United States Court of Appeals
                   For the Seventh Circuit
                    Chicago, Illinois 60604


                        January 14, 2011


                              Before


              WILLIAM J. BAUER, Circuit Judge
              RICHARD A. POSNER, Circuit Judge
              JOHN DANIEL TINDER, Circuit Judge


No. 09-2924

JOHN M. STEPHENSON,
                                                 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.




                             ORDER
  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
2                                             No. 09-2924

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.
No. 09-2924                                                  3

udice for purposes of his claim that he was deprived of
the effective assistance of counsel. See Strickland v. Wash-
ington, 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 other-
wise 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, in-
cluding 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 de-
fendant 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 de-
fense’ ”) (quoting Harrell v. Israel, 672 F.2d 632, 637 (7th
Cir. 1982) (per curiam)). As such, the restraint under-
mines 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
4                                                  No. 09-2924

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 re-
straints. 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.
No. 09-2924                                                5

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.”).1 We must defer to
that conclusion so long as it represents a reasonable ap-
plication 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, with-
out 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



1
  Indeed, the Indiana Supreme Court found the use of stun
belts so troubling that it prospectively banned their further
use in Indiana courtrooms in Wrinkles, 749 N.E.2d at 1194-95.
6                                             No. 09-2924

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. Postconviction 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.
Postconviction Tr. 525, 532-33, 540, 544, 548. On the con-
trary, 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 Postcon-
No. 09-2924                                                    7

viction 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 deci-
sion without ever bringing the issue before the trial judge.
Counsel testified in the postconviction proceeding that,
in his experience, the trial judge typically deferred to the
sheriff’s security decisions. Postconviction 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.” Postconviction Tr. 102. As a
result, the trial judge never considered whether Stephen-
son 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 under-
neath 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 postconviction
hearing, shows Stephenson being led from the courthouse
to a waiting vehicle. Petitioner’s Postconviction 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 postconvic-
tion proceeding, Stephenson produced affidavits and
8                                                   No. 09-2924

deposition testimony from four jurors to that effect.2
Based on that evidence, the Indiana Supreme Court specifi-
cally found that “Stephenson has established by a pre-
ponderance 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


2
   See Petitioner’s Postconviction Ex. 46 ¶ 3 (“During the trial,
I became aware that John Stephenson was wearing a stun belt.
I could see he had what appeared to be a rectangle shaped
box attached to his lower back, underneath his shirt. I had
seen a television show sometime previously [sic] to being
selected for this jury that described what a stun belt was and
what its purpose was. I have been hit by 220 volts and know
what effect that amount of power has on a person. I believed
the stun belt was to control John Stephenson’s behavior.”);
Ex. 47 ¶ 3 (“I was aware that John Stephenson was wearing
a device that would prevent him from running out of the
courtroom. During the trial one of the male jurors mentioned
to me that Mr. Stephenson was wearing this device. I was
aware that he was wearing something that controlled his
behavior.”); Ex. 48 ¶ 2 (“During the trial, I recall that
Mr. Stephenson had some type of restraining device on him.
I do not recall what the device looked like, or when or where
I realized he [was] wearing one.”); Ex. 58 at 14 (“Q Did you
know that John Stephenson had worn a stun belt through his
trial? A I would say, yes, that I did because he wasn’t
handcuffed, and naturally I assumed that he had that on be-
cause there was like a, you know, he wore like a loose shirt,
basically like what you have on, loose, and there was a bulge
back there in the back, so that’s how I knew that.”).
No. 09-2924                                                     9

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 ob-
jecting 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 “ ‘inher-
ently 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 prac-
    tice 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 chal-
lenged the need for a restraint, and thus did not pre-
serve a freestanding due process claim, Stephenson has
10                                              No. 09-2924

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
No. 09-2924                                                     11

did find fault with “[c]ounsel’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 legiti-
mate tactical reason not to object to a restraint and to
insist on a judicial finding as to the need for such a re-
straint. 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 deci-
sion 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 Strick-
land 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 objec-
tion 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 hall-
marks of a premeditated assassination related to narcotics
trafficking. Id. Moreover, according to the witness who
12                                               No. 09-2924

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 recom-
mendation 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 postconviction proceeding, where none of the five
officials responsible for security at Stephenson’s trial ar-
ticulated a basis for concern that Stephenson posed a risk
No. 09-2924                                                  13

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 sup-
port 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.
14                                               No. 09-2924

  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 necessarily
plenary. Rompilla v. Beard, 545 U.S. 374, 390, 125 S. Ct.
2456, 2467 (2005) (citing Wiggins v. Smith, 539 U.S. 510, 534,
123 S. Ct. 2527, 2542 (2003)).
  Stephenson must demonstrate a reasonable probability
that, but for his counsel’s deficient performance, the out-
come of the trial might have been different. Strickland,
466 U.S. at 694, 104 S. Ct. at 2068. Both the nature of
the unobjected-to error and the weight of the evidence
are key considerations in this inquiry. Id. at 695-96, 104
S. Ct. at 2069. Stephenson need not show that a different
outcome was more likely than not; he need only show
that the likelihood of a different outcome was better
than negligible. See id. at 693, 104 S. Ct. at 2068; Gross v.
Knight, 560 F.3d 668, 671 (7th Cir.), cert. denied, 130 S. Ct.
402 (2009).
  Although the panel recognized that the evidence
against Stephenson was not overwhelming, 619 F.3d at
673, it found no evidence demonstrating that the stun
belt contributed to the jury’s finding of guilt. The panel
No. 09-2924                                                15

noted that (1) the four juror affidavits simply demon-
strated awareness of the stun belt, as opposed to any
negative inferences the jurors might have drawn from
the belt, and there are no reliable studies revealing the
effects of such a restraint on a jury’s perception of the
accused; (2) some security was required in a trial for a
crime of violence, and had Stephenson not worn the
stun belt, more guards would have been required in the
courtroom, and it is unclear whether additional guards
would have been less prejudicial to Stephenson in the
jurors’ eyes than the visible bulge of the stun belt; (3) the
trial lasted many months due to the vigorous efforts of
the defense team, making it unlikely, in the panel’s
view, that the jury would have given the stun belt much
weight in assessing Stephenson’s guilt. Id. at 671-73.
  I submit that the panel’s analysis starts off on the wrong
foot in that it fails to acknowledge the inherent prejudice
of a visible restraint. Yes, it is Stephenson who bears the
burden under Strickland to establish a reasonable likeli-
hood that, but for his attorney’s failure to object to the
stun belt, he might have been acquitted. 466 U.S. at 687, 693-
94, 104 S. Ct. at 2064, 2067-68. By contrast, had his attor-
ney objected to the belt and had Stephenson mounted
a freestanding challenge to the belt on review of his con-
viction, the burden instead would have fallen to the State
to prove beyond a reasonable doubt that the belt had
no effect on the conviction. Deck, 544 U.S. at 635, 125 S. Ct.
at 2015-16. But simply because Strickland assigns the
burden of persuasion to Stephenson does not cause
the inherently prejudicial nature of a visible restraint to
evaporate. Visible restraints have been deemed “a last
16                                                No. 09-2924

resort” not because they are sometimes harmful to the
defendant and sometimes not, depending on the circum-
stances 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 de-
fendant 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 defen-
dant, and such fundamental aspects of the prosecution
as the presumption of innocence. The error might not
ultimately prejudice the defendant in the sense that Strick-
land 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 pre-
sumption 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.
No. 09-2924                                                 17

   If one does begin the analysis by recognizing that a
visible restraint is inherently prejudicial to the defendant,
then it becomes clear that Stephenson has shown that
the visible stun belt likely did affect the jury’s verdict
as to his guilt. As the panel recognized, the evi-
dence against Stephenson, although strong, was not over-
whelming. 619 F.3d at 673. The Indiana Supreme Court
conceded the same point, noting that its finding as to the
lack of Strickland prejudice “does not rest on essentially
indisputable evidence that establishes the merits of his
conviction and sentence.” 864 N.E.2d at 1039 (emphasis
supplied). There was no strong forensic evidence (finger-
prints, DNA evidence, etc.) tying Stephenson to the mur-
ders. The State’s case rested primarily on the testimony
of two witnesses, Dale Funk and Brian Mossberger, who
themselves had connections to the crime: Funk was in
Stephenson’s company before, during, and after the
killings, and Mossberger was discovered to be in posses-
sion of the gun that was used to shoot the victims. At
the same time, two other individuals, Jimmy Knight and
Herschel Seifert, had made statements to (or within
earshot of) third parties unconnected to Stephenson in-
dicating that they were responsible for the murders. See
Trial Tr. 29704, 30836-37, 31486, 31525-27, 31531. I do not
doubt that the evidence against Stephenson was suf-
ficient to convict him. But given the inherently prejudicial
nature of a visible restraint and the lack of overwhelming
evidence establishing Stephenson’s guilt, Stephenson
has established a better than negligible probability that
he might have been acquitted had he not been noticeably
restrained, see Gross, 560 F.3d at 671, and this is “sufficient
18                                               No. 09-2924

to undermine confidence in the outcome” of the guilt
phase of the trial, Strickland, 466 U.S. at 694, 104 S. Ct. at
2068. This is exactly what Judge Springmann concluded
in granting Stephenson relief. Stephenson v. Levenhagen,
No. 3:07-CV-539-TS, 2009 WL 1886081, at *15 (N.D. Ill. Jul. 1,
2009). See Roche, 291 F.3d at 484 (finding that visible
shackles prejudiced defendant in sentencing hearing,
given that there was mitigating as well as aggravating
evidence and in view of “the extreme inherent prejudice
associated with shackling”).
   The panel’s reasons for discounting the possibility that
the jury’s verdict was affected by the stun belt are in
tension with the Supreme Court’s visible-restraint juris-
prudence. For example, the panel assumed that the
likely alternative to the stun belt—more guards in the
courtroom—might also have prejudiced Stephenson. 619
F.3d at 672. Yet, the Court in Holbrook expressly held
that guards are not inherently prejudicial to the defendant
in the way that visible restraints are: “While shackling
and prison clothes are unmistakable indications of the
need to separate a defendant from the community at large,
the presence of guards at a defendant’s trial need not
be interpreted as a sign that he is particularly dangerous
or culpable.” 475 U.S. at 569, 106 S. Ct. at 1346.
  Second, however vigorous a defense Stephenson’s
counsel may have mounted on his behalf, it is impossible
to say whether that defense compensated for a restraint
that “undermines the presumption of innocence and the
related fairness of the factfinding process.” Deck, 544 U.S.
at 630, 125 S. Ct. at 2013. To my mind, the fact that the
No. 09-2924                                                19

evidence against Stephenson was not overwhelming,
coupled with a vigorous defense case, simply makes it
more rather than less likely that the pervasive and
negative effects of a visible restraint may have been
what tipped the jury toward a finding of guilt.
   Finally, although the juror affidavits reveal nothing
about the impact of the visible stun belt on the jury’s
perceptions of Stephenson, such proof is unnecessary.
“Whenever a courtroom arrangement is challenged as
inherently prejudicial, . . . the question must be not
whether jurors actually articulated a consciousness of
some prejudicial effect, but rather whether ‘an unac-
ceptable risk is presented of impermissible factors coming
into play.’ ” Holbrook, 475 U.S. at 570, 106 S. Ct. at 1346-47
(quoting Estelle v. Williams, 425 U.S. 501, 505, 96 S. Ct.
1691, 1693 (1976)). Indeed, the Court in Holbrook found
that the lower court had properly disregarded the trial
judge’s finding, based on the questionnaires completed
by prospective jurors during voir dire, that the jury was
likely unaffected by the presence of uniformed troopers
at the defendant’s trial. “[L]ittle stock need be placed in
jurors’ claims” that they would not be influenced by a
practice challenged as inherently prejudicial, the Court
observed. Id. at 570, 106 S. Ct. at 1346. (As noted, how-
ever, the Court went on to conclude that the presence
of troopers was not, in fact, inherently prejudicial to the
defendant as claimed.) Similarly, we cannot expect
jurors who have already found the defendant guilty
and recommended that he be sentenced to death to objec-
tively assess whether and to what degree their delibera-
20                                             No. 09-2924

tions were affected by the sight of the defendant visibly
restrained.
  The panel also remarked on the lack of careful empirical
studies exploring the effects of visible stun belts and
other restraints on jury deliberations. 619 F.3d at 673. Of
course, Stephenson cannot be faulted for what social
scientists have not yet documented. In the absence of such
studies, we must “rely on our own experience and
common sense,” Holbrook, 475 U.S. at 571 n.4, 106 S. Ct. at
1347 n.4, which tell us that a visible restraint conveys
a distinctly negative message about the defendant to the
jury. Any doubts on that score are resolved by the
Supreme Court’s decisions recognizing the prejudice
inherent in visible restraints.
  Stephenson is entitled to a new trial, as Judge
Springmann concluded. On this record, which reflects a
total absence of case-specific evidence demonstrating a
need for Stephenson to be restrained in the courtroom,
there can be no dispute that being made to wear a readily-
visible stun belt deprived Stephenson of due process.
As the Indiana Supreme Court found, the failure of
Stephenson’s trial counsel to object to the restraint was
unsupported by any valid strategic reason and instead
is explained solely by counsel’s ignorance of the case law
prohibiting visible restraints except in extraordinary
circumstances. A single failing by one’s counsel will
support relief under Strickland when the error is both
egregious and harmful to the defendant, Murray v. Carrier,
supra, 477 U.S. at 496, 106 S. Ct. at 2649, as it was here.
The inherently prejudicial nature of visible restraints,
No. 09-2924                                                21

coupled with the lack of overwhelming evidence of
Stephenson’s guilt, adequately demonstrates that
Stephenson was prejudiced by his attorney’s failure to
object to the stun belt. The panel’s conclusion that
Stephenson’s claim fails for want of more concrete proof
that he was harmed by the unobjected-to stun belt is
inconsistent with the Supreme Court’s recognition that
such evidence is impossible to marshal and unnecessary
given the inherently prejudicial nature of visible restraints.
  The court has remanded this case to the district court
for further proceedings, and there remains the possibility
that the district judge might grant Stephenson relief as
to the penalty phase of the trial, during which he also
wore the stun belt. But whatever relief Stephenson
might obtain as to the penalty phase will not address
the prejudice he experienced vis-à-vis the jury’s assess-
ment of his guilt. The proper course would be for this
court to affirm the district court’s decision.
  I respectfully dissent.
22                                           No. 09-2924

              Appendix - Screen Shots from
     Petitioner’s Post Conviction Hearing Exhibit 45
           News Video Depicting Stephenson
No. 09-2924             23




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