Julian Lopez v. Michael Thurmer ( 2009 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 07-3009
JULIAN L OPEZ,
Petitioner-Appellant,
v.
M ICHAEL T HURMER,
Respondent-Appellee.
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 2:05-cv-00998—Rudolph T. Randa, Chief Judge.
A RGUED S EPTEMBER 26, 2008—D ECIDED JULY 22, 2009
Before R IPPLE, M ANION and SYKES, Circuit Judges.
R IPPLE, Circuit Judge. Julian Lopez appeals the denial
of his petition for a writ of habeas corpus. In June 2000,
Mr. Lopez was convicted in Wisconsin state court on one
count of first-degree intentional homicide. After the
state trial court denied Mr. Lopez’s first post-conviction
motion and denied a supplemental motion, the Court of
Appeals of Wisconsin affirmed Mr. Lopez’s conviction.
The Supreme Court of Wisconsin denied his petition for
review.
2 No. 07-3009
Mr. Lopez then filed a petition for a writ of habeas
corpus in the United States District Court for the
Eastern District of Wisconsin. The district court denied
the petition and also denied a certificate of appealability.
We granted a certificate of appealability. We now hold
that the Wisconsin appellate court applied a methodology
based on an unreasonable reading of the decisions of
the Supreme Court of the United States. As a result, the
Wisconsin court improperly endorsed the trial court’s
abnegation of its non-delegable responsibility to deter-
mine the appropriate security measures for a jury view
of the crime scene and other various locations implicated
in the case. Despite this error, however, the result reached
by the Wisconsin court does not run afoul of any
clearly established principle of federal law. In any event,
any error was harmless. Accordingly, we affirm the
denial of Mr. Lopez’s petition.
I
BACKGROUND
A.
In March 1999, Anthony Davis was shot and killed
outside the Garden Fresh Foods building in Milwaukee.
In September of that year, Mr. Lopez was charged with
first-degree intentional homicide after three witnesses
came forward to identify him as one of the men who
shot Davis. His trial took place in June 2000. At a pre-trial
hearing, the prosecution requested a “jury view” of the
crime scene and several other locations. The court
granted the request.
No. 07-3009 3
At another pre-trial hearing, the prosecution re-
quested that the jury be sequestered. The prosecution
represented to the court that the defendant was a
member of a heavily armed drug organization, some
members of which had not yet been federally indicted;
that some of the organization’s weapons had not been
recovered; and that there had been discussion within
the organization about “taking action against witnesses.”
R.50 at 6-7. The court ordered that the jury be sequestered.
At the beginning of the trial, the court informed the
jury about the jury view. The court instructed the jurors
that what they would see at the locations was not
evidence and was not to be considered as such. Immedi-
ately after this instruction was given, the jury view took
place. The judge accompanied the jury and the parties
to five different locations, including the crime scene and
Mr. Lopez’s house. On the way to the first location, the
court instructed the jurors that the security they would
see at these locations was “to preserve the scene, that
this is not unnatural security that we go through,” and
that they should “not draw any conclusions from that.”
R.53 at 25.
Mr. Lopez was driven to the scene in a separate van,
which was also occupied by four police SWAT team
officers who were assigned to guard him. At two of the
locations, Mr. Lopez remained in the van because he
did not want the jury to see him surrounded by such a
heavy security detail. At the other three locations, how-
ever, the court ordered Mr. Lopez out of the van. At
these locations the jurors saw Mr. Lopez surrounded by
the four SWAT officers, who were dressed in military
4 No. 07-3009
fatigues and carried “M-16 type” weapons. R.53 at 23.
At one of the locations, an officer pointed his gun and
shouted at a person who appeared in an open window.
Police officers also were deployed on the rooftops of
nearby buildings. Mr. Lopez and his counsel were not
informed until the morning of the jury view that such
intensive security precautions would be taken.
In court later that day, after the jury view, Mr. Lopez’s
counsel objected to the level of security at the jury view
and moved to dismiss the case. He complained that the
security arrangements had been worked out in ex parte
discussions between the Sheriff’s Department and the
prosecution, based on information that was not shared
with the defense. The prosecution did not deny that
such communications took place, but responded that it
had no control over decisions about security, as such
decisions were the province of the Sheriff’s Department
alone.
The court admitted that it, too, was unaware of the
planned security measures: “The Court wasn’t informed
until just beforehand also that there potentially could be
security—we went ahead and did it based upon the
organization of the Department, which I believe it did a
good job, so I’m not going to spend a lot of time on this.”
R.53 at 28-29. The court denied the motion to dismiss,
but again instructed the jury that it was “not supposed to
draw any negative inference from the security that is
out there.” R.53 at 30.
The trial continued, culminating in Mr. Lopez’s con-
viction on one count of first-degree intentional homi-
cide. The court sentenced him to life in prison.
No. 07-3009 5
Mr. Lopez filed a motion in the trial court for post-
conviction relief. He argued, among other things, that
allowing the jury to see him under such heavy security
at the jury view violated his right to a fair trial. The
court denied the motion; it found that the security
was appropriate under the circumstances. The court
also noted that the jury was instructed repeatedly not
to draw any negative inference from the level of security
at the jury view.
B.
Mr. Lopez appealed to the Court of Appeals of Wis-
consin, which affirmed his conviction. The court
reasoned that, although a trial court generally is required
to state its reasons for requiring a defendant to wear
restraints in the courtroom, “this standard . . . is often
relaxed in an out-of-court setting, depending on the
circumstances.” State v. Lopez, No. 03-1886-CR, 2004
WL 1533992, at *2 (Wis. Ct. App. June 29, 2004) (unpub-
lished disposition) (citing State v. Cassel, 180 N.W.2d 607,
611-12 (Wis. Ct. App. 1992)). The court maintained that,
unlike the decision to restrain a defendant in the court-
room, which is the province of the trial judge, security
during a jury view “is a matter for the sheriff or the
police to determine because such custodian is responsible
for the safekeeping of the accused.” Id. at *3 (citing
Cassel, 180 N.W.2d at 611). The court concluded that
the precautions taken during the jury view were rea-
sonable and that any prejudice Mr. Lopez might have
6 No. 07-3009
suffered was cured when the trial court instructed the
jury not to draw any inferences.
The court also rejected Mr. Lopez’s argument that he
should have been given advance notice of the planned
precautions and an opportunity to provide input into
the security decision. The court noted that the prosecu-
tion’s motion for a jury view was granted approximately
three weeks before the trial began. The court also
pointed out that Mr. Lopez was aware of the trial court’s
heightened concern about security in the case because
of the court’s decision to sequester the jury and by
his attorney’s admission that he knew there would be
“extra security” at the jury view. Id. Based on these con-
siderations, the court concluded that “[Mr.] Lopez’s
counsel had more than enough time to consult with
Lopez about the implications of the viewing trip, and
sufficient opportunity to consider the consequences of
the potentially dangerous circumstances presented, and
what security precautions may be taken.” Id. Accordingly,
the court affirmed Mr. Lopez’s conviction. He subse-
quently filed a petition for review with the Supreme
Court of Wisconsin; that petition was denied.
C.
Mr. Lopez then petitioned for a writ of habeas corpus
in the United States District Court for the Eastern District
of Wisconsin. The district court denied the petition; it
held that, although the security measures were “severe,”
they were justified under the circumstances and did not
unduly prejudice Mr. Lopez in the eyes of the jury. Lopez
No. 07-3009 7
v. Pollard, No. 05-C-998, 2007 WL 1991043, at *3 (E.D.
Wis. July 5, 2007). The court further held that any prej-
udice was mitigated by the trial judge’s instructions to
the jury. The district court also denied Mr. Lopez’s
request for a certificate of appealability.
We granted a certificate of appealability on the issue
of “whether [Mr. Lopez] was denied his right to a fair
trial as guaranteed by the Sixth and Fourteenth Amend-
ments by the state’s use of excessive security measures
during the jury view of the locations relevant to the
crime.” Lopez v. Thurmer, No. 07-3009 (7th Cir. Jan. 4,
2008) (unpublished order).
II
DISCUSSION
A.
Mr. Lopez seeks a writ of habeas corpus on the
ground that the security measures during the jury view
deprived him of a fair trial by making him appear danger-
ous—and, therefore, guilty—in the eyes of the jury. The
Wisconsin state courts have considered and rejected this
argument; it is, therefore, adequately preserved for federal
review.
Under the standard of review set forth in the
Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”), in reviewing a state court’s decision on a
federal constitutional issue, we may grant habeas
relief only if the state’s adjudication of the issue:
8 No. 07-3009
(1) resulted in a decision that was contrary to, or
involved an unreasonable application of, clearly
established Federal law, as determined by the
Supreme Court of the United States; or
(2) resulted in a decision that was based on an unrea-
sonable determination of the facts in light of the
evidence presented in the State court proceeding.
28 U.S.C. § 2254(d). The relevant state court decision is
that of the last state court to review the issue. Gonzales v.
Mize, 565 F.3d 373, 379 (7th Cir. 2009). Because the
Supreme Court of Wisconsin denied review, the Court
of Appeals of Wisconsin was the last state court to
review Mr. Lopez’s appeal on the merits. Thus, the
issue before us is whether the Wisconsin Court of Ap-
peals’ decision, which held that the security measures did
not violate Mr. Lopez’s due process right to a fair
trial, “was contrary to, or involved an unreasonable
interpretation of, clearly established federal law, as deter-
mined by the Supreme Court of the United States.” Id.For purposes of habeas corpus review, “[c]learly estab-
lished federal law” means “the governing principle or
principles set forth by the Supreme Court at the time
the state court renders its decision.” Lockyer v. Andrade,
538 U.S. 63, 71-72 (2003). This includes the holdings of
Supreme Court decisions as well as “legal principles
derived from th[ose] holdings.” Samuel v. Frank, 525
F.3d 566, 569 (7th Cir. 2008).
Mr. Lopez contends that three Supreme Court cases,
taken together, establish the principle that a defendant
has a “constitutional right to appear in the garb of inno-
No. 07-3009 9
cence before the jury deciding his case.” Appellant’s
Br. 17 (citing Illinois v. Allen, 397 U.S. 337 (1970); Estelle
v. Williams, 425 U.S. 501 (1976); Holbrook v. Flynn, 475
U.S. 560 (1986)).
In Illinois v. Allen, 397 U.S. 337 (1970), the Supreme
Court held that the Constitution might permit, under
some circumstances, a trial court to order that an ob-
streperous defendant be bound and gagged in the court-
room during his trial. The Court expressed reservations
about this method of control; it acknowledged that
“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.” Id. at 344.
The Court also recognized the possibility “that the sight
of shackles and gags might have a significant effect on
the jury’s feelings about the defendant.” Id. Thus, al-
though the Court refused to rule out the possibility that
binding and gagging might be the most reasonable way
to deal with a disruptive defendant under certain cir-
cumstances, it made clear that such a measure would
be appropriate only in the most extreme of cases.
In Estelle v. Williams, 425 U.S. 501, 506 (1976), the
Court held that requiring a defendant to wear “identifiable
prison clothes” violated his due process right to a fair
trial. The Court wrote: “The constant reminder of the
accused’s condition implicit in such distinctive, iden-
tifiable attire may affect a juror’s judgment. The defen-
dant’s clothing is so likely to be a continuing influence
throughout the trial that . . . an unacceptable risk is pre-
sented of impermissible factors coming into play.” Id. at
504-05. The Court also noted that, unlike the physical
10 No. 07-3009
restraints it approved in Allen, requiring the defendant
to don prison garb furthers no essential state policy.
In Holbrook v. Flynn, 475 U.S. 560 (1986), the Court
held that the defendant’s right to due process was not
violated by the presence of four uniformed state
troopers in the first row of the spectator section of the
courtroom. Although the Court “d[id] not minimize the
threat that a roomful of uniformed and armed policemen
might pose to a defendant’s chance of receiving a fair
trial,” it “simply [could not] find an unacceptable risk
of prejudice in the spectacle of four such officers quietly
sitting in the first row of a courtroom’s spectator sec-
tion.” Id.Mr. Lopez reads Allen and Williams as establishing
that it is inherently prejudicial to require a defendant to
stand trial in shackles or prison clothing. He also points
to the Court’s suggestion in Holbrook that “a roomful of
uniformed and armed policemen” would prejudice a
defendant’s right to a fair trial; he contends that the
presence of uniformed SWAT officers carrying assault
rifles created a similar risk of prejudice.
The State of Wisconsin, through Respondent Michael
Thurmer (the “State”), responds that these cases do not
add up to a clearly established principle barring the use
of heightened security measures during a jury view. The
State points out that these cases all involved security
measures in the courtroom, and notes that “the Supreme
Court has never addressed whether security measures
outside the courtroom . . . may have an effect on a defen-
dant’s due process rights.” Appellee’s Br. 14.
No. 07-3009 11
B.
At the outset, we find the state trial court’s “hands-off”
approach to fashioning the appropriate level of security
at the jury view extremely troubling. As far as the record
reveals, the trial court made no effort to scrutinize with
any care the security measures in which the defendant
would be seen at the jury view. By the court’s own ad-
mission, it did not even know what security measures
the Sheriff’s Department intended to employ until the
morning of the jury view. In effect, the state trial court
surrendered to the Sheriff’s department its responsi-
bility to decide the level of security that was reasonable
during the trial. The court’s laissez-faire approach also
deprived Mr. Lopez of a meaningful opportunity to
argue, before the fact, that the planned security measures
were excessive. As we have noted earlier, the Court of
Appeals of Wisconsin explicitly sanctioned the trial
court’s total abnegation of its responsibilities to law
enforcement authorities.
Furthermore, we believe that the Court of Appeals of
Wisconsin unreasonably interpreted the governing prece-
dent of the Supreme Court of the United States. We read
Allen, Williams and Holbrook as establishing the principle
that trial courts have a constitutional responsibility to
balance the need for heightened security during a criminal
trial against the risk that the additional precautions
will prejudice the defendant in the eyes of the jury. It is
that judicial reconciliation of the competing interests of
the person standing trial and of the state providing for
the security of the community that, according to these
12 No. 07-3009
cases, provides the appropriate guarantee of funda-
mental fairness. This was implicit in Justice Black’s
opinion for the Court in Allen, and later was made ex-
plicit in Chief Justice Burger’s opinion for the Court in
Williams: “In the administration of criminal justice, courts
must carefully guard against dilution of the principle
that guilt is to be established by probative evidence and
beyond a reasonable doubt.” Williams, 425 U.S. at 503(emphasis supplied). The Chief Justice continued:
The actual impact of a particular practice on the
judgment of jurors cannot always be fully deter-
mined. But this Court has left no doubt that the proba-
bility of deleterious effects on fundamental rights
calls for close judicial scrutiny. . . . Courts must do
the best they can to evaluate the likely effects of a
particular procedure, based on reason, principle, and
common human experience.
Id. at 504 (emphasis supplied). More recently, in applying
the principles of Allen, Williams and Holbrook to sen-
tencing proceedings, the Supreme Court wrote:
Lower courts have disagreed about the specific pro-
cedural steps a trial court must take prior to shackling,
about the amount and type of evidence needed to
justify restraints, and about what forms of prejudice
might warrant a new trial, but they have not ques-
tioned the basic principle. They have emphasized
the importance of preserving trial court discretion
(reversing only in cases of clear abuse), but they
have applied the limits on that discretion described
in Holbrook, Allen, and the early English cases. In
No. 07-3009 13
light of this precedent, and of a lower court consensus
disapproving routine shackling dating back to the
19th century, it is clear that this Court’s prior state-
ments gave voice to a principle deeply embedded in
the law. We now conclude that those statements
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 tradi-
tionally relied on in gauging potential security prob-
lems and the risk of escape at trial.
Deck v. Missouri, 544 U.S. 622, 629 (2005) (emphasis sup-
plied).
Nothing in the Supreme Court’s pronouncements, or
in the reasoning supporting those decisions, suggests in
the slightest way that this judicial responsibility to recon-
cile the competing interests of the individual and the
state is confined within the courtroom walls. 1 The
1
The State suggests in its brief that a court’s responsibility to
ensure that security measures are reasonable during trial does
not extend to proceedings that take place outside the court-
room. To support this proposition, the State relies on several
cases from other circuits. See Appellee’s Br. 21 (citing Allen v.
Montgomery, 728 F.2d 1409, 1413 n.3 (11th Cir. 1984); United
(continued...)
14 No. 07-3009
Court’s focus in these cases was not on the venue in which
the measures at issue were taken; it was aimed at protect-
ing the fairness of the criminal proceeding—on what
the jury saw and how what it saw might affect the
jury’s impression of the defendant’s guilt or innocence.2
1
(...continued)
States v. Olano, 62 F.3d 1180, 1190 (9th Cir. 1995); United States
v. Fahnbulleh, 748 F.2d 473, 477 (8th Cir. 1984)).
None of those cases, however, holds that the court may
delegate decisions about security during trial proceedings that
take place outside of the courtroom. Those cases simply hold
that law enforcement officials have a role in determining the
security provisions that are appropriate when the defendant
must be transported—before and after trial proceedings—
between the courtroom and the jail where he is being de-
tained. See Allen, 728 F.2d at 1413 n.3 (“[W]e find no constitu-
tional error in permitting the sheriff to decide what forms
of security were necessary to bring the defendant safely to trial.”
(emphasis supplied)); Olano, 62 F.3d at 1190 (finding no preju-
dice to the defendant where the jury briefly may have seen
him in handcuffs as he was led into the courtroom at the
beginning of trial proceedings); Fahnbulleh, 748 F.2d at 477(finding no prejudice where prospective jurors may have seen
a United States Marshal escort the defendant to the court-
room door in handcuffs).
2
We have noted before, in interpreting Williams and its prog-
eny, that although a trial court’s decisions about the required
level of security during a trial are entitled to deference, those
decisions must be made by the court itself; the trial judge “may
not delegate his discretion to another party.” United States
(continued...)
No. 07-3009 15
Accordingly, faithfulness to the rationale of the Supreme
Court’s decisions requires that a criminal defendant’s
right to be free from unreasonable prejudice during his
trial must apply to all trial proceedings, including those,
such as the jury view in this case, that take place outside
of the courtroom.3 In essence, the Court of Appeals of
Wisconsin allowed the Sheriff’s Department to judge its
own case. The constitutional infirmity of such a method-
ology is, to put it mildly, firmly established.4
2
(...continued)
v. Brooks, 125 F.3d 484, 502 (7th Cir. 1997) (quoting Lemons
v. Skidmore, 985 F.2d 354, 358 (7th Cir. 1993)).
3
The State relies on the Supreme Court’s decision in Carey v.
Musladin, 549 U.S. 70, 75-76 (2006), for the proposition that the
principles established in Williams and its progeny did not
constitute clearly established federal law under 28 U.S.C. § 2254(d)(1). The Court’s reasoning in Carey, however, was based
on considerations that are not relevant here. Notably, the
court emphasized that the reason for its holding was that the
case concerned the conduct of private, not state, actors and
therefore did not implicate the basic due process analysis at
stake in those cases. Id. Nothing in Carey suggests that the
principles of Williams and later cases do not extend to
criminal trial proceedings outside the courtroom. Indeed, the
Court’s emphasis on the well-established due process analysis,
in which the courts balance the interests of the individual
against state interests, serves to reinforce the long-standing
nature of that methodology in due process analysis.
4
Of course, there is no constitutional prohibition on the trial
court’s giving significant weight to the view of law enforce-
(continued...)
16 No. 07-3009
C.
Although the Court of Appeals of Wisconsin applied
the wrong methodology in deciding the federal due
process issue before it, it is not the court’s methodology
but its result that we review to determine whether its
judgment was so infirm as to require the issuance of a
federal writ of habeas corpus. See, e.g., Malinowski v.
Smith, 509 F.3d 328, 339 (7th Cir. 2007) (affirming the
denial of a petition for habeas corpus because “even if the
Wisconsin Court of Appeals had applied the wrong
standard, the proper standard results in the same con-
clusion.”).
The Court of Appeals of Wisconsin held that the
security procedures employed did not offend due
process because they “were not unreasonable given the
security risks associated with this case.” Lopez, 2004 WL
1533992, at *3. Under the standard of review set forth in
AEDPA, we can upset this determination and grant the
writ of habeas corpus only if the state court’s determina-
tion was contrary to clearly established federal law.
28 U.S.C. § 2254(d).
4
(...continued)
ment authorities as to the necessity of certain security mea-
sures. Indeed, such respect for the advice of those charged with
protecting public safety is prudent. However, the actual due
process determination must be made by the judicial officer. Law
enforcement officials hardly can be said to be neutral in balanc-
ing the rights of the defendant against their own view of
necessary security measures.
No. 07-3009 17
Upon review of the record, and mindful of AEDPA’s
deferential standard of review, we cannot conclude that
the Court of Appeals of Wisconsin acted contrary to
clearly established law when it concluded that the
security measures taken at the jury view were reason-
able. Several considerations lead us to this conclusion.
At the outset, it is important that we keep in mind that
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. This sort of inquiry
is necessarily a fact-specific one, and, therefore, the Su-
preme Court understandably has not set forth, with
any specificity, the factors that a trial court ought to
consider, or the weight that ought to be given to any of
those factors. Consequently, there are few “clearly estab-
lished” guidelines for federal courts to employ in review-
ing state courts’ decisions about the propriety of
security measures at trial.5
5
We also note that the Supreme Court has cautioned the courts
of appeals against trying to anticipate how it will rule. See
Wright v. Van Patten, 552 U.S. 120 (2008) (rejecting this court’s
application of the United States v. Cronic standard for ineffec-
tive assistance of counsel to a criminal defendant’s habeas
petition because the Supreme Court had not yet addressed
expressly the applicability of Cronic to cases similar to the
defendant’s); Carey, 549 U.S. 70 (2006) (rejecting the Ninth
Circuit’s extension of the Supreme Court’s inherent-prejudice
analysis to cover conduct by private actors as well as state
(continued...)
18 No. 07-3009
Restrictions imposed on us by the federal habeas
statute aside, the district court correctly noted that a trial
court must have wide discretion in determining what
security measures are necessary to prevent disruption
of the courtroom, harm to those attending the trial,
escape of the defendant and the commission of other
crimes. See Allen, 397 U.S. at 343.6 Moreover, as Justice
Marshall pointed out in Holbrook, the use of security
officers at a trial venue is qualitatively different from
other security arrangements that are imposed on the
defendant alone:
The chief feature that distinguishes the use of identi-
fiable 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 unmistakable indications of
the need to separate a defendant from the community
at large, the presence of guards at a defendant’s
trial need not be interpreted as a sign that he is par-
ticularly dangerous or culpable. Jurors may just
5
(...continued)
actors because the Supreme Court had never expressly consid-
ered whether the analysis should apply to private actors).
6
Despite the trial court’s mishandling of the issue before the
jury view, we do have in the record its post-facto estimation,
albeit laconically stated, that the security measures were
reasonable. We therefore have some minimal determination
by the judicial officer on the scene that the rights of the defen-
dant were protected adequately.
No. 07-3009 19
as easily believe that the officers are there to
guard against disruptions emanating from outside
the courtroom or to ensure that tense courtroom
exchanges do not erupt into violence. Indeed, it is
entirely possible that jurors will not infer anything
at all from the presence of the guards.
Holbrook, 475 U.S. at 569.
Trial courts should have, in any event, significantly
more latitude in gauging the appropriate security
measures for a jury view outside the courtroom. Although
there is a significant amount of case law and professional
material on the proper maintenance of security in the
courtroom environment,7 jury views outside the court-
room necessarily require a significant recalibration of
the security/prejudice balance. The trial judge is faced
with an unfamiliar locale and with a multifaceted
security problem that bears little resemblance to the
more contained situation presented by the conventional
courtroom. Jurors generally will understand and appreci-
ate this distinction, and, therefore, will be less likely to
draw conclusions about the defendant’s guilt upon
seeing heightened security measures in effect. Thus, the
decision to impose this kind of extra security might well
7
See, e.g., Deck v. Missouri, 544 U.S. 622 (2005); Holbrook v. Flynn,
475 U.S. 560 (1986); Estelle v. Williams, 425 U.S. 501, 504 (1976);
Illinois v. Allen, 397 U.S. 337 (1970); United States v. Van Sach,
458 F.3d 694, 699-700 (7th Cir. 2006). See also Influences On
The Jury, 38 Geo. L. J. Ann. Rev. Crim. Pro. 560, 568 (2009);
Wayne R. LaFave et al., 6 Civil Procedure § 24.2(e) (3d ed. 2007).
20 No. 07-3009
be constitutionally reasonable for a proceeding outside
the courtroom, even though the principles enunciated in
Allen and Williams rarely would permit such restraints
in the courtroom.
In light of these considerations, we cannot conclude
that the Court of Appeals of Wisconsin acted contrary to,
or applied unreasonably, clearly established federal law
when it determined that the security measures taken here
did not violate Mr. Lopez’s federal constitutional right
to due process of law. Even aside from the general con-
sideration that additional security measures often will
be appropriate when trial proceedings take place outside
of the courtroom, the record makes clear that this case
presented unusually serious security risks. Mr. Lopez
stood accused of committing a brutal, cold-blooded
murder. He also had been charged in a second “execution-
style” murder; in that second case, participants allegedly
had discussed “taking action against witnesses.” Lopez,
2004 WL 1533992, at *3. The State also told the court
prior to trial that Mr. Lopez was a member of a “heavily
armed” drug organization, and, indeed, he also had
been named as a co-conspirator in a federal drug pros-
ecution. Id. In light of all of these considerations, the
trial court found the risk of violence to be so serious that
it ordered the jury list sealed and ordered the jury se-
questered during the trial. Jury sequestration is rare in
Wisconsin; it is reserved for cases involving “unusual
circumstances trumping budgetary concerns.” Id. at *2.
The Court of Appeals of Wisconsin did not act unrea-
sonably in holding that the security measures in place
No. 07-3009 21
at the jury view were appropriate. Given the serious
charges that Mr. Lopez faced in both state and federal
court, the violent nature of the charged crimes, and
his alleged membership in a violent, well-armed drug
organization, there was ample reason to prepare for any
number of violent eventualities. Mr. Lopez might have
tried to escape, perhaps with the assistance of his drug
associates. Mr. Lopez or a confederate might have at-
tempted to harm the judge or the jurors. Or some inter-
ested party might have attempted to harm Mr. Lopez
himself—a member of the victim’s family, perhaps, or an
alleged co-conspirator seeking to silence him. At least
one of the jury view locations was outdoors and, there-
fore, particularly difficult to secure. In light of all this,
it was reasonable to expect that violence at the jury view
was a real possibility. Accordingly, it was reasonable
to take precautions to protect against such risks. The
precautions taken here were undoubtedly extreme, but
so were the circumstances justifying them.
Not only was the danger posed to the court, the jurors
and the general public significant, but the risk of
prejudice to Mr. Lopez was not the same as it would
have been in a courtroom setting. The purpose behind
the presence of the SWAT officers at a jury view outside
the courtroom was somewhat ambiguous. The officers’
presence could have been for any of the purposes that
we have enumerated or for all of them. Jurors well could
appreciate this distinction and, consequently, be less
likely to draw conclusions about the defendant’s guilt
upon seeing heightened security measures in effect at a
venue outside the courtroom. Armed guards sur-
22 No. 07-3009
rounding a defendant in a courtroom might well send
the message to the jurors that the defendant is
“dangerous or untrustworthy.” Holbrook, 475 U.S. at 579(quoting Kennedy v. Cardwell, 487 F.2d 101, 108 (6th
Cir. 1973)). On the other hand, armed guards around a
defendant as part of a general show of police strength
in the area may not be as susceptible to the same infer-
ence. Jurors who see a defendant guarded by police
outside the courtroom are less likely to ascribe the use
of such a measure to the defendant’s dangerousness
and more likely to view it as a routine precaution.
We also note that the trial court took steps to minimize
any prejudicial effect on Mr. Lopez by twice instructing
the jury not to make any inferences from the security
measures that were in effect during the jury view. The
court specifically told the jurors that the precautions
they saw were routine for jury views, and that they
should not infer anything about Mr. Lopez’s guilt or
innocence from the degree of security.8
8
Mr. Lopez submits that these instructions were irrelevant
because “[t]he security restraints used doing the jury view . . .
were so inherently prejudicial that the jury could not possibly
ignore what they implied.” Appellant’s Br. 28. Although the
Supreme Court has acknowledged that some security prac-
tices undertaken inside the courtroom might be so pervasively
prejudicial that no jury instruction could cure them, see
Holbrook, 475 U.S. at 570, we can identify no clearly established
principle holding that the precautions at issue in this case fall
into that category. Thus, we must reject Mr. Lopez’s argu-
(continued...)
No. 07-3009 23
In sum, we conclude that the circumstances that were
present at the time of the jury view, combined with the
curative jury instructions, are sufficient to support the
Court of Appeals of Wisconsin’s holding that the
security measures during the jury view were reasonable.
D.
Finally, even if the trial court erred by permitting the
security measures at issue here, any error was harmless.
The Court of Appeals of Wisconsin did not consider
the issue of harmless error, because it concluded that
there was no error on the part of the trial court. Thus,
there is no state-court ruling on this issue to which we
owe deference, and we are free to “dispose of the matter
as law and justice require.” Carlson v. Jess, 526 F.3d 1018,
1024 (7th Cir. 2008) (citing 28 U.S.C. § 2243). On habeas
review, we must conclude that an error was harmless
unless we determine that it “had substantial and injurious
effect or influence” on the jury’s verdict. Brecht v.
Abrahamson, 507 U.S. 619, 637 (1993) (quoting Kotteakos
v. United States, 328 U.S. 750, 776 (1946)).
The record in this case does not support the con-
clusion that the security precautions taken during the
jury view, even if they crossed the line into unreason-
ableness, had a substantial and injurious effect or
8
(...continued)
ment that the precautions at issue here were inherently prejudi-
cial.
24 No. 07-3009
influence on the jury’s verdict. As we already have dis-
cussed, the unusual circumstances in this case justified
a very high degree of security in order to secure
Mr. Lopez and to protect the trial’s participants during
the jury view. Thus, even if the measures taken were
excessive, they could have overshot the mark only by a
small margin. Furthermore, the jury view took up only
a small portion of the trial—just a few hours in a trial
that lasted for several days. The rest of the trial took
place in the courtroom, under standard security
measures to which Mr. Lopez does not object. The court
also instructed the jury that the measures in place
during the jury view were routine and that they should
draw no negative inference from them. As a general rule,
“we assume that the jury obeys the judge’s instructions.”
Pomer v. Schoolman, 875 F.2d 1262, 1265 (7th Cir. 1989).
Finally, a review of the evidence satisfies us that the
jury returned a guilty verdict because the State proved
its case, not because the jury view prejudiced the jurors
against Mr. Lopez. The State produced a witness, Clinton
Lampshire, who testified from personal knowledge that
Mr. Lopez committed the murder. Two other wit-
nesses—one of whom was Mr. Lopez’s nephew—testified
that Mr. Lopez told them that he had shot the victim.
The State also introduced into evidence the murder
weapon, which it was able to tie to Mr. Lopez through
witness testimony.
Thus, we conclude that any error the trial court might
have committed ultimately was harmless.
No. 07-3009 25
Conclusion
For the reasons set forth in this opinion, we affirm the
judgment of the district court.
A FFIRMED
7-22-09