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3 judges dissent on rehearing denial in stun belt case

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The full 7th Circuit Court of Appeals has decided to not rehear an Indiana case about a convicted murder’s ineffective assistance of trial counsel claims relating to a stun belt used in court, though three judges disagreed and felt the northern Indiana federal judge’s decision should be upheld.

An order came from the 7th Circuit today in John M. Stephenson v. Bill Wilson, superintendent of Indiana State Prison, No. 09-2924, with three dissenting judges writing about their disagreement in denying a rehearing en banc request. Judge Ilana Diamond Rovner wrote a 20-page dissent, which included a page of photos from news video depicting the man’s stun belt during trial. Judges David Hamilton and Ann Williams joined the dissent, essentially challenging the Supreme Court of the United States to consider taking the case if a certiorari request is made.

In August, a three-judge panel – led by authoring Judge Richard Posner - reversed a 2009 ruling from U.S. Judge Theresa Springmann in the Northern District of Indiana that Stephenson didn’t receive ineffective assistance of counsel during trial.

Stephenson was convicted by a jury in 1997 for three murders and sentenced to death. Four jurors later said in affidavits they were aware Stephenson was wearing a stun belt. After he unsuccessfully appealed to the SCOTUS, Stephenson filed a writ of federal habeas corpus and Judge Springmann tossed out his capital sentence on the stun belt claim, but didn’t rule on other issues he raised.

The 7th Circuit last year ordered the District judge to reconsider her ruling, finding that the question of prejudice from the stun belt wearing at the penalty hearing requires more consideration. Stephenson filed a petition for rehearing en banc in September, and now a majority of the judges are denying that.

But Judge Rovner found that the majority’s analysis overlooks “the inherent unquantifiable prejudice of a visible restraint” and that the rationale is otherwise inconsistent with SCOTUS precedent on this subject.

“Although the Supreme Court’s cases on restraints have dealt with shackles rather than stun belts, there is no reason to think the Court would treat a visible stun belt any differently than other types of visible restraints,” Judge Rovner wrote.

She stated that the panel decision’s analysis began on the wrong foot in failing to acknowledge that inherent prejudice of a visible restraint, and that SCOTUS precedent must be applied starting with that recognition.

Judge Rovner wrote that she doesn’t doubt the evidence against Stephenson was sufficient to convict him, but both the inherently prejudicial nature of a visible restraint and the lack of overwhelming evidence establishing his guilt show that he’s established a “better than negligible probability that he might have been acquitted had he not been noticeably restrained.”

Stephenson is entitled to a new trial as the District judge concluded, but Judge Rovner wrote that the panel’s conclusion that his claim fails because more concrete proof of the stun belt impact is not consistent with higher caselaw. The panel’s decision to remand on the penalty phase aspect isn’t adequate, she wrote.

“But whatever relief Stephenson might obtain as to the penalty phase will not address the prejudice he experienced vis-à-vis the jury’s assessment of his guilt,” Judge Rovner wrote. “The proper course would be for this court to affirm the district court’s decision.”
 

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  • The King's Court
    Forcing a defendant to wear a stun belt, in court or otherwise, is a violation of american principles! It is also unconstitutional!

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  1. Excellent initiative on the part of the AG. Thankfully someone takes action against predators taking advantage of people who have already been through the wringer. Well done!

  2. Conour will never turn these funds over to his defrauded clients. He tearfully told the court, and his daughters dutifully pledged in interviews, that his first priority is to repay every dime of the money he stole from his clients. Judge Young bought it, much to the chagrin of Conour’s victims. Why would Conour need the $2,262 anyway? Taxpayers are now supporting him, paying for his housing, utilities, food, healthcare, and clothing. If Conour puts the money anywhere but in the restitution fund, he’s proved, once again, what a con artist he continues to be and that he has never had any intention of repaying his clients. Judge Young will be proven wrong... again; Conour has no remorse and the Judge is one of the many conned.

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