Man convicted of killing IU student loses 7th Circuit rehearing bid but wins remand

The man convicted in the 2000 murder of Indiana University student Jill Behrman will not get a second hearing on habeas relief before the 7th Circuit Court of Appeals. However, the federal appellate court is allowing John Myers to pursue allegations of withheld evidence on remand.

Neither the original members of the panel that reinstated Myers’ murder conviction nor the other members of the appellate court voted in favor of a rehearing or a rehearing en banc, according to a Wednesday order.

The order came down after a three-judge panel of the 7th Circuit in August agreed with Indiana Southern District Court Judge James Sweeney that Myers’ counsel at his murder trial performed deficiently.

Myers was tried in 2006 for the murder of Behrman, an accomplished cyclist who went missing during a bike ride in 2000. Her body was found three years later.

In granting Myers’ petition for habeas relief, Sweeney pointed to three instances of ineffective assistance of counsel: two statements made during opening arguments, and counsel’s failure to object to evidence that Behrman was raped before her death.

The 7th Circuit panel agreed with Sweeney that these errors constituted deficient representation. Even so, Myers was not prejudiced under Strickland v. Washington in light of other evidence, the panel ruled.

“The jury also heard from John Roell, who shared a cell with Myers in May 2005, that Myers spoke about Behrman using degrading language and saying that nothing had to happen to her if she would not have said anything — statements evincing Myers’s attempt to exert control over her,” appellate Judge Michael Scudder wrote in August.

“… The incriminating statements Myers made to so many different people following Behrman’s disappearance make all the difference in determining whether defense counsel’s errors substantially affected the outcome of the trial,” Scudder continued. “… Aside from these statements to family members, the jury heard from an array of friends, acquaintances, and community members recalling similar comments.”

Both Sweeney and the 7th Circuit judges focused on the statements Myers’ counsel made during opening arguments and the failure to object to the rape evidence. But Myers had raised additional arguments in his habeas petition — namely, allegations of withheld exculpatory evidence.

Per the 7th Circuit’s order, those allegations will now be considered on remand.

“We close by noting that the district court, while granting Myers’ relief based on the three instances of ineffective assistance of counsel analyzed in this opinion, acknowledged but did not definitively resolve other, lesser alleged instances of ineffective assistance,” Scudder wrote Wedensday in an amended opinion. “Our analysis of the strength of the state’s evidence forecloses relief based on these other allegations of ineffective assistance.

“But,” Scudder continued, “we do remand for the sole purpose of allowing the district court to address the two claims Myers advanced under Brady v. Maryland, 373 U.S. 83 No. 19-3158 31 (1963), in his § 2254 application. The district court reserved judgment on these claims.

“Our conclusions regarding the strength of the state’s evidence may well foreclose relief on those claims too, but the district court should assess the question in the first instance as neither party brief the claims in this appeal.”

The case is John Myers v. Ron Neal, 19-3158.