After hearing oral arguments in a juvenile life in prison without parole case, justices of the Indiana Supreme Court seemed to leave with more questions than answers.
In the LWOP case at issue, then-17-year-old Andrew Conley was convicted of murder after he killed his 10-year-old brother during a “wrestling match” and dumped his body near a school in Rising Sun. Conley later pleaded guilty in Ohio County and was sentenced to life without parole.
The Indiana Supreme Court was divided in upholding Conley’s LWOP sentence in 2012, and the trial court later denied Conley’s petition for post-conviction relief in December 2019.
In partially granting Conley’s petition, the Indiana Court of Appeals in February 2021 remanded for resentencing after finding his trial counsel was “wholly deficient” at sentencing.
Justices heard oral argument in Conley’s case on Sept. 9, in which the state argued that the COA was improper to find his trial was ineffective for reasons that Conley never raised on appeal, including presenting evidence on juvenile brain science and relying on reasoning regarding juveniles’ lesser moral culpability in Roper v. Simmons, 543 U.S. 551 (2005) and Graham v. Florida, 560 U.S. 24 (2010).
Deidre Eltzroth, a deputy public defender representing Conley, argued that transfer wasn’t warranted in the case and that the state didn’t present an issue warranting consideration from the justices.
Eltzroth argued that Conley suffered from deep depression punctuated by a sudden, severe mental health crisis just before the murder. She argued that LWOP is to be reserved for the rarest juveniles who are “beyond redemption” – a description that doesn’t fit her client.
Justices quickly pointed out that the Indiana Public Defender Council as amicus curiae brought up for the first time the argument that juvenile LWOP violates the Indiana Constitution, not Conley’s council.
“We’ve got some strong jurisprudence that amicus curiae cannot raise new issues on appeal,” Chief Justice Loretta Rush said. “…So if I’m interested in looking at if juvenile LWOP violates the Indiana Constitution, you have no other arguments that that’s properly before us today?” Rush asked.
“That’s right,” Eltzroth said. “Except insofar as there is constitutional authority tied to Appellate Rule 7(B).”
In looking at the Roper and Graham factors, Rush proceeded to say that she didn’t see anything new brought to light from the PCR hearing from what came out of the sentencing hearing, as argued by Conley’s counsel.
“Maybe in more detail, but the experts didn’t really change their opinion,” Rush said. “What do you think this hangs on that they missed at the PCR hearing?”
“The post conviction court ruled our ineffective assistance claim, I think in line with what you’re saying, this new information didn’t make a difference; Andrew Conley wasn’t prejudiced by the lack of this information,” Eltzroth said. “We simply disagree.”
The fact that the same court looked at the new evidence and was not moved is not fatal to Conley’s ineffective assistance of counsel claim, she added.
But Rush came back with questions about prejudice and again asked what the new evidence was. The chief justice said she didn’t see something new at the PCR hearing that made her think, “Oh yes, this should have come out and therefore he is prejudiced.”
There was very little context given to specifically Conley’s diagnoses, his symptoms he was experiencing at the time and how those bore on the crime itself, and his peculiar behavior after the crime, Eltzroth replied. All of those things were almost weighted against him on sentencing where they were in fact mitigating items, she said.
She used the example of remorse, noting that while police testimony cited Conley’s lack of tears and flat affect in the interrogation, that behavior made sense to mental health experts based on his particular diagnosis, his juvenile brain and the symptoms he was experiencing.
Regardless, Justice Steven David said he too was struggling with the argument that there’s a basket that has become so heavy with errors that there’s prejudice involved.
“If there is one thing I think this court should truly consider, it is the factor of youth — Andrew Conley was a child. And the relevant science, the relevant evidence, his mental illness and how it relates to that fact, renders this case and the sentence inappropriate,” Eltzroth replied. “Arguably unreasonable, but certainly inappropriate.”
The state questioned whether the COA egregiously abandoned the standard of review in its partial grant of Conley’s petition. It argued the appellate court improperly vacated his LWOP, which the high court “has repeatedly recognized was appropriate.”
Supervising deputy attorney general Ellen Meilaender argued that there was no new evidence presented at post conviction that wasn’t already known and considered at the time of the original sentencing – like new mental health diagnoses or new traumatic experiences in his life that hadn’t been discussed.
As such, the state argued there should be no additional review of Conley’s sentence.
Upon Rush’s question on whether the state argues Conley’s counsel implicitly alerted the court to a Roper/Graham argument, Meilaender affirmed that was true.
Justice Christopher Goff said he struggled with the Supreme Court jurisprudence on why children are different. In looking at Conley’s background and his traumatic experiences as a child, Goff stated that the very reasons the courts are supposed to treat kids differently “seems to be screaming here.”
“Why is it not legal error that those factors are disregarded and this young man is given the most serious penalty that the law allows notwithstanding what he went through as a child?” he asked.
Simply put, because those things were considered, the state argued. The trial court had looked at Conley’s youth and the way it impacted the crime. Both the sentencing court and the high court applied that review in reviewing his sentence, Meilaender argued.
The case is Andrew Conley v. State of Indiana, 21S-PC-00256.