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7th Circuit reverses lower court on stun-belt issue

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The 7th Circuit Court of Appeals reversed a District judge’s decision that a man convicted of murder received ineffective assistance of counsel during his trial because his attorney didn’t object to the state making him wear a stun belt in court.

Writing for the appellate court, Judge Richard Posner noted U.S. District Judge Theresa Springmann in the Northern District of Indiana didn’t rule on any other grounds of relief that John Stephenson argued, which may have been a mistake. If those other grounds of relief were before the Circuit Court, it may have agreed with one of them and spared the parties further proceedings and possible appeals.

In John M. Stephenson v. Bill Wilson, superintendent of Indiana State Prison, No. 09-2924, the 7th Circuit Court only had to address Stephenson’s argument that the use of the stun belt was sufficiently questionable and an objection to his being forced to wear it during trial without showing he presented a security risk would, or at least should, have been granted, which shows counsel was deficient in not making the objection.

The Indiana Supreme Court ruled in his post-conviction case that “prevailing norms at the time of Stephenson’s trial required counsel to object to visible restraints where there is no evidence suggesting escape, violence, or disruptive behavior,” but if his lawyer had objected, the objection would have been overruled. The justices noted the three murders were related to drug activity, premeditated, and there was testimony that Stephenson had threatened to kill a critical witness, a possible accomplice.

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 was unsuccessful appealing to the Supreme Court, he sought a writ of federal habeas corpus, in which District Judge Springmann tossed out his capital sentence.

The law says placing any kind of visible restraint on a defendant’s movement during a criminal trial was allowed only if the particular defendant was too dangerous to be allowed in the courtroom without a restraint and less conspicuous security measures, such as seating guards near the defendant, wouldn’t be sufficient to ensure the safety of the courtroom and prevent escape.

That leads to the question of what type of restraint should have been used. Using shackles, which could be hidden under a cloth covering the defendant’s table, are louder than a stun belt and visible if the defendant must get up in front of the jurors. If they didn’t use the stun belt, they might have needed more guards, which would create an impression the defendant was dangerous, wrote the judge.  

Because Stephenson didn’t challenge the stun belt on direct appeal but only alleges his counsel was ineffective by not challenging the stun belt, Stephenson must show he was prejudiced by his attorney’s error. The jurors’ affidavits don’t establish any prejudicial effect but merely awareness of the stun belt. Judge Posner wrote that as far as the court can tell, the jurors thought it was routine that a criminal defendant would be physically restrained in some fashion.

“A visible restraint on a defendant might seem a good example of prejudicial material improperly (if there was no adequate reason for the restraint) brought to the jurors’ attention. But to allow jurors to be interrogated about such observations would mean that in any trial in which a physically restrained defendant was convicted, the defendant could challenge the verdict by obtaining affidavits from jurors concerning what they thought – even if the reasons for the restraint had been compelling,” wrote Judge Posner.

The court doubted that stun belts or more guards would have influenced this particular jury’s verdict. The multiple-murder trial and suggestion of the death penalty created an expectation of heightened security whether Stephenson was guilty or not. They also found it difficult to believe that the jurors who guessed he was wearing a stun belt would think it was a clue to his likely guilt as compared to the evidence generated during the eight-month trial.

Stephenson failed “to carry his burden of proving prejudice, even on the dubious premise that his counsel should have objected to the stun belt – dubious because the alternatives might have been worse,” wrote Judge Posner.

The 7th Circuit has held that without a reference to the doctrine of residual doubt, a defendant’s counsel rendered ineffective assistance of counsel by not objecting at the penalty phase of a capital case to the defendant being shackled. The judges remanded the question of prejudice from Stephenson’s having to wear the stun belt at the penalty hearing to the District Court for further consideration.
 

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  1. Call it unauthorized law if you must, a regulatory wrong, but it was fraud and theft well beyond that, a seeming crime! "In three specific cases, the hearing officer found that Westerfield did little to no work for her clients but only issued a partial refund or no refund at all." That is theft by deception, folks. "In its decision to suspend Westerfield, the Supreme Court noted that she already had a long disciplinary history dating back to 1996 and had previously been suspended in 2004 and indefinitely suspended in 2005. She was reinstated in 2009 after finally giving the commission a response to the grievance for which she was suspended in 2004." WOW -- was the Indiana Supreme Court complicit in her fraud? Talk about being on notice of a real bad actor .... "Further, the justices noted that during her testimony, Westerfield was “disingenuous and evasive” about her relationship with Tope and attempted to distance herself from him. They also wrote that other aggravating factors existed in Westerfield’s case, such as her lack of remorse." WOW, and yet she only got 18 months on the bench, and if she shows up and cries for them in a year and a half, and pays money to JLAP for group therapy ... back in to ride roughshod over hapless clients (or are they "marks") once again! Aint Hoosier lawyering a great money making adventure!!! Just live for the bucks, even if filthy lucre, and come out a-ok. ME on the other hand??? Lifetime banishment for blowing the whistle on unconstitutional governance. Yes, had I ripped off clients or had ANY disciplinary history for doing that I would have fared better, most likely, as that it would have revealed me motivated by Mammon and not Faith. Check it out if you doubt my reading of this, compare and contrast the above 18 months with my lifetime banishment from court, see appendix for Bar Examiners report which the ISC adopted without substantive review: https://www.scribd.com/doc/299040839/2016Petitionforcert-to-SCOTUS

  2. Wow, over a quarter million dollars? That is a a lot of commissary money! Over what time frame? Years I would guess. Anyone ever try to blow the whistle? Probably not, since most Hoosiers who take notice of such things realize that Hoosier whistleblowers are almost always pilloried. If someone did blow the whistle, they were likely fired. The persecution of whistleblowers is a sure sign of far too much government corruption. Details of my own personal experience at the top of Hoosier governance available upon request ... maybe a "fake news" media outlet will have the courage to tell the stories of Hoosier whistleblowers that the "real" Hoosier media (cough) will not deign to touch. (They are part of the problem.)

  3. So if I am reading it right, only if and when African American college students agree to receive checks labeling them as "Negroes" do they receive aid from the UNCF or the Quaker's Educational Fund? In other words, to borrow from the Indiana Appellate Court, "the [nonprofit] supposed to be [their] advocate, refers to [students] in a racially offensive manner. While there is no evidence that [the nonprofits] intended harm to [African American students], the harm was nonetheless inflicted. [Black students are] presented to [academia and future employers] in a racially offensive manner. For these reasons, [such] performance [is] deficient and also prejudice[ial]." Maybe even DEPLORABLE???

  4. I'm the poor soul who spent over 10 years in prison with many many other prisoners trying to kill me for being charged with a sex offense THAT I DID NOT COMMIT i was in jail for a battery charge for helping a friend leave a boyfriend who beat her I've been saying for over 28 years that i did not and would never hurt a child like that mine or anybody's child but NOBODY wants to believe that i might not be guilty of this horrible crime or think that when i say that ALL the paperwork concerning my conviction has strangely DISAPPEARED or even when the long beach judge re-sentenced me over 14 months on a already filed plea bargain out of another districts court then had it filed under a fake name so i could not find while trying to fight my conviction on appeal in a nut shell people are ALWAYS quick to believe the worst about some one well I DID NOT HURT ANY CHILD EVER IN MY LIFE AND HAVE SAID THIS FOR ALMOST 30 YEARS please if anybody can me get some kind of justice it would be greatly appreciated respectfully written wrongly accused Brian Valenti

  5. A high ranking Indiana supreme Court operative caught red handed leading a group using the uber offensive N word! She must denounce or be denounced! (Or not since she is an insider ... rules do not apply to them). Evidence here: http://m.indianacompanies.us/friends-educational-fund-for-negroes.364110.company.v2#top_info

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