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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. I have been on this program while on parole from 2011-2013. No person should be forced mentally to share private details of their personal life with total strangers. Also giving permission for a mental therapist to report to your parole agent that your not participating in group therapy because you don't have the financial mean to be in the group therapy. I was personally singled out and sent back three times for not having money and also sent back within the six month when you aren't to be sent according to state law. I will work to het this INSOMM's removed from this state. I also had twelve or thirteen parole agents with a fifteen month period. Thanks for your time.

  2. Our nation produces very few jurists of the caliber of Justice DOUGLAS and his peers these days. Here is that great civil libertarian, who recognized government as both a blessing and, when corrupted by ideological interests, a curse: "Once the investigator has only the conscience of government as a guide, the conscience can become ‘ravenous,’ as Cromwell, bent on destroying Thomas More, said in Bolt, A Man For All Seasons (1960), p. 120. The First Amendment mirrors many episodes where men, harried and harassed by government, sought refuge in their conscience, as these lines of Thomas More show: ‘MORE: And when we stand before God, and you are sent to Paradise for doing according to your conscience, *575 and I am damned for not doing according to mine, will you come with me, for fellowship? ‘CRANMER: So those of us whose names are there are damned, Sir Thomas? ‘MORE: I don't know, Your Grace. I have no window to look into another man's conscience. I condemn no one. ‘CRANMER: Then the matter is capable of question? ‘MORE: Certainly. ‘CRANMER: But that you owe obedience to your King is not capable of question. So weigh a doubt against a certainty—and sign. ‘MORE: Some men think the Earth is round, others think it flat; it is a matter capable of question. But if it is flat, will the King's command make it round? And if it is round, will the King's command flatten it? No, I will not sign.’ Id., pp. 132—133. DOUGLAS THEN WROTE: Where government is the Big Brother,11 privacy gives way to surveillance. **909 But our commitment is otherwise. *576 By the First Amendment we have staked our security on freedom to promote a multiplicity of ideas, to associate at will with kindred spirits, and to defy governmental intrusion into these precincts" Gibson v. Florida Legislative Investigation Comm., 372 U.S. 539, 574-76, 83 S. Ct. 889, 908-09, 9 L. Ed. 2d 929 (1963) Mr. Justice DOUGLAS, concurring. I write: Happy Memorial Day to all -- God please bless our fallen who lived and died to preserve constitutional governance in our wonderful series of Republics. And God open the eyes of those government officials who denounce the constitutions of these Republics by arbitrary actions arising out capricious motives.

  3. From back in the day before secularism got a stranglehold on Hoosier jurists comes this great excerpt via Indiana federal court judge Allan Sharp, dedicated to those many Indiana government attorneys (with whom I have dealt) who count the law as a mere tool, an optional tool that is not to be used when political correctness compels a more acceptable result than merely following the path that the law directs: ALLEN SHARP, District Judge. I. In a scene following a visit by Henry VIII to the home of Sir Thomas More, playwriter Robert Bolt puts the following words into the mouths of his characters: Margaret: Father, that man's bad. MORE: There is no law against that. ROPER: There is! God's law! MORE: Then God can arrest him. ROPER: Sophistication upon sophistication! MORE: No, sheer simplicity. The law, Roper, the law. I know what's legal not what's right. And I'll stick to what's legal. ROPER: Then you set man's law above God's! MORE: No, far below; but let me draw your attention to a fact I'm not God. The currents and eddies of right and wrong, which you find such plain sailing, I can't navigate. I'm no voyager. But in the thickets of law, oh, there I'm a forester. I doubt if there's a man alive who could follow me there, thank God... ALICE: (Exasperated, pointing after Rich) While you talk, he's gone! MORE: And go he should, if he was the Devil himself, until he broke the law! ROPER: So now you'd give the Devil benefit of law! MORE: Yes. What would you do? Cut a great road through the law to get after the Devil? ROPER: I'd cut down every law in England to do that! MORE: (Roused and excited) Oh? (Advances on Roper) And when the last law was down, and the Devil turned round on you where would you hide, Roper, the laws being flat? (He leaves *1257 him) This country's planted thick with laws from coast to coast man's laws, not God's and if you cut them down and you're just the man to do it d'you really think you would stand upright in the winds that would blow then? (Quietly) Yes, I'd give the Devil benefit of law, for my own safety's sake. ROPER: I have long suspected this; this is the golden calf; the law's your god. MORE: (Wearily) Oh, Roper, you're a fool, God's my god... (Rather bitterly) But I find him rather too (Very bitterly) subtle... I don't know where he is nor what he wants. ROPER: My God wants service, to the end and unremitting; nothing else! MORE: (Dryly) Are you sure that's God! He sounds like Moloch. But indeed it may be God And whoever hunts for me, Roper, God or Devil, will find me hiding in the thickets of the law! And I'll hide my daughter with me! Not hoist her up the mainmast of your seagoing principles! They put about too nimbly! (Exit More. They all look after him). Pgs. 65-67, A MAN FOR ALL SEASONS A Play in Two Acts, Robert Bolt, Random House, New York, 1960. Linley E. Pearson, Atty. Gen. of Indiana, Indianapolis, for defendants. Childs v. Duckworth, 509 F. Supp. 1254, 1256 (N.D. Ind. 1981) aff'd, 705 F.2d 915 (7th Cir. 1983)

  4. "Meanwhile small- and mid-size firms are getting squeezed and likely will not survive unless they become a boutique firm." I've been a business attorney in small, and now mid-size firm for over 30 years, and for over 30 years legal consultants have been preaching this exact same mantra of impending doom for small and mid-sized firms -- verbatim. This claim apparently helps them gin up merger opportunities from smaller firms who become convinced that they need to become larger overnight. The claim that large corporations are interested in cost-saving and efficiency has likewise been preached for decades, and is likewise bunk. If large corporations had any real interest in saving money they wouldn't use large law firms whose rates are substantially higher than those of high-quality mid-sized firms.

  5. The family is the foundation of all human government. That is the Grand Design. Modern governments throw off this Design and make bureaucratic war against the family, as does Hollywood and cultural elitists such as third wave feminists. Since WWII we have been on a ship of fools that way, with both the elite and government and their social engineering hacks relentlessly attacking the very foundation of social order. And their success? See it in the streets of Fergusson, on the food stamp doles (mostly broken families)and in the above article. Reject the Grand Design for true social function, enter the Glorious State to manage social dysfunction. Our Brave New World will be a prison camp, and we will welcome it as the only way to manage given the anarchy without it.

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