that would have permitted a reasonable trier
of fact to find Wilber guilty beyond a reasonable doubt not-
withstanding the oddities of the physical evidence. Jeranek
told police that he had seen Wilber pointing a gun at Diaz,
that he heard the gunshot coming from where Wilber was
standing, and that he turned to see Wilber putting his gun un-
derneath his coat. Immediately after the shooting, he heard
West, Wilber’s sister, exclaim, “Get out of here. You shot
him.” Although Jeranek, like other witnesses, disclaimed his
prior statement to the police, an officer (under oath and sub-
ject to cross-examination) recounted the statement for the
jury, and in accordance with the Wisconsin rules of evidence,
the statement was admitted for its substance as well as its im-
peachment value. Wis. Stat. § 908.01(4)(a)(1); Vogel v. State, 291
N.W.2d 838, 844–45 (Wis. 1980). The jury reasonably could
have credited Jeranek’s out-of-court statement over his trial
testimony. At the same time, Jeranek and Torres (among oth-
ers) testified that Wilber was belligerent with other partygo-
ers and that the belligerence escalated into violence. Torres
testified that after Wilber struck him, he heard a shot ring out
nearby, and turned to see Wilber with a gun. All of this evi-
dence supports the jury’s verdict.
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 bul-
let fragments at the north end of the kitchen, suggested that
he was shot (and fell) in a south-to-north direction. But Wilber
was sufficient and that defense counsel was not ineffective, we need not
address this issue.”).
34 Nos. 20-2614 & 20-2703
was in the kitchen, to Diaz’s north, not south at the time of the
shooting. Ricky, on the other hand, who was also seen with a
gun, had been seen in the living room of the house prior to
the shooting.
But, as we have also discussed, the State’s case was not
entirely without answers to the questions posed by this evi-
dence. Although Jeranek had told the police that he saw Wil-
ber 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 pre-
cise 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 clos-
ing, 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 Wil-
ber 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 jos-
tled 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
Nos. 20-2614 & 20-2703 35
reasonably have surmised that it was not physically impossi-
ble for Wilber to have shot Diaz.
On this record, the Wisconsin Court of Appeals reasona-
bly concluded, consistently with Jackson, that a rational fact-
finder could have found Wilber guilty beyond a reasonable
doubt. At least one eyewitness had effectively identified Wil-
ber as the shooter to the police, and a second had seen a gun
in Wilber’s hand immediately after the shooting, and alt-
hough 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. More-
over, 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 convic-
tion.
B. Use of visible restraints
The due process clause of the Fourteenth Amendment se-
cures a state criminal defendant’s right to a fair trial. Estelle v.
Williams, 425 U.S. 501, 503, 96 S. Ct. 1691, 1692 (1976); see also
Kentucky v. Whorton, 441 U.S. 786, 790, 99 S. Ct. 2088, 2090
(1979) (Stewart, J., dissenting) (“a fair trial, after all, is what
the Due Process Clause of the Fourteenth Amendment above
all else guarantees”). Central to this right “is the principle that
‘one accused of a crime is entitled to have his guilt or inno-
cence determined solely on the basis of the evidence intro-
duced at trial, and not on grounds of official suspicion, indict-
ment, continued custody, or other circumstances not adduced
as proof at trial.’” Holbrook v. Flynn, 475 U.S. 560, 567, 106 S. Ct.
1340, 1345 (1986) (quoting Taylor v. Kennedy, 436 U.S. 478, 485,
98 S. Ct. 1930, 1934 (1978)).
36 Nos. 20-2614 & 20-2703
For over 50 years, the Supreme Court has recognized that
the fairness of a trial is brought into question when a defend-
ant is made to appear before a jury bearing the badges of re-
straint. 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 Illinois v. Allen, 397 U.S. 337, 90 S. Ct. 1057 (1970), the
Court sustained a trial court’s decision to remove a perpetu-
ally disruptive defendant from the courtroom against a Sixth
Amendment confrontation clause challenge. The Court recog-
nized that there are alternative means of dealing with an ob-
streperous defendant that do not involve removing him from
the courtroom, including binding and gagging him. But the
Court was quick to recognize the serious problems with this
particular option:
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 wit-
nesses 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 feel-
ings about the defendant, but the use of this
technique is itself something of an affront to the
very dignity and decorum of judicial proceed-
ings that the judge is seeking to uphold.
Nos. 20-2614 & 20-2703 37
Moreover, one of the defendant’s primary ad-
vantages of being present at the trial, his ability
to communicate with his counsel, is greatly re-
duced 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 defend-
ants 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 pre-
sent 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 pre-
sent 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 disor-
derly defendant by binding and gagging him “is surely the
least acceptable” of the options available to a judge: “It of-
fends not only judicial dignity and decorum, but also that re-
spect for the individual which is the lifeblood of the law.”).
In Estelle, the Court concluded that compelling a defend-
ant to appear before the jury in prison garb posed compara-
ble 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:
38 Nos. 20-2614 & 20-2703
“[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 con-
tinuing influence throughout the trial that … an unaccepta-
ble 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 es-
sential 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 jeopard-
ize 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 unmis-
takable indications of the need to separate a de-
fendant from the community at large, the pres-
ence of guards at a defendant’s trial need not be
interpreted as a sign that he is particularly dan-
gerous or culpable. Jurors may just as easily be-
lieve that the officers are there to guard against
7Because the defendant in Estelle had never voiced an objection to his
prison attire, the Court concluded that he had not, in fact, been compelled
to appear before the jury in such attire, and thus no constitutional viola-
tion had occurred. 425 U.S. at 512–13, 96 S. Ct. at 1697.
Nos. 20-2614 & 20-2703 39
disruptions emanating from outside the court-
room or to ensure that tense courtroom ex-
changes do not erupt into violence. Indeed, it is
entirely possible that jurors will not infer any-
thing at all from the presence of the guards. If
they are placed at some distance from the ac-
cused, 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 preju-
dice 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 fol-
lowing 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 objec-
tion, with little explanation beyond the observation that the
40 Nos. 20-2614 & 20-2703
defendant had already been convicted. The jury sentenced
Deck to death. In affirming the sentence, the Missouri Su-
preme Court reasoned that the decision to require Deck to ap-
pear before the jury in restraints was justified by a security
interest, in that the defendant was a repeat offender who may
have murdered his two victims in an effort to avoid a return
to custody.
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 circum-
stances, 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 for-
bidden 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 prece-
dents 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
Nos. 20-2614 & 20-2703 41
identify a basic element of the “due process of
law” protected by the Federal Constitution.
Thus, the Fifth and Fourteenth Amendments
prohibit the use of physical restraints visible to
the jury absent a trial court determination, in the
exercise of its discretion, that they are justified
by a state interest specific to a particular trial.
Such a determination may of course take into
account the factors that courts have tradition-
ally relied on in gauging potential security
problems and the risk of escape at trial.
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 princi-
ples”: 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 pro-
cess. 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 un-
dermine “[t]he courtroom’s formal dignity, which includes
42 Nos. 20-2614 & 20-2703
the respectful treatment of defendants, reflects the im-
portance of the matter at issue, guilt or innocence, and the
gravity with which Americans consider any deprivation of an
individual’s liberty through criminal punishment.” Ibid.The Court allowed that there will be cases in which the
dangers of shackling cannot be avoided: “We do not underes-
timate 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 prej-
udicial effect, due process does not permit the use of visible
restraints if the trial court has not taken account of the circum-
stances 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 inno-
cence 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 pen-
alty phase in shackles … almost inevitably im-
plies 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 deci-
sionmaking, even where the State does not spe-
cifically argue the point. It also almost
Nos. 20-2614 & 20-2703 43
inevitably affects adversely the jury’s percep-
tion of the character of the defendant. And it
thereby undermines the jury’s ability to weigh
accurately all relevant considerations—consid-
erations that are often unquantifiable and elu-
sive—when it determines whether a defendant
deserves death. In these ways, the use of shack-
les 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 ap-
pear 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 es-
cape 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 cir-
cumstances, 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 mat-
ter 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
44 Nos. 20-2614 & 20-2703
explain why, if shackles were necessary, he chose not to pro-
vide for shackles that the jury could not see—apparently the
arrangement used at [the guilt phase of the] trial.” Id. at 634–
35, 125 S. Ct. at 2015. “If there is an exceptional case where the
record itself makes clear that there are indisputably good rea-
sons for shackling, it is not this one.” Id. at 635, 125 S. Ct. at
2015.
The Court concluded its decision with a rejection of Mis-
souri’s contention that the decision to shackle Deck was harm-
less. Shackling is “inherently prejudicial,” the Court empha-
sized, although typically its negative effects will not be evi-
dent from the trial transcript. Ibid. (quoting Holbrook, 475 U.S.
at 568, 106 S. Ct. at 1345). “Thus, where a court, without ade-
quate 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 ob-
tained.’” Id., 125 S. Ct. at 2015–16 (quoting Chapman v. Califor-
nia, supra, 386 U.S. at 24, 87 S. Ct. at 828).
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 behav-
ior and security concerns. But like the trial court, the appellate
court never articulated why, to the extent the additional re-
straints were justified, they must be restraints that were visi-
ble 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
Nos. 20-2614 & 20-2703 45
instead relied exclusively on state precedents, the court rec-
ognized that a criminal defendant has a right to a fair trial,
that a defendant’s freedom from physical restraints is an im-
portant component of a fair trial, that such restraints may
nonetheless be appropriate when they are reasonably neces-
sary 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,
2008 WL 4057798, at *7 ¶¶ 35–36. The framework that the Wis-
consin Court of Appeals applied is faithful to Deck’s holding.
But the state court’s analysis nonetheless represents an ob-
jectively 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 Fourteenth Amendment prohib-
its a state court from compelling a defendant to appear in re-
straints that are visible to the jury unless, in the exercise of its
discretion, the court concludes that visible restraints are justi-
fied by one or more state interests specific to the trial at hand.
Such interests of course include security problems and the
risk of escape.
Clearly the behavior of Wilber (and, of course, the other
individuals present at the trial who engaged in suspicious be-
havior) 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
46 Nos. 20-2614 & 20-2703
and from court suggested that he might be pondering an es-
cape attempt; several individuals made odd remarks to the
court clerk and one was caught listening at the door of the
judge’s private office, suggesting perhaps that these individ-
uals might be in on such an attempt; and Wilber challenged
the judge’s authority and accused her of endeavoring to help
the prosecution win its case. Even if most of this disruptive
and threatening behavior took place outside of the court-
room—and none of it in the jury’s presence—the trial court
could reasonably conclude that restraints were warranted. At
the same time, the court took care to ensure that such re-
straints were not visible to the jury: until the final phase of
trial, Wilber was only shackled with an ankle restraint which
was concealed behind a table skirt and later a stun belt on his
arm that was hidden underneath his shirt.
But for closing arguments, the court concluded that addi-
tional restraints—over and above the ankle restraint and stun
belt—were warranted by a recent verbal and physical alterca-
tion between Wilber and the deputies (outside of the court-
room); 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 wheel-
chair 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 dur-
ing 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 high-
lighted Wilber’s enhanced state of restraint.
Nos. 20-2614 & 20-2703 47
Although the trial court articulated a justification for its
decision to impose still more restraints at the closing-argu-
ment 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. By contrast,
when the court had previously warned Wilber that it might
order his wrists manacled if he engaged in any additional
misbehavior, it suggested that his hands would be secured
beneath the (skirted) defense table, out of the jury’s sight.
R. 61-22 at 112–13. And yet, when the prosecutor, in response
to the defense objections, offered to obtain a sport coat for
Wilber, presumably to help conceal the new restraints
(whether partially or in whole), the court said that would not
be necessary. Wholly absent from the trial judge’s rationale is
any discussion of why it was required or unavoidable for the
new restraints to be visible, particularly when it had previ-
ously acknowledged that additional restraints could be hid-
den from the jury’s view. In this respect, the instant case is on
all fours with Deck, where nothing the trial judge had said re-
garding the shackling decision explained why it was that vis-
ible restraints were a necessity.
The appellate court, for its part, sustained the trial court’s
decision as appropriate given the circumstances we have dis-
cussed, without ever addressing the distinction between visi-
ble 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 pro-
priety 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.
48 Nos. 20-2614 & 20-2703
Deck envisions there will be cases where visible restraints
are necessary, 544 U.S. at 632, 125 S. Ct. at 2014; but at the
same time, its discussion of the inherent prejudice posed by
such restraints leaves no doubt that visible restraints may be
required only as a last resort, see id. at 628, 125 S. Ct. at 2011(quoting Allen, 397 U.S. at 344, 90 S. Ct. at 1061); id. at 635, 125
S. Ct. at 2015 (quoting Holbrook, 475 U.S. at 568, 106 S. Ct. at
1345). Visible restraints suggest to the jury that the court itself
views the defendant as someone who is dangerous and must
be physically isolated from others in the courtroom, thereby
undermining the presumption of innocence. Id. at 630, 125 S.
Ct. at 2013. Visible manacles also detract from the formal de-
corum of the courtroom that promotes respect for the defend-
ant and dispassionate decisionmaking. Id. at 631–32, 125 S. Ct.
at 2013.
The State goes so far as to suggest that, apart from justify-
ing 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 pres-
ence of uniformed troopers in courtroom, which support a be-
nign 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
Nos. 20-2614 & 20-2703 49
reasonable exercise of discretion in part because the judge had
never explained why, if restraints were necessary, they must
be visible. 544 U.S. at 634–35, 125 S. Ct. at 2015. Our own ju-
risprudence reflects an understanding that Deck requires a
court to weigh the interests in courtroom security and deco-
rum against the prejudice to the defendant posed by visible
shackles. See Lopez v. Thurmer, 573 F.3d 484, 493 (7th Cir. 2009)
(“the analysis set forth by the Supreme Court’s cases requires
a balancing of the need for security and order during a trial
against any prejudice that the defendant might suffer in the eyes of
the jury”) (original emphasis removed; new emphasis ours);
Stevens v. McBride, 489 F.3d 883, 899 (7th Cir. 2007) (“a defend-
ant’s general right to be free of restraints in the courtroom is
not absolute, but rather it is based on a balancing of the de-
fendant’s right not to be viewed in a prejudicial light by the jury
against the court’s need for security”) (emphasis ours); Ste-
phenson v. Wilson, 619 F.3d 664, 668–69 (7th Cir. 2010) (“Even
when a visible restraint is warranted by the defendant’s his-
tory of escape attempts or disruption of previous court pro-
ceedings, it must be the least visible secure restraint, such as, it
is often suggested, leg shackles made invisible to the jury by
a curtain at the defense table.”) (citations omitted) (emphasis
ours); United States v. Jackson, 419 F. App’x 666, 670 (7th Cir.
2011) (non-precedential decision) (“Because Jackson’s leg re-
straints were not visible to the jury, we conclude on the record
before us that his right to due process was not violated. In
Deck the Supreme Court addressed only the question whether
visible restraints offend the Constitution.”) (emphasis in orig-
inal). The balancing explicitly required by Deck is necessarily
incomplete if the court does not consider whether the preju-
dice to the defendant can be minimized or avoided altogether
by concealing the restraints.
50 Nos. 20-2614 & 20-2703
The district court cited two additional reasons for concern
about the shackling decision in this case which we do not fac-
tor into our own decision. The court raised the possibility that
the trial judge may have given too much deference to the dep-
uty sheriffs in deciding that the additional restraints were
necessary for the closing phase of the trial. 476 F. Supp. 3d at
802–03, citing Lopez, 573 F.3d at 493 n.4 (“[T]he actual due pro-
cess decision must be made by the judicial officer. Law en-
forcement officials hardly can be said to be neutral in balanc-
ing the rights of the defendant against their own view of nec-
essary security measures.”), and Woods v. Thieret, 5 F.3d 244,
248 (7th Cir. 1993) (“While the trial court may rely ‘heavily’
on the marshals in evaluating the appropriate security
measures to take with a given prisoner, the court bears the
ultimate responsibility for that determination and may not
delegate the decision to shackle an inmate to the marshals.”);
see also United States v. Henderson, 915 F.3d 1127, 1135 (7th Cir.
2019) (Hamilton, J., dissenting) (“One central theme of the law
of courtroom restraints is that the trial judge is the person re-
sponsible for making the decisions. The judge cannot simply
delegate that responsibility to the Marshals Service or other
correctional or security staff.”). We are inclined to agree with
the State on this point that the record is best understood to
reflect the trial judge’s agreement, in the exercise of her inde-
pendent discretion and oversight, with what deputies recom-
mended as appropriate security measures.
The district court also expressed concern about the possi-
bility that the trial judge may have ordered Wilber to be visi-
bly shackled as punishment for what she perceived to be his
disrespect for her authority. That is one way to read the rec-
ord. When the judge explained her decision to impose the ad-
ditional restraints, she declared that “Wilber is responsible for
Nos. 20-2614 & 20-2703 51
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. She went on to remark upon the fact
that Wilber, through his gestures, facial expressions, body
language, tone, and spoken words, had “challeng[ed]” the
court to find him in contempt and “set[ ] the stage for his de-
fiance throughout the proceedings.” Id. at 101. She added that
she had thought the prior measures she had taken, including
her admonitions to Wilber, would suffice to “get him to un-
derstand … that such disrespect to the court[,] to these pro-
ceedings[,] was not going to be tolerated[.]” Id. at 103. But
these remarks can also be understood as reflecting the judge’s
frustration with what she perceived to be Wilber’s inability to
abide by her rulings and comport himself in a manner con-
sistent with courtroom decorum and the orderly, secure ad-
ministration of justice. Every judge has a right to expect that
a defendant will respect her authority to manage the trial and
to comport himself appropriately not only in her presence, in-
side of the courtroom, but with other court personnel, includ-
ing security personnel, inside and outside of the courtroom.
Indeed, the judge here went on at some length, after describ-
ing Wilber’s latest altercation with the sheriff’s deputies, to
identify the concerns that this incident raised both for the se-
curity of the courtroom as well as the orderly conclusion of
the trial. We have therefore abstained from ascribing any pu-
nitive intent to the judge’s decision to order additional re-
straints for Wilber.
As Judge Griesbach emphasized, the key point here is that
neither the trial judge nor the state appellate court ever ex-
plained why they believed it necessary or unavoidable that
such additional restraints be visible to the jury. One can read-
ily accept the trial judge’s determination, seconded by the
52 Nos. 20-2614 & 20-2703
appellate court, that it was necessary to shackle Wilber’s
wrists and/or arms at the close of the trial, given his pattern
of disruptive behavior, including most recently his physical
altercation with the deputies outside of the courtroom. But
what is noteworthy, given the care that the court had taken
up to that point to ensure that all of the increasing degrees of
restraint were hidden from the jury’s view, is the court’s sud-
den decision to order the imposition of multiple restraints on
his wrists and arms that would be visible (along with the
wheelchair) to the jury. The visible nature of the restraints is
what defense counsel objected to expressly. It might have
been a simple matter to hide those restraints, as the trial judge
herself had envisioned previously when she warned Wilber
that further outbursts might result in his hands being secured
beneath the defense table. And the prosecutor evidently had
the same thought when he suggested looking for a blazer for
Wilber, presumably to help hide the restraints. Yet the court
at that point seemed unwilling to consider any means of hid-
ing the restraints, for reasons that were left unexplained. The
appellate court, in sustaining the trial court’s decision, noted
that the restraints were visible, but never addressed why visi-
ble restraints were necessary or justified. Given Deck’s focus
on the inherent prejudice posed by visible restraints, the ap-
pellate court’s omission is significant.
Certainly there will be cases in which it may not be possi-
ble 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 re-
straints hidden. E.g., United States v. Van Sach, 458 F.3d 694,
699–700 (7th Cir. 2006). And if a defendant is particularly dis-
ruptive and/or uncooperative with measures to cloak the re-
straints, a court may have no alternative than to allow the jury
Nos. 20-2614 & 20-2703 53
to see them. But, so far as the record reveals, this was not such
a case. As discussed, the record indicates that the trial judge
herself believed it possible to conceal wrist manacles beneath
the defense table should she order them imposed. To the ex-
tent that still additional restraints on Wilber’s wrists were re-
quired, including straps of the variety that were placed on one
of Wilber’s wrists, it might have been possible to hide those
restraints with something like a sweater folded in his lap. The
shoulder restraints might have been more difficult to conceal,
given their location, but as there was no discussion whatso-
ever of the necessity of visible restraints or the options for con-
cealment, we cannot know.
The state courts’ wholesale omission to address the neces-
sity of visible restraints cannot be reconciled with Deck’s re-
peated recognition that it is the visibility of such restraints
that is injurious to the presumption of a defendant’s inno-
cence and to the dignity of a judicial proceeding. Indeed, the
Supreme Court found visible restraints so inherently prejudi-
cial 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 re-
straints against the resulting prejudice to the defendant must
include consideration of whether the restraints can be con-
cealed from the jury’s view: thus the Court’s express observa-
tion that the Missouri court had never explained why, to the
extent restraints were necessary, they must be visible. Con-
fronted with a record that is utterly silent as to the necessity
of visible restraints, Deck compels a finding that error
54 Nos. 20-2614 & 20-2703
occurred. The Wisconsin Court of Appeals’ decision to the
contrary necessarily amounts to an objectively unreasonable
application of Deck.
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 be-
yond 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 dis-
trict court obviated any issue in this regard when it addressed
the State’s motion to stay its order granting the writ and or-
dering 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 re-
straints 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 attor-
neys 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
Nos. 20-2614 & 20-2703 55
focused on the defendant, as it considers the charge, weighs
the evidence and arguments marshaled by counsel, and be-
gins 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 court-
room, including the jury—and by extension, the general pub-
lic—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 substan-
tial adverse effect on the verdict.
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 social-
izing—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 intoxi-
cated, 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
56 Nos. 20-2614 & 20-2703
did not come as a surprise to those who knew him. Wilber’s
cousin, Donald Jennings, recalled that he tried to calm Wilber
down, “’[c]ause I know my cousin. … [When] [h]e get mad,
he get mad.” R. 61-21 at 108. Williams recalled that prior to
the shooting, she was encouraged to leave the party because
“there’s going to be some drama.” R. 61-23 at 136. Oscar Niles
told police he too left the party before the shooting because
given “the way [Wilber] was acting, [Niles] felt that it was
time for him to go.” R. 61-26 at 25. 8 Witnesses used a variety
of adjectives to describe Wilber’s behavior, including “not act-
ing right” (R. 61-23 at 135), “agitated” (R. 61-26 at 19), “wild,
kind of crazy, as if possessed” (R. 61-24 at 290), all of them
suggesting that Wilber was, to use a phrase that his sister An-
tonia West endorsed, “completely out of control” (R. 61-20 at
99). In keeping with that characterization, in the moments
leading up to the shooting, Wilber had “tussled” with multi-
ple individuals, knocking or pulling a chain off of Niles’ neck,
choking Jeranek, and punching Torres hard enough for him
to briefly lose consciousness. When individuals like Jeranek
and Diaz attempted to intervene and calm him down, Wilber
responded with threats. When Diaz admonished Wilber to
demonstrate some respect for his house and his family, Wil-
ber reportedly said “I will fuck you up. … I don’t give a fuck
about you and your family. I’ll burn this motherfucking crib
down with or without your family.” R. 61-24 at 291–92.
It comes as no surprise that the State highlighted the de-
scriptions of Wilber’s behavior in its closing arguments to the
jury. The emphasis was entirely appropriate, given the de-
fense’s own focus on the lack of first-hand testimony
8
Niles later acknowledged that he was, in fact, present when Diaz
was shot.
Nos. 20-2614 & 20-2703 57
identifying Wilber as the shooter and the physical evidence
which raised some question as to whether Wilber could have
fired the shot that killed Diaz. Wilber’s out-of-control behav-
ior, and his escalating series of threats and altercations in the
moments leading up to the shooting, reasonably supported
an inference that he was in fact the one who shot Diaz.
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 nec-
essarily 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, argu-
ing 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 argu-
ments 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 eve-
ryone 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 argu-
ment 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 Wil-
ber 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.
58 Nos. 20-2614 & 20-2703
III.
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 de-
cision sustaining the restraints imposed on Wilber repre-
sented 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 de-
cision 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
Nos. 20-2614 & 20-2703 59