Olivia Covington for www.theindianalawyer.com
Indiana Attorney General Curtis Hill is asking the nation’s highest court to reinstate the death penalty against a man convicted of killing a Madison County woman and her 4-year-old daughter, arguing the 7th Circuit Court of Appeals failed to properly defer to state court rulings when it overturned his death sentence earlier this year.
The state’s petition for writ of certiorari in the U.S. Supreme Court in Ron Neal v. Fredrick Michael Baer argues a panel of the 7th Circuit incorrectly held that the Indiana Supreme Court failed to properly apply Strickland v. Washington, 466 U.S. 668 (1984) when it upheld Fredrick Baer’s death sentence. Baer was convicted in the brutal murder of Madison County mother Cory Clark and her 4-year-old daughter, Jenna, who died after Baer slit their throats in their home.
A jury recommended the death penalty for Baer, which a Madison County court imposed and the Indiana Supreme Court upheld in 2007. The justices then upheld the denial of Baer’s post-conviction relief petition in 2011, and the Indiana Southern District Court denied his request for habeas relief and a certificate of appealability.
But the 7th Circuit granted Baer’s appeal and in January reversed his death sentence and ordered a sentencing retrial. The circuit judges found two main issues in Baer’s initial trial that they said led to ineffective assistance of counsel: his attorney’s failure to object to jury instructions and prosecutorial misconduct.
Specifically, the judges said Baer’s counsel should have objected when the prosecutor conflated the legal standards for guilty but mentally ill and insanity during voir dire. The court also said defense counsel should have objected when the prosecutor told the jury the Clark family wanted Baer to receive the death penalty, and when he inserted personal opinions and facts not into the record during closing arguments, including the opinion that Baer’s rough upbringing could not excuse his actions because the prosecutor had also had a difficult childhood.
But in the cert petition, the state argued the Indiana Supreme Court properly found the contested statements during were not misconduct because the defense had introduced those topics. Further, the state said the high court properly determined the defense’s failure to object to the prosecutor’s misstatements during voir dire was a strategy intended to discredit the prosecutor.
“Indeed, within the limits set by the Federal Constitution, the propriety of prosecutorial comments is a state-law question,” the petition authored by Indiana Solicitor General Thomas M. Fisher says. “… The Seventh Circuit’s decision thus exceeded the scope of its authority, for ‘it is not the province of a federal habeas court to reexamine state-court determinations on state-law questions.’”
Looking to the jury instructions, the 7th Circuit ruled Baer’s counsel should have objected to instructions that did not explicitly tell the jury it could find Baer’s alleged intoxication at the time of the murders to be a mitigating factor. Baer claimed to be under the influence of methamphetamine, but according to the AG’s office, toxicology tests showed no drugs in his body.
The AG’s office further argued that the trial court twice informed the jury that they were free to consider any factor in mitigation. Specifically, the court told jurors to consider “(a)ny other circumstances … which any individual juror believes makes him less deserving of the punishment of death,” and to remember that “there are no limits on what factors an individual juror may find as mitigating.”
“The Seventh Circuit failed to show that ‘there is no possibility fairminded jurists’ could agree with the Indiana Supreme Court’s holding,’” the state wrote. “… It merely disagreed with the Indiana Supreme Court’s authoritative interpretation of Indiana law and the weight it gave to the broad ‘any circumstances’ and ‘no limits’ instructions.”
The state’s cert petition comes after it previously petitioned the 7th Circuit to reconsider Baer’s habeas relief either as a panel or en banc. The circuit court denied that petition in April.
“One of the most foundational functions of my office is to secure justice throughout the appeals process on behalf of crime victims,” Hill said in a Thursday statement. “This mission is particularly critical with brutal and vicious crimes such as Fredrick Baer’s animalistic attack on an unsuspecting mother and her little girl.
“It would be a miscarriage of justice for the death sentence in this case to be overturned now, after Baer has been on death row for 13 years, and I’ll do everything within my authority to prevent such an odious outcome,” Hill said.