John M. Stephenson, Petitioner-Appellant,
RON Neal, Superintendent, Indiana State Prison, Respondent-Appellee.
June 27, 2017
from the United States District Court for the Northern
District of Indiana, South Bend Division. No.
3:07-cv-00539-TLS - Theresa L. Springmann, Chief Judge.
Bauer, Posner, and Flaum, Circuit Judges.
POSNER, Circuit Judge.
one night in March 1996, three persons riding in a truck in
southern Indiana were killed by gunshots and knives. Shortly
afterward John Stephenson was charged in an Indiana state
court with the murders and related crimes including theft (in
which he was joined by a man named Dale Funk) of ammunition
earlier in the day for the type of assault rifle used in the
murder from a trailer in which one of the victims was
staying; spent shell casings at the site of the murder
matched those taken from the trailer. Stephenson and Funk had
gone target shooting that day.
was tried by a jury and convicted in a trial that lasted
almost eight months. A penalty hearing was then held, but
lasted only a day at the end of which the jury recommended
the death penalty; five weeks later the judge sentenced the
defendant to death. The state supreme court affirmed the
conviction and death sentence, and also denial of
postconviction relief. Stephenson v. State, 742
N.E.2d 463 (Ind. 2001); 864 N.E.2d 1022 (Ind. 2007).
Stephenson then sought habeas corpus in federal district
court and prevailed, the judge ruling "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" and "in the
state postconviction proceedings, four jurors said they were
aware that he was wearing a stun belt." Stephenson
v. Wilson, 619 F.3d 664, 666 (7th Cir. 2010).
respondent-the superintendent of the Indiana state prison in
which the defendant is being held-appealed and we reversed
and remanded on the limited ground that Stephenson may not
have been prejudiced by wearing the stun belt in the guilt
phase of the litigation. We concluded that "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."
Stephenson v. Wilson, 619 F.3d at 674.
remand, the district judge ruled that Stephenson had not been
prejudiced by his lawyer's failure to object to his
having to wear a stun belt visible to jurors in the penalty
phase of the litigation because already in the guilt phase
the jury had decided that the defendant, having (the jury
found) murdered three people at the same time, was a
in this appeal Stephenson's lawyer mounts a vigorous
challenge to both the murder conviction and the death
sentence, the first challenge fails. Not that there isn't
evidence that might have convinced a jury to acquit.
A late-appearing witness named Chad Adams gave deposition
testimony in 2004 (eight years after the murders) inculpating
a friend of Stephenson's named Brian Mossberger, whom
Adams was visiting on the night of the murders. Adams
testified that he saw Mossberger leave his house to chase a
truck, and that when Mossberger returned Adams overheard him
say "I got that mother fucker" (or "them
mother fuckers" - he said both things in his deposition)
while washing blood off his hands, causing Adams to infer
that Mossberger might have killed one or more of the victims.
But contrary to Adams, another friend of
Stephenson's-Funk, mentioned earlier-gave detailed
testimony at Stephenson's trial to having witnessed
Stephenson shoot up the truck carrying the three
murder-victims-to-be with his assault rifle, then approach
the truck on foot and enter it, and it was in the truck that
the victims were stabbed. Mossberger testified that
Stephenson after returning with Funk held up a bloodied knife
and said "Jay, Kathy, and Brandy are no more."
evidence we've just been recounting is, however,
problematic. Adams's testimony was contradicted by
another witness in the postconviction proceeding, Donald
Goodman, while Mossberger and Funk each suffer from
credibility issues by virtue of being potential suspects
themselves in the murders. Forensic testing revealed that the
bullet wounds were from shots that had been fired from
Stephenson's assault rifle, but the rifle was in
Mossberger's possession after the crime.
together, the evidence old and new, while rife with
inconsistencies, fails to establish Stephenson's
innocence. See Herrera v. Collins, 506 U.S. 390, 417
(1993). Stephenson's other ground for challenging his
conviction, that he was denied an impartial jury, also falls
short. He points to two instances of juror misconduct: the
jury foreman's acquaintance with the sister of one of the
victims, and two jurors' discussion (overheard by two
other jurors) of Stephenson's participation in a bar
fight prior to the murders. Although the Indiana Supreme
Court acknowledged the misconduct, it also found after a
reasonable inquiry that Stephenson was not prejudiced at the
guilt phase by either instance of misconduct, and we have no
basis to overturn that conclusion, considering that the jury
was faced with nearly eight months' worth of evidence and
that nothing in the affidavits or depositions of nine jurors
compiled during the state postconviction proceeding suggests
that these two occurrences were likely to have altered the
district judge was thus on sound ground in refusing to order
a new trial for Stephenson, but we disagree that the penalty
phase of the litigation was handled properly. We signaled our
concern when in reversing and remanding the district
judge's previous ruling we asked her to consider whether
the defendant had been prejudiced by his lawyer's failure
to object to his having to wear a stun belt visible to jurors
during the penalty phase. She said no, and we think
that a mistake.
belt is a belt used to restrain prisoners, often in
courtrooms where a prisoner who acts up can frighten and even
injure jurors, the judge, the lawyers, and spectators. So an
officer is authorized to send an electric shock to a box on
the stun belt that contains electrical wires, should the
prisoner become violent or otherwise disrupt the proceeding;
the shock disables the prisoner from acting up. The box on
Stephenson's belt was on his back under his shirt yet
visible to the jurors as a bulge.
shock was sent during the trial, including the penalty phase,
because Stephenson never acted up. Yet seeing the bulge and
recognizing it as the action part of a stun belt the jurors
may have thought it evidence that Stephenson was violent and
unpredictable-evidence confirming the jury's decision to
convict and encouraging it to sentence such a person, already
found to be a murderer, to death. It's also possible that
wearing the stun belt affected Stephenson's demeanor and
appearance throughout the trial-made him nervous and fearful,
which jurors might interpret incorrectly as signs of guilt.
In a decision barring the future use of stun belts in Indiana
courtrooms, the Indiana Supreme Court noted that a stun belt
can compromise a defendant's participation in a trial
because it "relies on the continuous fear of what might
happen if the belt is activated for its ...