In the
Indiana Supreme Court
Arthur Paul BAIRD, ) Supreme Court Cause No.
Petitioner, ) 54S00-0505-SD-240
)
v. ) Montgomery Circuit Court
) Cause No. CR85-66
STATE of Indiana, )
Respondent. )
ORDER CONCERNING SECOND SUCCESSIVE
POST-CONVICTION PETITION IN CAPITAL CASE
Having completed the judicial review to which he is entitled as a matter of right,
Petitioner Arthur Baird remains convicted of three counts of murder and sentenced to death.
Execution of the death sentence is set for August 31, 2005 “before sunrise.”
Baird has now filed numerous papers, the core of which is a claim that he is “presently
incompetent to be executed” under Ford v. Wainwright, 477 U.S. 399, 106 S.Ct. 2595 (1986).
The State opposes Baird’s request for relief. 1 We have jurisdiction because Baird is sentenced to
death. See Ind. Appellate Rule 4(A)(1)(a).
Ford v. Wainwright holds that the Eighth Amendment prohibits a state from executing
persons who are insane at the time of execution. 477 U.S. at 409-10, 106 S.Ct. at 2601-02. In
this context, persons are insane if they are “unaware of the punishment they are about to suffer
and why they are to suffer it.” See, e.g., Penry v. Lynaugh, 492 U.S. 302, 333, 109 S.Ct. 2934,
2954 (1989) (effectively adopting Justice Powell’s definition of insane from his concurring
opinion in Ford), abrogated in part on other grounds in Atkins v. Virginia, 536 U.S. 304, 122
S.Ct. 2242 (2002); accord Order, Fleenor v. State, No. 41S00-9910-MS-625 (Ind. Dec. 6, 1999)
(unpublished; applying Ford standard of insanity to prisoner’s successive post-conviction claim).
At this stage of the proceedings, there is a presumption that the prisoner is sane. Ford, 477 U.S.
at 426 (Powell, J., concurring) (when prisoner was competent to stand trial, “[t]he State . . . may
properly presume that petitioner remains sane at the time sentence is to be carried out, and may
1
Baird filed: “Verified Motion For Psychiatric Evaluation;” “Petitioner’s Verified Request Regarding Competency
To Be Executed And Petitioner’s Motion For Immediate Stay Of Execution;” “Motion For Order To Notify;”
“Proposed Successive Petition For Post-Conviction Relief;” “Reply On Second Successor Request And Other
Related Pleadings;” “Tender Of Supplemental Authorities” filed August 5, 2005; “Request For Funding And
Hearing;” “Notice Of Tender” with affidavits filed August 5, 2005; “Tender Of Supplemental Authority” filed
August 10, 2005; “Notice Of Tender” with Psychiatric Evaluation filed August 22, 2005; and “Baird’s Response To
Respondent’s Tender And Reply To Respondent’s ‘Response To Petitioner’s Tender Of Additional Materials”” filed
August 25, 2005. The State filed: “Response To Verified Request Regarding Competency, Motion For Immediate
Stay, And Verified Motion For Psychiatric Evaluation;” Response To Petitioner’s Tender Of Additional Materials”
filed August 22, 2005; and “Submission Of Videotaped Interview Of Petitioner” filed August 22, 2005.
require a substantial threshold showing of insanity to trigger the hearing process.” (footnote
omitted)); see also Coe v. Bell, 209 F.3d 815, 820 (6th Cir); accord Order, Fleenor, at 1-2.
A claim such as Baird’s is among those that our post-conviction rule on successive post-
conviction petitions was designed to address. See Ind. Post-Conviction Rule 1(12); Order,
Fleenor, at 2. Under our rule, a person who has been convicted of a crime may be permitted
additional post-conviction review even after the conclusion of review to which the person is
entitled as a matter of right, i.e., direct appeal and a first post-conviction proceeding. A Ford
claim is one that by its nature arises after the usual channels of appeal have been exhausted. See,
e.g., Stewart v. Martinez-Villareal, 523 U.S. 637, 645, 118 S.Ct. 1618, 1622 (1998). Baird
exhausted those appeals in April when the United States Supreme Court denied his petition for a
writ of certiorari in his federal habeas appeal. Baird could have raised his Ford claim in the first
successive post-conviction petition he presented to us the next month because an order from this
Court setting an execution date was imminent. Nonetheless, we consider Baird’s claim that he
may not be executed consistent with Ford.
Because Baird has completed the review to which he is entitled as a matter of right, 2 he
needs our permission to litigate the Ford successive post-conviction claim. We will authorize
such a proceeding to go forward “if the petitioner establishes a reasonable possibility that the
petitioner is entitled to post-conviction relief.” P-C.R. 1 (12)(b). In deciding whether Baird has
made the required showing, we consider the applicable law, the petition, materials from his prior
appeals and post-conviction proceedings including the record, briefs and court decisions, and any
other material we deem relevant. See id. If we authorize the proceeding to go forward, the case
returns to the trial court for further proceedings in accordance with Post-Conviction Rule 1.
We turn to Baird’s claim that he is “presently not competent for execution.” As just
indicated, we apply the Ford standard: persons are insane if they are unaware of the punishment
they are about to suffer and why they are to suffer it. In support of the claim, Baird submitted
affidavits from two attorneys and an affidavit of Howard Wooden, Ph.D., a mental health
professional who examined Baird some ten years ago. See Notice of Tender filed August 5,
2005. Later, Baird submitted a report from Philip M. Coons, M.D., a psychiatrist who examined
Baird on August 18, 2005. See Notice of Tender filed August 22, 2005. These materials do not
support the conclusion that Baird is insane under the Ford standard, and, indeed, suggest the
opposite.
Presently, according to the papers Baird has filed, he “knows that he is sentenced to die
for killing his wife and parents, only because he has been told such by the jury, judge, and
society,” but “[h]e does not know intellectually or emotionally why he is to suffer the death
2
We affirmed Baird’s convictions and sentence on direct appeal in Baird v. State, 604 N.E.2d 1170 (Ind. 1992),
reh’g denied (1993), cert. denied, 510 U.S. 893 (1993). We affirmed the trial court’s judgment denying collateral
state post-conviction relief in Baird v. State, 688 N.E.2d 911 (Ind. 1997), reh’g denied (1998), cert. denied 525 U.S.
849 (1998). The federal district court denied his petition for writ of habeas corpus in Baird v. Davis, No. TH 98-70-
C-M/F (S.D. Ind. Jul. 17, 2003) (unpublished order), which denial was affirmed by the Court of Appeals for the
Seventh Circuit in Baird v. Davis, 388 F.3d. 1110 (7th Cir. 2004), cert. denied, 125 S.Ct. 1849 (Apr. 18, 2005). In
addition, we recently denied Baird’s first successive post-conviction petition in Baird v. State, 831 N.E.2d 109 (Ind.
Jul. 19, 2005).
2
penalty.” Request for Stay at 3, ¶ 6. One attorney gives details about some of Baird’s recent
behaviors and her interpretation of that behavior. As one example, when the attorney informed
Baird of his execution date, he expressed concern about whether he was being charged too much
for a newspaper subscription. See Nagy Aff. at ¶ 7. This attorney “has reason to believe that
Mr. Baird is unable to prepare for death because of deep denial systems in place with his mental
illness.” Id. The attorney also states Baird “believes that God will turn back the clock to before
the killings, as a reward for him not acting out on his bad thoughts while in prison.” Id. at ¶ 2.
To this attorney, Baird’s behavior shows he “does not comprehend why or how he can be
executed when he did not commit the murders, but when a ‘big, burly man’ moved his arms
during the killings,” and that he “is unable to experience culpability, and is therefore unable to
fully understand the nature of the penalty.” Id. at ¶ 6. The other attorney states her belief that
Baird’s “preoccupation with matters relevant to a time period following the anticipated date of
his execution is further indication of his inability to comprehend the reasons for the impending
execution, appreciate the finality of the death penalty and prepare himself for death.” Cook Aff.
at ¶ 9.
Neither of these attorneys is a mental health expert. As to Baird’s claim that his execution
will violate Ford, neither of their affidavits indicate that Baird is unaware of the punishment he is
about to suffer and why he is to suffer it. Rather, Baird’s references to God’s turning back the
clock to a time before he murdered his parents indicates that he is aware and why.
Dr. Wooden is a mental health expert, but he last examined Baird ten years ago. At that
time, Wooden opined Baird had suffered “an acute psychotic break” when he committed the
murders and had been unable to control his actions or appreciate the wrongfulness of his
conduct. The opinion is relevant to whether Baird was not guilty by reason of insanity—an
option the jury rejected at his trial—but does not address the Ford standard. Wooden states that
if Baird “has ongoing delusional thinking, such as was present when I last examined him, he
would be unlikely to be able to adequately comprehend the reasons for his execution as such
thinking diminishes his capacity to distinguish between reality and the delusions.” Wooden Aff.
at ¶ 9. This supposition relates to the question of Baird’s present status, but again, it does not
address the Ford standard. Dr. Wooden does not offer an opinion that Baird actually is unaware
of the punishment he is about to suffer and why he is to suffer it.
Dr. Coons examined Baird on August 18, 2005, for the purpose of determining Baird’s
competence to be executed, and offered his own observations in the Psychiatric Evaluation, as
follows: (1) Baird has a delusional disorder, meaning he has persistent, fixed false beliefs, and
this disorder has worsened since the murders (for example, Baird believes that God will turn
back time to before the murders, his wife and parents will be alive, the federal debt will be
extinguished, and Baird will be paid $1 million); (2) Baird has had obsessive-compulsive
disorder characterized by recurrent intrusive thoughts and recurrent repetitive actions, and his
obsessions have consisted of various aggressive thoughts and impulses to commit crimes, but the
obsessions have diminished during incarceration; (3) Baird had an unspecified “dissociative
disorder” at the time of the murders, but does not currently; (4) Baird does not have a personality
disorder although he has schizoid and schizotypal traits; (5) Baird does not have antisocial
personality disorder; (6) Baird is not malingering; (7) Baird “cannot feel guilt about the murders
and therefore cannot make peace with God”; and (8) Baird thinks the sentence is unjust “because
3
he did not choose to murder his wife and parents” since “[h]is hands murdered his wife and
parents while under the control of unseen forces and persons.” See Notice of Tender filed
August 22, 2005 (Psychiatric Report at 9-11).
A prisoner who submits an opinion from a psychiatrist, based upon a recent assessment,
that the prisoner meets the Ford standard of “insane” would satisfy the burden of establishing a
reasonable possibility that the petitioner was entitled to post-conviction relief. Dr. Coons
concluded Baird is “currently incompetent to be executed,” but this conclusion is not based on
the Ford standard. Dr. Coons did not conclude that Baird is unaware of the punishment he is
about to suffer and why he is to suffer it. Rather, like the others, Dr. Coons’s report shows that
Baird is aware he is to be executed because he murdered.
The evidence presented makes a prima facie showing that Baird may believe his execution
is unfair and that he is withdrawn or uncommunicative when confronted with the fact of his
scheduled execution. He may be denying to himself that it will actually occur. He may have a
mental illness. But read as a whole, the evidence presented amply shows Baird knows he is
about to be executed because he murdered his parents. The evidence submitted does not
challenge the presumption that Baird is sane, the standard of Ford, and we thus conclude he has
not met his burden of showing a reasonable possibility that he is entitled to relief or further
proceedings in a trial court.
Baird’s papers arguably present other successive post-conviction claims, but he has not
met his burden of showing a reasonable possibility he is entitled to relief. We have already
denied Baird’s claims that mentally ill persons are per se exempt from execution under the state
and federal constitutions and international law. See Baird v. State, 831 N.E.2d 109, 114-16 (Ind.
2005). Those claims are res judicata and we decline to reconsider them. To the extent Baird
requests we adopt a standard of incompetency for execution other than the Ford “insane”
standard, we decline. In a single sentence, Baird claims executing mentally ill persons violates
the Fourteenth Amendment. See Successive Pet. at 5-6, ¶ 8. We presume this is a claim that
execution violates a mentally ill person’s right to equal protection, and we deny permission to
litigate the claim because, to the extent it has not been procedurally defaulted for being raised at
this late stage, Baird has not shown a reasonable possibility of relief on the merits.
Because Baird has not met his burden of establishing a reasonable possibility that he is
entitled to relief on the claims presented, we decline to authorize the filing of the second
successive petition. We also deny his requests for a stay of execution, for an order directing the
Department of Correction to notify Baird’s counsel before conducting any psychological
evaluation, for appointment of mental health professionals to examine Baird, for funds to hire an
independent mental health professional to examine Baird, for a hearing on his competency, and
any for other relief requested in the papers before us today.
Our rules permit—but do not require—a petition for rehearing. Rehearing should not be
sought if Baird intends merely to raise the same arguments we have already addressed. If he
does petition for rehearing, however, the petition must be physically filed with the Clerk no later
than 12:00 p.m., August 26, 2005.
4
The Clerk is directed to send a copy of this order to counsel of record and to West Group
for publication in the bound volumes of this Court’s decisions.
Done at Indianapolis, Indiana, this 25th day of August, 2005.
/s/ Randall T. Shepard
Chief Justice of Indiana
Shepard, C.J., and Dickson and Sullivan, JJ., concur.
Boehm, J., dissents with opinion in which Rucker, J., joins.
Boehm, J., dissenting.
It is obvious, I think, that Arthur Baird has suffered from significant mental illness dating
from the time he murdered his pregnant wife and his parents in 1985. The circumstances
supporting this conclusion are documented in the opinions of this Court affirming his conviction,
Baird v. State, 604 N.E.2d 1170 (Ind. 1992) and affirming the denial of post-conviction relief.
Baird v. State, 688 N.E.2d 911 (Ind. 1998). In short form, Baird, who had no criminal history,
apparently suffered from the delusion that he was about to be paid $1 million by the federal
government for his advice as to how to manage the national debt. He had arranged to buy a farm
with the anticipated proceeds, and that deal was to be closed the day before the murders. A
variety of expert opinion was offered at trial to the effect that he suffered from delusions.
Psychiatrists were divided as to whether, at the time of the murders, he knew what he was doing
and could appreciate the wrongfulness of his acts. The jury found him guilty, rejecting his
insanity defense under that standard. The issue before us now is whether he is currently “insane”
under the different standard of the Eighth Amendment prohibition against execution of an
“insane” person.
The interpretation of the Eighth Amendment is, of course, a matter of federal
constitutional law, and we are bound by the rulings of the Supreme Court of the United States on
that point. Equally obviously, there is nothing in the Eighth Amendment that prevents a State
from imposing a more restrictive standard for execution of persons with mental illness, or, for
that matter, from doing away with the death penalty altogether. Because of its irreversibility,
apart from whatever one thinks of its morality, we should err on the side of caution in carrying
out an execution. The majority cites Justice Powell’s concurrence in Ford v. Wainwright, 477
U.S. 399 (1986) as the standard established by the Supreme Court as the definition of an
“insane” person for purposes of the Eighth Amendment. Under that formulation persons are
insane and ineligible for execution if they are “unaware of the punishment they are about to
suffer and why they are to suffer it.” Id. at 422. For the reasons given below, I do not believe
the Eighth Amendment standard is as clear as the majority would have it. But even if we accept
Justice Powell’s language in Ford as the definitive standard, I think the facts are sufficiently
murky that we should permit Baird’s petition to go forward.
Two attorneys who have dealt recently with Baird express their views that he is not
competent to be executed. Obviously, their opinions are neither tied to a precise standard of
“competency to be executed,” nor based on any particular qualifications. His attorneys cite
5
facts that, at the very least, lead one to conclude that Baird is only marginally in touch with
reality. They report that at one level he understands that an execution is scheduled, but it is not
at all clear that he has internalized this information and believes that he is in fact to be executed.
We now have the report of Philip Coons, M.D., a practicing psychiatrist and emeritus professor
of psychiatry at Indiana University School of Medicine. Based on his interview with Baird on
August 18, 2005, less than two weeks before the scheduled execution date, Dr. Coons also
expresses the opinion that Baird is “incompetent to be executed.” Dr. Coons expressly declines
to choose among legal standards for “competency to be executed,” but asserts that Baird is not
malingering, is “grossly psychotic and delusional,” and “cannot feel guilt about the murders.”
His inability to “feel guilt” is apparently based on his belief that “he did not choose to murder his
wife and parents.” Rather, according to Dr. Coons, Baird believes that “his hands murdered his
wife and parents while under the control of unseen forces and persons.” Baird also professes a
belief that time will be rolled back to the point that the murders can be undone, and that God will
cause this to happen. His apparent indifference to the actions one anticipating death might take
(inattention to a will; savings for periods long beyond execution date) seems consistent with this.
In short, I think it is plain that Baird is insane by any ordinary understanding of that term.
Whether he meets the Eighth amendment standard of insanity that precludes his execution is less
clear. But whether he is “aware of the punishment” as that term appears in Ford seems to me to
be at least debatable, given his apparent belief that higher powers will intercede to “roll back”
time to a point antedating the murders. It is also less than clear whether a person who genuinely
believes he committed the acts under the control of others understands “why” he is to be
punished. Under these circumstances, I would grant Baird’s request to file a successive petition
for post-conviction relief to explore the issue never adjudicated in his earlier appeals, namely his
current mental condition judged by the Eighth Amendment standard that prohibits execution of
the insane.
The legislature in this state has made clear that it wishes to impose the death penalty in
some cases, but unlike almost all other states, Indiana has no specific statutory provision
addressing either the standard of insanity or any procedural requirements to guard against
execution of the insane. I therefore agree with the majority that under Indiana law the Eighth
Amendment remains the only substantive bar to Baird’s execution. It is less clear that the oft-
quoted standard from Justice Powell’s concurrence in Ford is the definitive formulation of the
Eighth Amendment standard for eligibility to be executed.
Writing in Ford for himself alone, Justice Powell offered the above quoted definition of
insane persons as the Eighth Amendment standard. Three years after Ford, the Supreme Court
held that executions of mentally retarded persons and juveniles were permissible under the
Eighth Amendment. Penry v. Lynaugh, 492 U.S. 302 (1989) (mentally retarded); Stanford v.
Kentucky, 492 U.S. 361 (1989) (juveniles). In Penry, Justice O’Connor, writing for herself, the
Chief Justice, and Justices White, Scalia and Kennedy, quoted Justice Powell’s standard, and
many state and federal courts have taken this as a definitive endorsement of that language by the
Supreme Court. This language is not, however, in the category of square holdings that are
entitled to complete deference as definitive rulings of the Supreme Court. Only Justice Powell,
who provided the fifth and deciding vote in Ford, embraced that formulation in that case. The
reference in Penry is a description of Ford in a case upholding execution of a mentally retarded
person, where the standard for insanity was not in issue. I agree that many courts have taken the
6
Penry language as an endorsement of the Powell formulation by a majority of the Supreme
Court. I nonetheless note that the Penry description is as susceptible of being read as a minimum
standard, without necessarily formulating the precise standard. In any event it is dicta, not a
holding, and the Supreme Court has not spoken since.
More importantly, both Penry and Stanford have now been overruled. See Atkins v.
Virginia, 536 U.S. 304 (2002) (execution of the mentally retarded violates the Eighth
Amendment); Roper v. Simmons, 125 S. Ct. 1183 (2005) (execution of juveniles violates the
Eighth Amendment). In the course of reexamining Penry and Stanford, more than a majority of
the Supreme Court has described the basis for the Eighth Amendment’s prohibition against
execution of the mentally retarded as “diminished capacities to understand and process
information, to communicate, to abstract from mistakes and learn from experience, to engage in
logical reasoning, to control impulses, and to understand the reactions of others.” Atkins, 536
U.S. at 318; Roper, 125 S. Ct. at 1209 (O’Connor, J., dissenting, quoting Atkins majority). The
objective facts cited by Baird’s attorneys, if proven, would seem to fit this description, though
his impairment is not mental retardation, as that condition is usually understood, but mental
illness.
Atkins may carry another implication for the Ford formulation. Atkins held that the
Eighth Amendment prohibits execution of a mentally retarded person, but famously left open the
definition of mental retardation. Specifically, Atkins stated “As was our approach in Ford v.
Wainwright . . . with regard to insanity, ‘we leave to the States the task of developing appropriate
ways to enforce the constitutional restriction upon [their] execution of sentences.’” 536 U.S. at
317. Although Ford itself may have been taken to address only the procedures through which
insanity may be addressed and determined, it is very clear that Atkins left to the States both the
standard of mental retardation and also any procedural issues involved in determining whether a
person meets that standard. If we take literally the “as was our approach in Ford,” the definition
of insanity, like that of mental retardation, is left to the States to work out. Whether the net result
is to leave the definition of insanity to the States remains an open issue after Atkins. And even if
we ultimately arrive at a uniform federal standard, the precise nature of that standard remains to
be definitively established. Certainly a different evolving national consensus as to mental
retardation was identified in Atkins compared to that found in Penry. All of this leads me to
exercise extreme caution in executing a person whose mental health is plainly questionable
unless we can be certain the person does not meet the Ford standard, much less another more
restrictive standard that may now apply in light of Atkins and Roper.
Finally, Atkins reemphasized the longstanding doctrine that the severity of the
punishment must be correlated to the culpability of the defendant. 536 U.S. at 311. The ability to
relate to reality is surely a component of culpability. Even if Justice Powell’s formulation of the
standard of insanity is the law, both Ford and Atkins make clear that States are to work out the
procedures by which an individual’s sanity is to be determined. Some States have adopted rather
specific procedures, for example calling for prison officials or the executive branch to initiate an
examination of death row inmates whose sanity is in question. 3 Indiana has no such statutory
3
See, e.g., Conn. Gen. Stat § 15-101 (2004) (if the person “appears to the warden to be insane” an
application to a court for psychiatric exam is to be made); Fla. Stat. § 922.07 (2005) (“when the Governor
is informed that a person under sentence of death may be insane” a commission of psychiatrists is to be
7
procedure. We have provided by judicial rule and decision for the possibility of a successive
petition for post-conviction relief to determine sanity, but have no clear guidelines as to what
triggers that procedure other than the general provision of P.C.R. 2 that the petitioner must show
a “reasonable possibility” that he or she is entitled to relief. In the absence of any guidance from
the legislature on this point, we should construe that provision generously if in doubt.
I certainly agree with the majority on the elementary and fundamental point that we are
bound by decisions of the United States Supreme Court on questions of federal law. Justice
O’Connor, dissenting in Roper, expressed frustration at her colleagues’ refusal to “reprove, or
even acknowledge, the Supreme Court of Missouri’s unabashed refusal to follow [the U.S.
Supreme Court’s] controlling decision in Stanford.” 125 S. Ct. at 1209. She noted several recent
cases in which the Supreme Court of the United States has held that it is its “prerogative alone to
overrule one of its precedents.” Roper itself, and each of the other cases Justice O’Connor cited
with respect to deference to Supreme Court precedent, overruled a prior holding that had
established a clear rule of law. 4 Here we are dealing with the meaning of “insane,” a term that
was not elaborated by a majority of the Court that used the term in Ford, and has never been
squarely addressed by the Court since then. That is not the sort of precedent that demands
unquestioning fidelity in the face of subsequent language from the Supreme Court itself that
raises legitimate questions as to the meaning of the term. In any event, as indicated above, I
believe Baird has shown a “reasonable possibility” that he may be insane, even under Justice
Powell’s formulation. That is the test of P.C.R. 2, and I believe Baird should be given an
opportunity to make his case.
Rucker, J., joins.
appointed); Nev. Rev. Stat. § 176.425 (2004) (if “there is a good reason to believe that the defendant has
become insane” the director of the department of corrections “may” petition a court to trigger a sanity
hearing); Ohio Rev. Code Ann. § 2949.28 (LexisNexis 2005) (“If a convict sentenced to death appears to
be insane” the official in charge of the institution having custody “shall” give notice to the court that
imposed the sentence).
4
Roper held that persons under the age of eighteen may not be executed, overruling Stanford on that
point of Eighth Amendment law. State Oil Co. v. Khan, 522 U.S. 3 (1997) held that vertical maximum
price fixing is not a per se violation of the Sherman Act, overruling Albrecht v. Herald Co., 390 U.S. 145
(1968). United States v. Hatter, 532 U.S. 557 (2001) held that a general tax law can be applied to federal
judges appointed before the effective date of the tax, overruling Evans v. Gore, 253 U. S. 245 (1920).
Rodriguez de Quijas v. Shearson/American Express, Inc., 490 U.S. 477 (1989) held that agreements to
arbitrate claims under the Securities Act are enforceable, overruling Wilko v. Swan, 346 U.S. 427 (1953).
8