He was convicted in 2013 of brutally killing his wife and two stepchildren. His death sentence has already been upheld on direct appeal, but Kevin Isom is again asking the Indiana Supreme Court to give him another chance at a sentence less than death.
The court heard oral arguments Thursday in Kevin Charles Isom v. State of Indiana, 45S00-1508-PD-00508. In an hour-long court session, public defender Steven Schutte pointed to multiple alleged shortcomings in trial counsel’s performance that he said make Isom eligible for post-conviction relief.
After the 2007 shooting – in which Cassandra Isom and her teenage children, Ci’Andria Cole and Michael Moore, were shot multiple times in their Gary home – Isom was arrested but refused to admit guilt. He’s maintained his innocence even up until now, but Schutte said ineffective assistance of counsel led to Isom’s conviction and death sentence.
Schutte focused his argument on the penalty phase of Isom’s trial, first challenging trial counsel’s failure to object to jury instructions. Specifically, Jury Instruction 17 offered a definition of “mental disease or defect,” saying Isom could be found not responsible for his actions, and thus not deserving of the death penalty, if “as a result of a mental disease or defect, he was unable to appreciate the wrongfulness of the conduct at the time of the offense.”
That language tracks with statutory language defining the insanity defense in Indiana, which only applies to the guilt phase, Schutte said, making it an incorrect statement of law in the penalty phase. Trial counsel should have objected to the instruction, he said, and the Lake Superior Court would have had no choice but to throw the instruction out.
But arguing on behalf of the state, deputy attorney general Tyler Banks said the second part of Instruction 17 — which defines “mental disease or defect” as “a severely abnormal mental condition that grossly and demonstrably impairs a person’s perception” — was fine. And Banks disagreed with Schutte’s argument that the first sentence, relating to Isom’s ability to “appreciate the wrongfulness of his conduct,” instructed the jury to consider Isom’s mental state under the standard of the insanity statute.
According to Banks, the jury was elsewhere given “a litany of mental health mitigators” to consider at the penalty phase. He also echoed the post-conviction court in noting the jury was also given an instruction stating “there are no limits on what facts any of you may find as mitigating.”
“Merely because one instruction was half incorrect did not preclude the consideration of all mental health mitigation,” Banks told the court.
Chief Justice Loretta Rush asked Schutte why Instruction 11, which told the jury it was not limited in finding mitigators, was not curative of the defect in Instruction 17. Schutte responded by pointing to Francis v. Franklin, 471 U.S. 307, 322 (1985), which holds that “(l)anguage that merely contradicts and does not explain a constitutionally infirm instruction will not suffice to absolve the infirmity.”
Given the alleged instructional error, Schutte said Isom was denied his Eighth Amendment right to present all proper and relevant mitigating evidence for consideration of a sentence less than death.
Schutte also noted three experts testified at the penalty phase and indicated Isom had a neurological impairment, though none of the experts officially diagnosed him. Though that evidence was presented, it was undercut by Instruction 17, he said, because the jury was led to believe it could also consider the mental health evidence as mitigating if it rose to the level laid out in the insanity statute.
Banks, however, pointed to the expert testimony to bolster his argument that the jury was fully able to consider Isom’s mental state.
The presentation of expert testimony was another factor that Schutte said cuts in favor of post-conviction relief for his client. If the experts had been “properly informed” of Isom’s background and of the data collected by other mental health professionals, they could have officially diagnosed him.
At issue is data collected by Dr. Gary Durak, a psychologist who began an evaluation of Isom but never finished. Efforts were made by Isom’s trial counsel to find Durak and his data, though the parties differ on whether those efforts were sufficient.
According to Schutte, trial counsel’s efforts weren’t sufficient. Durak’s data suggested Isom suffered from a form of schizophrenia — information that, according to Isom’s appellate brief, was “vitally important.”
“Trial counsel’s failure to access the data, talk with Dr. Durak, provide the information to their experts, and present Dr. Durak as a witness, led to an incomplete penalty phase presentation,” the brief says.
Banks, however, said Durak’s data presented a “suggestion” of mental illness. That suggestion, he said, would not have been enough to prompt the other experts to diagnose Isom, and is not enough to question the jury’s decision.
But in rebuttal, Schutte noted Durak evaluated Isom closer in time to the crime than any of the other experts, so he would have had a better picture of Isom’s mental state during the shootings.
Schutte asked the justices to grant Isom a new trial, or at least a new penalty phase. The state urged the court to uphold the PCR denial in full.
The justices allowed 60 minutes for oral arguments, giving counsel additional time to explore other appellate issues, including whether Isom’s counsel conceded his guilt, whether Isom had waived some of his PCR arguments and whether the filing date of his initial petition should be changed.
The full oral arguments can be watched here.