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Danny Wilber

Other Milwaukee County, Wisconsin exonerations
On January 31, 2004, 24-year-old David Diaz was fatally shot once in the head during a house party in the 1100 block of West Mineral Street in Milwaukee, Wisconsin. After an evening of drinking in a bar, Diaz had invited numerous people back to his house for an after party.

On February 20, 2004, police arrested 24-year-old Danny Wilber and charged him with the murder.

A year later, in February 2005, Wilber went to trial in Milwaukee County Circuit Court.

The trial, as a federal court judge would later note, “did not proceed smoothly.” Even before jury selection began, Judge Mary Kuhnmuench cautioned Wilber that he would not be allowed to make “facial gestures,” “sounds,” “act imprudently,” or be disrespectful to her. She told him he needed to keep “a poker face” when the prosecutor was making his opening statement or other comments.

On the second day of the trial during jury selection the judge ordered Wilber’s ankles placed in shackles that were bolted to the floor. Both the prosecution and defense tables were skirted to prevent the jury from seeing the shackles.

On the third day, when the judge overruled a defense objection, Wilber declared, “You are granting everything the D.A. is throwing at you.” The judge sent the jury out of the courtroom.

Wilber continued.

“What haven’t you denied?” he declared. “That’s nothing new. Put that on the record. I’m speaking up on my behalf. This is my life.”

Judge Kuhnmuench told Michael Chernin, Wilber’s attorney, to “please talk to your client.”

“You don’t intimidate me with that shit, man,” Wilber said. “You gonna hold me in contempt? What, you gonna hold me in contempt? It’s my life right here.”

“Mr. Wilber,” the judge declared. “I’m going to do it if you don’t—”

“Do it,” Wilber interrupted.

As Chernin urged Wilber to “please relax,” the judge said, “If you don’t behave—”

“It ain’t doing me no good, her overruling—sustaining everything he [the prosecutor] throw out whether it is bogus or not,” Wilber said.

“Mr. Wilber,” the judge said. “You are doing yourself no good.”

When the trial resumed after lunch, Judge Kuhnmuench cautioned Wilber again. Wilber said he was “all right.” The judge noted that she had added two additional deputies to the courtroom, bringing the total to four, and added a stun belt to Wilber’s arm under his shirt. The belt, she said, was “a way of keeping you safe, everybody around you safe, the staff safe and the jury safe so that the trial can continue without hopefully any additional incidences.”

Witnesses testified that Diaz was shot in the back of the head while standing in the kitchen and fell face forward. Bullet fragments were found under the stove in front of Diaz’s body. A single expended shell casing was found on the kitchen table.

None of the people at the party called as witnesses said they saw who shot Diaz and all testified that Wilber was in front of Diaz when Diaz was shot from behind. The witnesses agreed that Wilber was drunk and had been involved in verbal and physical altercations with other party-goers that night. Two witnesses said the gunman was in the hallway behind Diaz—not in the kitchen.

A detective testified that Jaranek Diaz (no relation to the victim) made a statement after the shooting that he saw Wilber bend his body and point a semi-automatic pistol—not a revolver—at Diaz, just as Diaz turned to leave the kitchen—then heard a gunshot.

A firearms examiner testified that the shell casing found on the kitchen table was from a revolver.

Jaranek testified and denied making the statement to the detective. Jaranek denied that he ever said he saw Wilber shoot Diaz or even that Wilber was holding a gun.

A witness claimed that after Diaz was shot, Wilber’s sister, Antonia West, yelled, “You shot him! Get out of here!”

West denied making those statements.

A medical examiner testified that Diaz was shot in the back of the head from only a few inches away. The bullet went through his head in a straight line, the medical examiner said. There were no ricochet marks in the kitchen.

The prosecution presented evidence that later that night, burned clothing and shoes were found in a barbeque grill in West’s back yard. There was no evidence as to who burned the items or if they belonged to Wilber.

On the fourth day of the trial, as the morning session was ending, the judge told the jury they would be sequestered for the rest of the day to “avoid even the appearance of somebody suggesting that the jury was somehow tainted, talking or overhearing conversations in the hallway, talking to people.”

Outside the presence of the jury, Judge Kuhnmuench said that Wilber had also been highly agitated with the deputies outside the courtroom, saying that he was “not going down for this; you might as well use your gun and kill me now.”

The judge said Wilber had asked detailed questions about the route he would take to the courtroom each morning, what floors they would be on and who would have access to that path. Deputies had become fearful that Wilber might attempt to escape, potentially with help from others.

Judge Kuhnmuench said she was concerned that three men had approached the court clerk and made comments that seemed threatening. The men had been watching the trial and were seen near witnesses who were under a sequestration order. Wilber denied any connection with the men.

On the fifth day of the trial, the prosecution proposed that Wilber be directed to participate in a courtroom demonstration. The prosecutor wanted to show how Wilber, who was more than 6 feet, 6 inches tall, could have fired the gun at an angle consistent with the medical testimony about the gunshot wound. Chernin objected, arguing that the prosecution was, in effect, attempting to force Wilber to re-enact a crime he did not commit. During the argument on the issue, a question arose as to whether doing so would expose the stun belt. Wilber said that when he raised his hand as the prosecutor wanted him to, he would pull his shirt a certain way to prevent such exposure.

Judge Kuhnmuench apparently thought Wilber was being disrespectful. “Mr. Chernin, please advise him about his conduct in this court,” she declared. “Because as I said the other day, I’m not going to have you folks mistake my kindness for weakness.”

As Chernin attempted to explain that Wilber meant no disrespect, Judge Kuhnmuench continued, “And I am not going to continue to run my court with this gentleman, you know, being disrespectful to me from the minute he comes in the court till the minute he leaves. I am not going to tolerate it and I don’t have to, quite honestly.”

She concluded by saying, “Today’s the end. You do it again, we are going to add additional restraints to you in front of the jury.”

The defense objection to the demonstration was sustained and it did not occur.

Mark Bernhagen, a shoe store manager, testified for the defense about shoe sizing. He testified that Wilber’s feet were size 14½. The soles of the burnt shoes found in the grill were size 12, more than two sizes smaller than the shoes Wilber was wearing at the trial.

After the evidence had closed, but before closing arguments, the defense asked to reopen the case to bring in a witness. During a lengthy session outside the presence of the jury, Wilber’s sisters testified Roberto Gonzalez had said that he was at the party and saw someone else shoot Diaz. Chernin asked for time to interview Gonzalez before the closing arguments. Judge Kuhnmuench denied the request, calling the testimony incredible.

At that point, before the jury was brought back into the courtroom, Judge Kuhnmuench noted for the record that Wilber was “in a secured wheelchair with—not only secured at his ankles, but at his wrists.” His feet remained shackled to the floor and his wrists were chained together. Two inch wide black straps held both his wrists and one of his arms to the wheelchair.

“Wilber is responsible for his own predicament and for his position—that is to be restrained and to have that obvious restraint being shown to the jury,” Judge Kuhnmuench said. She explained that Wilber had used “vulgar, profane language” to the deputies and “physically fought with the deputies, such that they had to decentralize him to the back hallway…That conduct will not be rewarded, it will not be tolerated, and I will not be manipulated into allowing a defendant, by his actions, to dictate how I run this court.” The judge saw the additional restraints as a pre-emptive move. “God only knows how he’s going to react when the State starts making its closing argument,” the judge said.

Chernin objected, noting there were constitutional problems with restraints, but the judge refused to budge. The prosecutor offered to find a sport coat that Wilber could wear to hide the restraints.

“That’s not necessary,” the judge replied.

The closing arguments were completed without incident. Afterward, the judge denied a defense motion for mistrial based on the jury viewing him in the restraints.

On February 23, 2005, the jury convicted Wilber of first-degree murder. He was sentenced to life in prison with a chance for parole after 40 years.

While the case was being appealed, Wilber’s appellate attorney, Robert Henak, filed a motion for a new trial. The motion claimed that Gonzalez had implicated Vidal Muniz as the gunman. Gonzalez said that he saw Muniz shoot Diaz from the living room. Another witness, Jonathan Martin, said that later that night Muniz asked him to get rid of a gun and admitted having shot Diaz.

In addition, the motion said that Kenneth A. Siegesmund, a forensic scientist, had provided an affidavit saying that based on the physical evidence – including Wilber’s position at the time of the shot, the nature of Diaz’s wound, how he fell, and the location of the bullet fragments and blood splatter—that “[n]one of the prosecutor's statements about the victim turning to leave makes any sense.” Siegesmund said the prosecution’s theory was “inherently incredible.”

Dr. Lindsey Thomas, a forensic pathologist, had provided an affidavit saying that a gunshot wound such as the one suffered by Diaz “would cause the person to collapse immediately and most likely fall straight forward.” Dr. Thomas said it was “very unlikely that Mr. Diaz would have done a 180 [degree] turn after sustaining such a gunshot wound.”

Judge Kuhnmuench denied the motion. In 2008, the Wisconsin Court of Appeals upheld Wilber’s conviction.

Henak then filed a federal petition for a writ of habeas corpus on Wilber’s behalf, claiming that Wilber’s trial defense attorney had provided an inadequate legal defense. The petition said that Wilber had told Chernin to interview Gonzalez prior to the trial, but Chernin had not done so. In addition, Chernin had failed to seek out the opinions of the experts, the petition said. And, the petition said that Wilber’s trial had been unfair; the jury had become aware that Wilber had been shackled “like an animal,” while in the courtroom.

On August 4, 2020, U.S. District Judge William Griesbach granted the petition and vacated Wilber’s conviction. The decision was based only on the issue of the shackling. Judge Griesbach noted that “clearly established federal law prohibits a defendant in a criminal trial to appear in shackles absent extraordinary reasons.”

The judge said the use of visible restraints “conveyed the unmistakable message to the jury that Wilber was too dangerous to be permitted even the use of his hands.” There was no reasonable explanation for the increase in restraints, save for the report from deputies that Wilber used profane language and engaged in a physical altercation in the back hallway. “There was no indication that once seated at counsel table with his feet shackled and anchored to the floor, the stun belt around his arm, and virtually surrounded by deputies, Wilber posed any threat to the safety of the judge, her staff or the public,” Judge Griesbach ruled.

He said Judge Kuhnmuench had essentially deferred to the wishes of deputies based on conduct that was outside the presence of the jury. “To the extent the trial court delegated its responsibility for deciding the courtroom security issues here, it was error,” Judge Griesbach ruled. Moreover, even if the shackling had been justified, the restraints should have been hidden from the jury—a concept the prosecutor who offered to find a sport coat for Wilber understood, the judge noted.

“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,” Judge Griesbach ruled.

The prosecution appealed and in October 2021, the Seventh Circuit U.S. Court of Appeals upheld Judge Griesbach. The opinion, written by Appeals Judge Ilana Rovner, noted, “For over 50 years, the Supreme Court has recognized that the fairness of a trial is brought into question when a defendant is made to appear before a jury bearing the badges of restraint…Whatever risks Wilber may have posed to the security and dignity of the trial proceeding, neither the trial judge nor the [Wisconsin] 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.”

Judge Rovner noted that testimony at the trial portrayed Wilber as drunk, belligerent, and engaging in physical struggles with people at the party. When Diaz had admonished Wilber to show some respect for his house and his family, Wilber had responded with profanities and said he would “burn this [obscenity] crib down, with or without your family.”

Judge Rovner wrote, “It comes as no surprise that the State highlighted the descriptions of Wilber’s behavior in its closing arguments to the jury. The emphasis was entirely appropriate, given the defense’s own focus on the lack of first-hand testimony 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.”

The judge noted that while Wilber’s “out-of-control” behavior on the night of the shooting “reasonably supported an inference that he was the one who shot Diaz,” this essentially confirmed “why the decision to visibly shackle Wilber…was necessarily prejudicial.”

The judge noted that as the jury heard the closing arguments, Wilber was…sitting at the defense table, on trial for murder. He was not drunk, at an after-hours party, arguing 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 arguments 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 everyone else in the courtroom,” Judge Rovner opined, “It is difficult to imagine a more prejudicial action.”

On December 21, 2021, Wilber was released on bond pending a possible retrial.

On May 27, 2022, the Milwaukee County District Attorney’s Office dismissed the case.

– Maurice Possley

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Posting Date: 7/4/2022
Last Updated: 7/4/2022
Most Serious Crime:Murder
Additional Convictions:
Reported Crime Date:2004
Race/Ethnicity:Native American
Age at the date of reported crime:24
Contributing Factors:Inadequate Legal Defense
Did DNA evidence contribute to the exoneration?:No