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Habeas – Effective Assistance – Stun Belt

John M. Stephenson v. Levenhagen, 7th Cir No. 09-2924, 08/26/2010

7th Cir decision; petition for rehearing denied 1/14/11, 3 dissents from denial of en banc review

Habeas – Effective Assistance – Stun Belt

Counsel’s failure to object to placement of stun belt on Stephenson during trial was held by the state court to be deficient: accepting that conclusion (albeit with apparent reluctance), the federal court holds on habeas review that the deficiency wasn’t prejudicial.

Lots more to it than that — authorship by Judge Posner alone makes reading the opinion worthwhile — brief mention will be made here only of prejudice. Wisconsin caselaw strongly suggests that preserved error on shackling (or other restraint) is necessarily prejudicial. Thus, State v. Tatum, 191 Wis. 2d 547, 553, 530 N.W.2d 407 (Ct. App. 1995): “Prejudice was inherent in the cases on direct appeal in which a defendant or defense witness appeared in shackles without an extreme need for them. But ineffective assistance of counsel cases have developed a specific definition of prejudice which is to be used in those cases.” And State v. Kevin M. Champlain, 2008 WI App 5, ¶28 n. 9 (same, re: taser). This line of cases appears to mean that by establishing error you establish a violation of due process; the State then must prove harmlessness beyond reasonable doubt. But failure to register contemporaneous objection throws the defendant into ineffective-assistance territory, where the burden shifts to you. As Stephenson illustrates (and the just-cited Wisconsin cases underscore), the client is much better served by contemporaneous objection.

The dissent from denial of en banc review elaborates on this point:

 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. … 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.

… Visible restraints have been deemed “a  last resort” not  because  they  are  sometimes harmful to the defendant and sometimes not, depending on the circumstances of the particular case, but because they are always and unavoidably prejudicial to the  defendant.That is why decisions  like  Deck and Holbrook describe them as inherently prejudicial. Id. at 635, 125 S. Ct. at 2015; Holbrook, 475 U.S. at 568, 106 S. Ct. at 1345. Deck further recognizes that this inherent prejudice is difficult if not impossible to document. 544 U.S. at 635, 125 S. Ct. at 2015.Thus, although Strickland puts  Stephenson’s challenge  to the stun belt in a different posture, it does not change the nature of the  underlying error of requiring him to wear a visible restraint. Indeed,  Strickland itself recognizes that  nature of the  error—for example, pervasive  error versus isolated error—factors into  the prejudice analysis.466  U.S. at  695-96, 104  S. Ct. at  2069. Requiring a defendant to wear a stun belt without facts to support such a last-resort measure is a pervasive error, in that it affects the whole  trial, the jury’s perception of the defendant, and such fundamental aspects  of the  prosecution as  the presumption of innocence. The error  might not ultimately prejudice the defendant in the sense that Strickland refers to prejudice—in other  words, it might not alter the  outcome of the  trial, as when the  proof of guilt is overwhelming (see,  e.g.,  Roche, 291 F.3d at  484; Fountain v. United States, 211 F.3d 429,  436 (7th Cir.2000))—but it remains prejudicial in  the sense that  Deck and Holbrook discuss  prejudice: it undermines the presumption  of  innocence,  interferes  with  the defendant’s ability to participate  in his  own defense, and coarsens the courtroom environment. The  Strickland prejudice inquiry must begin with that recognition.

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