In the
United States Court of Appeals
For the Seventh Circuit
No. 09-2924
JOHN M. S TEPHENSON,
Petitioner-Appellee,
v.
B ILL W ILSON, Superintendent of
Indiana State Prison,
Respondent-Appellant.
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.
A RGUED JULY 15, 2010—D ECIDED A UGUST 26, 2010
Before B AUER, P OSNER, and T INDER, Circuit Judges.
P OSNER, Circuit Judge. In 1997 a jury in an Indiana
state court convicted petitioner Stephenson of three
murders. The judge sentenced him to death. After ex-
hausting 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
2 No. 09-2924
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), be-
cause his counsel had failed to object to the state’s
making him wear a stun belt in the courtroom. In affi-
davits and a deposition introduced in the state post-
conviction 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 fol-
lowed by a further appeal.
One of those grounds, moreover, was that Stephenson’s
counsel had rendered ineffective assistance at the pen-
alty 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 per-
formance 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. Wash-
No. 09-2924 3
ington], 466 U.S. [668], 690-96 [(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 (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 con-
tended 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 wit-
ness.” Id. at 1040-41.
4 No. 09-2924
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 re-
straint (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 mur-
ders Stephenson had threatened a possible accomplice
with death if he spilled the beans—the factors mentioned
No. 09-2924 5
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 (1986) (emphasis added); cf.
Estelle v. Williams, 425 U.S. 501, 503-06 (1976) (defendant
in prison garb); Illinois v. Allen, 397 U.S. 337, 344 (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
6 No. 09-2924
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 deter-
mined by the Supreme Court (and therefore a ground of
federal habeas corpus) against unnecessary visible re-
straints 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, entitling
criminal defendants to effective assistance of counsel.
By 1996, as Deck v. Missouri, 544 U.S. 622, 626-29 (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 defen-
dant’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
No. 09-2924 7
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 concern, which continues
to be expressed, see Deck v. Missouri, supra, 544 U.S. at 626-
29; United States v. Cooper, 591 F.3d 582, 587-88 (7th Cir.
2010); Gardner v. Galetka, 568 F.3d 862, 890-91 (10th Cir.
2009); Hatten v. Quarterman, 570 F.3d 595, 603 (5th Cir.
2009), that jurors might infer from a visible restraint
that the defendant was especially dangerous. That might
lead them to prejudge his guilt, particularly in a trial
for violent crimes—and an inference of guilt derived
from a gratuitous visible restraint would infringe his
constitutional right to a fair trial.
The Indiana Supreme Court seems to have thought
that the requirement of evidence of a security threat
specific to the defendant rather than to the crime could
be relaxed when a defendant is on trial for multiple
murders and the prosecution is seeking the death pen-
alty. But that would produce the paradox that capital
defendants would have less protection from the preju-
dice that visible restraints might induce in jurors than
persons convicted of lesser crimes and facing milder
8 No. 09-2924
punishment. The cases thus hold that the nature of the
crime with which a defendant is charged, however hei-
nous, is insufficient by itself to justify visible restraints.
See Deck v. Missouri, supra, 544 U.S. at 634-35; Wrinkles
v. Buss, 537 F.3d 804, 807-08, 813-15 (7th Cir. 2008); Cox v.
Ayers, 2010 WL 2853764, at *2, *5 (9th Cir. July 22, 2010);
Lakin v. Stine, 431 F.3d 959, 965 (6th Cir. 2005).
Even when a visible restraint is warranted by the de-
fendant’s history of escape attempts or disruption of
previous court proceedings, as in Williams v. Norris, 2010
WL 2772676, at *11-13 (8th Cir. July 15, 2010); United
States v. Honken, 541 F.3d 1146, 1162-64 (8th Cir. 2008), and
Bigby v. Dretke, 402 F.3d 551, 573 (5th Cir. 2005), it must
be the least visible secure restraint, such as, it is often
suggested, leg shackles made invisible to the jury by a
curtain at the defense table. See United States v. Brooks,
125 F.3d 484, 502 (7th Cir. 1997); United States v. Brazel, 102
F.3d 1120, 1157-58 (11th Cir. 1997); cf. Lemons v. Skidmore,
985 F.2d 354, 358-59 (7th Cir. 1993). (There should of
course be a curtain at the prosecution table as well, lest
the jury quickly tumble to the purpose of the curtain at
the defense table.)
But while curtained leg shackles might seem less con-
spicuous than a stun belt, actually this is unclear and
underlines the difficulty of reconciling the interest in
courtroom security with the interest in a fair trial for the
defendant, and casts doubt on the ruling of the Indiana
Supreme Court that Stephenson’s counsel should have
objected to the stun belt. The clanking of leg chains
is audible, and even without hearing it jurors may guess
No. 09-2924 9
what the curtain is for. And when there is a sidebar in
a criminal trial the defendant is entitled to participate,
and if his legs are shackled there is no way he can join
the sidebar without revealing his shackling to the jury.
So the jury would have to be sent out of the courtroom
every time there was a sidebar, which would slow down
the trial and might irritate the jurors. The problem
would be particularly acute in older courthouses that do
not have good facilities for jurors. We have been told
nothing about the size or floor plan of the Indiana
state courthouse in which Stephenson was tried.
The stun belt is of course inaudible, and worn under
the defendant’s shirt is visible only as a slight bulge at
his back and thus does not reveal its purpose. But we
know from juror affidavits solicited by Stephenson’s post-
conviction counsel that one juror guessed that he was
wearing a stun belt because the juror had seen a stun belt
in a television show, and another juror inferred it from
the bulge at Stephenson’s back and the absence of hand-
cuffs; he apparently thought that Stephenson had to be
physically restrained in some way. One of these jurors
may have reported their discoveries to the other two
jurors whose affidavits state that they thought the defen-
dant was wearing a stun belt; but this is speculation.
So the stun belt is not the perfect solution to the secu-
rity/fair trial dilemma but neither, as we said, are leg
shackles, or a crowd of armed guards. This court has said
that the stun belt is a method of restraint that minimizes
the risk of prejudice, United States v. Brooks, supra, 125
F.3d at 502; Stevens v. McBride, 489 F.3d 883, 899 (7th Cir.
10 No. 09-2924
2007), though several years after the trial in this case the
Indiana Supreme Court disapproved its use. Wrinkles v.
State, 749 N.E.2d 1179, 1194-95 (Ind. 2001). Guards
remain the preferred alternative to any physical restraint,
Holbrook v. Flynn, supra, 475 U.S. at 568-69; Lakin v. Stine,
supra, 431 F.3d at 964; Hellum v. Warden, 28 F.3d 903,
908 (8th Cir. 1994), but too many guards can create the
same impression of a dangerous defendant as a physical
restraint.
Not knowing the size or shape of the courtroom in
which Stephenson was tried, we find it difficult to
place ourselves in the position of his counsel in deciding
whether to object to the stun belt. Counsel might have
considered it superior to leg shackles; and as for addi-
tional guards, a lot would depend on the size of the
courtroom: the smaller it is, the more that additional
guards would create an impression that the defendant
was dangerous. If a defendant’s lawyer went for broke
and objected to any security beyond what would be
required in a prosecution for kiting checks, he might be
disserving his client by making the jury nervous to be
confronting an accused triple murderer with no protec-
tion against his acting up. The lawyer might even be
afraid of his client.
Yet apart from the nature of the defendant’s crime, the
only justification suggested by the Indiana Supreme
Court for the stun belt was Stephenson’s having threat-
ened to kill a prospective witness. But the prospective
witness was a possible accomplice, told by Stephenson
(naturally enough—if he was the murderer!) to shut up
No. 09-2924 11
about the crime, and the threat was made before he
turned himself in. That is different from a threat uttered
in the course of a legal proceeding, a verbal act that the
judge might fear would presage disruptive behavior in
the courtroom. So under the case law as it had evolved
in 1996, the state may be correct to concede that the
defense should have objected to the stun belt. We have
our doubts but will still them and move on to the
issue of prejudice—in a moment, because there are two
further wrinkles to smooth out.
Suppose that had counsel objected to the stun belt the
judge would have overruled the objection, and suppose
that had he done so, it would have been an error. The
state supreme court, we know from its later decision,
might have affirmed the ruling; and suppose that had
it done so, that it would have been an error too. The test
of ineffective assistance is not whether the court system
would have ruled correctly on a valid objection or other
defense tactic; it is whether the existing law would have
required the courts to uphold the objection. “The assess-
ment of prejudice should proceed on the assumption that
the decisionmaker is reasonably, conscientiously, and
impartially applying the standards that govern the deci-
sion. It should not depend on the idiosyncrasies of the
particular decisionmaker, such as unusual propensities
toward harshness or leniency.” Strickland v. Washington,
supra, 466 U.S. at 694; see also Fountain v. United States, 211
F.3d 429, 434 (7th Cir. 2000); Wrinkles v. Buss, supra, 537
F.3d at 813-15.
Another issue would have to be considered before one
could conclude that an objection to the stun belt, had it
12 No. 09-2924
been made, should have been sustained. To be timely,
the objection would have had to be made before the
trial began and the jurors saw the defendant. Conceivably
the judge would have ruled that the stun belt was insuf-
ficiently conspicuous to be visible to them. We don’t
know what the defendant looked like with the stun belt
on; the jurors who said they thought he was wearing a
stun belt may have been guessing. Had the objection
been overruled on the narrowly factual ground, based on
the trial judge’s direct observation, that the stun belt
was not visible, the appellate courts might have been
justified in affirming his ruling. If so, there would have
been no harm from defense counsel’s failure to object,
although had it become known by the time of the appeal
that some jurors had been aware of the stun belt the
appellate court would have realized that the trial
judge’s ruling had been based on an erroneous factual
assumption.
The state has not made the argument that we’ve just
sketched against a finding of prejudice. It argues rather
that the fact that several jurors realized that Stephenson
was wearing a stun belt is unlikely to have “so preju-
diced his defense that it deprived him of a fair trial,” Roche
v. Davis, 291 F.3d 473, 483 (7th Cir. 2002), or in simpler
terms to have changed the outcome of the trial.
See Strickland v. Washington, supra, 466 U.S. at 687, 693-94;
Wrinkles v. Buss, supra, 537 F.3d at 812-13, 815; Fountain
v. United States, supra, 211 F.3d at 434-36; Marquard
v. Secretary for Dept. of Corrections, 429 F.3d 1278, 1313-
14 (11th Cir. 2005); Wilkerson v. Whitley, 16 F.3d 64, 68 (5th
Cir. 1994).
No. 09-2924 13
Had Stephenson challenged the stun belt on direct
appeal, the state would have had to prove beyond a
reasonable doubt that the stun belt had not influenced
the verdict. Hatten v. Quarterman, supra, 570 F.3d at 603-
04. But because he alleges only that his counsel was
ineffective in failing to challenge the stun belt, he must
show that he was prejudiced by counsel’s error. And
the burden of proving prejudice is on him, because to
prevail on a claim of ineffective assistance a defendant
must show not only that counsel’s performance fell
below minimum professional standards but also that
the subpar performance harmed the client. Strickland v.
Washington, supra, 466 U.S. at 687; Wrinkles v. Buss, supra,
537 F.3d at 812-13; Roche v. Davis, supra, 291 F.3d at 482;
Marquard v. Secretary for Dept. of Corrections, supra, 429
F.3d at 1313-14; Wilkerson v. Whitley, supra, 16 F.3d at 68.
He must demonstrate “a reasonable probability that,
but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” United States v.
Banks, 405 F.3d 559, 569 (7th Cir. 2005). “If a court errone-
ously shackles a defendant, the jury receives a powerful
image contradicting the presumption of innocence. As
a result, ‘The [s]tate must prove beyond a reasonable
doubt that the shackling error complained of did not
contribute to the verdict obtained.’ However, on collateral
review of a state court conviction, federal courts apply a more
lenient standard, only granting a writ when an error had a
‘substantial and injurious effect or influence in determining
the jury’s verdict’ ” Hatten v. Quarterman, supra, 570 F.3d at
603-04 (emphasis added, citations omitted). (We take
“substantial and injurious” to mean the same as prejudi-
cial.)
14 No. 09-2924
The jurors’ affidavits might seem the best evidence of
the prejudicial effect (if any) of juror awareness of the
stun belt. But they merely establish awareness. Two
jurors thought the purpose of the stun belt was to
control the defendant’s behavior, and specifically, one
thought, to prevent him from running away. There is no
suggestion that the jurors considered the stun belt to be
evidence of guilt. So far as we can tell, they thought it
routine that a criminal defendant would be physically
restrained in some fashion. They may, indeed, have
felt more secure, and hence less fearful of and hostile
toward the defendant, than if there had been no
visible restraint.
To protect jurors from harassment and intimidation
and enhance the finality of jury verdicts, jurors are not
permitted to impeach their verdict. Fed. R. Evid. 606(b);
Tanner v. United States, 483 U.S. 107, 121-25 (1987); United
States v. Muthana, 60 F.3d 1217, 1223 (7th Cir. 1995); Gacy
v. Welborn, 994 F.2d 305, 312-14 (7th Cir. 1993); United States
v. Benally, 546 F.3d 1230, 1239-40 (10th Cir. 2008); Ind. R.
Evid. 606(b); Griffin v. State, 754 N.E.2d 899, 902-03 (Ind.
2001); Johnson v. State, 700 N.E.2d 480, 480-81 (Ind. App.
1998). They are, however, permitted to testify about
“whether extraneous prejudicial information was im-
properly brought to the jury’s attention,” Fed. R. Evid.
606(b); United States v. Fozo, 904 F.2d 1166, 1171 (7th Cir.
1990); United States v. Lloyd, 269 F.3d 228, 237 (3d Cir.
2001); United States v. Hall, 85 F.3d 367, 370-71 (8th Cir.
1996); Ind. R. Evid. 606(b); Griffin v. State, supra, 754
N.E.2d at 902-03, because such an impropriety is a
ground for reversal. But as these cases make clear, they
No. 09-2924 15
may not testify about the effects of such outside
influences on their deliberations.
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 con-
victed, 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. Yet if those reasons had been compelling,
the jurors’ reactions are irrelevant, and if they had not
been compelling, the defendant is entitled to a new
trial—provided, to repeat, that the error was prejudicial.
But the state has not objected to the juror affidavits,
maybe because they don’t prove prejudice but only
realization by several jurors that the defendant was
wearing a stun belt.
Courtroom security is necessary during a trial for a
crime of violence. The sheriff testified that there were
two uniformed guards in the courtroom throughout the
trial. One sat near Stephenson; the other, who had the
controls for the stun belt, sat in the back of the court-
room, next to the door. Additional guards were not
needed because the officer at the back could trigger the
stun belt, delivering a 50,000-volt shock for eight seconds
and thus incapacitating the defendant. Shelley A. Nieto
Dahlberg, Comment, “The REACT Security Belt: Stunning
Prisoners and Human Rights Groups Into Questioning
16 No. 09-2924
Whether Its Use Is Permissible Under the United States
and Texas Constitutions,” 30 St. Mary’s L.J. 239, 246-48
(1998). Had there been no stun belt, more guards might
have been needed and so the question is whether the
stun belt, visible only as a bulge in Stephenson’s back,
made the jury more likely to think him guilty than addi-
tional armed guards in the courtroom would have done.
This is unclear and it is a reason we gave earlier for
skepticism about the state supreme court’s ruling
that Stephenson’s counsel failed to adhere to minimum
professional standards when he did not object to the
stun belt. It also bears on the issue of prejudice.
We doubt that either mode of restraint—stun belts or
more guards—would have influenced this jury’s verdict.
The charge of multiple murders and the state’s urging
the death penalty made the trial a fraught event and
created an expectation of heightened security whether
Stephenson was guilty or innocent. He might be guilty,
obviously, and the possibility would make everyone in
the courtroom assume there would be ample security
against his attempting to disrupt the proceedings.
We find it significant that the trial stretched over eight
months, with three months of trial days. The trial was so
protracted because the lead defense attorney put up a no-
holds-barred defense for which he billed the state, ac-
cording to media reports, $500,000—the largest amount
ever spent on the defense of a capital case in Indiana. “No
Expense Spared in Stephenson Case,” Evansville Courier &
Press, Oct. 26, 2001, p. A12; see also Garret Mathews, “After
16 Years, Warrick Prosecutor Off the Case,” id., Feb. 13,
No. 09-2924 17
2010, p. A4. It’s difficult to believe that the jurors who
guessed that the defendant was wearing a stun belt
thought it a significant clue to his likely guilt, com-
pared to evidence generated over months of testimony
and cross-examination. As the Supreme Court had ex-
plained in Holbrook, because “jurors are quite aware that
the defendant appearing before them did not arrive
there by choice or happenstance,” courts “have never
tried, and could never hope, to eliminate from trial pro-
cedures every reminder that the State has chosen to
marshal its resources against a defendant to punish him
for allegedly criminal conduct. To guarantee a defendant’s
due process rights under ordinary circumstances, our
legal system has instead placed primary reliance on the
adversary system and the presumption of innocence.
When defense counsel vigorously represents his client’s
interests and the trial judge assiduously works to
impress jurors with the need to presume the defendant’s
innocence, we have trusted that a fair result can be ob-
tained.” 475 U.S. at 567-68 (emphasis added). No one
can doubt the vigor, the tenacity, the thoroughness of
Stephenson’s defense. This would not (as the Court in
Holbrook went on to make clear) have rebutted a claim
of prejudice from binding and gagging a defendant, but
the restraint in this case was far less extreme.
The speculative nature of the inquiry into prejudice,
combined with the fact that the evidence of Stephenson’s
guilt (summarized in the decision of the Supreme Court
of Indiana affirming the conviction), although powerful,
was not overwhelming, may make this seem a close
case. It would be helpful if the effect of visible restraints
18 No. 09-2924
on jurors had been subjected to careful empirical studies
rather than left to judicial speculation. There are rigorous
empirical studies of jury behavior. See, e.g., Jeffrey S.
Neuschatz et al., “The Effects of Accomplice Witnesses
and Jailhouse Informants on Jury Decision Making,” 32
Law & Human Behavior 137 (2007); Dennis J. Devine et al.,
“Deliberation Quality: A Preliminary Examination in
Criminal Juries,” 4 J. Empirical L. Stud. 273 (2007); Theodore
Eisenberg et al., “Judge-Jury Agreement in Criminal
Cases: A Partial Replication of Kalven and Zeisel’s The
American Jury,” 2 J. Empirical L. Stud. 171 (2005); Stephen P.
Garvey, “Aggravation and Mitigation in Capital Cases:
What Do Jurors Think?,” 98 Colum. L. Rev. 1538 (1998);
Theodore Eisenberg & Martin T. Wells, “Deadly Confusion:
Juror Instructions in Capital Cases,” 79 Cornell L. Rev. 1
(1993). As pointed out in Gacy v. Welborn, supra, 994 F.2d
at 313, “social science has challenged many premises of
the jury system.” But no studies that the parties have
cited or that we have found address the impact of visible
restraints on jury deliberations. Nevertheless we con-
clude that Stephenson has 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.
We have thus far been considering prejudice only
at the guilt phase of the trial. The same jury that had
determined guilt recommended the death penalty, and
Stephenson continued to wear the stun belt in the penalty
hearing. As the law then stood, the judge was not bound
by the jury’s recommendation though required to con-
sider it in making his own, independent determination,
Ind. Code § 35-50-2-9(e) (1996); Dye v. State, 717 N.E.2d 5,
No. 09-2924 19
23 (Ind. 1999); Wrinkles v. State, 690 N.E.2d 1156, 1171-
72 (Ind. 1997), But we have been given no reason
to doubt that he gave the recommendation significant
weight.
Stephenson’s brief in this court, while stating that had it
not been for the stun belt he would not have been con-
victed and sentenced to death, does not argue that he
might have been convicted but not sentenced to death
if only no juror had been aware that he was wearing it.
But remember that an unrelated challenge to his death
sentence is pending in the district court. And in the
sentencing hearing his counsel had argued against the
death penalty on the ground that a “residual doubt” of
Stephenson’s guilt had been created by his alibi wit-
nesses and by witnesses who testified that they heard
another person admit involvement in the murders. Re-
member too that the district judge found ineffective
assistance of counsel at the penalty stage as well as the
guilt stage, though she did not discuss that aspect sepa-
rately.
Whether “residual doubt” is appropriate for consider-
ation in a death-penalty hearing was left open by the
Supreme Court in Oregon v. Guzek, 546 U.S. 517, 525-26
(2006), and we called it “questionable” in United States
v. Corley, 519 F.3d 716, 729 (7th Cir. 2008). It is unlikely
that a jury would convict a defendant in a death case if
it doubted his guilt. Jurors aware of the stun belt at the
guilt phase might be confused or alarmed at its absence
at the penalty hearing, and the jury as a whole might be
scratching its collective head if (the stun belt having been
discarded) there were more guards at the penalty stage
20 No. 09-2924
than at the guilt stage. Such a change might actually
prejudice the defendant in the eyes of jurors unaware
of the stun belt; seeing more guards they might conclude
that he was even more dangerous than they had thought
in finding him guilty of three murders. But the district
judge did not discuss the “residual doubt” issue in her
opinion, and we do not know her thoughts on it.
Marquez v. Collins, supra, 11 F.3d at 1244, suggests a
different ground from “residual doubt” for challenging a
visible restraint in a death-penalty hearing even though
“when the complained of restraint comes only in the
sentencing phase of a capital charge, a jury has just con-
victed of a violent crime—so the risk of prejudice is
lessened from the risk of such events during the guilt
phase. At the same time, the defendant’s life turns
on the same jury’s answer to the question of future danger-
ousness, so the risk, although less, is not eliminated.
Restraint at trial may carry a message that a defendant
continues to be dangerous” (emphasis in original). And
in Roche v. Davis, supra, 291 F.3d at 484, we held, without
reference to the doctrine of residual doubt, that the de-
fendant’s counsel had rendered ineffective assistance of
counsel by failing to object, at the penalty phase of
a capital case, to the defendant’s being shackled. The
question of prejudice from Stephenson’s having been
required to wear the stun belt at the penalty hearing
will require the further consideration of the district court
on remand.
R EVERSED AND R EMANDED.
8-26-10