`
`
`
`In the
`United States Court of Appeals
`For the Seventh Circuit
`____________________
`Nos. 20-2614 & 20-2703
`DANNY WILBER,
`
`RANDALL HEPP, Warden,
`
`v.
`
`Petitioner-Appellee,
`Cross-Appellant,
`
`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
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`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
`
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`Nos. 20-2614 & 20-2703
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`3
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`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
`
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`Nos. 20-2614 & 20-2703
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`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
`
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`Nos. 20-2614 & 20-2703
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`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.
`
`
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`6
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`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,
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`Nos. 20-2614 & 20-2703
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`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
`
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`Nos. 20-2614 & 20-2703
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`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,
`
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`Nos. 20-2614 & 20-2703
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`9
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`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
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`Nos. 20-2614 & 20-2703
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`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
`
`
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`Nos. 20-2614 & 20-2703
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`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
`
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`12
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`Nos. 20-2614 & 20-2703
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`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.
`
`
`1 The 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.
`
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`Nos. 20-2614 & 20-2703
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`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
`
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`14
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`Nos. 20-2614 & 20-2703
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`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
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`Nos. 20-2614 & 20-2703
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`15
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`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
`
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`16
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`Nos. 20-2614 & 20-2703
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`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
`
`
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`Nos. 20-2614 & 20-2703
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`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
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