Wilber v. Thurmer
| Decision Date | 04 August 2020 |
| Docket Number | Case No. 10-C-179 |
| Citation | 476 F.Supp.3d 785 |
| Parties | Danny WILBER, Petitioner, v. Michael THURMER, Respondent. |
| Court | U.S. District Court — Eastern District of Wisconsin |
Robert R. Henak, Henak Law Office SC, Milwaukee, WI, for Petitioner.
Lisa E. Kumfer, Wisconsin Department of Justice Office of the Attorney General, Madison, WI, for Respondent.
DECISION AND ORDER GRANTING PETITION FOR RELIEF UNDER § 2254
Having fully exhausted his state court remedies, Petitioner Danny Wilber seeks federal relief under 28 U.S.C. § 2254 from his state court conviction for first degree intentional homicide by use of a dangerous weapon. Wilber filed his original petition more than ten years ago on March 3, 2010, but immediately moved for a stay so that he could exhaust his state court remedies as to additional claims. After significant delays attributed to ongoing investigations by retained counsel, Wilber filed a pro se motion for postconviction relief in the state trial court on March 17, 2014. Wilber thereafter amended his pro se motion for postconviction relief and retained new counsel. After the Wisconsin Supreme Court denied his petition for review on April 9, 2019, he moved to lift the stay and proceed on an amended petition. Wilber alleges in his amended petition that his constitutional rights were violated because there was insufficient evidence presented at trial to support his conviction, his trial and post-conviction counsel provided ineffective assistance, and the trial court violated his due process right to a fair trial by ordering him shackled to a wheelchair in a way that was visible to the jury during closing arguments. Because the court concludes that visibly shackling him to a wheelchair during closing arguments violated Wilber's due process right to a fair trial, his petition will be granted.
In the early morning hours of January 31, 2004, Milwaukee police were dispatched to a residence at 1128 W. Mineral Street to investigate a fatal shooting at a house party. Upon arrival, the police discovered the body of David Diaz, who lived at that address, lying on the floor with a gunshot wound to the head. Most of those in attendance at the party had fled before police arrived. In the days that followed, two witnesses, Richard Torres and Jeranek Diaz (no relation to the victim and hereinafter referred to as Jeranek), allegedly identified Wilber as the shooter. According to statements taken by police both witnesses said that Wilber had been acting belligerently during the house party, and at some point, Wilber pulled out a handgun and shot Diaz. Shortly thereafter, Torres and Jeranek heard Antonia West, Wilber's sister, urge Wilber to leave, saying Several days later, Wilber was charged with Diaz's murder.
At trial, the prosecutor called a number of individuals who had been present at the party at the time of the shooting, but they all testified that they did not see who shot Diaz. Contrary to their earlier statements, Jeranek and Torres denied actually seeing Wilber shoot Diaz, and Antonia West denied making the statement attributed to her. Jeranek denied even seeing a gun, and though Torres testified that he did not see Wilber shoot Diaz, he saw him immediately afterwards holding a gun in a crouched position and assumed he was the shooter. West testified she did not see the shooting and was not looking at her brother when Diaz was shot. The State offered the prior inconsistent statements of the witnesses to impeach them and as substantive evidence.
Perhaps even more problematic for the prosecution than the testimony of its witnesses was the physical evidence. The medical examiner testified that the bullet that killed Diaz was fired at close range (two to three inches), entered the back of his head on the upper left, traveled in a downward trajectory, and exited to the right of his nose. Diaz had fallen face-forward in a northerly direction from where he was standing in the doorway to the kitchen on the south side of the room, consistent with being shot from behind. Three bullet fragments were found under the stove on the north wall of the kitchen directly across from where Diaz was standing when he was shot, also consistent with having been shot from behind. Yet, all of those present at the time of the shooting testified that Wilber was in the kitchen in front of where Diaz was standing, and at least one of the witnesses testified that Ricky Munoz, who had also been at the party, also had a gun. According to the diagram of the layout drawn by Torres, Munoz was in the living room behind where Diaz was standing at the time the shot rang out. Dkt. No. 69-61. Another difficulty with the State's theory was that the witnesses who claimed to have seen Wilber with a gun said it was a semiautomatic, which would have expelled a casing when fired. Yet, no casing was found at the scene, and the firearms examiner who examined the bullet jacket testified that it was fired from a revolver. Despite these difficulties, the jury found Wilber guilty of first-degree intentional homicide in the death of David Diaz.
The trial did not proceed smoothly. At various times throughout the seven-day trial, the trial judge commented on what she viewed as Wilber's disrespectful behavior. Beginning the first day of trial before jury selection had even begun, the trial judge cautioned Wilber that he would not be allowed to make "facial gestures," "sounds," "act imprudently," or be disrespectful to the court. Dkt. No. 61-17 at 4:18–21. The judge stated that she had noticed during the morning session that Wilber was reacting inappropriately to the arguments of the prosecutor: "Every 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 admissible, 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 5:8–14. 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 5:15–25. 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 6:07–15. Wilber's attorney explained to the judge that his client meant no disrespect but had worked closely with counsel on preparing his defense, was familiar with the legal arguments, and strongly disagreed with the court's rulings. Id. at 6:20–7:01. Disagreement was fine, the judge noted, but "what I'm trying to tell you is it's a disrespect to the court to show you disagree." Id. at 7:06–08. "You have to keep a poker face," she continued, noting that it was in his interest to do so because it "looks bad in front of the jury." Id. at 7:08–11.
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 proceeding." Dkt. No. 61-18 at 75:22–24. The court noted that Wilber was to remain shackled throughout the trial. Leg irons were placed on Wilber's ankles and anchored to the floor beneath defense counsel's table. The court also noted that steps had been taken to prevent jurors from becoming aware that Wilber was shackled and maintain the presumption of innocence to which he was entitled. Both the prosecution and the defense tables were skirted to prevent the shackles from being visible to the jury. Id. at 75:21–76:02. In addition, the court noted that the defendant was allowed a change in the civilian clothes he was wearing "so that all steps -- all reasonable steps are being made to continue to have the presumption of innocence for the defendant protected." Id. at 76:08–11.
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 76:13–18. "There has to be something about those observation[s]," the court continued, "that have affected them one way or the other that they articulate to the parties and to the court -- that would cause them to be an unsuitable juror." Id. at 76:18–22.
After two days of jury selection and several lengthy discussions of legal issues, the attorneys gave their opening statements on the third day and began the presentation of evidence. When the jury was released for lunch, the court granted the prosecution's request over the objection of the defense that two of the State's witnesses be instructed to read their statements 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." Dkt. No. 61-20 at 116:14. The court instructed Wilber to "Stop it," to which Wilber responded, "You are granting everything the D.A. is throwing at you." Id. at 116:18–20. As the court ordered the courtroom deputies to remove Wilber from the courtroom, the discussion continued:
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... ... not “so clearly incorrect” to be ... “[un]debatable among reasonable jurists.” ... Wilber v. Thurmer , 476 F.Supp.3d 785, 796 (E.D. Wis ... 2020) (citing Brumfield v. Cain , 576 U.S. 305, 314 ... (2015)). Dodson is therefore ... ...