An Indiana death row inmate whose request for a new sentencing hearing split the Indiana Supreme Court and drew a 40-page dissent from Chief Justice Loretta Rush has failed to convince the U.S. Supreme Court to review his case.
Jeffrey Weisheit was convicted of setting his girlfriend’s Vanderburgh County home on fire in April 2010 and killing her two children, Alyssa, 8, and Caleb, 5. The jury, finding the aggravating factors of multiple murders and the victims being under the age of 12 outweighed any mitigators, recommended the death penalty.
After the Indiana Supreme Court affirmed his convictions and sentence in Weisheit v. State, 26 N.E.3d 3 (Ind. 2015), Weisheit filed a petition for post-conviction relief, claiming ineffective counsel.
The majority found that although Weisheit’s trial counsel made mistakes and could have done a better job, the performance was not deficient under Strickland v. Washington, 466 U.S. 668 (1984).
However, Rush dissented in Weisheit v. State, 109 N.E.3d 978 (Ind. 2018), arguing the cumulative effect of the defense counsel’s performance denied jurors an accurate picture of Weisheit’s mental health and troubled youth.
“It is entirely possible that without counsel’s performance deficiencies Weisheit would still have received a death sentence – again, these murders were brutal,” the chief justice wrote. “But there is also a reasonable probability that he wouldn’t have.”
Weisheit, represented by attorneys John Pinnow and Kathleen Cleary, deputy public defenders at Public Defender of Indiana, filed a petition for writ of certiorari April 12, 2019. The petition was distributed for the June 20 conference and listed among the denied petitions in the orders released Monday.
Before the U.S. Supreme Court, Weisheit’s lawyers highlighted Rush’s argument.
Also, he countered the Indiana majority’s conclusion that he had not demonstrated he would have been given a different sentence if his attorney had not committed all the alleged errors. Weisheit asserted the deficient performance impacted three mitigating circumstances – he was under the influence of extreme mental or emotional disturbance when the murders were committed; his capacity to appreciate the criminality of his conduct was substantially impaired by mental disease, and; he could be managed by the Indiana Department of Correction.
“If counsel's performance had not been deficient, the jury would have been balancing the aggravating circumstances of the murder of two children against mitigating circumstances that Weisheit's capacity to appreciate the criminality of his conduct were substantially impaired by his mental illness, Bipolar Disorder, and that he had adjusted to imprisonment and could be safely managed by the Department of Correction,” Weisheit’s attorneys argued.
In its response brief, the Indiana Attorney General’s Office reiterated the Indiana majority’s findings and noted that not all Weisheit was now arguing for would have provided him a benefit. For example, the attorney general contended the records from the Indiana Boys School would not have helped Weisheit considering their multiple references to his criminal activity, lack of remorse and cruelty to animals.
“The Indiana Supreme Court correctly found that even if counsel had performed as Weisheit now urges, the mitigating circumstances would not have been stronger,” the AG’s office wrote. “The Indiana Supreme Court properly applied this Court’s precedent, and there is no reason for this Court to grant Weisheit’s petition.”