Divided justices deny child murderer death penalty relief

November 7, 2018

The Indiana Supreme Court has upheld the denial of post-conviction relief for a convicted child murderer and arsonist sentenced to death, finding that while the man’s counsel did make mistakes, those mistakes did not rise to the Strickland level of deficient performance. However, Chief Justice Loretta Rush dissented and would have allowed the case to proceed to a new penalty phase.

The justices upheld the denial of Jeffrey A. Weisheit’s PCR bid Wednesday in Jeffrey A. Weisheit v. State of Indiana, 10S00-1507-PC-413, with Justice Geoffrey Slaughter concurring in part and with the judgment and Chief Justice Loretta Rush concurring and dissenting in part. Justice Steven David authored the majority opinion, which was joined in all respects by justices Mark Massa and Christopher Goff.

Weisheit was convicted in 2013 of two counts of murder and one count of Class A felony arson resulting in serious bodily injury after he set fire to his house in 2010 and left his girlfriend Lisa Lynch’s 8- and -5-year-old children — Alyssa and Caleb — inside. Both children died in the fire. Caleb had been bound and gagged.

Weisheit was subsequently sentenced to death, and his convictions and sentence were first upheld on direct appeal in 2015. He then sought post-conviction relief, alleging his trial and appellate counsel were ineffective, but the Clark Circuit Court denied his petition in November 2016.

The Supreme Court heard Weisheit’s case on direct appeal for the second time in September 2017, this time considering the denial of his PCR petition. Specifically, Weisheit pointed to six areas of ineffective assistance of trial counsel: “1) errors during the penalty phase; 2) failures regarding the admissibility of expert testimony; 3) failure to appropriately question jurors; 4) failure to adequately present evidence in support of suppressing pretrial statement; 5) failure to object to opinion testimony about the nature and origin of the fire; and 6) cumulative errors.” Additionally, he claimed his appellate counsel failed to “sufficiently identify objectionable jurors on direct appeal.”

Looking first to Weisheit’s trial counsel, David wrote for the majority that Weisheit’s attorney was not deficient for not making multiple attempts to obtain mental health records from the Indiana Boys School; failing to call certain witnesses; failing to ask certain jurors follow-up questions about the death penalty during voir dire; failing to introduce an officer’s testimony about Weisheit’s lack of response to a Miranda waiver form in order to support a pretrial suppression motion, and; failing to object to the admission of statements from the fire chief and fire marshal. The majority also found Weisheit’s cumulative error claim failed.

Further, though the majority noted Weisheit’s trial counsel could have better prepared a witness and that the trial court erred in excluding an expert witness under Indiana Evidence Rule 702(b), the justices also determined Weisheit failed to demonstrate prejudice.

“Indeed, he has not shown that he would be given a different sentence even if counsel had committed none of the alleged errors in light of the nature of this particular crime — the murder of two small children — and the overwhelming evidence of his guilt,” David wrote.

The majority likewise rejected Weisheit’s argument that his appellate counsel was deficient when he failed to cite to “the clearest expression that Juror 7 would automatically vote for the death penalty” in the appellant’s brief. The justices noted the appellate attorney did cite to Juror 7’s preference for the death penalty, and also noted Juror 7 “was not presented with all the facts at the time the quoted statements were made.” 

“Finally, we note that in the post-conviction court’s 81-page order, some of its findings seem to contradict its ultimate conclusions,” David wrote at the end of the 22-page majority opinion. “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 … we believe the post-conviction court came to the right conclusion on all issues.”

Writing separately in a four-page partial concurrence, Slaughter agreed that Weisheit is not entitled to post-conviction relief but said he also believed Weisheit’s trial counsel performed deficiently during the penalty phase. But despite that deficiency, Slaughter said Weisheit failed to show prejudice.

“As we held on direct appeal, the State proved the existence of aggravating circumstances beyond a reasonable doubt, and the jury was entitled to conclude the aggravating circumstances outweighed the mitigating circumstances,” Slaughter wrote. “The fact that trial counsel should have presented some additional mitigating evidence at Weisheit’s penalty phase does not establish a reasonable probability on this record that the outcome would have been different if they had.”

But in a 40-page partial dissent, Chief Justice Rush said she believed Weisheit met his burden on his cumulative-effect claim. While she agreed that Weisheit is not entitled to a new trial, she would have remanded the case for a new penalty phase.

“It is entirely possible that without counsel’s performance deficiencies Weisheit would still have received a death sentence — again, these murders were brutal,” Rush wrote. “But there is also a reasonable probability that he wouldn’t have.

“So the outcome of his penalty phase does not meet the required level of reliability,” she continued. “… Weisheit was thus denied his Sixth Amendment right to effective assistance at the penalty phase — though not at the guilt phase — of trial.”

Specifically, Rush said Weisheit’s counsel was deficient when he failed to ask Dr. Philip Harvey to testify about Weisheit’s mental health; failed to further pursue mental health records from the Boys Schools; and failed with regard to a desired expert, “to point the trial court to the proper foundational requirements and to make an adequate offer of proof.”

“This is not a case where the new evidence presented at the post-conviction proceeding ‘would barely have altered the sentencing profile presented’ at Weisheit’s penalty phase,” the chief wrote. “… Rather, the jurors were denied an accurate picture of Weisheit’s mental health issues and troubled youth. Nor did they encounter any expert testimony about Weisheit’s past adjustment to imprisonment, which might have served as a basis for a sentence less than death.”

“I believe that the majority’s cumulative-effect holding misapplies Strickland and deviates from our standard of review,” Rush wrote. “In my view, Weisheit was denied his Sixth Amendment right to effective assistance of counsel at the penalty phase of trial. And he has carried his burden to show that there is no way within the law that the post-conviction court could have arrived at its cumulative-effect conclusion.

“Though Weisheit’s offenses were horrific and his guilt is clear, he should be afford a penalty phase untainted by constitutional error.”


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