Ankle monitor beeping in court not prejudicial, 9th Circuit rules

A divided 9th U.S. Circuit Court of Appeals panel ruled Wednesday that a beeping ankle monitor worn by a defendant on trial in a drug case during jury selection is not "presumptively or inherently prejudicial."

The case is the first time the 9th Circuit has ruled on whether an ankle monitor beeping during trial violates a defendant's due process rights, according to the U.S. attorney's office in Los Angeles and defense counsel.

Verna J. Wefald of Pasadena, Chanel Wiley's appellate attorney, said in a phone interview that she would seek en banc review of the panel decision.

The three-judge panel affirmed Wiley's conviction of conspiracy to distribute methamphetamine, but Wefald argued that her presumption of innocence was compromised when the monitor started beeping during the first day of jury selection.

Wiley's trial attorney alerted the judge to the issue, and he kept having to try to "fiddle with it" to try to get the noise to stop. Senior U.S. District Judge John A. Kronstadt ordered pretrial services to deal with the issue and a case agent eventually removed the monitor from the courtroom.

But Wefald, on appeal, argued that the damage was done. "A defendant who needs to have an ankle monitor to ensure she shows up in court singles her out as a bad person ... a criminal," she told the 9th Circuit panel during oral arguments in February.

9th Circuit Judge John B. Owens, an appointee of President Barack Obama, assumed as a threshold matter that at least one juror had noticed the beeping ankle monitor because two jurors had reported having difficulty hearing the proceedings - a position Wefald agreed with during oral arguments. He cited two U.S. Supreme Court cases in assessing whether Wiley's rights were violated. The first is a 2005 decision that prohibits the use of shackles during jury trials unless it is justified by state interest. Deck v. Missouri, 544 U.S. 622 (2005).

The second significant case upheld the conviction of a defendant and five co-defendants for armed robbery in Rhode Island in which four state troopers sat in the front row to bolster security. The court denied a defense appeal arguing that the troopers' presence was so inherently prejudicial to deny the defendant a right to a fair trial. Holbrook v. Flynn, 475 U.S. 560 (1986).

Owens ruled that the ankle monitor did not qualify as shackles and is not inherently prejudicial under Holbrook.

"An ankle monitor easily satisfies this test for reasons similar to why an ankle monitor is not a shackle," he wrote. "Indeed, as this case proves, an ankle monitor -- which permitted Wiley to enter the courthouse through the same security as the jurors, ride the same elevators, and enter the courtroom through the same door as the jurors -- makes clear that the defendant is not a dangerous person," Owens added. U.S. v. Wiley, 2024 DJDAR 4560 (9th Circ., filed Oct. 19, 2022).

9th Circuit Judge Salvador Mendoza Jr., an appointee of President Joe Biden, blasted the panel majority for assuming a juror noticed the ankle monitor when there was nothing in the record to establish that.

"But the majority cannot help itself," he wrote. "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."

Mendoza disagreed with Owens' conclusion that an ankle monitor is not prejudicial. "In my view, an ankle monitor is a distinctive and stigmatizing device that brands the defendant as an especially dangerous and culpable person," he wrote in a concurrence.

9th Circuit Judge Patrick J. Bumatay, an appointee of President Donald Trump, concurred with Owens.

Assistant U.S. Attorney A. Carley Palmer said the conviction should not be overturned because of a "brief and inadvertent exposure" to the ankle monitor and downplayed the incident. "If you have been in the district courthouse in LA, there are beeps everywhere."

She cited a colleague whose Apple Watch beeped during trial because she got nervous in court, adding that a reversal of the conviction would set up a circuit split.