Opposition Brief — Ron Neal, Superintendent, Indiana State Prison, Petitioner v. Frederick Michael Baer
Supreme Court briefOct 5, 2018
Ask Donna
What actually matters in this document.
Text
OF
No. 18-287
In The Supreme Court Of The United States
RON NEAL, Superintendent, Petitioner,
V.
FREDRICK MICHAEL BAER, Respondent.
ON PETITION FOR WRIT OF CERTIORARI TO
THE UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT
RESPONDENT'S BRIEF IN OPPOSITION
MARIE F. DONNELLY*
Attorney at Law
P.O. Box 6528
Evanston, Illinois 60204
Phone (773)680-7042
Mfdonne11y05@gmai1.com
-andALAN M. FREEDMAN
Midwest Center for Justice
P.O. Box 6528
Evanston, Illinois 60204
(847)492-1563
thpc@aol.com
COUNSEL FOR
RESPONDENT,
FREDRICK MICHAEL BAER
*Counsel of record
CAPITAL CASE
QUESTIONS PRESENTED
Whether the Court of Appeals correctly applied 28 U.S.C. §2254(d) and
Strickland v. Washington, to the specific facts of Respondent's claim
that his counsel were ineffective for failing to object to an unusual set
of penalty phase instructions that the jurors likely interpreted as
precluding their consideration of mitigating evidence related to Baer's
voluntary intoxication, in violation of the Eighth Amendment.
2.
Whether the Court of Appeals correctly applied 28 U.S.C. §2254(d) and
Strickland v. Washington, to the specific facts of Respondent's claim
that his counsel were ineffective for persistently failing to object to the
prosecutor's numerous, repeated, improper and prejudicial comments,
which cumulatively undermine confidence in the outcome of the
penalty phase.
4!
TABLE OF CONTENTS
QUESTIONSPRESENTED ...............................................................................i
TABLEOF CONTENTS ...................................................................................ii
TABLE OF AUTHORITIES .............................................................................iii
COUNTERSTATEMENT OF THE CASE .......................................................1
REASONS FOR DENYING CERTIORARI ...................................................16
Contrary to Petitioner's argument (Pet. at 10), the Court of Appeals did not
"ignore" the standard set forth in 28 U.S.C. §2254(d)....................................17
Contrary to petitioner's assertions (Pet. 11-16), the Court of Appeals' factbound decision regarding trial counsel's failure to object to penalty phase
instructions is correct . ...................................................................................... 19
Contrary to Petitioner's assertions (Pet.16-21), the Court of Appeals' factbound decision regarding trial counsel's persistent failure to object to
prosecutorial misconduct is also correct...........................................................25
CONCLUSION.................................................................................................37
11
TABLE OF AUTHORITIES
Cases
Baer v. State, 866 N.E.2d 752 (Ind. 2007)...................................................................13
Baer v. State, 942 N.E.2d 80,88 (Ind. 2011)...............................................................15
Bivins v. State, 642 N.E.2d 928 (Ind. 1994)..........................................................30, 35
Booth v. Maryland, 482 U.S. 496 (1987) ...............................................................30, 35
Boyde v. California, 494 U.S. 370 (1990).........................................................20, 23, 24
Cone v. Bell, 556 U.S. 449 (2009) ................................................................................31
Darden v. Wainright, 477 U.S. 168 (1986)..................................................................31
Francis v. Franklin, 471 U.S. 307 (1985) ........................................................20, 22, 23
Goudy v. Basinger, 604 F.3d 394 (7th Cir. 2010) ......................................................26
Harrington v. Richter, 562 U.S. 86 (2011) ..................................................................17
Johnson v. Texas, 509 U.S. 350 (1993)..................................................................23, 24
Kyles v. Whitley, 514 U.S. 419 (1995) .........................................................................33
Lockett v. Ohio, 438 U.S. 586 (1978) ...........................................................................16
Marcum v. State, 725 N.E.2d 852 (Ind. 2000) ..........................................................25
Penry v. Lynaugh, 492 U.S. 302 (1989).......................................................................24
Reynolds v. State, 797N.E.2d 864 (Ind. Ct. App. 2003)..........................................25
Sexton v. Beadreaux, 138 S.Ct. 2555 (2018) ...............................................................17
Simmons v. South Carolina, 512 U.S. 154 (1994).......................................................35
Strickland v. Washington, 466 U.S. 668 (1984)...................................................passim
United States v. Young, 470 U.S. 1 (1985)......................................................25, 31, 33
111
1
1
Williams v. Taylor, 529 U.S. 362 (2000)
. 33
Wilson v. Sellers, 138 S. Ct. 1188 (2018).....................................................................18
Woodson v. North Carolina, 428 U.S. 280 (1976) .................................................34, 36
Rules and Statutes
SupremeCourt Rule 15.2 ..............................................................................................1
28 U.S.C. §2254(d) ................................................................................................. Passim
Ind. Code § 35-36-2-3 .....................................................................................................1
Ind. Code § 35-36-2-5 .....................................................................................................1
Ind. Code § 35-36-1-1 .....................................................................................................1
Ind
.
Code
§
1
35- 41- 3- 6......................................................................................................
lv
COUNTERSTATEMENT OF THE CASE
The Seventh Circuit's decision accurately sets forth the record evidence and
procedural history of this case. Pet. App. la-19a. Because this Court's Rules
dictate that respondents "have an obligation to the Court to point out in the brief in
opposition, and not later, any perceived misstatement made in the petition," Sup.
Ct. R. 15.2, Baer offers the following counter statement of facts.
Background
Baer conceded his guilt at trial. On February 25, 2004, Baer entered Cory
Clark's apartment after asking to use the phone to call his boss. He intended to rape
her, but decided against it for fear of contracting a disease. He cut her throat with a
foldable hunting knife. Upon seeing what Baer was doing, four-year-old Jenna
Clark ran from the room, but Baer caught her and cut her throat. Pet. App. 109a.
Baer was charged with the murders, robbery, burglary, theft and attempted
rape, in Madison County Indiana. DA App 708715. The state requested the death
penalty, based on five aggravating factors (two murders, the murder of a child,
intentional murder during an attempted rape, intentional murder during a robbery
and murder while on probation). Id.
Douglas Long and Bryan Williams were appointed to represent Baer. DA App
597. Trial counsel hired a mitigation specialist to investigate Baer's background.
PCR 211. In July of 2004, they hired psychiatrist George Parker, initially to
evaluate Baer and ascertain what psychiatric treatment was needed. TR 1774-75.
11
After nine months, Mr. Long withdrew as counsel, in part because he felt he
was working alone. PCR 556, 563, 574-75. Jeffrey Lockwood replaced him as lead
counsel. DA App 1157, 1143.
The case was tried for the State by Madison County Prosecutor, Rodney
Cummings.
Attempt to plead Guilty but Mentally Ill
Before trial, Baer moved to plead guilty but mentally ill (GBMI). Under Indiana
law, this alternative verdict is available when a defendant suffers from mental
illness or deficiency but nonetheless remains capable of discerning right from
wrong. Ind. Code § 35-36-2-3 (2008). "Mentally ill" for these purposes means "having
a psychiatric disorder which substantially disturbs a person's thinking, feeling, or
behavior and impairs the person's ability to function; 'mentally ill' also includes
having any mental retardation." Ind. Code § 35-36-1-1 (2008). A defendant who is
found or pleads guilty but mentally ill should be sentenced in the same manner as a
defendant found guilty of the offense. I.C. 35-36-2-5(a).
The court had previously appointed as "court's experts, "Dr. Larry Davis, a
psychiatrist, and Dr. Richard Lawlor, a psychologist, to examine Baer with respect
to insanity.' PC App at 1420, 1570. Both opined that Baer understood and was
able to appreciate the wrongfulness of his conduct when he committed the murders
nd. Code § 35-41-3-6 describes the mental disease or defect that constitutes a complete defense to
1I
A person is not responsible for having engaged in prohibited conduct if, as a result of mental
disease or defect, he was unable to appreciate the wrongfulness of the conduct at the time of the
offense.
As used in this section, "mental disease or defect" means a severely abnormal mental condition
that grossly and demonstrably impairs a person's perception, but the term does not include an
abnormality manifested only by repeated unlawful or antisocial conduct.
2
and thus did not meet Indiana's statutory definition of insanity. PC App. 1419;
1570-71.
Dr. Davis diagnosed Baer as suffering from psychosis, "probably associated with
methamphetamine abuse," polysubstance abuse, and major depression. PC App. at
1422. He noted that Baer had been committed to a psychiatric hospital as an
adolescent and at that time was diagnosed with psychosis, severe depression, and
ADHD. Id. at 1421-22. He also noted that Baer was addicted to
methamphetamines, and exhibited characteristics of psychosis, "with paranoia,
hallucinations, fearfulness and confusion in association with taking
methamphetamines." Id. at 1422. He concluded that at the time of the offense, Baer
had "a psychiatric disorder which substantially disturbs a person's thinking, feeling,
or behavior and impairs the person's ability to function," as defined in the GBMI
statute. Id. at 1424.
Dr. Lawlor reported that Baer suffered from paranoid personality disorder. He
noted that, under the influence of drugs this condition can decompensate into a
brief psychotic disorder characterized by hallucinations, and grossly disorganized
behavior. PC App. 1570-71. Dr. Lawlor did not specifically mention the GBMI
standard in his report.
After considering their reports, the court rejected Baer's proposed GBMI plea
because he was hesitant to accept such a plea based on the expert reports alone. TR
172-73, 223. The court indicated it would like to set the matter for a hearing, but
trial counsel did not pursue this and proceeded to trial. TR 173, 223.
3
Jury Selection
During jury selection, the defense immediately informed the venire that they
were conceding that Baer committed the crimes charged. Counsel would be asking
the jury to find Baer mentally ill, but would not be alleging that Baer is legally
insane. TR 36970.
Jury selection proceeded by interviewing small groups of prospective jurors.
The jurors selected from each panel remained in the courtroom while subsequent
panels were selected. During voir dire, the prosecution made several statements
that would be challenged in subsequent appellate and post-conviction proceedings.
Throughout jury selection, the prosecutor repeatedly told the prospective
jurors that this case would be about whether Baer did not know right from wrong,
and otherwise injected the insanity standard into the discussion. For example, the
prosecutor said:
did he know he shouldn't be killing someone? That's really what it's all
about. His excuse is he didn't know what he was doing. He didn't know right
from wrong.
• .
TR 386-7.
The prosecutor went beyond inquiring as to the juror's own beliefs, as he
indicated to one of Baer's actual jurors (TR 532), and the rest of the panel, that this
"right or wrong" standard was the correct standard for GBMI:
Mr. Cummings: And what are the kinds of things you think you should look
at before you decide whether he is guilty but mentally ill?
Ms. Brumbaugh:
If he knew it was right or wrong.
El
Mr. Cummings: He could appreciate the wrongfulness. you are right on
top of it. I mean I'm feeling good already. You understand
the issues.
TR 494.
.
.
The prosecutor also encouraged jurors to define mental illness in this manner
in relation to mitigating circumstances. For example, in response to the
prosecutor's questioning, juror Brown indicated that the facts of this crime
warranted execution "unless there are mitigating circumstances." Asked to define
mitigating circumstances, Brown said: "Not having he ability to know right from
wrong.
.
.
at the time the crime occurred." TR 769-70. Brown, who served as jury
foreperson, DA App 1503-05, 1514-16, was not informed that appreciation of
wrongfulness only applied to the defense of insanity. TR 769-93.
The prosecutor knew the defense was pursuing a GBMI verdict, not insanity.
See e.g., TR 566. Nevertheless, the prosecutor continued to attach the "right from
wrong" standard to the definition of mental illness, and/or referred to mental illness
as a "defense" or an "excuse" throughout voir dire. See e.g., TR 383, 388, 390, 392,
394, 396, 398, 407, 419, 464, 466, 467, 469, 470, 477, 483, 484, 486, 494, 509, 536,
541, 549, 925-27, 937, 941. Defense counsel did not object to these statements.
Throughout jury selection, the prosecutor also incorrectly told the jurors that
a GBMI verdict may not permit a death sentence: "The law is not clear in this state
on whether we can execute somebody who's guilty but mentally ill. The jury makes
a finding of guilty but mentally ill. It may happen. It may not. Our Supreme Court
has not decided that case yet." TR 649; see also TR 494-95, 565-67, 664, 74344, 81718, 92930, 935, 952.
5
The prosecutor also told the jury that the legislature was considering bills
that would abolish life without parole, though he made clear that this was not
presently the case. TR 920-21.
Trial counsel did not object to any of the foregoing statements.
The prosecutor also state or insinuated on several occasions that the victim's
family wanted a death sentence. TR 378, 480, 405, 559, 766, 801-02. Toward the
end of jury selection, during a bench conference, defense counsel asked for a mistrial
for the prosecutor's comments mentioning the victims' family (referring to them as
"victim impact" comments). The judge remarked that he was not paying attention,
denied defense counsel's motion, and suggested the prosecutor tell jurors that he
had misspoken. No objection or clarification was made in front of the jury. TR 801-
Guilt Phase Evidence and Arguments
At trial, Baer's defense focused on convincing the jury he suffered mental
illness at the time of the crime. The defense expert, Dr. Parker, and the two court's
experts, Drs. Davis and Lawler, all agreed that Baer suffered from mental illness.
TR 1779, 1902, 1909, 1929-30; PCR App. at 345.
Dr. Parker found that Baer "had a history of some significant drug issues,"
including methamphetamine, cocaine, inhalant dependence, and marijuana abuse.
TR 1778. These issues began in his adolescent years and continued into his adult
years. TR 1778. He diagnosed Baer as dependent upon methamphetamines and
other drugs, and as suffering from underlying anxiety and psychotic disorders. TR
1778-79, 1822. He explained that individuals who use methamphetamines can
become quite agitated, psychotic, paranoid and disorganized as a result of their
drug use. TR 1802. He noted that Baer had been treated with two anti-psychotic
drugs during his pre-trial incarceration. TR 1787-88.
Dr. Davis, the Court's psychiatrist stated, "it is probable that psychosis induced
by heavy, steady methamphetamine abuse was operating at the time [of the
offense]." TR 1929. He explained that the most dangerous phase of meth abuse was
a period known as "tweaking," which is a period at the end of a binge when the user
either runs out of the drug or the drug stops creating the same euphoric effect. At
this point the user will become unpredictable, violent and explosive. TR 1936. This
period can last for 45 days. TR 1937. He also testified that the symptoms of
methamphetamine-induced psychosis typically continue beyond the cessation of the
drug use, often for weeks. TR 1940.
Dr. Lawlor, the Court's psychologist, described in detail Baer's account of meth
use on the day of the offense. TR1874-75. He diagnosed Baer as suffering from
paranoid personality disorder, TR 1873, and stated that methamphetamine use
could enhance paranoia. TR 1899.
Dr. Lawlor also described in detail Baer's account of his meth use on the day of
the crimes. TR 1874-76. He indicated he had met up "friend" before work, and his
friend had shared some of his meth. Id. Baer told Lawlor that he had consumed
approximately 3.5-4 grams of meth throughout the day. TR 1876.
7
Baer's "friend," Danny Trovig, acknowledge being with Baer that morning.
However, Trovig, who was on parole at the time, TR 1261, said he did not consume
any methamphetamine or see Baer do so. TR 1258. When asked if Baer was high
that morning was "Not that I know of. I couldn't tell." TR 1263.
The prosecutor also offered a toxicology expert, Dr. Michael A. Evans, who
testified that a blood sample collected from Baer 38 hours after the offense, and
tested 13 months after collection, showed some marijuana usage, but tested
"absolutely zero" for methamphetamine or any other drug. TR 1621, 1629, 1635,
1640-46. However, because of the delay in the blood draw and the testing of the
blood, Dr. Evans could not conclude that Baer had not used any methamphetamine
on the morning of the crime. TR 1642-45. At post-conviction proceedings, Dr. Evans
clarified that he could not say whether methamphetamine existed in Baer's blood at
the time it was collected, but he could only confirm that there was no such
substance in his blood when it was tested. PC 491-92.
The state also played a portion of a telephone conversation between Baer and
his sister, where Baer said, "Oh, yeah, and while we're at it to boot, here, let's go
ahead and say you're stupid and insane so it will make it a little easier. I don't
think so. Matter of fact, I ain't got to worry about that 'cause I'm ready to go out
here to the fkcking doctor, tell this stupid son of a bitch a bunch of stupid lies." TR
2067.
During his closing argument, the prosecutor repeatedly suggested that
defense counsel, the mitigation specialist and Dr. Parker conspired to fabricate
Baer's mental illness. TR 2056-57, 2062, 2064, 2066, 2069, 2070, 2072-73, 2076.
Defense counsel devoted much of his closing argument to defending himself and the
defense team against these accusations. TR 2082-90.
The prosecution again compared mental illness to self-defense, an "excuse" to
evade responsibility, and continued to suggest that a mental illness must rendered
Bear unable appreciate the wrongfulness of his conduct to be relevant under the
law. TR 2055, 2076, 2113-14.
The prosecutor also reiterated that Baer and his lawyers were fabricating a
mental illness defense so they could pitch that argument to the Indiana Supreme
Court on appeal. TR 2109- 10.
Defense counsel did not object to these statements.
The jury found Baer guilty on all counts and rejected his GBMI request. DA
App. 30-31.
Penalty Phase Evidence and Arguments
At the penalty phase, the defense presented one witness, Dr. Mark
Cunningham. Dr. Cunningham had reviewed Baer's history for "risk factors." He
discussed Baer's prenatal and perinatal difficulties including his mother having
cancer while pregnant, drinking while pregnant, and Baer being malnourished
during the first three to six months of his life. TR 2277, 230506, 2308-11. He
detailed alcohol abuse in Baer's family history including by his parents during his
childhood. He testified about Baer's family, including the number of men his mother
bore children with, the multiple family members who were victims of domestic
violence, and the many who had psychiatric disorders (including schizophrenia). TR
2288-92, 2341-44, 2347-68. Dr. Cunningham also testified at length about what he
referred to as "toxic parenting." TR 2347-68. He detailed Baer's poor school
performance and struggles with ADHD, as well as several head injuries suffered
during his youth. TR 2316-28.
Dr. Cunningham also extensively discussed Baer's abuse of inhalants,
alcohol, methamphetamine, and other substances. TR 2328-41, 2390-92. Dr.
Cunningham stated that Baer reported that he had been on a "three-day run prior
to the offense," and that he smoked meth at nine a.m., the morning of the offense,
but noted that the blood-sample analyzed a year later did not detect meth. TR 2404.
He also explained that methamphetamines have destabilizing effects that are both
"acute"— the immediate effects from using the drug
and "chronic kind of toxic
-
effects." Thus, "even if he were not abusing methamphetamines immediately prior
to this offense, a historic pattern of chronic abuse may well serve to destabilize
somebody psychologically. In other words, increase the presence of psychotic-like
thinking, makes them more paranoid, has more on-going corrosive effect on their
emotional and psychological adjustment." TR 2403-04. Dr. Cunningham pointed to
evidence that Baer was driving erratically and behaving in a manner to attract
attention to himself at the time of the offense, and that, after his arrest, he was
exhibiting sufficient signs of disorganization such that the jail put him on antipsychotic medication. TR 2404-05.
10
Trial counsel did not ask Dr. Cunningham whether Baer met the Indiana's
statutory mitigating factors related to mental illness. I.C. 10-9(c)(2) & (c)(6).
During closing argument, the prosecutor again told the jury that the victim's
family wanted a death sentence: "we would not be here if that's not what the Clarks
wanted." TR 2551.
The prosecutor also told the jury:
[i]n my career in law enforcement in this community, we have had at least one
hundred and twenty-five murders... Of those no murder even comes close to
the murders committed by Fredrick Michael Baer. Not even among the three
men who have been sentenced to death.
...
TR 2513.
He told the jury how much he had experienced a "worse" childhood that Baer,
but had managed to overcome it
My mother is not here. She was a prostitute who died of a drug overdose. I got
convicted of a felony when I was eighteen and spent time in jail, and I had a
worse childhood than [Baer] did. Maybe that's why I say, "Suck it up." .1 had
a tougher childhood than [Baer] did, and I somehow managed to become a
lawyer and got elected prosecutor in this community three times now. And me
and some other people who overcome tough circumstances like that get sick to
our stomach when people like [Baer] sit around and cry about how tough they
had it
.
.
TR 2548-49.
He urged the jury to vote for death to justify the money that was being spent on
the trial: "We are not anxious to file the death penalty.
.
.
The cost is unbelievable.
Who knows what it's going to cost our community. Probably a half a million dollars.
We've got people laid off. It's not something you do haphazardly. It's something
you do to seek justice in a community." TR 2551.
11
Sentencing Instructions
At the penalty phase, the jury was provided an instruction that modified the
language from Indiana's pattern instruction concerning a statutory mitigating
factor. In Indiana, it is a mitigating factor if "the defendant's capacity to appreciate
the criminality of the defendant's conduct or to conform that conduct to the
requirements of law was substantially impaired as a result of mental disease or
defect or of intoxication." I.C. 35-50-2-9(c)(6). Without objection, TR 2186, the jury
instruction on this factor omitted the words "of intoxication." DA App. 1324; TR
2198, 2570.
The jury was also instructed at the penalty phase that intoxication may not be
considered in determining the existence of a mental state that is an element of the
offense, unless it is involuntary:
Intoxication is not a defense in a prosecution for an offense and may not be
taken into consideration in determining the existence of a mental state that is
an element of the offense unless the defendant meets the requirements of I.C.
35-41-3-5.
I.C. 35-413-5: It is a defense that the person who engaged in the prohibited
conduct did so while he was intoxicated, only if the intoxication resulted from
the introduction of a substance into his body:
without his consent; or
(i)
when he did not know that the substance might cause intoxication.
(2)
TR 2202-03, 2575; DA App. 1333-34. (hereinafter "voluntary intoxication
instruction").
This instruction was given late in the charge, after the instructions
concerning the aggravating factors and mitigation. Both of the foregoing
12
instructions were submitted by the prosecutor, and given to the jury by the court,
without objection by trial counsel. TR 2153-2185.
Penalty Phase Verdict
The jury found the State had proven all five charged aggravators and that they
outweighed the mitigating circumstances, and recommended Baer is sentenced to
death. PCR App. at 328.
The trial court observed that the "common thread running through every
opinion is that Mr. Baer could appreciate the wrongfulness of his conduct," that he
"has some mental health difficulties, but he knows what he is doing." DA App. at
1005. The trial court found the defendant's "mental illness findings, his difficult
childhood, and his in-court expressions of remorse" to be mitigating circumstances,
but concluded that they were outweighed by the aggravators that were "proven
overwhelmingly." Id. at 1006. The court sentenced Baer to death. Id.
Direct Review
The Indiana Supreme Court affirmed Baer's convictions and death sentence.
Baer v. State (Baer I), 866 N.E.2d 752 (Ind. 2007) cert. denied sub nom, Baer v.
Indiana, 552 U.S. 1313 (2008).
On direct review, Appellate counsel raised four claims, the first of which
alleged that the prosecutor engaged in a general pattern of misconduct throughout
both the guilt and penalty phases of the trial, "embark[ing] upon a planned attack
on the defense" using "an assortment of improper and highly prejudicial comments
and arguments." Pet. App. 162a. Appellate counsel actually listed 38 instances of
13
prosecutorial misconduct, but conceded that trial counsel had not objected to any of
them. Appellant's Br. at 9-14. As appellate counsel provided an argument on only
one of these allegations, the state court considered and rejected only one
prosecutorial misconduct claim on direct review, concerning comments regarding
the appellate consequences to a death sentence imposed after Guilty But Mentally
Ill (GBMI). Pet. App. 162a -172a.
State Post Conviction Proceedings.
Baer filed a timely petition for post-conviction relief, raising numerous
allegations of ineffective assistance of counsel, including trial counsel's failure to (1)
object to penalty phase jury instructions; (2) object to numerous instances of
prejudicial prosecutorial statements; and, (3) investigate and present additional
mitigating evidence.
At an evidentiary hearing, Baer presented the testimony of several witnesses
to bolster his claim for mitigation, including a neuropsychologist, Dr. Lawler (who
reviewed mental health records not made available to him at trial), Baer's mother,
Baer's juvenile probation officer, former foster mother, prior mental health
treatment providers, a former teacher, and former wife Zola Brown. Pet. App. 8a.
The post-conviction court reject Baer's claims, and the Indiana Supreme
Court affirmed the denial of post-conviction relief, holding, in part, that Baer's trial
counsel and appellate counsel were not ineffective. Baer v. State, 942 N.E.2d 80, 87
(Ind. 2011), reh'g denied, Baer v. State, 2011 Ind. LEXIS 576 (Ind., June 28, 2011).
14
The Indiana Supreme Court specifically addressed the merits of, and
rejected, Baer's claims that counsel was ineffective for failing to challenge jury
instructions relating to intoxication, failing to present a claim for prosecutorial
misconduct, and failing to investigate or present adequate mitigating evidence. Pet.
App. 131a-133a, 151a-152a 134a-142a; 129a-131a.
Federal Habeas Proceedings
On November 29, 2011, Baer filed his petition for a writ of habeas corpus in
the United States District Court for the Southern District of Indiana. He again
challenged trial and appellate counsel's effectiveness regarding the penalty phase
jury instructions, for failing to challenge the prosecutor's comments, and for failing
to investigate and present mitigating circumstances. The court denied Baer's
petition and his motion to alter or amend the judgment. Pet. App. 47a & 43a.
In a unanimous decision, the Court of Appeals for the Seventh Circuit
affirmed Baer's convictions, but vacated his death sentence, granting relief on the
first two of Baer's claims. Pet. App. 9a.
Specifically, the Court of Appeals found that the Indiana Supreme Court's
ruling was unreasonable under 28 U.S. §2254(d) of the Anti-Terrorism and
Effective Death Penalty Act (AEDPA) for failing to find that Baer's trial counsel
was constitutionally ineffective under Strickland v. Washington, 466 U.S. 668
(1984), for failing object when the jury was given penalty phase instructions that,
in the context of the entire charge, were likely interpreted to preclude their
consideration of much of Baer's proffered mitigating evidence
15
specifically, that
-
related to his methamphetamine abuse and its effects on Baer's mental state
--
in
violation of Lockett v. Ohio, 438 U.S. 586 (1978) and it's progeny. Pet. App. 12a20a.
The Court of Appeals also found that the Indiana Supreme Court's ruling
was unreasonable under §2254(d), for failing to find that Baer's trial counsel was
ineffective under Strickland for failing to object to numerous instances of
prosecutorial misconduct including: repeatedly misstating the legal standard for
mental illness, telling the jury that the Indiana legislature was considering a bill
to repeal life without parole and the victim's family wanted death, and several
inflammatory and prejudicial comments during closing argument based on facts
not in evidence. The Court found that this pervasive misconduct undermined the
reliability of Baer's death sentence and prejudiced Baer. Pet. App. 21a
40a.
-
The Court of Appeals determined that in light of these decisions it was
unnecessary to review Baer's third Strickland claim concerning trial counsel's
failure investigate and present mitigating evidence on Baer's behalf. Pet. App. 9a.
REASONS FOR DENYING CERTIORARI
There are no grounds for this Court to grant certiorari to review the Court of
Appeals' unanimous, highly fact-specific, and in any event correct, decision granting
relief on two distinct Strickland claims in this case. Petitioner fails to identify any
conflict between the Seventh Circuit's decision and the decisions of other Circuits or
this Court. Nor does Petitioner contend that this case involves an important issue of
federal law. Rather, as described below, Petitioner: (1) regurgitates the some of the
16
same arguments considered and expressly rejected by the Court of Appeals; (2)
mischaracterizes the record evidence, the claims and the Court of Appeals' opinion;
or, (3) simply insists the Court of Appeals was wrong without clearly identifying the
alleged error. Under these circumstances, this Court's review is not warranted.
1.
Contrary to Petitioner's argument (Pet. at 10), the Court of
Appeals did not "ignore" the standard set forth in 28 U.S.C.
§2254(d).
The Court of Appeals correctly observed that, "[blecause [Baer's] Sixth
Amendment claims were adjudicated on the merits by the Indiana Supreme Court,
they are subject to 28 U.S.C. § 2254(d)," and therefore the Court was precluded
from granting relief unless the state court decision was unreasonable under
§2254(d)(1) or (d)(2). Pet. App. lOa. The Court of Appeals also correctly observed
that the "pivotal question" in this case "is whether the state court's application of
the Strickland standard was reasonable.
"
Id. at ha (quoting Harrington v.
Richter, 562 U.S. 86, 101 (2011)). The further acknowledged: "This is a difficult
standard, and even a strong case for relief under Strickland does not necessarily
mean the state court's contrary conclusion was unreasonable." Id. (citing Richter,
562 U.S. at 102).
Contrary to Petitioner's argument (Pet. at 10, 16), the Court of Appeals
analysis in this case bears no resemblance to the Ninth Circuit's decision in Sexton
v. Beadreaux, 138 S.Ct. 2555 (2018), where the Ninth Circuit failed to consider
arguments or theories that could have supported the state court's summary denial
in that case. Here, the state court did not issue a summary denial, but provided a
17
explanation for its decision rejecting Baer's claims. Recently, in Wilson v. Sellers,
this Court explained that "[d]eciding whether a state court's decision 'involved' an
unreasonable application of federal law or 'was based on' an unreasonable
determination of fact requires the federal habeas court to train its attention on the
particular reasons—both legal and factual—why state courts rejected a state
prisoner's federal claims." 138 S. Ct. 1188, 1191-92 (2018)(internal quotations and
citation omitted). That is, when, as here, the state court "explains its decision on the
merits in a reasoned opinion.
.
.
a federal habeas court simply reviews the specific
reasons given by the state court and defers to those reasons if they are reasonable."
Id. at 1192.
That is precisely what the Court of Appeals did in this case. The Court of
Appeals conducted a detailed analysis of the state court's decision, with respect to
two of Baer's Strickland claims. Applying the standard of §2254(d), the Court of
Appeals found all of the reasons the state court provided in support of its decision
regarding the instruction claim were unreasonable, and determined that Baer was
entitled to relief on this claim. Pet. App. 14a-20a. Applying the standard of
§2254(d), the Court of Appeals also found all of the reasons the state court provided
in support of its decision regarding the prosecutorial misconduct claim were
unreasonable, and determined that Baer was entitled to relief on this claim as well.
Pet. App. 21a-40a. If anything, the Court of Appeals analysis was far more
thorough in its analysis than the state court, as the Court of Appeals identified
18
instances where the state court decision was based on facts that were clearly
rebutted by the record. E.g., Pet. App. 15a-16a; 32a.
Petitioner's disagreement with the result of the Court of Appeals' application
of §2254(d) does not constitute "ignoring" §2254(d). Petitioner fails to identify any
aspect of the Court of Appeals' decision that is in conflict with any decision of this
Court. Petitioner's unsupported allegations are not a basis for this Court's review.
2.
Contrary to petitioner's assertions (Pet. 11-16), the Court of
Appeals' fact-bound decision regarding trial counsel's failure to
object to penalty phase instructions is correct.
Baer's first Strickland claim concerned counsel's failure to object to an
unusual set of penalty phase instructions. Late in the charge, well after the
instructions concerning the aggravating factors and mitigation, the jury was
instructed that Baer's voluntary intoxication "may not be taken into consideration
in determining the existence of a mental state that is an element of the offense." DA
App 1333-34; TR 2575 (hereinafter "voluntary intoxication instruction"). In
addition, the standard instruction that would have ordinarily told the jury that
intoxication was a statutory mitigating factor "intoxication" language from the
statutory mitigation instruction. The Court of Appeals ultimately concluded that,
reviewing these instructions in the context of the entire charged, it is reasonably
likely that the jury interpreted the penalty phase instructions to preclude
consideration of mitigating factors based on Baer's voluntary drug use, which
constituted a significant portion of the mitigating evidence presented in this case.
Pet. App. 20a.
19
As Petitioner observed (Pet. 12), this Court has clearly established that the
relevant Eighth Amendment inquiry is whether there was a reasonable likelihood
that the jury would interpret the penalty phase instructions in a manner that
precluded it from fully considering and giving full effect to all of the defendant's
mitigating evidence. Boyde v. California, 494 U.S. 370, 380 (1990)). In order to meet
this standard, "a defendant need not establish that the jury was more likely than
not to have been impermissibly inhibited by the instruction." Id.
Petitioner's argument for certiorari focuses on the voluntary intoxication
instruction. Petitioner renews his contention (Pet. 11, 13, 15) that because the state
court held that the voluntary intoxication instruction "was a correct statement of
the law, and was relevant in determining whether Baer committed his crimes
intentionally," the jury necessary interpreted the instructions in the same manner.
As the Court of Appeals correctly observed, "[t]he question
...
is not what the
State Supreme Court declares the meaning of the charge to be, but rather what a
reasonable juror could have understood the charge as meaning." Pet App. iSa.
quoting Francis v. Franklin, 471 U.S. 307, 315-316 (1985). The Court of Appeals
did not dispute the state court's holding that "this instruction was a correct
statement of law," but observed that, "it was likely that the jurors' interpretation of
this instruction was not legally correct." Pet. App. 18a. The Court of Appeals
explained that, in light of the entire charge, "[jiurors were unlikely to decipher that
the voluntary intoxication instruction related only to proof of aggravating factors
(which were not disputed by the defense) and did not plainly exclude voluntary
intoxication evidence for all purposes, including in mitigation of sentencing." Id.
The Court gave several reasons for its decision:
"There was no instruction or clarity provided that this instruction related
only to proof of the aggravating factors[.]"Id. Nothing in the penalty phase
instructions in this case informed the jury that limitation on the consideration of
intoxication evidence was only relevant to the "intent" requirement of the
aggravating circumstance, but not relevant to their consideration of mitigation
-
and this was certainly not a concept one was likely to intuit.
Petitioner's claim that the voluntary intoxication instruction itself
"explained" that its prohibition pertained only to "the mental state required for the
aggravating factors," (Pet. at 15 (emphasis in original)) is false. This instruction is
typically given at the guilt phase of a trial and its language was not altered in any
way when it was injected into the penalty phase instructions in this case. That is
not what the instruction said, and the trial court made no such statement when he
read the instructions to the jury. This is Petitioner's interpretation of what the
instruction was supposed to mean.
"[T]he voluntary intoxication instruction was not read with the
aggravating factor instructions. This instruction was given at the end of the charge,
well after aggravating and mitigating factor instructions, and soon before the jurors
recessed to make a decision." Id.
21
(3) "[Tlhe jury had been primed to believe that voluntary intoxication could not
impact sentencing," by the prosecutor's argument. Id. During closing argument at
the guilt phase, specifically referencing this instruction,3 the prosecutor had already
indicated that the voluntary instruction would apply to "some effort to make
[defendant's] sentence a little easier":
Self-induced drugs [sic] is no protection from the law. You're accountable for it.
Now, if somebody accidentally slips you drugs and that causes you to commit a
crime, then you're not responsible for that. But if you use drugs, and you
commit a crime because you use those drugs, the law could really care less.
Doesn't make any difference. You are just as guilty as if you didn't have them
when you committed the crime. We don't give anybody a pass who takes drugs
on their own and then uses it as some defense or some effort to make their
sentence a little easier. The law does not permit that.
TR 2065 (emphasis supplied).
(4) "The instructions relating to mitigation did not mention 'intoxication' as
they should have under the statute because the trial court had omitted that
language." Pet. App. 17a.
Petitioner also renews his contention (Pet. 12) that any problem with the
voluntary intoxication instruction was cured by the court's instructions that there
were "no limits on what factors an individual juror may find as mitigating," and
Indiana's general instruction that "[amy
...
other circumstances" may be considered
as mitigating.2 The Court of Appeals correctly found this theory is at odds with this
Court's decision in Francis, 471 U.S. at 320, where the Court held that the use of a
3 The same involuntary intoxication instruction was given at the guilt phase. TR 2124-25.
2 The full "any other circumstances" instruction read: "any other circumstances, which includes the
defendant's age, character, education, environment, mental state, life and background or any aspect
of the offense itself and his involvement in it which any individual juror believes makes him less
deserving of the punishment of death." (Tr. 2570-71.)
22
contrary general instruction does not automatically cure a deficient specific
instruction:
While the "any other circumstance" and "no limits" instructions contradicted
the instruction excluding voluntary intoxication evidence, the contradiction
did not provide clarity. "Language that merely contradicts and does not
explain a constitutionally infirm instruction will not suffice to absolve the
infirmity." Francis, 471 U.S. at 322. Further, the general mitigation
instructions were given earlier and separately from the voluntary
intoxication instruction, making it unclear from the charge whether "any
other circumstances" excluded voluntary intoxication. We are left with "no
way of knowing which of the two irreconcilable instructions the jurors
applied in reaching their verdict." Id. Therefore, we find that the state court's
conclusion that the trial court's broad and generic mitigating instructions
cured the faulty instructions was not reasonable.
Pet. App. 19a.
Under these specific circumstances, the Court of Appeals correctly concluded
it is reasonably likely that the jury would have interpreted the voluntary
intoxication instruction as precluding the consideration of evidence of Baer's
voluntary drug use for any purpose, including as mitigation, and the state court's
contrary conclusion was unreasonable.
Finally, contrary to Petitioner's contention (Pet. at 13-14), the Court of
Appeals decision is not inconsistent with this Court's decisions in Boyde v.
California, 494 U.S. 370, 383 (1990) or Johnson v. Texas, 509 U.S. 370 (1990).
Neither case involved an instruction, such as the voluntary intoxication instruction
in this case, that plainly told the jury that they were precluded from considering a
significant portion of defendant's proffered mitigation evidence.
Johnson was one of a series of decisions where this Court considered whether
Texas's capital sentencing scheme
which, unlike Indiana's scheme, asks the jury
-
23
to determine a defendant's sentence based on its answers to a series of enumerated
questions or "special issues"
-.
allows the jury to consider and give effect to various
categories of proffered mitigating evidence. Compare, Penry v. Lyna ugh, 492 U.S.
302, 322-26 (1989)(future dangerous special issue instruction precluded jury from
giving effect to mental retardation as mitigating factor) with Johnson, 509 U.S. at
369 (same special issue instruction does not preclude jury from giving effect to
youth at mitigating factor).
The Court's decision in Boyde actually supports the Court of Appeals
decision. In Boyde, the instruction at issue told the jury to consider as mitigation,
"[a]ny other circumstance which extenuates the gravity of the crime even though it
is not a legal excuse for the crime."494 U.S. at 381. The Court rejected defendant's
contention that the jury would likely have interpreted this instruction more
narrowly than the language suggested i.e., as "any other circumstance of the
-
crime which extenuates the gravity of the crime"
-.
so as to preclude consideration
of mitigating evidence not specifically related to crime Id. at 382. The Court noted
.
that there were other instructions specifically telling the jury they may consider
mitigating evidence not associated with the crime, Id. at 383, and that the
prosecutor had not specifically argued that factors unrelated to crime should not be
considered. Id. at 384.
In Baer's case, the Court of Appeals also found it unreasonable that the jury
would likely have interpreted the voluntary intoxication instruction more narrowly
than the language suggested, such that the preclusion applied only to aggravating
24
factors, but not mitigation; there were no other instructions specifically telling the
jury they may consider the defendant's voluntary intoxication as mitigation; and,
the prosecutor did specifically argue that the law precluded consideration of
defendant's voluntary intoxication as it pertained to sentencing.
Petitioner had failed to show that the Court of Appeals decision is
inconsistent with this Court's decisions; therefore, this Court's review is not
warranted.
3.
Contrary to Petitioner's assertions (Pet.16-21), the Court of
Appeals' fact-bound decision regarding trial counsel's persistent
failure to object to prosecutorial misconduct is also correct.
While the penalty phase instructions in this case were unusual, the conduct of
the prosecutor, Rodney Cummings, was positively astonishing. The Court of
Appeals was correct when it stated, "The kind of advocacy shown by this record has
no place in the administration of justice and should neither be permitted nor
rewarded." Pet. App. 36a (quoting United States v. Young, 470 U.S. 1, 9 (1985)).
Indeed, the Court of Appeals found Mr. Cummings conduct in this case so troubling,
that they decided to address this additional claim of ineffective assistance of
counsel, even though they had already granted relief on the instruction claim. Pet.
Mr. Cummings, the elected prosecutor of Madison County, has a history of
prosecutorial misconduct.4 Here, Mr. Cummings engaged in a pervasive pattern of
See Marcum v. State, 725 N.E.2d 852, 858-860 (Ind. 2000); Reynolds v. State, 797 N.E.2d 864
(Ind. Ct. App. 2003). The Seventh Circuit also overturned a Madison County murder conviction
25
misconduct that began in voir dire, and continued throughout the trial. He
repeatedly misled the jury as to the law governing mental illness, such that the jury
was likely to discount evidence of Baer's mental illness because it did not render
him incapable of discerning right from wrong (i.e., legally insane). A prominent
theme of his closing argument was that Baer's attorneys, his investigator and a
defense expert conspired to fabricate Baer's mental illness
-
to such an extent that
lead counsel's closing argument was devoted to defending himself and the trial team
from these false allegations, rather than discussing his client's mitigation. He
repeatedly urged the jury to consider "facts" not in evidence, several of which were
untrue and involved matters that are prohibited by the constitution and Indiana
law: e.g., he falsely claimed the legislature was considering bills to overturn life
without parole (LWOP); he falsely claimed the Indiana Supreme Court had not yet
determined whether a mentally ill person can be sentenced to death, then argued
that Baer's lawyers were fabricating his mental illness so they could pitch that
argument to the Supreme Court on appeal; he repeatedly indicated that the
victim's family wanted a death sentence, in violation of Indiana and federal law; he
urged the jury to return a death sentence to justify the cost of the trial ("half a
million dollars") to a community with people laid off, he gave a detailed description
of his own life history, including his mother's prostitution; he insisted Baer's crime
was worse than any of the prior 125 murders Cummings had heard of in his career
due to Mr. Cummings' misconduct as both a police officer and prosecutor, in Gaudy v. Basinger,
604 F.3d 394, 399401 (7th Cir. 2010).
PTOI
in law enforcement. And Baer's trial lawyers failed to object to any of this. Pet.
App. 22a.
The Court of Appeals declined to address all of Baer's allegations, instead
focusing on "those categories in which we find the prosecutor's comments were most
offensive and where Baer's counsel's failure to object was deficient." Id. These three
categories were: (A) repeatedly misstating the law regarding mental illness; (B)
arguing the victim's family wanted the death penalty, in violation of state and
federal law; and (C) numerous instances where the prosecutor argued facts and
opinion not in evidence. Id. at 23a-28a. The Court of Appeals then carefully
considered the reasonableness of the state court's prejudice decision and, finding it
unreasonable, concluded that Baer was prejudiced by the aggregate effect of the
prosecutor's unchecked misconduct
-
both alone, and in conjunction with counsel's
failure to object to the penalty phase instructions. Id. at 40a.
The Court of Appeals conducted a detailed analysis of the state court's
decision and found all of the reasons the state court provided in support of its
decision were unreasonable under §2254(d). Pet App. 21a-40a. As described below,
Petitioner's complaints concerning the Court of Appeals Petitioner's §2254(d)
analysis of these issues rely on misrepresentations of the facts or
mischaracterizations of the opinions of the Court of Appeals and/or the state court.
A.
Repeatedly misstating law regarding mental illness
As the Court of Appeals described, the prosecutor repeatedly misstated the
law regarding mental illness: first, throughout the voir dire, and later, during
27
closing argument. Pet.App. 22a-26a. As Court of Appeals correctly observed, the
effect of the prosecutor's misstatements of the law regarding mental illness
inaccurately suggested that "mental illness could only be considered (even as
mitigation) if Baer did not know right from wrong," Pet. App. 24a-25a.
The state court had acknowledged that the prosecutor had often conflated the
separate concepts of mental illness and legal insanity, but concluded that trial
counsel's failure to object was, "likely. .part of their general strategy of letting the
.
prosecutor discredit himself." Pet. App. 26a. The court opined that counsel
intended to correctly state the law and "hope the jury would decide from the
contrast that the prosecutor was not credible." Id. at 26a- 27a.
The Court of Appeals correctly held this strategy was unreasonable because,
whatever counsel's "intention," the "correction" did not happen: the trial record
shows that counsel did not clarify or correct the prosecutor's misstatements. Id. at
27a. Petitioner's unsupported assertion (Pet. at 19) that "counsel repeatedly did so,"
is false.
As the Court of Appeals explained, Pet. App. 27a, during voir dire defense
counsel did sometimes tell the jury that they were not pursing an "insanity defense"
e.g., TR 965, and repeated this same admonishment at the end of his closing
argument. TR. 2015. However, jurors were never told, nor were they reasonably
likely to intuit, that the "inability to know right from wrong" standard that the
prosecutor kept discussing in relation to mental illness hinged on that legal
distinction, particularly since they were never given an instruction on insanity. Pet.
28
App. 27a. As the Court of Appeals correctly observed, because there was no
instruction defining insanity or otherwise clarifying the matter, the jury had no way
of knowing that the definition the prosecutor was giving them applied only to a
insanity defense; thus, counsel's statement that Baer was not "insane" did not
clarify the matter. Id.
B. Repeatedly Injecting Victim Impact Evidence
As the Court of Appeals described in detail, Pet. App. 28a-30a, the prosecutor
repeatedly told the jury that the victim's family wanted Baer to receive the death
penalty during voir dire, TR 378, 480, 405, 559, 766, 801-02, and reiterated the
point in his penalty phase final argument for death: "we would not be here if that's
not what the Clarks wanted." TR 2551. The Court of Appeals was correct that
evidence concerning the victim's family's desire for a death sentence is inadmissible
under both Indiana law, Bivins v. State, 642 N.E.2d 928, 955-57 (Ind. 1994) and the
Eighth Amendment. Booth v. Maryland, 482 U.S. 496, 508-09 (1987). Pet. App. 30a31a. Trial counsel did not object to the comments during voir dire until jury
selection was nearly completed and several jurors had already been selected. TR
802. They did not object the prosecutor's statement during closing argument at all.
The state court acknowledged that these comments were "improper," but
decided it did not render Baer's trial "fundamentally unfair," because the trial judge
"rebuked" the prosecutor and "the prosecutor then told the jury he misspoke." Pet.
App. 31a Contrary to Petitioner's assertion (Pet. 19), the Court of Appeals correctly
held this decision was unreasonable because it was clearly rebutted by the record.
29
TR 801-803; 866. As Court of Appeals explained, "In fact, Cummings never told the
jury he misspoke and no "rebuke" was given. Accordingly, no follow up statement by
the prosecutor or the judge remedied the prosecutor's victim impact comments or
alleviated defense counsel's deficiency for failing to make an objection before the
jury." Pet. App. 32a.
C. Repeatedly Injecting Personal Opinion and Facts Not in Evidence
The Court of Appeals also considered several unobjected to instances where
the prosecutor had made improper and inflammatory remarks based on facts not in
evidence.
First, at the end of voir dire, when all selected jurors were present,
prosecutor told the jurors, without objection:
The state of the law in Indiana right now is that life without parole means
life without parole.
That does not mean it's not going to chance [sic].
Hardly a year doesn't go by where there isn't a bill in the
that wants to change the law to permit
legislature that is .
parole at some point after so many years.
- . -
..
TR 920 (second ellipsis in original). The statement did not just invite the jury to
speculate that the law "may" change, but improperly and inaccurately suggested the
legislature was in process of changing it, thus giving the jury reason to believe it
would. The statement was not invited by defense counsel's argument that Baer
should be sentenced to LWOP, nor could it be remedied by correct descriptions of
the current law.
Contrary to Petitioner's assertion, (Pet. at 17), the state court did not conclude
that this statement had been "invited" by defense counsel. Indeed, the state court
30
did not rule on the statement at all, but incorrectly stated that it had rejected this
claim on direct review. 942 N.E.2d at 100.5 This is false. 866 N.E.2d at 755-61.
Because the state court incorrectly believed this issue had been decided previously
and did not review the claim on its merits, the provisions of §2254(d) do not apply to
this portion of Baer's claim. See Cone v. Bell, 556 U.S. 449, 466 (2009).
The Court of Appeals correctly concluded that the statement introduces alleged
facts not in evidence, Pet. App. 33a, and created the substantial risk the jury would
impose the death penalty based on the belief that Baer could be released unless
executed. Id. at 39a.
The Court of Appeals also conducted a detailed analysis of the numerous
other instances where the prosecutor made inflammatory references to facts not in
evidence during his penalty phase closing argument. Id. at 33a-35a. Contrary to
Petitioner's argument (Pet. at 17-18), the Court of Appeals clearly explained why
the state court's "invited response" conclusion was unreasonable. Pet App. 35a-36a.
As this Court explained in United States v. Young, 470 U.S. 1, 13 (1985), when
evaluating claims of prosecutorial misconduct, "the idea of 'invited response' is used
not to excuse improper comments, but to determine their effect on the trial as a
whole. Darden v. Wainwright, 477 U.S. 168,182 (1986)(citing Young, 470 U.S. at
13). Improper remarks do not become proper, let alone harmless, merely because
they were made in response to a "topic" introduced by opposing counsel. A court
To the extent the state court's statement that "prosecutor nevertheless correctly stated the
current law on life without parole, as did trial counsel," 942 N.E.2d at 100, can be construed as a
decision, it is unreasonable because it fails to address the prosecutor's reference to the alleged LWOP
abolition bill before the legislature. This statement was neither correct nor a statement of the law.
31
must assess whether the comments represent reasonable response opposing
counsel's argument, and whether the comments rendered the trial unfair. See
Young, 470 U.S. at 11-13. The state court performed no such analysis; the Court of
Appeals did.
The Court of Appeals correctly observed, "just because defense counsel cracked
open the door to these subjects, it did not permit the prosecutor to drive a truck
through it." Pet. App. 35a. For example, defense counsel's statement that, "We
reserve the death penalty for the worst of the worst," did not justify the
prosecutions interjection of his personal experience and beliefs about whom that is.
TR 2513-14. Both trial counsel suggested that had they been raised under the
same circumstances as Baer, their lives may have turned out differently. TR 2527,
2532, 2544-45. This was part of an argument, supported by the evidence, that
various factors in Baer's upbringing affected how he turned out as an adult, in
response to the prosecutor's earlier argument that such factors have no effect. Id.
This did not justify the prosecutor's detailed discussion of his personal history:
My mother is not here. She was a prostitute who died of a drug overdose. I
got convicted of a felony when I was eighteen and spent time in jail, and I had a
worse childhood than he did. Maybe that's why I say, "Suck it up." If you lived
in this community, you would know that because people back there already
know it. I had a tougher childhood than he did, and I somehow managed to
become a lawyer and got elected prosecutor in this community three times now.
And me and some other people who overcome tough circumstances like that get
sick to our stomach when people like that sit around and cry about how tough
they had it
32
TR 2548-49. The Court was correct when it held that Mr. Cummings' "seditious and
specific comments" were not a reasonable response to the defense counsel's
argument. Pet. App. 36a (citing Young, 470 U.S. at 7).
D. Cumulative Prejudice
The Court of Appeals was also correct when it held "that the Indiana
Supreme Court's conclusion was unreasonable under Strickland because the state
court failed to analyze the aggregate prejudice of Prosecutor Cummings's improper
comments, and looking at the cumulative effect of these comments it was
unreasonable to conclude that Baer's case did not suffer prejudice." Pet. App. 36a.
It is well established that the prejudicial effect of counsel's errors should be
assessed cumulatively, in light of the entire record. See, e.g., Strickland. 466 U.S.
at 695-96; see also Williams v. Taylor, 529 U.S. 362, 397 (2000) (reviewing court
must consider the "totality of the evidence" when assessing prejudice); Kyles v.
Whitley, 514 U.S. 419, 436-37 (1995) (materiality standard under Brady, which is
identical the prejudice standard in Strickland, requires prejudicial effect of omitted
evidence be assessed "collectively, not item by item").
Petitioner does not dispute that under Strickland, the state court was
required to assess the cumulative effect of the prosecutorial misconduct in this case
to ascertain whether Baer was prejudiced. Instead, Petitioner suggests the state
court did assess the cumulative effect of the comments, pointing to the Indiana
Supreme Court's statement that "[e]ven if taken in the aggregate, these comments
did not affect the outcome of Baer's trial," apparently to suggest that the Indiana
33
Supreme Court actually performed such and analysis. (Pet. at 20, citing "Baer II,
App. at 142a"). It is very clear from the context that the state court was not
considering the "aggregate" effect of all the prosecutor's misconduct, but the
"aggregate" effect of comments directed at Baer, his counsel, and his expert, a small
subsection of the claim. Pet. App. 142a. That is, the Court of Appeals was correct
when it concluded that this statement does not support a conclusion that that the
state court considered the cumulative prejudice of counsel's errors. Pet. App. 37a.
Contrary to the rest of Petitioner's argument (Pet. 20-21), the Court of
Appeals properly found that Baer was prejudiced
i.e., there was a reasonable
-
probability that he would not have been sentence to death
but for counsel's failure
-
to object to the numerous instances of prosecutorial misconduct in this case. Pet
App. 37a-40a. The Court of appeals properly considered, for example:
Far from involving only isolated improprieties, Cummings conduct in this
case featured a constant torrent of prejudicial tactics, from repeatedly misstating
the law regarding mental illness, repeatedly claiming the victim's family wanted
the death penalty, and repeatedly injecting inflammatory assertions based on his
personal opinion and facts not in evidence. Pet.App. 37a-38a.
Mr. Cummings's improper statements were specific, not ambiguous. They
were not merely emotionally inflammatory but also repeatedly implicated Baer's
independent Eighth Amendment right to an individualized sentencing
determination that, under Woodson v. North Carolina, 428 U.S. 280, 304 (1976), is
"a constitutionally indispensable part of the process of inflicting the penalty of
34
death." For example the, as the Court of Appeals correctly observed, the effect of the
prosecutor's misstatements of the law regarding mental illness inaccurately
suggested that "mental illness could only be considered (even as mitigation) if Baer
did not know right from wrong," Pet.App. 24a-25a, and prejudiced Baer. Id. at 38a.
The prosecutor's claim that the legislature was considering a bill to abolish LWOP
created the substantial risk the jury would impose the death penalty based on the
belief that Baer could be released unless executed. Id. at 39a (citing Simmons v.
South Carolina, 512 U.S. 154, 161-62, 164 (1994)). The prosecutor's repeated
assertions that the victim's family wanted the death penalty clearly violated under
both Indiana law, Bivins v. State, 642 N.E.2d 928, 955-57 (Ind. 1994) and the
Eighth Amendment. Booth v. Maryland, 482 U.S. 496, 508-09 (1987). Pet. App. 30a31a.
Most of the challenged remarks were not even arguably invited by counsel,
and even those few that responded to "topics" mentioned by the defense counsel
were improper, inflammatory and went way beyond what was reasonably necessary
to "right the scale." Id. at 35-36a.
Trial counsel not only did not object these remarks, but also filed to
effectively counter them in any way. Moreover, "[t]he record reflects that the trial
judge missed numerous opportunities to stop or clarify the prosecutor's statements
and his absence was noticeable throughout trial." Pet. App. 32a.
Petitioner is correct, (Pet. 20) that the Court of Appeals was clearly aware of,
and certainly did not discount, the aggravating factors and the tragic nature of the
35
crime. E.g., Pet.App. 38a. But this was also a penalty trial in which mitigating
evidence was presented on the defendant's behalf, and death was certainly not a
foregone conclusion. See, e.g., Woodson, supra, 482 U.S. at 304. The prosecution's
evidence for death was less likely to overwhelm the jury than was the sheer
breadth, volume, variety and audacity of the impermissible comments and
argument delivered by the prosecutor.
In sum, the Court of Appeals conclusion that Baer was prejudiced at
sentencing by counsel's failure to object to the prosecutorial misconduct both alone,
-
and in conjunction with counsel's failure to object to the jury instructions, Pet. App.
40a,is well supported.
4.
Conclusion.
In sum, the Court of Appeals could not have been more aware of this Court's
precedents or of the demanding and deferential standard that § 2254(d) imposes
under AEDPA. Petitioner has not pointed to a single misstatement of law or error
of fact made by the Court of Appeals. The Court of Appeals' decision is not only
fact-bound and free from legal error, it is correct.
36
CONCLUSION
For the above reasons, the Petition for Writ of Certiorari should be denied.
Respectfully Submitted,
. DELLY:
Attorney a a w
Atto
P.O. Box 6528
Evanston, Illinois 60204
Phone (773)680-7042
Mfdonnelly05@gmail.com
-andALAN M. FREEDMAN
Midwest Center for Justice
P.O. Box 6528
Evanston, Illinois 60204
Phone (847)492-1563
fbpc@aol.com
COUNSEL FOR RESPONDENT,
FREDRICK MICHAEL BAER
*Counsel of record
37
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.