In United States v. Wiley, --- F.4th ---, No. 22-50235 (9th Cir. 2024), the Court affirmed a conviction in a case in which Chanel Wiley contended that, during jury selection, her ankle monitor started beeping, thereby prejudicing her and warranting a new trial.
There is a majority and concurrence and they agree on very little.
According to the majority, the shackles in Deck v. Missouri, 544 U.S. 622 (2005), and the ankle monitor in this case are two very different things, and ankle monitors are not entitled to Deck’s presumption of prejudice. The panel held that ankle monitors are also not inherently prejudicial under Holbrook v. Flynn, 475 U.S. 560 (1986). Thus, Wiley was required to prove actual prejudice to sustain her claim. The panel held that, even if a juror knew the beeping sound came from the monitor, Wiley failed to prove that she was actually prejudiced.
The concurrence argued that the majority reached out to decide this issue for no reason.
As appellate judges, we like questions of law. Unfortunately for us, we encounter many cases where the facts prevent us from reaching them. In those cases, we ordinarily cool our jets and resolve the issues on the facts, without announcing new and unnecessary rules of law. This should have been one such case. Here, Wiley asks us to determine whether the ankle monitor that she wore during her criminal trial violated her right to due process. The record, however, does not reflect that any juror perceived Wiley’s ankle monitor. That glaring hole in the record forecloses Wiley’s due process argument and should have ended our analysis.But the majority cannot help itself. Rather than adjudicate the case on the record before us, it assumes a material fact: that at least one juror was aware of Wiley’s ankle monitor. It proceeds to announce not one but two rules of constitutional law. I disagree with the majority’s decision to assume such a critical fact in an effort to reach a due process issue. But the majority makes matters worse in its handling of that due process issue. It concludes that an ankle monitor is not a “shackle” within the meaning of Deck v. Missouri, 544 U.S. 622 (2005), and that it is not an inherently prejudicial trial practice. Although I generally agree that an ankle monitor is not quite a “shackle,” I conclude that a perceptible ankle monitor is inherently prejudicial. After all, an ankle monitor is a distinctive and stigmatizing device that brands the defendant as an especially dangerous or culpable person. Because of that, it undermines the presumption of innocence and erodes the fairness of the fact-finding process.This case never should have been resolved this way. The record does not allow us to reach Wiley’s due process argument, and our analysis should have ended there. But the majority boldly strides ahead to hold that an ankle monitor is not an inherently prejudicial courtroom practice. The majority’s attempts to downplay an ankle monitor’s deleterious impact are understandable. As judges, we are accustomed to seeing defendants clad in shackles and prison attire, so we do not blink at ankle monitors. But our perspective as jurists is not what matters here. Our task is to “look at the scene presented to jurors.” Holbrook, 475 U.S. at 572 (emphasis added). We ask whether “reason, principle, and common human experience” suggest that those everyday jurors will become prejudiced against the defendant. See Estelle, 425 U.S. at 504. The majority fails to understand that ordinary people are not accustomed to ankle monitors or the harmful messages that they convey. When a juror perceives an ankle monitor, it stands out and readily brands the defendant as someone dangerous and untrustworthy. For that reason, an ankle monitor “pose[s] an unacceptable threat to [the] defendant’s right to a fair trial.” Holbrook, 475 U.S. at 572. I respectfully disagree with the majority’s suggestions otherwise
