JOHN M. STEPHENSON, Petitioner-Appellee, υ. BILL WILSON, Superintendent of Indiana State Prison, Respondent-Appellant.
No. 09-2924
United States Court of Appeals For the Seventh Circuit
January 14, 2011
Appeal from the United States District Court for the Northern District of Indiana, South Bend Division. No. 3:07-CV-539-TS—Theresa L. Springmann, Judge.
ORDER
On July 23, 2010, petitioner-appellee filed a petition for rehearing with suggestion for rehearing en banc, and on November 8, 2010, respondent-appellant filed an answer
ROVNER, Circuit Judge, with whom WILLIAMS and HAMILTON, Circuit Judges, join, dissenting from the denial of rehearing en banc. The Supreme Court‘s jurisprudence makes clear that imposing a visible restraint on the accused is inherently prejudicial to his right to a fair trial. John M. Stephenson was required to wear a stun belt during the guilt phase of his capital trial without any inquiry by the judge as to whether such a restraint was justified nor any record that might have supported such a finding. Although the stun belt was no doubt intended to be a discreet restraint, the belt underneath Stephenson‘s clothes was, in fact, readily visible to the jury and anyone else in his purview. My colleagues have concluded that Stephenson has not shown that he was harmed by his attorney‘s unexplained failure to object to the stun belt and thus cannot demonstrate prej-
Physically restraining the accused in front of the jury has long been regarded as an unavoidably prejudicial act that is justified only in extraordinary circumstances. See Illinois v. Allen, 397 U.S. 337, 344, 90 S. Ct. 1057, 1061 (1970); Holbrook v. Flynn, 475 U.S. 560, 568, 106 S. Ct. 1340, 1345 (1986); Deck v. Missouri, 544 U.S. 622, 626-29, 125 S. Ct. 2007, 2010-12 (2005). A visible restraint bespeaks a belief on the part of the judiciary that the defendant must be physically separated from the community at large, including the jury. Id. at 630, 125 S. Ct. at 2013 (quoting Holbrook, 475 U.S. at 569, 106 S. Ct. at 1346). It communicates to the jury that the defendant is untrustworthy, out of control, likely to flee, menacing, bad. See Roche v. Davis, 291 F.3d 473, 482-83 (7th Cir. 2002) (“the sight of a defendant in shackles ‘could instill in the jury a belief that the defendant is a dangerous individual who cannot be controlled, an idea that could be devastating to his defense‘“) (quoting Harrell v. Israel, 672 F.2d 632, 637 (7th Cir. 1982) (per curiam)). As such, the restraint undermines the presumption that the defendant is innocent of the crime charged and poses an affront to the dignity of the courtroom proceeding. Deck, 544 U.S. at 630-32, 125 S. Ct. at 2013; Holbrook, 475 U.S. at 568, 106 S. Ct. at 1345; Allen, 397 U.S. at 344, 90 S. Ct. at 1061. To the extent it
Although the Supreme Court‘s cases on restraints have dealt with shackles rather than stun belts, there is no reason to think that the Court would treat a visible stun belt any differently from other types of visible restraints. However technologically removed a stun belt may be from its clanking predecessors, it serves the same incapacitating function and, if perceived by the jury, will be understood as the modern-day equivalent of manacles. A stun belt that is visible to the jury will thus communicate all of the same negative messages about the need to physically control the defendant and separate him from the community. This court and others have therefore presumed that a visible stun belt is as prejudicial to the defendant‘s due process rights as other visible restraints. See Wrinkles v. Buss, 537 F.3d 804, 814-15 (7th Cir. 2008) (majority); id. at 830-31 (dissent); United States v. Miller, 531 F.3d 340, 344-45 (6th Cir. 2008); Gonzalez v. Pliler, 341 F.3d 897, 900 (9th Cir. 2003); United States v. Durham, 287 F.3d 1297, 1306 (11th Cir. 2002); see also id. at 1305 (visible stun belt “‘may be even more prejudicial than handcuffs or leg irons because it implies that unique force is necessary to control the defendant‘“) (quoting State v. Flieger, 955 P.2d 872, 874 (Wash. Ct. App. 1998); Gonzalez, 341 F.3d at 900-01 (noting that stun belts may have more of a psychological impact on defendant than shackles and therefore may be more likely to interfere with his ability to participate in his defense). More to the point, the Indiana Supreme Court itself has deemed a stun belt to be equally prejudicial to the defendant. Stephenson v. State, 864 N.E.2d 1022, 1033 (Ind. 2007) (“The use of a stun belt, if perceived by the jury, produces all of the results that shackling does.“).1 We must defer to that conclusion so long as it represents a reasonable application of the Supreme Court‘s precedents on physical restraints, as it surely does.
Beginning with jury selection, Stephenson was required to wear a stun belt during both the guilt and penalty phases of his trial for murder in Indiana state court, without any finding that he posed a risk of escape, violence, or disruptive behavior that might justify such a physical restraint. Indeed, so far as the record reveals, no one thought that there was a need to restrain Stephenson
For his part, Stephenson‘s attorney (who himself had no concerns about Stephenson‘s behavior, see Postcon-
To the extent that the judge, the sheriff, and the parties assumed that the belt was not visible to the jury, they were wrong. Although Stephenson wore the belt underneath his clothing, it created a visible bulge underneath the back of his shirt. A videotape of local news coverage of the trial, admitted into evidence at the postconviction hearing, shows Stephenson being led from the courthouse to a waiting vehicle. Petitioner‘s Postconviction Ex. 45. I have collected several screenshots from that video in an appendix to this dissent. When Stephenson is observed from either the side or the rear, a bulge the size of a large fanny pack is clearly visible beneath his long-sleeve dress shirt. There is no dispute that, as a result of that bulge, some of the jurors became aware during the trial that Stephenson was wearing a stun belt. In the postconviction proceeding, Stephenson produced affidavits and
Had Stephenson‘s counsel preserved the issue by objecting to the stun belt at trial, the burden would have fallen to the State to prove beyond a reasonable doubt that the belt did not contribute to the jury‘s verdict. Id. at 635, 125 S. Ct. at 2015-16. Deck reiterates the Court‘s prior observation in Holbrook that visible restraints are “‘inherently prejudicial‘” to the defendant, such that, in a head-on challenge to such restraints, he need not submit proof establishing that the restraints harmed him in some demonstrable way. Id., 125 S. Ct. at 2015 (quoting Holbrook, 475 U.S. at 568, 106 S. Ct. at 1345).
That statement is rooted in our belief that the practice will often have negative effects, but—like “the consequences of compelling a defendant to wear prison clothing” or of forcing him to stand trial medicated—those effects “cannot be shown from a trial transcript.” Riggins [v. Nevada], supra, [504 U.S. 127,] at 137, 112 S. Ct. 1810 [at 1816 (1992)]. Thus, where a court, without adequate justification, orders the defendant to wear shackles that will be seen by the jury, the defendant need not demonstrate actual prejudice to make out a due process violation. . . .
Deck, 544 U.S. at 635, 125 S. Ct. at 2015.
But because Stephenson‘s trial counsel never challenged the need for a restraint, and thus did not preserve a freestanding due process claim, Stephenson has
There is no dispute that Stephenson has met the first of these two requirements. As the Indiana Supreme Court noted, “at the time of Stephenson‘s trial it was well-settled as a matter of both state law and the requirements of federal due process that no form of visible restraint was permissible without an individualized finding that the defendant presented a risk of escape, violence, or disruption of the trial.” 864 N.E.2d at 1032 (citing Deck, 544 U.S. at 626-27, 125 S. Ct. at 2011, and Coates v. State, 487 N.E.2d 167, 169 (Ind. Ct. App. 1985)). Thus, when the sheriff decided that Stephenson would be restrained while in the courtroom, without any indication that such a restraint was necessary, it was counsel‘s obligation to demand a hearing as to the need for such a restraint. Instead, counsel acquiesced in the presumption that some form of restraint was warranted, content that a stun belt would be used in lieu of shackles because a stun belt was less likely to be noticed by the jury.
The Indiana Supreme Court did not quarrel with counsel‘s preference for a stun belt over shackles, but it
The remaining question is whether Stephenson was prejudiced by his counsel‘s ineffectiveness, and on this point the Indiana Supreme Court‘s truncated analysis is indefensible. Notwithstanding the court‘s conclusion that counsel was obliged to object to the stun belt given the lack of evidence warranting a restraint, the court went on to reason that the failure to pose such an objection caused Stephenson no harm because the trial judge inevitably would have overruled such an objection. 864 N.E.2d at 1040-41. The court noted that Stephenson was accused of committing a triple murder that had the hallmarks of a premeditated assassination related to narcotics trafficking. Id. Moreover, according to the witness who
The flaw in this reasoning is patent: the same lack of evidence that obliged counsel to object to a restraint would have compelled the trial judge to sustain counsel‘s objection. In applying Strickland‘s prejudice prong to an attorney‘s failure to lodge an objection, we must presume that the trial judge would have correctly applied the law in ruling on that objection. 466 U.S. at 694-95, 104 S. Ct. at 2068. “The assessment of prejudice should proceed on the assumption that the decisionmaker is reasonably, conscientiously, and impartially applying the standards that govern the decision.” Id. at 695, 104 S. Ct. at 2068. The trial judge thus could have overruled an objection and ordered that Stephenson be restrained only if there were evidence particular to Stephenson‘s trial supporting such a measure. See Deck, 544 U.S. at 626-29, 125 S. Ct. at 2010-12 (summarizing well-established case law requiring such evidence). Although the trial judge had never had occasion to inquire into the need for a restraint (given the lack of an objection), that subject was aired in the postconviction proceeding, where none of the five officials responsible for security at Stephenson‘s trial articulated a basis for concern that Stephenson posed a risk
All that the Indiana Supreme Court could cite in support of the notion that some form of restraint was justified were the circumstances of the charged offense: the three murders, committed in a premeditated fashion, with a contemporaneous threat to a witness to remain silent or else. Of course, capital offenses by their very nature will nearly always involve the most violent and disturbing of criminal acts. If the nature of the offense were alone enough to support visible restraints, then such restraints would be routine in capital cases. In fact, as the panel pointed out, “[t]he cases . . . hold that the nature of the crime with which a defendant is charged, however heinous, is insufficient by itself to justify visible restraints.” 619 F.3d at 668 (coll. cases); cf. Deck, 544 U.S. at 632-35, 125 S. Ct. at 2014-16 (finding restraints unjustified in penalty phase of prosecution for double murder of an elderly couple committed in course of robbery, even after finding of defendant‘s guilt had been secured and affirmed on appeal). The state court was thus wrong, and plainly so, in reasoning that because the trial judge would have overruled an objection to the stun belt (or other visible restraint), Stephenson was not prejudiced by his attorney‘s failure to object.
Stephenson must demonstrate a reasonable probability that, but for his counsel‘s deficient performance, the outcome of the trial might have been different. Strickland, 466 U.S. at 694, 104 S. Ct. at 2068. Both the nature of the unobjected-to error and the weight of the evidence are key considerations in this inquiry. Id. at 695-96, 104 S. Ct. at 2069. Stephenson need not show that a different outcome was more likely than not; he need only show that the likelihood of a different outcome was better than negligible. See id. at 693, 104 S. Ct. at 2068; Gross v. Knight, 560 F.3d 668, 671 (7th Cir.), cert. denied, 130 S. Ct. 402 (2009).
Although the panel recognized that the evidence against Stephenson was not overwhelming, 619 F.3d at 673, it found no evidence demonstrating that the stun belt contributed to the jury‘s finding of guilt. The panel
I submit that the panel‘s analysis starts off on the wrong foot in that it fails to acknowledge the inherent prejudice of a visible restraint. Yes, it is Stephenson who bears the burden under Strickland to establish a reasonable likelihood that, but for his attorney‘s failure to object to the stun belt, he might have been acquitted. 466 U.S. at 687, 693-94, 104 S. Ct. at 2064, 2067-68. By contrast, had his attorney objected to the belt and had Stephenson mounted a freestanding challenge to the belt on review of his conviction, the burden instead would have fallen to the State to prove beyond a reasonable doubt that the belt had no effect on the conviction. Deck, 544 U.S. at 635, 125 S. Ct. at 2015-16. But simply because Strickland assigns the burden of persuasion to Stephenson does not cause the inherently prejudicial nature of a visible restraint to evaporate. Visible restraints have been deemed “a last
The panel‘s reasons for discounting the possibility that the jury‘s verdict was affected by the stun belt are in tension with the Supreme Court‘s visible-restraint jurisprudence. For example, the panel assumed that the likely alternative to the stun belt—more guards in the courtroom—might also have prejudiced Stephenson. 619 F.3d at 672. Yet, the Court in Holbrook expressly held that guards are not inherently prejudicial to the defendant in the way that visible restraints are: “While shackling and prison clothes are unmistakable indications of the need to separate a defendant from the community at large, the presence of guards at a defendant‘s trial need not be interpreted as a sign that he is particularly dangerous or culpable.” 475 U.S. at 569, 106 S. Ct. at 1346.
Second, however vigorous a defense Stephenson‘s counsel may have mounted on his behalf, it is impossible to say whether that defense compensated for a restraint that “undermines the presumption of innocence and the related fairness of the factfinding process.” Deck, 544 U.S. at 630, 125 S. Ct. at 2013. To my mind, the fact that the
Finally, although the juror affidavits reveal nothing about the impact of the visible stun belt on the jury‘s perceptions of Stephenson, such proof is unnecessary. “Whenever a courtroom arrangement is challenged as inherently prejudicial, . . . the question must be not whether jurors actually articulated a consciousness of some prejudicial effect, but rather whether ‘an unacceptable risk is presented of impermissible factors coming into play.‘” Holbrook, 475 U.S. at 570, 106 S. Ct. at 1346-47 (quoting Estelle v. Williams, 425 U.S. 501, 505, 96 S. Ct. 1691, 1693 (1976)). Indeed, the Court in Holbrook found that the lower court had properly disregarded the trial judge‘s finding, based on the questionnaires completed by prospective jurors during voir dire, that the jury was likely unaffected by the presence of uniformed troopers at the defendant‘s trial. “[L]ittle stock need be placed in jurors’ claims” that they would not be influenced by a practice challenged as inherently prejudicial, the Court observed. Id. at 570, 106 S. Ct. at 1346. (As noted, however, the Court went on to conclude that the presence of troopers was not, in fact, inherently prejudicial to the defendant as claimed.) Similarly, we cannot expect jurors who have already found the defendant guilty and recommended that he be sentenced to death to objectively assess whether and to what degree their delibera-
The panel also remarked on the lack of careful empirical studies exploring the effects of visible stun belts and other restraints on jury deliberations. 619 F.3d at 673. Of course, Stephenson cannot be faulted for what social scientists have not yet documented. In the absence of such studies, we must “rely on our own experience and common sense,” Holbrook, 475 U.S. at 571 n.4, 106 S. Ct. at 1347 n.4, which tell us that a visible restraint conveys a distinctly negative message about the defendant to the jury. Any doubts on that score are resolved by the Supreme Court‘s decisions recognizing the prejudice inherent in visible restraints.
Stephenson is entitled to a new trial, as Judge Springmann concluded. On this record, which reflects a total absence of case-specific evidence demonstrating a need for Stephenson to be restrained in the courtroom, there can be no dispute that being made to wear a readily-visible stun belt deprived Stephenson of due process. As the Indiana Supreme Court found, the failure of Stephenson‘s trial counsel to object to the restraint was unsupported by any valid strategic reason and instead is explained solely by counsel‘s ignorance of the case law prohibiting visible restraints except in extraordinary circumstances. A single failing by one‘s counsel will support relief under Strickland when the error is both egregious and harmful to the defendant, Murray v. Carrier, supra, 477 U.S. at 496, 106 S. Ct. at 2649, as it was here. The inherently prejudicial nature of visible restraints,
The court has remanded this case to the district court for further proceedings, and there remains the possibility that the district judge might grant Stephenson relief as to the penalty phase of the trial, during which he also wore the stun belt. 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. The proper course would be for this court to affirm the district court‘s decision.
I respectfully dissent.