Baer v. Neal
| Decision Date | 11 January 2018 |
| Docket Number | No. 15-1933,15-1933 |
| Parties | Fredrick Michael BAER, Petitioner-Appellant, v. Ron NEAL, Superintendent, Indiana State Prison, Respondent-Appellee. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Marie F. Donnelly, Attorney, Evanston, IL, Alan Michael Freedman, Attorney, MIDWEST CENTER FOR JUSTICE, LTD., Evanston, IL, for Petitioner–Appellant.
Andrew A. Kobe, Kelly A. Loy, Attorneys, OFFICE OF THE ATTORNEY GENERAL, Indianapolis, IN, for Respondent–Appellee.
Before, Bauer, Flaum and Williams, Circuit Judges.
Fredrick Michael Baer murdered a young woman and her four-year-old daughter in their home. In connection with this crime, he was convicted in Marion Superior Court of the two murders, robbery, theft and attempted rape. He was sentenced to death. He filed a direct appeal to the Indiana Supreme Court raising several issues including prosecutorial misconduct, but his convictions and death sentence were affirmed. Baer filed state post-conviction proceedings alleging that his trial and appellate counsel were ineffective. The court denied his petition and this denial was affirmed by the Indiana Supreme Court. Baer then filed a petition for a writ of habeas corpus with the United States District Court for the Southern District of Indiana, which was also denied. After we issued a certificate of appealability, Baer appealed the district court's denial of his petition for a writ of habeas corpus.
Baer asserts that the Indiana Supreme Court's ruling was unreasonable under Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), for failing to find that Baer's trial counsel was constitutionally ineffective for failing to (1) object to improper and confusing jury instructions given at the penalty phase of his trial, (2) object to prejudicial prosecutorial statements made throughout trial, and (3) investigate and present mitigating evidence on Baer's behalf. While we affirm his convictions, we agree with Baer that, at the penalty phase, Baer's counsel failed to challenge crucial misleading jury instructions and a pattern of prosecutorial misconduct, and that the state court unreasonably applied Strickland in denying Baer relief. Counsel's deficiency resulted in a denial of due process, and we find the errors were sufficient to undermine confidence in the outcome of Baer's penalty trial and so we find prejudice. While Baer's offenses were despicable and his guilt is clear, he is entitled to a penalty trial untainted by constitutional error.
On February 25, 2004, Fredrick Michael Baer saw twenty-four-year-old Cory Clark on her front porch. He turned his car around and pulled into her driveway. He approached Cory's apartment, knocked, and asked to use her phone to call his boss. When she turned to go back inside, he followed her into her apartment with the intent to rape her. After attacking her, Baer decided against raping her because he feared contracting a disease so instead he cut Cory's throat with a foldable hunting knife. Witnessing this atrocity, Cory's four-year-old daughter, Jenna Clark, ran from the room. Baer caught her and cut her throat. Taking Cory's purse, three to four hundred dollars, and some decorative stones, Baer then left the apartment. He cleaned himself up, changed his shirt, and returned to work. When he was arrested as a suspect and police asked if he committed the murders, Baer shook his head affirmatively and told the officers the location of the knife and purse.
Early on, Baer conceded that he murdered the Clarks, and sought to plead guilty but mentally ill (GBMI).1 The trial court rejected the plea, finding that there was insufficient evidence to show mental illness. The case proceeded to trial with the only issue being whether Baer was GBMI or simply guilty.
Voir dire began. In front of jurors and prospective jurors, the prosecutor persistently began stating the incorrect standard for a GBMI conviction. The prosecutor routinely suggested (incorrectly) that the GBMI standard and legal insanity standard were the same. He encouraged jurors to recite this incorrect standard in response to his questioning. The prosecutor also made statements suggesting that life without parole may be abolished and incorrectly stated that a GBMI conviction might not permit a death sentence. Baer's counsel did not object to any of these statements. The prosecutor also told jurors that the victims' family wanted Baer to be put to death. 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.
After jury selection, Baer's trial began, and the defense focused on convincing the jury that Baer suffered from a mental illness. Defense counsel offered an expert witness, Dr. George Parker, who testified that Baer had a history of drug issues, including methamphetamine use. He also diagnosed Baer as suffering from a psychotic disorder. The court also provided appointed experts, Dr. Larry Davis and Dr. Richard Lawler, who agreed that Baer suffered from mental illness, and also cited Baer's abuse of methamphetamine as something that would disturb his mental wellness and exacerbate his mental health problems. Dr. Davis testified that Baer was likely experiencing psychosis induced by heavy methamphetamine use at the time of the crime. Dr. Lawler described Baer's account that he used methamphetamine on the morning of the crimes. The experts' account of Baer's use of methamphetamine on the day of the crime was contradicted by Danny Trovig, the friend Baer reportedly used methamphetamine with that morning, who testified that Trovig was on parole at the time and did not consume or see Baer consume methamphetamine.
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. 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. 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.
The prosecution also presented evidence to counter whether Baer had a mental illness, and sought to prove that Baer instead was lying about his mental health. This evidence included playing a portion of a telephone conversation recorded while Baer was incarcerated in which Baer told his sister,
At the close of evidence, the jury convicted Baer of murdering Cory and Jenna Clark, robbery, theft, and attempted rape without a finding of GBMI. The case then proceeded with the same jury to a penalty trial.
At the penalty phase, Baer's counsel offered one witness, Dr. Mark Cunningham. In approximately seven hours of testimony, Dr. Cunningham discussed Baer's prenatal and perinatal difficulties, including his mother having cancer while pregnant, drinking while pregnant, and Baer's malnourishment for the first several months of his life. Dr. Cunningham also testified about Baer's family troubles such as Baer's childhood in and out of foster care and the murder of his sister. Dr. Cunningham also stated that Baer had poor school performance and struggled with ADHD, head injuries, and extensive abuse of inhalants, alcohol, methamphetamine, and other substances. Dr. Cunningham reported that Baer was "extraordinarily damaged." However, while questioning Dr. Cunningham to show mitigating circumstances, Baer's counsel failed to ask Dr. Cunningham whether Baer met the definition of having a mental illness.
The jury found that the state had proved all five of the alleged aggravating circumstances in Baer's crime (all which were uncontested), (1) murder while committing the crime of attempted rape, (2) murder while committing the crime of robbery, (3) murder of two human beings, (4) committing two murders while on parole, and (5) murder of a child under the age of twelve years. Finding that mitigating factors did not outweigh these aggravating factors, the jury recommended the death penalty. On June 9, 2005, the court sentenced Baer to death.
Baer filed a direct appeal of his death sentence to the Indiana Supreme Court, raising four issues: (1) prosecutorial misconduct, (2) failure to comply with proper procedures in handling prospective jurors, (3) erroneous admission of recorded telephone calls from jail, and (4) inappropriateness of the death sentence. On May 22, 2005, the Indiana Supreme Court affirmed Baer's convictions and death sentence. Baer v. State , 866 N.E.2d 752 (Ind. 2007) (" Baer I "). The state court discussed at length its holding that the prosecution did not commit misconduct by suggesting that a GBMI conviction may not support a death sentence. Id . at 755–61. The court also held that the death penalty was supported by the evidence of the brutal nature of the killings and the lack of evidence of Baer's positive character. Id. at 764–66. Baer filed a petition for writ...
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