Friday, November 9, 2018

"Death Is Different"

A divided Indiana Supreme Court rejected a convicted murderer's claim that he should be granted relief for the alleged ineffectiveness of both trial and appellate counsel

While Weisheit’s trial counsel made mistakes and could have done things better, counsel’s performance was not deficient. In any case, Weisheit has not demonstrated that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. Accordingly, Weisheit’s ineffective assistance of trial counsel claims fail.

Weisheit’s ineffective assistance of appellate counsel claim also fails because appellate counsel’s performance was not deficient. Counsel made a reasonable decision to quote certain language from the transcript although it is not Weisheit’s preferred quotation. Further, given the similarities between the language chosen and the language not chosen and this Court’s thorough review of relevant portions of the record, Weisheit has not demonstrated prejudice.

Finally, we note that in the post-conviction court’s 81-page order, some of its findings seem to contradict its ultimate conclusions. However, after an exhaustive review of the record and in light of our standard of review that requires us to affirm the post-conviction court unless there’s no way within the law it could have come to the result it did (Stevens, 770 N.E.2d at 745), we believe the post-conviction court came to the right conclusion on all issues. Thus, we affirm the post-conviction court.

Justice Slaughter concurred

I agree with the Court that Weisheit is not entitled to post-conviction relief, and that the trial court’s judgment upholding his convictions and death sentence should be affirmed. But I reach that result for different reasons. Unlike the Court, I conclude that trial counsel’s performance during the penalty phase was deficient, but that Weisheit failed to show prejudice.

On the performance issue, I share the dissent’s view that Weisheit’s trial counsel were deficient during sentencing for all the reasons the Chief Justice outlines in her thoughtful and thorough opinion. Counsel’s performance was indeed substandard and not the product of reasonable professional judgment or strategic choice in three respects: failure to pursue the Boys School records, failure to call Dr. Harvey about testifying for Weisheit, and failure to lay a proper foundation and make a clear offer of proof for Aiken’s testimony.

Chief Justice Rush concurred and dissented

There is no question that the murders of Alyssa and Caleb were unequivocally horrific. And Weisheit’s guilt for those disturbingly reprehensible crimes is clear. I thus agree with my colleagues that Weisheit has no right to a new trial on his guilt. His convictions should stand.

I also agree that Weisheit’s many claims of ineffective assistance at the penalty phase of trial fail individually. But in my view, Weisheit has met his burden on his cumulative-effect claim.

“[D]eath is different,” Ring v. Arizona, 536 U.S. 584, 606 (2002), and the “qualitative difference between death and other penalties calls for a greater degree of reliability when the death sentence is imposed,” Lowenfield v. Phelps, 484 U.S. 231, 238–39 (1988) (quoting Lockett v. Ohio, 438 U.S. 586, 604 (1978) (plurality opinion)). See Monge v. California, 524 U.S. 721, 732 (1998). Here, the evidence and the post-conviction court’s findings compel the conclusion that counsel’s penalty-phase performance suffered multiple deficiencies. While none of those deficiencies, in isolation, is prejudicial enough to warrant relief, in the aggregate, they deprived the jury of enough essential information about Weisheit’s background and mental health that his death sentence is not as reliable as the constitution requires.

Tristatehomepage reported on the sentencing. (Mike Frisch)

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