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Lawyers for Indiana death row inmate Benjamin Ritchie are seeking a last-minute execution pause from the U.S. Supreme Court to allow evidence of the inmate’s “serious brain damage” to be weighed for the first time.
The high court requests are in response to a 2-2 decision handed down late last month by Indiana’s Supreme Court justices, which shut the door on any further legal challenges in state or federal courts.
Defense attorneys argued in the Wednesday filings that the denial was a “legal error” and said Indiana’s justices failed to take into account Ritchie’s “ineffective” lawyers at trial and in other post-conviction matters. Current counsel said those earlier lawyers “failed to present fetal alcohol syndromes,” which lead to a death sentence “based on inaccurate information.”
“Through trial, state post-conviction, and habeas review, the record developed by Ritchie’s attorneys contains incomplete information of Ritchie’s brain damage,” public defenders said in new court documents. “Ritchie’s attorneys allowed the State to create a materially false impression with the jury. … Ritchie was condemned to death without anyone hearing evidence that he suffers from a fetal alcohol syndrome.”
Ritchie faces a May 20 execution date for the 2000 killing of Beech Grover law enforcement officer William Toney. The condemned man has been on death row since his conviction in 2002.
Per court documents, the underlying crime began as a police pursuit of a stolen van on Sept. 29, 2000. Toney later pursued Ritchie on foot. Ritchie ultimately fired four shots at the police officer, who did not survive the shooting.
The inmate’s current counsel said prior lawyers “completely failed to investigate the source of Ritchie’s serious brain damage” because they “erroneously believed” he lacked the facial features that are commonly associated with prenatal alcohol exposure.
As a result, state prosecutors told the 2002 jury “to assign little weight to his mitigation because there was no such diagnosis,” according to the latest filings.
Separate from the SCOTUS filings, Ritchie’s attorneys are seeking an emergency stay from the U.S. District Court for the Southern District of Indiana. In the motion, filed Thursday, his defense team similarly argued that Indiana’s Supreme Court has wrongly shut down final opportunities for post-conviction relief.
If the higher courts decline to intervene, the only option for a commuted sentence rests solely with Gov. Mike Braun, who has final say over Ritchie’s pending clemency petition.
Those proceedings began earlier this week when members of Indiana’s Parole Board spoke with Ritchie during a Monday hearing held at the Indiana State Prison in Michigan City. A second meeting is scheduled for Monday, May 12, in Indianapolis and will allow members of the public to speak for and against Ritchie’s clemency petition.
After both hearings, the board will make a recommendation, but a final clemency decision about whether to commute Ritchie’s death sentence to life in prison without parole will ultimately be up to the governor. There’s no timetable for the board, or Braun, to issue opinions.
Neither the governor nor any current members of the state’s parole board have deliberated a death penalty clemency case before Ritchie’s.
Three clemencies have been granted in Indiana since 1976.
The most recent was in 2005, when then-Gov. Mitch Daniels commuted the death sentence for Arthur Baird, who killed his pregnant wife and her parents in 1985. Although the parole board denied his petition for clemency, Daniels granted Baird clemency one day before the scheduled execution, in part citing questions about Baird’s sanity.
Years of ‘ineffective’ counsel
Ritchie’s lawyers submitted two requests to Justice Amy Coney Barrett: one to supersede the state supreme court and allow for further post-conviction review of the inmate’s case; and another to stay, or pause, the scheduled execution, at least until those proceedings can play out.
The petition for writ of certiorari — a request asking SCOTUS to review the state supreme court’s decision — held that a 2002 jury sentenced Ritchie to death “based upon inaccurate information.”
The inmate’s current lawyers said prior counsel was “insufficient(ly) prepared” and hired only one mental health professional who “was forced to admit that” any brain damage suffered by Ritchie “could not be traced to any source.”
That’s contrary to new evidence submitted to the Indiana Supreme Court earlier this year, Ritchie’s lawyers said.
Included in the most recent post-conviction filings were findings from two Fetal Alcohol Spectrum Disorders (FASD) experts, who claimed that Ritchie “has extensive brain damage resulting in deficits due to a fetal alcohol syndrome.”
One expert, a geneticist, specifically diagnosed Ritchie with Partial Fetal Alcohol Syndrome (pFAS), “meaning his brain damage limits Ben’s functioning to that similar to a person with intellectual disability.”
“Ritchie has significant adaptive functioning deficits caused by pFAS that, among other things, inhibit his ability to control impulses,” his lawyers wrote in the petition to the U.S. Supreme Court.
“Importantly, unlike an investigation ‘into other mental illnesses and behavioral issues,’ a diagnosis of FASD can establish ‘both cause and effect’ of a criminal defendant’s actions,” they continued.
Indiana Attorney General Todd Rokita’s office has repeatedly maintained in legal filings that Ritchie has failed to provide the high court “with a good reason to reconsider its decision to set an execution date or to deny him permission to re-litigate his trial counsel’s performance.”
“Ritchie has not explained why the jury would have found this evidence more mitigating had his trial counsel linked those functional deficits to a formal clinical diagnosis …” state attorneys wrote. “Ultimately, the reports submitted by Ritchie at this late stage do not cover any new ground and they certainly do not help Ritchie meet his burden of proving that there is a reasonable possibility that he is entitled to relief on his successive claims.”
State supreme court justices split
Indiana’s Supreme Court justices “agreed that (Ritchie) has brain damage caused by prenatal exposure to alcohol and other toxins.” But the court was split, 2-2, on whether he should be allowed to present evidence “of the effect of that damage on his behavior” on the night of his crime.
Chief Justice Loretta Rush, who disagreed with the decision to deny further post-conviction relief proceedings, said in her April 15 opinion that she believed evidence submitted to the court suggested “a strong likelihood” that Ritchie suffered from FASD when he murdered Toney, the Beech Grove police officer, in 2000.
Rush said she preferred to hold off on an execution date so the court has more time to “receive and consider” the FASD experts’ evaluations.
But Justices Derek Molter and Geoffrey Slaughter said in their opinion that “what Ritchie’s experts turned up is irrelevant.” The issue before the court “is not whether Ritchie suffered from FASD in 2000 or whether he does so today,” they said. Rather, the justices must decide whether Ritchie’s trial lawyers “were constitutionally ineffective during sentencing for failing to investigate the possibility that Ritchie suffered from FASD then.”
The affirming justices, citing federal law, maintained that Ritchie was unable to meet the necessary standards for his petition to be further litigated.
Last week, the state’s high court justices rejected a follow-up request by Ritchie’s defense team for a new hearing to reconsider the inmate’s request for post-conviction relief. The justices additionally denied a request for a stay which would have delayed the execution.
Justice Mark Massa, who served as a deputy prosecutor in Marion County and participated in proceedings related to Ritchie’s case, has recused himself from the case.
The decisions stymied Ritchie’s ability to appeal in federal court. His legal team wants the U.S. Supreme Court to review the Indiana justices’ ruling and allow Ritchie to continue his post-conviction pleas.
The high court’s ruling followed a series of exhausted appeals previously filed by Ritchie and his legal team.
Executions were put on hold for 15 years in Indiana until convicted killer Joseph Corcoran was put to death in December. The state paid $900,000 on execution drugs but won’t say how much was purchased.
Ritchie and six other men remain on the state’s death row at the Indiana State Prison.
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