Ankle Monitor Beeping in Trial Is Not Prejudicial?

We believe the following summary of a recent ruling from the U.S. Court of Appeals for the Ninth Circuit tests the outer limits of what is a fair trial.  

Ms. Chanel Wiley was arrested by federal agents for trafficking a small amount of methamphetamine.  She was released on bond pending trial but struggled to cooperate with pretrial services’ reporting requirements and was eventually arrested again.  Rather than forfeit the bond (which would have cost her surety their family home), the magistrate ordered Ms. Wiley to wear an electronic ankle monitor “to make sure she showed up for court.”  The monitor was the size of a cell phone, tracked her location at all times.

Wiley then wore her monitor as ordered, including when she attended court hearings and at trial.

On the first day of trial in U.S. District Court for the Central District before Judge John A. Kronstadt, before jury selection began, defense counsel told Judge Kronstadt that the ankle monitor “keeps giving out audible alerts and we’re afraid that would be prejudicial to the jury.” 

The judge acknowledged hearing the alert and asked if the “device could be muted.”  The case agent assisting the prosecution offered to help, and the judge directed him to the Pretrial Services Office, which oversaw ankle monitors.

Pretrial Services could not mute the monitor, so jury selection began.  About halfway through, defense counsel told the judge “the ankle monitor keeps alerting” and “every juror on this side is hearing it . . .”  The judge disagreed, explaining that he had also heard the alert, but he did not “think anyone really knows what the sound is.”  Other jurors reported that they could not hear the judge due to the beeping in court during voir dire.

Finally, jury selection was halted and the jurors were removed from the courtroom.  The judge then ordered the monitor removed and it was removed.  

Jury selection then resumed and trial began.  The jury convicted Ms. Wiley of conspiracy to distribute methamphetamine.  Judge Kronstadt sentenced Ms. Wiley to a below-guidelines sentence of sixteen months’ imprisonment.

Ms. Wiley then appealed her conviction.  The U.S. Court of Appeals for the Ninth Circuit stated that the evidence was that defense counsel tried to “fiddle with” the monitor and the jurors heard the beeping noise and knew it was coming from Ms. Wiley’s ankle monitor.

The Ninth Circuit acknowledged first United States v. Halliburton (9th Cir. 1989) 870 F. 2d 557, 558 (“Whether a defendant’s right to a fair trial is violated because members of the jury observe him in handcuffs is a question of law that is reviewed independently without deference to the district court’s determination of the issue), which Ms. Wiley argued meant the jury knew she was subject to government restraint because of the sound of the ankle monitor beeping.  

The Ninth Circuit the discussed the leading case on shackling a defendant in court before a jury, Deck v. Missouri (2005) 544 U.S. 622, in which the U.S. Supreme Court held that “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.” Id., at 629.

The Ninth Circuit then pointed out that an ankle monitor is a very different thing than shackles and ankle monitors are not entitled to Deck’s presumption of prejudice.  “Nor were ankle monitors inherently prejudicial under Holbrook.” Holbrook v. Flynn (1986) 475 U.S. 560.  In Holbrook, six defendants were on trial for armed robbery in Rhode Island and six armed troopers sat in the courtroom behind defendants during trial.  The conviction was reversed because the presence of the armed troopers was found to be unduly prejudicial to the right to a fair trial. 

The Ninth Circuit then noted that ankle monitors are used to prevent absconding, not violence like shackles or handcuffs, so Ms. Wiley failed to establish prejudice and the conviction was affirmed.

We think this ruling creates a distinction without a difference.  The point is that wearing an ankle monitor that emits audible beeps in court does prejudice a defendant because a juror’s awareness that a defendant is on any form of government restraint during trial suggests the government has already determined she is guilty and trial is a mere formality.