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Thursday, August 25, 2005

Ind. Decisions - "Indiana justices approve execution" [Updated]

"Indiana justices approve execution" is the headline to an Indianapolis Star story posted on the Star website this evening at 8:25 p.m. Kevin Corcoran writes:

A sharply divided Indiana Supreme Court cleared the way Thursday for Arthur P. Baird's execution next week, saying he might be mentally ill but he's not legally insane. * * *

Indiana law prohibits the execution of people who are mentally retarded but doesn't say whether the lives of severely mentally ill killers also should be spared. The U.S. Supreme Court has not directly addressed the question of whether killing the mentally ill constitutes cruel and unusual punishment.

Writing for the Indiana court majority, Chief Justice Randall T. Shepard discounted mental health evidence [Baird's attorney, Sarah L. Nagy] submitted, saying the evidence failed to meet a standard the U.S. Supreme Court set in 1986 for such cases.

A report to the court from Dr. Philip M. Coons, a professor emeritus of psychiatry at the Indiana University School of Medicine, found Baird to be "grossly psychotic and delusional" and mentally unfit to be executed. * * *

But Shepard noted that Coons' report was not enough to justify a new round of hearings into Baird's mental state.

"He may be denying to himself that it (his execution) will actually occur. He may have a mental illness," Shepard wrote. "But read as a whole, the evidence presented simply shows Baird knows he is about to be executed because he murdered his parents."

Nagy is hoping the U.S. Supreme Court will take the case based on a lengthy dissent by Justice Theodore R. Boehm, which Justice Robert D. Rucker joined. The pair argued that Baird's claims should be heard in the court's 3-2 ruling.

Such divisions on Indiana's high court are unusual in capital punishment cases.

"It is obvious, I think, that Arthur Baird has suffered from significant mental illness dating from the time he murdered his pregnant wife and parents in 1985," Boehm wrote. "Because of its irreversibility, apart from whatever one thinks of its morality, we should err on the side of caution in carrying out an execution."

The Supreme Court's opinion in this case (BAIRD, ARTHUR P., II v. STATE OF INDIANA) is not yet available online. Here is today's entry in the Court's docket:
8/25/05 ISSUED THE ENCLOSED ORDER:
8/25/05 BECAUSE BAIRD HAS NOT MET HIS BURDEN OF ESTABLISHING A
REASONABLE POSSIBILITY THAT HE IS ENTITLED TO RELIEF ON THE
CLAIMS PRESENTED, WE DECLINE TO AUTHORIZE THE FILING OF THE
SECOND SUCCESSIVE PETITION. WE ALSO DENY HIS REQUESTS FOR A
STAY OF EXECUTION, FOR AN ORDER DIRECTING THE DEPT. OF
CORRECTION TO NOTIFY BAIRD'S COUNSEL BEFORE CONDUCTING ANY
PSYCHOLOGICAL EVALUATION, FOR APPOINTMENT OF MENTAL HEALTH
PROFESSIONALS TO EXAMINE BAIRD, FOR FUNDS TO HIRE AN INDEPENDENT
MENTAL HEALTH PROFESSIONAL TO EXAMINE BAIRD, FOR A HEARING ON
HIS COMPETENCY, AND FOR ANY OTHER RELIEF REQUESTED IN THE PAPERS
BEFORE US TODAY.
OUR RULES PERMIT, BUT DO NOT REQUIRE, A PETITION FOR
REHEARING. REHEARING SHOULD NOT BE SOUGHT IF BAIRD INTENDS
MERELY TO RAISE THE SAME ARGUMENTS WE HAVE ALREADY ADDRESSED.
IF HE DOES PETITION FOR REHEARING, HOWEVER, THE PETITION MUST
BE PHYSICALLY FILED WITH THE CLERK NO LATER THAN 12:00 P.M.,
AUGUST 26, 2005. THE STATE'S RESPONSE MUST BE PHYSICALLY FILED
WITH THE CLERK NO LATER THAN 3:00 P.M., AUGUST 26, 2005. TO
MINIMIZE ANY DELAY IN THE SERVICE AND RECEIPT OF PAPERS, THE
ATTORNEYS ARE ORDERED TO CERTIFY IN PAPERS PRESENTED FOR FILING
THAT COPIES HAVE BEEN SENT (1) BY ELECTRONIC MAIL OR HAND-
DELIVERY TO OPPOSING COUNSEL AND (2) BY ELECTRONIC MAIL TO THE
DIVISION OF SUPREME COURT ADMINISTRATION, ADDRESSED TO
GSCODRO@COURTS.STATE.IN.US. THERE WILL BE NO EXTENSIONS OF
THESE DEADLINES BY OPERATION OF APPELLATE RULE 25(C).
RANDALL T. SHEPARD, CHIEF JUSTICE
SHEPARD, C.J., AND DICKSON AND SULLIVAN, JJ., CONCUR.
BOEHM, J., DISSENTS WITH OPINION IN WHICH RUCKER, J., JOINS. KM
8/25/05 ****** ABOVE ENTRY MAILED ******
8/25/05 ISSUED THE ENCLOSED ORDER:
8/25/05 PETITION HAS FILED A "PETITIONER'S REQUEST FOR REHEARING"
AND THE STATE HAS FILED ITS "RESPONSE TO PETITION FOR REHEARING.
HAVING DULY CONSIDERED THE MATTERS RAISED THEREIN, THE COURT
DENIES REHEARING. THE CLERK IS DIRECTED TO CERTIFY OUR
PUBLISHED ORDER CONCERNING SUCCESSIVE PETITION FOR POST-
CONVICTION RELIEF IN CAPITAL CASE, FILED JULY 19, 2005 AS FINAL.
RANDALL T. SHEPARD, CHIEF JUSTICE KM
8/25/05 ALL JUSTICES CONCUR. (FOR ABOVE ORDER)
[Update 8/26/05, early a.m.] See this entry, posted last evening by Michael Ausbrook at INCourts.com. Here is a link to Corcoran's story, as published this morning in the Indianapolis Star (on page B4). Today's Star also has this editorial, titled "Today's Editorial: Execution debate warrants a wait."
Our position: Convicted killer Arthur Baird should not be put to death while issues of mental illness are unresolved. * * *

Only one of the four psychiatrists who testified at the trial pronounced Baird insane; however, several mental health professionals who have examined him since then say mental illness caused him to kill. Among them is Philip M. Coons, a professor emeritus of psychiatry at Indiana University School of Medicine, who calls it "unjust to execute an individual who suffers from a severe mental disease or defect."

Currently, the law only half agrees. The U.S. Supreme Court has outlawed executions of the mentally retarded but has not addressed the issue of the capital convict who is captive to mental illness, whether at the moment of the crime or the moment of punishment.

Similarities in the two conditions are such that, even given the hazards of misdiagnosis and fakery, mental illness deserves consideration as a defense against death and may someday get it. At least one member of the Indiana Supreme Court, Justice Robert D. Rucker, has called capital punishment "inappropriate for a person suffering a severe mental illness." In this ever-changing context, it seems rash to proceed with executions where sanity is in serious doubt.

Having lost a bid for clemency to the Indiana Parole Board Wednesday, and, by a 3-2 vote, an appeal to the state Supreme Court Thursday, Baird's attorneys are beseeching the U.S. Supreme Court to weigh his mental state as a mitigating factor. Conceivably, the court could break new ground by taking on the case; or it could simply issue a stay of next Wednesday's date for lethal injection.

An AP story by Mike Smith appears today in the Louisville Courier Journal. Some quotes:
Sarah Nagy, an attorney for Baird, said that he was clearly insane and that she planned to appeal the ruling to the U.S. Supreme Court.

"What this case boils down to and what it has always boiled down to is how we as a society are going to treat our mentally ill," Nagy said * * *

Justices Theodore Boehm and Robert Rucker dissented from the majority ruling, saying the meaning of "insane" had not been definitively addressed by the U.S. Supreme Court.

Boehm said attorneys had cited facts that "at the very least lead one to conclude that Baird is only marginally in touch with reality."

Boehm said Baird had shown a "reasonable possibility" that he may be insane and should be allowed to pursue further litigation to make that case.

Barring a favorable court ruling or clemency by Daniels, Baird would be the fifth person executed in Indiana this year.

Finally, today's Fort Wayne Journal Gazette contains an editorial titled: "Clemency for Baird: This is the one, governor." It begins:
It’s been an unprecedented year for Indiana executions – five since Gov. Mitch Daniels took office in January. He has expressed his concern about the death penalty. But if Daniels didn’t think there was sufficient reasons to stop the previous four executions, surely the sentence involving a man whom a well-respected Indiana University psychiatrist deemed “grossly psychotic and delusional” is the one that most demands clemency. Commuting his sentence to life in prison without parole would be a merciful act.

Posted by Marcia Oddi on August 25, 2005 08:56 PM
Posted to Ind. Sup.Ct. Decisions