                              In the

    United States Court of Appeals
                For the Seventh Circuit
                    ____________________
No. 16-1312
JOHN M. STEPHENSON,
                                              Petitioner-Appellant,

                                v.

RON NEAL, Superintendent, Indiana State Prison,
                                       Respondent-Appellee.

                    ____________________

         Appeal 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.
                    ____________________

      ARGUED JUNE 27, 2017 — DECIDED AUGUST 4, 2017
                    ____________________

   Before BAUER, POSNER, and FLAUM, Circuit Judges.
    POSNER, Circuit Judge. Late 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
2                                                  No. 16-1312


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.
    Stephenson 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 rec-
ommended the death penalty; five weeks later the judge sen-
tenced the defendant to death. The state supreme court af-
firmed 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 tri-
al,” and so she vacated both the conviction and the sentence,
“because his counsel had failed to object to the state’s mak-
ing 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).
    The 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 Ste-
phenson 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 re-
quire the further consideration of the district court on re-
mand.” Stephenson v. Wilson, 619 F.3d at 674.
   On remand, the district judge ruled that Stephenson had
not been prejudiced by his lawyer’s failure to object to his
No. 16-1312                                                   3


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 dangerous
person.
    Although 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 tes-
timony in 2004 (eight years after the murders) inculpating a
friend of Stephenson’s named Brian Mossberger, whom Ad-
ams was visiting on the night of the murders. Adams testi-
fied 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 Ad-
ams, another friend of Stephenson’s—Funk, mentioned ear-
lier—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.”
   The evidence we’ve just been recounting is, however,
problematic. Adams’s testimony was contradicted by anoth-
er witness in the postconviction proceeding, Donald Good-
man, while Mossberger and Funk each suffer from credibil-
4                                                 No. 16-1312


ity 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 Stephen-
son’s assault rifle, but the rifle was in Mossberger’s posses-
sion after the crime.
    Taken together, the evidence old and new, while rife
with inconsistencies, fails to establish Stephenson’s inno-
cence. See Herrera v. Collins, 506 U.S. 390, 417 (1993). Ste-
phenson’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 ac-
quaintance with the sister of one of the victims, and two ju-
rors’ discussion (overheard by two other jurors) of Stephen-
son’s participation in a bar fight prior to the murders. Alt-
hough the Indiana Supreme Court acknowledged the mis-
conduct, it also found after a reasonable inquiry that Ste-
phenson was not prejudiced at the guilt phase by either in-
stance 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 af-
fidavits or depositions of nine jurors compiled during the
state postconviction proceeding suggests that these two oc-
currences were likely to have altered the outcome.
    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
No. 16-1312                                                  5


jurors during the penalty phase. She said no, and we think that
a mistake.
    A stun 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 pris-
oner 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.
    No 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 not-
ed that a stun belt can compromise a defendant’s participa-
tion in a trial because it “relies on the continuous fear of
what might happen if the belt is activated for its effective-
ness.” Wrinkles v. State, 749 N.E.2d 1179, 1194–95 (Ind. 2001).
The stun belt’s manual brags that “the psychological impact
[of the stun belt] becomes a predominant factor of and for
optimum control.”
6                                                   No. 16-1312


    The government argues that Stephenson can’t have been
prejudiced by the stun belt, because the most important fac-
tor in sentencing is the crime itself, which was a trio of mur-
ders that the jury found Stephenson guilty of. But weighing
against this argument is the brevity of the penalty phase,
which gave salience to the stun gun’s potential negative ef-
fect on the jury’s assessment of Stephenson’s character and
may thus have influenced the jury’s voting to sentence him
to death. See Strickland v. Washington, 466 U.S. 668, 695–96
(1984).
    There is no evidence that the defendant was at all likely
to act up at the penalty phase of his trial, or at any other
phase. He’s been in prison for twenty years now, and there
is no suggestion that he has behaved violently during that
period, and certainly he has not in any of his subsequent
court appearances. The stun belt thus signaled to anyone
familiar with Stephenson’s history nothing to suggest that
now in his 50s he continued to pose the same danger as, the
jury was entitled to and did find, he had done by commit-
ting triple murders one night in 1996. Yet we know that four
jurors were aware of the stun belt, and do not know what if
anything they told the other jurors and therefore what role
discovery of the stun belt may have played in the jury’s de-
termination to sentence him to death. This should not be
surprising, as the instructions accompanying the stun belt
warn users not to attempt to hide it under clothing, because
“the belt is of significant bulk so as not to remain undetected
if worn beneath clothing” (emphasis in original). The fault is
certainly not Stephenson’s; it’s his lawyer’s, for failing to ob-
ject to his client’s having to wear a stun belt, given the ab-
sence of any reason to think his client would go berserk in
No. 16-1312                                                   7


the courtroom. See Wrinkles v. Buss, 537 F.3d 804, 813–15 (7th
Cir. 2008).
   The possibility that the defendant’s having to wear the
stun belt—for no reason, given that he had no history of act-
ing up in a courtroom—contaminated the penalty phase of
the trial persuades us to reverse the district court’s denial of
Stephenson’s petition for habeas corpus and to remand with
directions to vacate his sentence. After the completion of
these proceedings, Indiana may choose to seek the death
penalty anew and hold a new penalty hearing before a jury
without Stephenson wearing the stun belt, or to seek a lesser
sentence and hold a penalty hearing before a judge. The
court’s refusal to vacate his conviction, however, is affirmed.
