7th Circuit reverses death sentence for murderer Baer

Despite the “atrocious” nature of a murderer’s crimes, the 7^th Circuit Court of Appeals reversed his death sentence in a habeas petition, finding prosecutorial misconduct and misleading jury instructions likely influenced the jury’s decision to sentence him to death.

Fredrick Baer approached Cory Clark on her front porch near Lapel and asked to use her phone. He then followed her into the home with the intent to rape her, but later cut her throat instead. He then inflicted the same fate on Clark’s 4-year old daughter, Jenna, before stealing money from Clark’s purse and leaving the apartment.

Baer was eventually arrested and admitted to the crimes, and the trial proceeded on the issue of whether he was guilty but mentally ill, or just guilty. During voir dire, Madison County Prosecutor Rodney Cummings repeatedly stated the incorrect legal standard for a guilty but mentally ill conviction and incorrectly told prospective jurors that such a conviction might preclude a death sentence, the 7^th Circuit found.

Baer’s counsel failed to object to these statements, and the jury eventually found Baer guilty as charged.

He was sentenced to death in Marion Superior Court, and the Indiana Supreme Court upheld that sentence on direct appeal. The court also upheld the denial of his petition for post-conviction relief in 2011.

Baer then moved for habeas corpus in the Indiana Southern District Court, which denied the petition and also denied him a certificate of appealability. The 7^th Circuit Court of Appeals, however, granted a certificate of appealability, and Baer brought three arguments before the court, two of which were addressed in a Thursday opinion reversing the denial of his petition for habeas corpus in Fredrick Michael Baer v. Ron Neal, 15-1933.

Specifically, Baer argued his counsel was ineffective for failing to object to jury instructions that likely precluded the jury from considering mitigating evidence, and for failing to object to numerous instances of prosecutorial misconduct.

During the sentencing phase of the trial, the jury was instructed to consider that Baer’s “capacity to appreciate the criminality of (his) conduct or to conform that conduct to the requirements of the law was substantially impaired as a result of mental disease or defect” as a mitigator. However, this instructor excluded the words “or intoxication” – germane here because Baer claimed he had been using methamphetamine on the day of the murders.

Baer’s counsel failed to object to the modification of that instruction or to a “voluntary intoxication” instruction that allowed intoxication to be a defense if the intoxication was involuntary. Those failures constituted prejudicial ineffective assistance of counsel because “a reasonable juror could have understood the complete penalty phase jury instructions as foreclosing the evidence of voluntary intoxication from consideration…,” Judge Ann Claire Williams wrote in a 37-page opinion Thursday.

Similarly, defense counsel’s failure to object to the prosecutor’s prejudicial comments at trial was prejudicially ineffective, Williams wrote. In addition to his incorrect statements during voir dire, Williams said the prosecutor also told prospective jurors that Clark’s family wanted Baer to be sentenced to death, and inserted his personal opinion and facts that were not in evidence into other portions of the trial.

“Can we be certain that Baer would not have been sentence to death if given a fair trial and effective counsel? No,” the judge wrote. “But, it is ‘reasonably likely’ that without the prosecutor’s injection of impermissible statements and incorrect law the jurors would not have recommended death.”

Thus, the Indiana Supreme Court unreasonably applied Strickland v. Washington, 466 U.S. 668 (1984), to Baer’s claims, Williams wrote, so the 7^th Circuit reversed the denial of his district court habeas petition and remanded his case for further proceedings and resentencing.