Fitness to parent raised in man’s fatal neglect appeal

A man whose 4-month-old son died of malnutrition asked an appeals court to consider whether he was mentally capable of caring for the child while also invoking the jury’s right to question witnesses in contesting his conviction and 37-year sentence.

Joseph Lee Pierson was convicted of neglect of a dependent resulting in death in the February 2012 death of his son, K.H., one of five children he had with Amy R. Hockett. Hockett was convicted of murder and sentenced to 60 years in prison for K.H.’s death.

During oral arguments March 14 at Vincennes University, Deputy Attorney General Chandra Hein described the “deplorable condition” of the Richmond home where K.H. was found dead from causes that included malnutrition, bronchial pneumonia and dehydration. The roach-infested house was littered with used diapers, dog feces, dirty dishes and crusty baby-formula bottles. Chandra said K.H. may have been dead 24 to 36 hours before paramedics arrived.

But defense attorney Joel Wieneke said Pierson had an IQ of about 67 and lower functional impairment that placed his functional abilities in the range of mild mental retardation. He also suggested Pierson wasn’t the principal caregiver and his statements claiming responsibility for the children’s care were influenced by Hockett. Wieneke urged Pierson’s conviction be reduced to the lesser-included count of reckless homicide, which he said would reduce Pierson’s sentence to eight years or less.

“For the state to rely upon Hockett as a source of information to show (Pierson) is a good parent is a little bit questionable,” he argued.

To highlight questions about Pierson’s ability to care for children, Wieneke noted, for instance, that a witness testified she sometimes had to step in to help Pierson properly mix baby formula.

“These are the same arguments that were made to the jury,” Judge Robert Altice said. “Isn’t it the jury’s decision?”

“As in any case, there is a very significant danger, especially here, where we have horrible, awful pictures of a baby who starved to death, that the jury’s going to be inflamed by those pictures,” Wieneke argued. “They’re going to want to hold him accountable not because of his individual abilities, but because a parent should know better generally.”

But Hein highlighted the conflicting evidence in the record regarding Pierson’s abilities. There was testimony that he could cook, clean and drive, and medical expert testimony supported the conviction. “Someone can have intellectual disability or mental retardation to the level that impairs their ability to understand the wrongfulness of their actions,” she said. But doctors didn’t believe that was the case for Pierson.

“His impairment is minimal, mild, borderline — those are the terms that were used,” she said. She also noted evidence in the record showed Pierson misled police about taking the child to doctor visits and saying the child had certain medical conditions that were not diagnosed. She said Pierson was “attempting to sanitize his own behavior when in reality we have very clear indicators he is lying to the police.”

But Judge John Baker wondered if Hein may have been “teeing up” a possible post-conviction challenge for Pierson when she noted that his mental evaluations dated to his teen years. She told the panel, “the jury should have been presented more current information.” Hein said that hadn’t been her intent.

“Mental health is a scale, and here the experts and the lay testimony show in addition to the defendant’s own statements that he knew what his obligations were to this child, and he knew he should have been feeding this child, and was not,” she said.

But Wieneke noted that in an earlier Department of Child Services intervention resulting in another child’s removal from the home, case workers tried to provide Pierson training such as how to mix formula. “However, the reality is there are certain things that we could try to teach a mentally retarded man and he’s never going to learn no matter how much we try to teach him,” Wieneke said. “It’s the functional impairments we’re trying to focus on in this appeal.”

Wieneke also challenged testimony from a doctor who said an insanity defense required evidence of psychosis, delusions or hallucinations as a misstatement of law that prevented Pierson from receiving a fair trial. He further asserted that the trial court committed reversible error when it admitted a doctor’s videotaped deposition that he argued denied the jury the opportunity to question the witness.

But Judge Edward Najam noted Pierson’s trial counsel agreed to admission of the video, and Wieneke acknowledged this exposed his client to an invited error analysis. Nevertheless, as Indiana Jury Rule 20 permits jurors to submit written questions for witnesses, Wieneke said the presentation of the video didn’t permit the jury this right, presenting a potential issue of first impression for the court.

Judges seemed reluctant, though, to find either that Pierson had standing to raise the issue or that admission of a video agreed upon by defense counsel constituted reversible error.

“It’s very difficult for me to tell a trial judge that you did it wrong when in fact you were invited to do it just exactly that way,” Baker said.

Hein went further in contesting the video admission issue raised on appeal. “If defendant’s argument was followed to its logical conclusion, parties could never stipulate to evidence because it may deprive the jury of its right to ask questions, and in fact the state was unable to find any cases that talk about the right of the jury to ask questions somehow trumping the other trial rules or the ability of the parties to stipulate to evidence or anything like that,” she said.

The case is Joseph Lee Pierson v. State of Indiana, 89A05-1306-CR-00311.•

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