By STACEY M. LANE GROSH

stacey.grosh@heraldbulletin.com

INDIANAPOLIS — A legal battle concerning the mentally ill and the death penalty has begun in the highest court in Indiana.

Fredrick “Michael” Baer versus the state of Indiana is back.

The audience Thursday morning in the Capitol building consisted of five Indiana Supreme Court justices, about a dozen Madison County residents and another 30 or so onlookers intrigued by a death penalty appeal before the state’s high court. Baer is responsible for the grisly deaths of Lapel residents Cory Clark and her 4-year-old daughter, Jenna.

The one-hour hearing was mandatory — each death penalty case is appealed directly to the Supreme Court. This case only brought in a handful of people to watch. But during a five-minute recess, onlookers flooded in to see a case that may end up having an impact on whether the mentally ill should be executed in Indiana.

The main debate centered around what happened in the April 2005 jury selection for the Baer trial.

Madison County Prosecutor Rodney Cummings posed to prospective jurors the possible outcome before the Indiana Supreme Court if they convicted Baer, then found him mentally ill and deserving of the death penalty.

“Why is it even relevant that a jury know what a certain appellate court might do if they have a certain finding?” asked associate justice Frank Sullivan.

No true answer was given. There isn’t one. At least there’s not a case precedent that was found and used as an example by either side Thursday, even when asked by one of the justices.

“(What Cummings said during jury selection) had an impact on the jury based on what they wanted to have happen at the penalty phase and before this court,” said Mark Maynard during the Supreme Court hearing. Maynard is Baer’s attorney on the appeal. “Instead of waiting for the evidence, (Cummings) was urging them to make a decision for the guilty phase.”

“The prosecutor’s weapon of choice: an assortment of improper and highly prejudicial comments and arguments,” according to Maynard’s brief.

“Right now retarded people cannot be executed,” Cummings told prospective jurors in 2005. “Do we extend that to anybody who’s guilty but mentally ill? That’s an open question that the Supreme Court has not decided, so of course, if the defense wants to save this man’s life, guilty but mentally ill is where they want to go. That’s the first hurdle, right? ... Because the law in this state is not clear whether a person who is guilty but mentally ill can be executed. It’s an open question. It hasn’t been decided by our Supreme Court.”

During the trial, Baer’s attorneys, Jeff Lockwood and Bryan Williams, did not object to Cummings’ comments. Instead, they gave their side about the mentally ill being executed.

Sullivan also noted that talking to the jury about mental illness in relation to the death penalty could be construed as asking to “make a legal determination not a factual determination” which was beyond their scope of knowledge.

“There is a wide variety (of types of prosecutional misconduct) that occurred in this case,” Maynard noted.

Cummings attended the hearing and sat at the table with deputy attorney general Andrew A. Kobe, who spoke on the state’s behalf.

To see the hearing in its entirety, log onto www.in.gov/judiciary/webcast/

The webcast will be archived. A decision in the case is expected in six to 12 months.

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