Stephenson v. Wilson

• Decision Date: 26 August 2010
• Docket Number: No. 09-2924.,09-2924.
• Parties: John M. STEPHENSON, Petitioner-Appellee, v. Bill WILSON, Superintendent of Indiana State Prison, Respondent-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

619 F.3d 664

John M. STEPHENSON, Petitioner-Appellee,

v.Bill WILSON, Superintendent of Indiana State Prison, Respondent-Appellant.

No. 09-2924.

United States Court of Appeals,Seventh Circuit.

Argued July 15, 2010.

Decided Aug. 26, 2010.

Marie F. Donnelly, Attorney (argued), Chicago, IL, Alan M. Freedman, Attorney, Midwest Center for Justice, Ltd., Evanston, IL, for Petitioner-Appellee.

Kelly A. Miklos, Attorney (argued), Office of the Attorney General, Indianapolis, IN, for Respondent-Appellant.

Before BAUER, POSNER, and TINDER, Circuit Judges.

POSNER, Circuit Judge.

In 1997 a jury in an Indiana state court convicted petitioner Stephenson of three murders. The judge sentenced him to death. After exhausting his state remedies, see Stephenson v. State, 742 N.E.2d 463 (Ind.2001) (affirming his conviction and sentence), and 864 N.E.2d 1022 (Ind.2007) (affirming denial of post-conviction relief), he sought a writ of federal habeas corpus. The district judge ruled that he had been denied effective assistance of counsel during both the guilt and penalty phases of the trial (and so she vacated both the conviction and the sentence), because his counsel had failed to object to the state's making him wear a stun belt in the courtroom. In affidavits and a deposition introduced in the state postconviction proceedings, four jurors said they were aware that he was wearing a stun belt.

Stephenson argued other grounds for relief as well, but the district judge didn't rule on any of them. That may have been a mistake, considering how protracted capital cases are. It means that if we reject the ground on which the court did rule, we must reverse and remand for consideration of the other grounds, while if those grounds for relief had been before us we might have agreed with one of them and thereby spared the parties a further proceeding in the district court, possibly followed by a further appeal.

One of those grounds, moreover, was that Stephenson's counsel had rendered ineffective assistance at the penalty phase of his trial by failing to obtain and present mitigating evidence; had the judge addressed that ground, we would have a better sense of counsel's performance as a whole. In Williams v. Lemmon, 557 F.3d 534, 538 (7th Cir.2009) (per curiam), we answered the “question ... whether single oversights by counsel violate the sixth amendment ... no. The Supreme Court insists that judges must not examine a lawyer's error (of omission or commission) in isolation. See, e.g., Strickland [ v. Washington ], 466 U.S. [668], 690-96, 104 S.Ct. 2052, 80 L.Ed.2d 674 [ (1984) ]. It is essential to evaluate the entire course of the defense, because the question is not whether the lawyer's work was error-free, or the best possible approach, or even an average one, but whether the defendant had the ‘counsel’ of which the sixth amendment speaks.” But Williams goes on to explain that of course the Supreme Court “has allowed for the possibility that a single error may suffice ‘if that error is sufficiently egregious and prejudicial,’ Murray v. Carrier, 477 U.S. 478, 496, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986),” as contended in this case.

It was Stephenson who requested that the district judge review the stun belt claim separately from his other claims for relief. He may have been playing a delay game (common enough in capital cases, for obvious reasons); the judge was not required to join him in his play.

The Indiana Supreme Court had ruled in Stephenson's state 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,” 864 N.E.2d at 1035, but that if Stephenson's lawyer had objected, the objection would have been overruled. And rightly so, the court thought, because “these three murders were contended by both the defendant and the prosecution to have been related to organized drug activity. The murders appeared to have been premeditated and had characteristics of an assassination. There was testimony that the defendant had threatened to kill a critical witness.” Id. at 1040-41.

It's not easy to reconcile the two crucial statements that we have just quoted. If the objection to the stun belt would rightly have been overruled, how could a failure to make the objection be thought unprofessional? See, e.g., Rodriguez v. United States, 286 F.3d 972, 983-85 (7th Cir.2002); Hough v. Anderson, 272 F.3d 878, 898 and n. 8 (7th Cir.2001); United States v. Sanders, 404 F.3d 980, 986 (6th Cir.2005); Koch v. Puckett, 907 F.2d 524, 527 (5th Cir.1990). Overlooking the contradiction, the state doesn't challenge the ruling that competent counsel would have objected to Stephenson's being required to wear a stun belt.

Stephenson had turned himself in after hearing that the police were looking for him in connection with the murders, and he had been a model prisoner ever since-a period of six months before the trial. Although the sheriff said that the stun belt had been chosen as the best way to get Stephenson in and out of the courtroom without the jury seeing him in shackles or handcuffs, he could have been brought in before the jury entered and taken out after the jury left, and then no physical restraint would have been visible to the jurors. None of the security personnel explained why any physical restraint (as distinct from just the normal complement of armed guards) would have been necessary once the defendant was seated at the defense table. Apart from the murders themselves, the fact that they had grown out of a dispute among drug dealers, the capital nature of the case, and the state's contention that after the murders Stephenson had threatened a possible accomplice with death if he spilled the beans-the factors mentioned by the Indiana Supreme Court in ruling that an objection to the stun belt would rightly have been overruled-there was no reason to think that the defendant would have been likely to try to flee the courtroom or cause any other disturbance during the trial.

The factors relied on by the court to uphold the use of the stun belt were insufficient in light of the case law both then and now. Well before 1996, when Stephenson's trial began, the U.S. Supreme Court had said that shackling was “the sort of inherently prejudicial practice” that “should be permitted only where justified by an essential state interest specific to each trial.” Holbrook v. Flynn, 475 U.S. 560, 568-69, 106 S.Ct. 1340, 89 L.Ed.2d 525 (1986) (emphasis added); cf. Estelle v. Williams, 425 U.S. 501, 503-06, 96 S.Ct. 1691, 48 L.Ed.2d 126 (1976) (defendant in prison garb); Illinois v. Allen, 397 U.S. 337, 344, 90 S.Ct. 1057, 25 L.Ed.2d 353 (1970) (defendant shackled and gagged). But Stephenson doesn't argue that extending the Holbrook dictum, and the holding of the other two Supreme Court cases that we've just cited, to stun belts was “clearly established Federal law, as determined by the Supreme Court of the United States,” 28 U.S.C. § 2254(d)(1) (emphasis added), in 1996 and therefore a ground for obtaining relief in a federal habeas corpus proceeding. Gagging is a lot more extreme than a stun belt, and forcing a defendant to wear prison garb serves no security interest, though once in a while a defendant will prefer to appear in court to prison garb to reassure the jurors that they are safe from him, to evoke their sympathy, or out of sheer obstreperousness. Stephenson's argument is that the use of the stun belt was sufficiently questionable that, as federal and state law then stood, an objection to his being forced to wear it during his trial without a showing that he presented a security risk would, or at least should, have been granted, and so counsel was deficient in failing to make the objection.

The “clearly established Federal law, as determined by the Supreme Court of the United States,” that is relevant to this case is thus not that forcing a defendant to wear a stun belt deprives him of his constitutional right to a fair trial unless necessity for a physical restraint be shown. It could be argued that, read together, Holbrook, Estelle, and Allen had by 1996 established a rule determined by the Supreme Court (and therefore a ground of federal habeas corpus) against unnecessary visible restraints that was broad enough to include the stun belt. But that is not the principle that Stephenson invokes. He can't, because his counsel failed to invoke it in objecting to the stun belt at trial-counsel made no objection on any ground to Stephenson's having to wear a stun belt-and didn't try to raise the issue on direct appeal. The principle Stephenson invokes is that of Strickland v. Washington, supra, 466 U.S. at 686-87, 104 S.Ct. 2052, entitling criminal defendants to effective assistance of counsel.

By 1996, as Deck v. Missouri, 544 U.S. 622, 626-29, 125 S.Ct. 2007, 161 L.Ed.2d 953 (2005), and cases cited there make clear, the law was well settled, though perhaps not in the U.S. Supreme Court, that placing any kind of visible restraint on a defendant's movement during a criminal trial was permissible only if the particular defendant was too dangerous to be allowed in the courtroom without such a restraint-that is, only if less conspicuous security measures, such as seating one or two guards near but not too near the defendant, would be insufficient to ensure the safety of the persons in the courtroom and prevent the defendant from escaping. See United States v. Fountain, 768 F.2d 790, 794 (7th Cir.1985); Harrell v. Israel 672 F.2d 632, 635 (7th Cir.1982) (per curiam); Marquez v. Collins, 11 F.3d 1241, 1243-44 (5th Cir.1994); United States v. Hack, 782 F.2d 862, 867 (10th Cir.1986); Evans v. State, 571 N.E.2d 1231, 1238 (Ind.1991); Coates v. State, 487 N.E.2d 167, 168-69 (Ind.App.1985), overruled on other grounds by Hahn v. State, 533 N.E.2d 618 (Ind.App.1989). These decisions were based primarily on a...