After habeas win, man convicted in IU student’s murder to be freed pending appeal

The man convicted nearly 15 years ago in the killing of Indiana University student Jill Behrman will be released from custody later this month after the same judge who granted his request for habeas relief last year also granted his bid for coronavirus-related release.

Indiana Southern District Judge James R. Sweeney granted John Myers’ motion for release pending appeal Friday in John Myers v. Superintendent, 1:16-cv-02023.  Sweeney ordered that Myers be placed in quarantine for 14 days beginning no later than Monday and continuing until his release at noon CT on June 15, when he will begin living with his mother in Ellettsville.

Last September, Sweeney granted Myers’ request for habeas relief on ineffective assistance of counsel grounds. The federal judge held that the Indiana Court of Appeals had improperly evaluated Myers’ prejudice allegations in previously denying his appeals, and he ruled that Myers be released from the Indiana State Prison if the state did not retry him within 120 days.

The appeal of Sweeney’s order went before the 7th Circuit Court of Appeals on May 26. Meanwhile, the district court judge granted the state’s motion to stay his decision pending appeal.

Myers did not oppose the motion to stay, but on April 7 he filed a motion to reconsider.

“Mr. Myers suffers from psoriasis and is prescribed Methotrexate to treat it,” Sweeney wrote in his Friday order. “He argues that the medication suppresses his immune system making him more vulnerable to complications from Covid-19 and that the current pandemic warrants reconsideration of the Court’s prior Order. He requests release pending his appeal.”

Ron Neal, sued in his capacity as superintendent of the Indiana State Prison, opposed Myers’ motion on procedural grounds and on the merits. Each of his arguments, however, was unsuccessful.

Procedurally, the superintendent first claimed the district court lacked authority to modify its prior custody order while the case is on appeal. In rejecting that argument, Sweeney pointed to caselaw from other circuits, as well as from the Eastern District of Wisconsin within the 7th Circuit, that supports his authority to decide Myers’ motion.

Sweeney also rejected the warden’s argument that Myers waived any noncoronavirus arguments by not opposing the motion to stay.

“The Covid-19 pandemic is a compelling reason — one both unforeseen and unforeseeable by Mr. Myers … — to reconsider Mr. Myers’s custody at this time,” the judge wrote.

Turning to the merits, Sweeney evaluated Myers’ motion under Hilton v. Braunskill, 481 U.S. 770, 777 (1987).

Under the first Hilton factor, likelihood of success on the merits, the judge rejected the warden’s argument that there is no clearly established “cumulative-error doctrine,” which Sweeney used to evaluate Myers’ habeas argument. “The Seventh Circuit has repeatedly held that the prejudice resulting from multiple instances of deficient performance must be considered together,” the judge wrote.

Additionally, the warden’s “assertion that the State is likely to convict Mr. Myers in a retrial is speculative at best,” the judge said, pointing to the “far from overwhelming” evidence discussed in his habeas decision.

The warden “provided no evidence that Mr. Myers has a criminal record apart from the vacated conviction or that he has been violent in prison,” Sweeney continued in rejecting the next Hilton factor, irreparable harm to the state. There is likewise no evidence that Myers is a flight risk, the judge wrote.

The COVID-19 pandemic was most relevant to Sweeney’s analysis of potential substantial harm to Myers. There is no clear indication that Myers would be safer from the virus in prison or in the community, Sweeney said, but “it is generally understood that prisons are less equipped to meet Centers for Disease Control & Prevention guidelines to prevent the spread of infection than individuals living in a home environment.”

“… (T)he Court concludes that Mr. Myers has a substantial interest in release pending appeal of the grant of his habeas petition,” Sweeney ruled. “Although the Court lacks sufficient information to quantify with much specificity the impact of Covid-19 on Mr. Myers’s interest in release, it is sufficient to say that the existence of the disease in his prison facility and his use of Methotrexate heighten his already substantial interest in release.”

Finally, the district court determined there was no independent evidence that Myers poses a “particular danger” to the community, aside from his conviction.

“There is a presumption that successful habeas petitioners should be released while the respondent appeals that decision,” Sweeney concluded. “The respondent has failed to rebut that presumption. … Therefore, Mr. Myers’s motion is granted to the extent the Court orders his conditional release from the custody of the respondent.”

Under the terms of his release, Myers will remain under the supervision of the United States Probation Office for the Southern District of Indiana. Once he is released following his 14-day quarantine, he must check in with the probation office by noon CT on June 18.

Other conditions of Myers’ release include his agreement not to leave his house except for medical appointments or other probation-sanctioned reasons, not to commit any crimes, and not to use or possess controlled substance or firearms, among other requirements. He will remain under electronic monitoring and must follow social distancing guidelines as necessary.

Myers is represented by Chicago attorneys Faaris Akremi and Clifford W. Berlow of Jenner & Block LLP and Marie F. Donnelly, listed on the Indiana Roll of Attorneys as a suspended lawyer with the Office of the State Appellate Defender in Chicago. The warden is represented by the Indiana Office of the Attorney General.

Sweeney also ordered Myers not to have any contact with Behrman’s family. An accomplished cyclist, Behrman went missing May 31, 2000, and was found three years later. Myers was convicted of her murder in 2006.

Behrman’s brother, Brian, responded to the order for Myers’ release in a Friday Facebook post, saying Jill’s voice has never been heard throughout the criminal proceedings.

“Because of the way our system works, nobody from our family was able to speak for Jill,” Behrman wrote.

“I’m not going to lie. The case was circumstantial. There was no DNA. There was no murder weapon,” he said. “But there was a wide variety of evidence that led a jury of 12 peers to find (Myers) guilty. Once against, our system silences victims. It silences those who care for those who are lost.

“My sister didn’t get to be present for my wedding. My children will never know their Aunt Jill’s voice or laugh. And the system doesn’t allow anyone to speak for her at this time.”

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