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.
Before WILLIAM J. BAUER, Circuit Judge RICHARD A. POSNER, Circuit Judge JOHN DANIEL TINDER, Circuit Judge
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 to the petition. The panel voted unanimously to deny panel rehearing, and a
majority of the judges in active service have voted to deny the petition for rehearing en
banc. The petition is therefore DENIED." 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- "Circuit Judges Ilana Diamond Rovner, Ann Claire
Williams and David F. Hamilton voted to rehear the appeal en banc.
udice for purposes of his claim that he was deprived of the effective assistance of counsel.
See Strickland v. Washington, 466 U.S. 668, 691-96, 104 S. Ct. 2052, 2066-69 (1984).
I believe their analysis overlooks the inherent, unquantifiable prejudice of a visible restraint
and is otherwise inconsistent with the Supreme Court's decisions on this subject.
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 hobbles the defendant's movements (or, in the case of a stun belt,
preoccupies his mind with worry that he may be zapped with a 50,000-volt jolt of electricity),
it may also interfere with the defendant's ability to participate in his own defense.
Deck, 544 U.S. at 631, 125 S. Ct. at 2013; Wrinkles v. State, 749 N.E.2d 1179, 1194-95
(Ind. 2001). A visible restraint is, consequently, "a last resort," Allen, 397 U.S. at 344, 90
S. Ct. at 1061, that is consistent with due process only when the trial judge determines
that the restraint is justified by an essential state interest specific to a particular trial.
Deck, 544 U.S. at 629, 632, 125 S. Ct. at 2012, 2014; see also Holbrook, 475 U.S. at 568-69,
106 S. Ct. at 1345-46; Allen, 397 U.S. at 344, 90 S. Ct. at 1061. 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.").
We must defer to *fn1 that conclusion so long as it represents a reasonable application of the
Supreme Court's precedents on physical restraints, as it surely does. 28 U.S.C. § 2254(d)(1);
see, e.g., Waddington v. Sarausad, 555 U.S. 179, 129 S. Ct. 823, 831 (2009). 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
during the trial. Rather, as a matter of general security protocol, the sheriff wanted Stephenson
restrained during his transport between the courthouse and the jail. During pretrial proceedings,
this was accomplished by means of wrist and ankle restraints along with a "belly chain" connected to
the former. But as the trial approached, the sheriff decided that a stun belt worn underneath
Stephenson's shirt would serve the same purpose, while avoiding the possibility that jurors
might catch a glimpse from the jury room window of Stephenson emerging from or entering
the transport vehicle in shackles. All well and good. Post-conviction Tr. 532, 538. What remains
a mystery is why anyone thought the stun belt needed to remain on Stephenson's person once
he had been safely delivered to the courthouse. Neither the sheriff nor any of the four other
officers in charge of security at Stephenson's trial believed that he posed a security threat or
had engaged in any behavior during the six-month period of his pretrial confinement that might
warrant continued restraint within the courtroom. Post-conviction Tr. 525, 532-33, 540, 544, 548.
On the contrary, Stephenson had turned himself in when he learned that he was wanted by the
authorities, he had made no attempts at escape, and, as both the Indiana Supreme Court and this
court noted, he had comported himself as a "gentleman" and "a model prisoner" from the time of
his arrest forward. 864 N.E.2d at 1036-37; Stephenson v. Wilson, 619 F.3d 664, 667 (7th Cir. 2010).
Nonetheless, the belt was kept on his person once he was delivered to court. For his part, Stephenson's
attorney (who himself had no concerns about Stephenson's behavior, see Postconviction Tr. 100-01)
never challenged the premise that Stephenson required some sort of restraint even while in the courtroom
and instead acceded to the sheriff's decision without ever bringing the issue before the trial judge.
Counsel testified in the post-conviction proceeding that, in his experience, the trial judge typically deferred to the sheriff's security decisions. Post-conviction Tr. 149-50. "I understood our choices were either that [the stun belt] or shackles[,] and that [i.e., shackling] was certainly not an acceptable alternative." Post-conviction Tr. 102. As a result, the trial judge never considered whether Stephenson ought to be restrained by means of the stun belt or any other form of restraint during the trial proceedings.
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 post-conviction hearing, shows Stephenson being led from the courthouse to a waiting vehicle. Petitioner's Post-conviction 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 post-conviction proceeding, Stephenson produced affidavits and deposition testimony from four jurors to that effect.*fn2 Based on that evidence, the Indiana Supreme Court specifically found that "Stephenson has established by a preponderance of the evidence that the belt was 'readily visible' to the jury." 864 N.E.2d at 1034. Stephenson was thus exposed to all of the prejudicial consequences of visible restraints, without any case-specific evidence, let alone findings by the trial judge, that might justify such an exceptional measure. This was a clear violation of his right, under the Fifth and Fourteenth Amendments, to due process. See Deck, 544 U.S. at 629, 125 S. Ct. at 2012.
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 instead pursued a claim that his trial counsel's failure to object to the stun belt deprived him of the effective assistance of counsel to which he was entitled under the Sixth and Fourteenth Amendments. See Murray v. Carrier, 477 U.S. 478, 496, 106 S. Ct. 2639, 2649-50 (1986). Under the familiar framework of Strickland, 466 U.S. at 687, 104 S. Ct. at 2064, Stephenson must establish both that his attorney's performance fell below objective norms and that he was prejudiced by the unprofessional conduct.
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 did find fault with "[c]counsel's unquestioning acceptance of the need for any form of restraint." Id. Given the absence of evidence that Stephenson posed any risk of flight or disruption to the court proceeding, there was no legitimate tactical reason not to object to a restraint and to insist on a judicial finding as to the need for such a restraint. Id. at 1032, 1035. "On this record, . . . failure to object to the belt cannot be justified as a tactical decision . . . because the explanation offered by counsel for their decision boiled down to a failure to know the applicable law." Id. at 1035. Counsel's failure to object to the stun belt thus fell below the objective standard of reasonable representation, and in this respect deprived Stephenson of the effective representation to which the Constitution entitled him. This was a reasonable application of Strickland as well as the Supreme Court's precedents on visible restraints, and it commands our deference. § 2254(d)(1); Waddington, 555 U.S. 179, 129 S. Ct. at 831.
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 was present when Stephenson committed the murders, Stephenson had threatened to kill the witness if he told anyone what Stephenson had done. Id. at 1041. "[G]iven the state of the law in 1996, we think it plain that the trial judge would have followed the sheriff's recommendation and ordered that the belt be deployed at the guilt phase even if defendant's counsel had objected and required a hearing and findings as to the need for its use." Id.
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 post-conviction proceeding, where none of the five officials responsible for security at Stephenson's trial articulated a basis for concern that Stephenson posed a risk of flight, disruption, or danger so as to warrant being restrained in the courtroom. Consequently, there was no particularized evidence of a need for restraint-none. In the Indiana Supreme Court's own words, "the record shows nothing to support an individualized determination that Stephenson required any form of restraint at trial . . . ." 864 N.E.2d at 1031 (emphasis supplied).
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.
Given the lack of any evidence to support a visible restraint and the clear state of the law as to such restraints, only one ruling on an objection to the belt would have been proper, and that would be to sustain the objection. The Indiana Supreme Court's prejudice analysis was thus objectively unreasonable. See Roche v. Davis, supra, 291 F.3d at 483. That court never separately considered whether Stephenson was prejudiced in the sense that the visible stun belt might have affected the outcome of his trial. As there is no analysis from the state court on that point, our own analysis is ...