Hill asks full 7th Circuit to reinstate death penalty for Baer

Indiana Attorney General Curtis Hill has asked the 7^th Circuit Court of Appeals to reinstate the death penalty for an Indiana man convicted of the “heinous” murders of a Madison County mother and her 4-year-old daughter after a 7^th Circuit panel overturned the man’s death penalty sentence last month.

Hill filed a petition for panel and en banc rehearing in the case of Frederick Michael Baer v. Ron Neal, 15-1933, on Tuesday. Baer was sentenced to death after he was found guilty of murdering Cory Clark and her 4-year-old daughter, Jenna, in 2004.

On the morning of the murders, Baer knocked on Clark’s front door and asked to use her phone, then followed her inside, attempted to rape her and eventually cut her throat. He then inflicted the same fate on the 4-year-old, who had watched her mother’s murder, before stealing money and items from the house and returning to his job at a construction site.

The Indiana Supreme Court first upheld Baer’s sentence on direct appeal in 2007, and again in post-conviction relief proceedings in 2011. The U.S. District Court for the Southern District of Indiana then denied habeas relief and a certificate of appealability to Baer, but the 7^th Circuit granted a certificate of appealability and overturned the denial of his habeas petition in a January opinion.

The 7th Circuit panel consisting of judges Ann Claire Williams, William Bauer and Joel Flaum found two main issues with Baer’s trial: jury instructions and prosecutorial misconduct. Looking to the jury instructions, the circuit judges found Baer’s counsel provided ineffective assistance failing to object to a jury instruction 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 when he murdered Clark and her daughter.

Hill’s office, however, wrote in the petition that neither of the two expert witnesses involved in the case testified that Baer was intoxicated and, in fact, found “absolutely no” meth in his blood at the time of the crimes. Further, the jury had been instructed that it could consider “anything” to be mitigating, so he was not prejudiced by the lack of the additional intoxication language, the state argued.

“The Indiana Supreme Court properly concluded that the trial court would not have been compelled by law to give the instruction,” the state wrote in its petition. “There is simply no federal law that required the instruction; indeed neither the panel nor Baer has identified any.”

Turning next to alleged prosecutorial misconduct, the 7^th Circuit panel found Baer received ineffective assistance of counsel when his trial counsel failed to object to the prosecutor’s comingling of the concepts of insanity and guilty but mentally ill during voir dire. The state, however, said the Supreme Court properly found that counsel’s failure to object was a matter of strategy.

The defense wanted to obtain a guilty but mentally ill verdict in lieu of an acquittal because Baer’s counsel believed he could convince the Supreme Court to reduce a death sentence on appeal in such a case, the state wrote. Thus, defense counsel intentionally did not object to the mixed discussions.

“That distraction did not work on the jury, the state courts and the district court,” the AG’s office wrote. “It should not have worked to confuse this Court either.”

Finally, the 7^th Circuit panel found prejudice in defense counsel’s failure to object when the prosecutor told the jury that Clark’s family wanted Baer to receive the death penalty. The state, however, said the prosecutor’s statement during closing argument was a response to defense counsel’s statement regarding whether the death penalty would “heal” the Clark family. Thus, even if the prosecutor’s victim impact statement was impermissible, it was proper here because it was a rebuttal to Baer’s defense, Hill’s office wrote.

The prosecutor also inserted personal opinions and facts not in evidence — including anecdotes about his own “rough upbringing” — into other portions of trial, statements Baer’s counsel should have objected to, the circuit panel found. But like the victim impact statement, the prosecutor’s opinions were given in response to defense arguments, making the comments permissible under United States v. Young, 470 U.S. 1 (1985), the state wrote.

“The panel looked at the wrong issues, relied on the wrong law, and wrongly read the record,” the rehearing petition says. “It failed to review the state court decision on the issues Baer presented to it and judge them by the correct standard.”

Thus, the state argued rehearing is necessary because resentencing, as the 7^th Circuit ordered, would be “an extraordinary burden on a State and its citizens.”

“No one disputes the fact that this man is guilty of the heinous crimes for which a jury convicted him,” Hill said in a Tuesday statement. “The U.S. 7^th Circuit Court of Appeals would serve the cause of justice by overturning the panel’s decision and letting the death sentence stand. The law does not require that this case be sent back to Madison County for a new sentencing phase.”