                                                                          FILED
                                                                     Nov 07 2018, 1:07 pm

                                                                          CLERK
                                                                      Indiana Supreme Court
                                                                         Court of Appeals
                                                                           and Tax Court




                                IN THE

        Indiana Supreme Court
             Supreme Court Cause No. 10S00-1507-PD-413

                        Jeffrey A. Weisheit,
                        Appellant (Petitioner Below)

                                    –v–


                           State of Indiana
                        Appellee (Respondent Below)


        Argued: September 7, 2017 | Decided: November 7, 2018

                    Appeal from the Clark Circuit Court
                        Cause No. 10C01-1601-PC-1

                   The Honorable Andrew Adams, Judge

                              On Direct Appeal




                         Opinion by Justice David
                    Justice Massa and Justice Goff concur.
Justice Slaughter concurs in part and in the judgment with separate opinion.
Chief Justice Rush concurs in part and dissents in part with separate opinion.
David, Justice

   Jeffrey Weisheit was convicted of the murders of two children as well
as arson. His convictions were affirmed on direct appeal. He
subsequently sought and was denied post-conviction relief, alleging that
both his trial and appellate counsel were ineffective. We affirm the post-
conviction court, finding that although counsel made some mistakes, most
of them do not rise to the level of deficient performance pursuant to
Strickland, and in any case, Weisheit fails to demonstrate that he was
prejudiced.


Facts and Procedural History
   In April 2010, Jeffrey Weisheit was living with his pregnant girlfriend,
Lisa Lynch, and her two children: eight-year-old Alyssa and five-year-old
Caleb. Weisheit was caring for the children one night while his girlfriend
worked. He bound and gagged Caleb, set fire to the home, and fled the
state. Both children died in the fire.

   Police located Weisheit in Kentucky. Weisheit resisted and officers had
to tase him to effect his arrest. Weisheit fell and hit his head. He was
taken to the hospital and diagnosed with a concussion.

   In 2013, a jury convicted Weisheit of two counts of murder and one
count of Class A felony arson resulting in serious bodily injury. The jury
found the State had proven the alleged aggravating circumstances—
multiple murders and that each child was under the age of twelve—
beyond a reasonable doubt, found the aggravators outweighed any
mitigators, and recommended the death penalty. The trial court
sentenced Weisheit accordingly, and this Court affirmed the convictions
and sentence on direct appeal. Weisheit v. State, 26 N.E.3d 3 (Ind. 2015)
(unanimous opinion by David, J.).

   Weisheit sought post-conviction relief, alleging multiple instances of
ineffective assistance by trial and appellate counsel. The trial court denied
Weisheit’s petition in November 2016. Weisheit now appeals. Additional
facts will be provided as necessary.



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Standard of Review
   Post-conviction proceedings are civil proceedings in which a defendant
may present limited collateral challenges to a conviction and sentence.
Wilkes v. State, 984 N.E.2d 1236, 1240 (Ind. 2013). The defendant bears the
burden of establishing his claims by a preponderance of the evidence. Id.
The defendant must convince this Court that there is “no way within the
law that the court below could have reached the decision it did.” Stevens v.
State, 770 N.E.2d 739, 745 (Ind. 2002).


Discussion
   Weisheit argues that he received ineffective assistance of both trial and
appellate counsel. He faults trial counsel in six areas: 1) errors during the
penalty phase of trial; 2) failures regarding the admissibility of expert
testimony; 3) failure to appropriately question jurors; 4) failure to
adequately present evidence in support of suppressing pretrial statement;
5) failure to object to opinion testimony about the nature and origin of the
fire; and 6) cumulative errors. Weisheit faults appellate counsel for failing
to sufficiently identify objectionable jurors on direct appeal.

  Ineffective assistance of counsel claims are evaluated under the two-
part test articulated in Strickland v. Washington, 466 U.S. 668 (1984). To
prevail, Weisheit must show: 1) that counsel’s performance was deficient
based on prevailing professional norms; and 2) that the deficient
performance prejudiced the defense. Ward v. State, 969 N.E.2d 46, 51 (Ind.
2012) (citing Strickland, 466 U.S. at 687).

   In analyzing whether counsel’s performance was deficient, the Court
first asks whether, “’considering all the circumstances,’ counsel’s actions
were ‘reasonable [ ] under prevailing professional norms.’” Wilkes, 984
N.E.2d at 1240 (quoting Strickland, 466 U.S. at 668). Counsel is afforded
considerable discretion in choosing strategy and tactics, and judicial
scrutiny of counsel’s performance is highly deferential. Id.




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   To demonstrate prejudice, “the defendant must show that there is a
reasonable probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different. A reasonable
probability is a probability sufficient to undermine confidence in the
outcome.” Strickland, 466 U.S. at 694.

   There is a strong presumption that counsel rendered adequate
assistance and made all significant decisions in the exercise of reasonable
professional judgment. Stevens, 770 N.E.2d at 746. Counsel is afforded
considerable discretion in choosing strategy and tactics and these
decisions are entitled to deferential review. Id. at 746-47 (citing Strickland,
466 U.S. at 689). Furthermore, isolated mistakes, poor strategy,
inexperience and instances of bad judgment do not necessarily render
representation ineffective. Id. at 747 (citations omitted).


A. Trial Counsel

1. Errors during the penalty phase of trial

a. Failure to obtain Boys School Records and to prepare certain
experts


   This Court and the United States Supreme Court have found that
capital defendants are entitled to adequate representation at the penalty
phase of trial. See Rompilla v. Beard, 545 U.S. 374, 382-93 (2005); Williams v.
Taylor, 529 U.S. 362, 395-98 (2000); Smith v. State, 547 N.E.2d 817, 821-22
(Ind. 1989). “A decision by defense counsel not to present evidence can be
deemed reasonable only if it is ‘predicated on a proper investigation of the
alleged defense.’” Smith, 547 N.E.2d at 821 (quoting Thomas v. State, 242
N.E.2d 919, 924 (Ind. 1969)).

  Weisheit first argues that he was denied effective assistance during the
penalty phase of trial because trial counsel did not fully investigate and
obtain pertinent mental health records. Specifically, he faults counsel for



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not obtaining his records from the Indiana Boys School. He points to the
post-conviction court’s conclusion that these records (which were
obtained for the post-conviction hearing from the Indiana Archives)
contained valuable mitigation evidence that was not provided to the jury.
Weisheit also argues that had these records been provided to experts, their
testimony would have been more compelling.

   Here, trial counsel requested the records, but received a response from
the Boys School that they were not available and that pursuant to its
document retention policy, documents from that time period would have
been destroyed. Nevertheless, defense counsel found other documents
and mental health records and provided them to mental health experts.

   While Weisheit faults trial counsel for only making one attempt to
obtain the Boys School records, it does not seem that counsel was deficient
for not making multiple attempts given that counsel was told by the Boys
School that there was no match for the records and that records over 10
years old were destroyed, and counsel did obtain other mental health
records from other sources. Had counsel been told the records were
moved to the archives or even told they could not be located, it would
have made sense to fault counsel for not pursuing them further.
However, this is not the case. The dissent believes that counsel should
have followed up by calling the Department of Correction because the
Department noted in response to the records request to “feel free to
contact” them with “[a]ny further questions.” However, in response to
being told there was no match for the requested records and further that
records over 10 years old would be destroyed, it’s not clear what “further
questions” there are to ask at that point. Nor can we say that if counsel
called that they would have been told that the records were, in fact,
available elsewhere or been given any other new information. All the
information pointed to the records not being available from the Boys
School.

    Weisheit also faults counsel for not providing these records to some of
the testifying witnesses (Dr. Henderson-Galligan- licensed psychologist
and Deborah Eccles-Skidmore- Weisheit’s Boys School counselor) because
if they had the records and were prepared using them, they would have



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been more compelling mitigation witnesses. While perhaps this is the
case, it is not clear that counsel’s performance was deficient by not
preparing witnesses in a more ideal or preferred way. Weisheit’s best
claim in this regard is that counsel failed to appropriately prepare Eccles-
Skidmore by failing to inform her that she would be subject to cross-
examination. Counsel should have done at least that much.

  However, even assuming counsel was deficient in failing to
appropriately prepare Eccles-Skidmore, Weisheit has not demonstrated
prejudice. During trial, counsel did present evidence of Weisheit’s mental
health struggles throughout his life and his various mental health
diagnoses. For instance, Boys School counselor Eccles-Skidmore, testified
that Weisheit was in the Boys School for a time, attempted suicide while
there, and was admitted to Methodist Hospital as a result. Defense
witness, Dr. Price, reviewed records from throughout Weisheit’s life,
including academic records, hospital and other medical records, police
records, prior psychotherapy records, prior evaluation records, etc. He
also personally evaluated Weisheit on four different occasions. Dr. Price
testified regarding the history of mental illness in Weisheit’s family,
Weisheit’s history of brain/head injuries, and his diagnoses that Weisheit
had bipolar disorder not otherwise specified (NOS), attention deficient
hyperactivity disorder (ADHD), predominant hyperactive impulse and
cognitive disorder NOS. He also testified that he disagreed with Dr. Allen
(the State’s expert) that Weisheit did not meet the diagnostic criteria for
bipolar disorder and explained why he disagreed.

   Dr. Henderson-Galligan, who was initially appointed by the trial court
to do a competency evaluation, met with Weisheit on two occasions and
reviewed his background and mental health records including both Dr.
Price and Dr. Allen’s reports. She testified that Weisheit was competent to
stand trial and further, she diagnosed him with bipolar disorder NOS,
cognitive disorder NOS and personality disorder NOS with Cluster B
characteristics. During the post-conviction hearing, Dr. Henderson-
Galligan testified that while the missing records contained significant
information, nothing in those documents conflicted with her opinion at
trial.



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   Weisheit points to arguments the State made during its closing wherein
it downplayed the impact of his mental illness and argued that he was a
manipulator. He argues that with the additional information contained in
the Boys School records, he could have forcefully countered those
arguments. He also argues that counsel could have used information
from the records to argue that Weisheit was suffering from a psychotic
break at the time of the murders.

  However, looking at the record, Weisheit’s trial counsel did, in fact,
make arguments about Weisheit’s significant history of psychological
problems since childhood and possible mania at the time of the murders.
Counsel pointed to Weisheit’s records that are “rife with suicide attempts,
depression, medication. . .” and the fact that during childhood he was
never “totally adequately treated.” (Tr. 2560.) When discussing
Weisheit’s mental health, counsel stated that “at some point a major
disruption occurs which pushes one over the edge. . . to what we call
acute mania.” (Tr. 2562.) “In this case, it happened with tragic results.”
(Tr. 2562-63.) Accordingly, despite not having the aid of the Boys School
records, counsel was able to present a rather complete picture of
Weisheit’s mental health at trial.

   Finally, as the State notes, Weisheit’s Boys Schools records contained
information that was potentially prejudicial to Weisheit, including
multiple references to Weisheit’s lack of remorse and records containing
descriptions of Weisheit’s poor behavior that led to several juvenile
adjudications. For instance, Weisheit had adjudications for burglaries,
auto theft, running away, fighting, making threats, stealing weapons and
other misbehavior at school. The records also make reference to
Weisheit’s lack of remorse for his behavior and his cruelty to animals. It is
not clear that introduction of these additional records would have helped
Weisheit. Accordingly, Weisheit has not demonstrated that counsel was
ineffective by not obtaining the records or using them to prepare
witnesses.

b. Failure to call witnesses

   Weisheit also faults trial counsel for not calling certain witness,



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including Dr. Harvey, an expert retained by the defense, and Dr. Gur, an
expert regarding Weisheit’s traumatic brain injuries.


   Dr. Harvey

   Dr. Harvey performed a mental health assessment of Weisheit in 2010.
After that assessment, Dr. Harvey’s terms of employment changed, and he
no longer had direct contact with individuals in forensic cases. Dr. Harvey
stated he could testify only as to his prior assessment and offered to find
someone else who could do a future assessment. Dr. Harvey sent counsel
a memorandum reporting his observations during his 2010 meeting with
Weisheit and detailing his impressions of Weisheit’s mental health. The
defense team did not pursue further services from Dr. Harvey, but
instead, engaged another psychologist (Dr. Price), who received Dr.
Harvey’s memorandum, incorporated it into his own assessment, and
testified at trial.

   Weisheit argues that “. . . Dr. Harvey would have tipped the balance for
the jury or sentencing court from finding no mitigating circumstances to
finding they existed.” (Appellant’s Brief at 42.) He believes Dr. Harvey’s
testimony regarding his first-hand observation of Weisheit in a manic
state was crucial to rebut the State’s evidence and secure a different
sentence. However, as discussed above, even without Dr. Harvey’s
testimony about the instance of mania he observed, trial counsel did in
fact present evidence of Weisheit’s bipolar diagnosis and possible mania
at the time of the murders. Further, Dr. Price reviewed Dr. Harvey’s
report prior to serving as a testifying witness. Counsel was not ineffective
for not pursuing further services from Dr. Harvey after he contacted
counsel, told counsel he could not do future evaluations and indicated he
would recommend his replacement. Further, even though counsel
mistakenly believed Dr. Harvey could not testify about his prior
assessment, Weisheit was not prejudiced because another expert capably
testified about Weisheit’s mental health conditions.




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   Dr. Gur

   Dr. Gur, a neuropsychologist with expertise in brain injury and
behavior, testified at Weisheit’s PCR hearing regarding how the multiple
brain injuries Weisheit incurred would have exacerbated his mental health
conditions. Weisheit argues that counsel was ineffective for not
presenting this evidence at trial. However, because Dr. Gur could not
point to medical evidence of Weisheit’s alleged brain injuries and another
expert disagreed with his conclusion, Weisheit is asking this Court to
reweigh the evidence on this issue which we will not do.

   The post-conviction court determined that evidence of Weisheit’s
injuries was available to trial counsel, and counsel’s failure to further
investigate the injuries and their effects was unreasonable. However, the
court found that even at the post-conviction hearing, Weisheit presented
no conclusive medical evidence that he actually suffered from traumatic
brain injuries or the other effects Dr. Gur suggested could result from such
injuries.

  We agree that the evidence of Weisheit’s brain injuries is speculative.
Dr. Gur admitted that just because someone has hit their head, even
multiple times, this does not necessarily mean they suffer a concussion
and further, that even sustaining a concussion does not guarantee
permanent brain injury. He further admitted that he did not interview
Weisheit; his opinion that Weisheit suffered from concussions was largely
based on Weisheit’s self-reports and he could not point to medical records
that documented each of the alleged concussions or other traumatic brain
injury. His testimony was significantly undermined when he stated that it
“seems like” Weisheit suffered from concussions. (PCR Tr. Vol. I. at 95.)
Thus, it is not clear how reliable or helpful Dr. Gur’s testimony would
have been during trial.

   Further, another expert, Dr. Westcott, disagreed with Dr. Gur that
Weisheit sustained traumatic brain injuries. She testified that while there
were instances where Weisheit suffered injury to his head, there was no
medical evidence to show he had concussions or traumatic brain injuries,
except for the instance where he hit his head when he was tased during
his arrest for the present crimes.


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   In sum, Weisheit has failed to show a reasonable likelihood of a
different outcome had either Dr. Harvey or Dr. Gur testified. Dr. Price
testified in Dr. Harvey’s place and the utility of Dr. Gur’s testimony is
questionable at best.


2. Failures regarding the admissibility of expert testimony


  At trial, counsel intended to call James Aiken, a former prison warden
and consultant, to testify that Weisheit could be adequately managed and
secured under a life sentence without presenting danger to prison staff,
other inmates, or the public. Aiken’s testimony was not presented,
however, because the trial court found he was not qualified as an expert
under Indiana Evidence Rule 702(b) and counsel withdrew him. On direct
appeal, this Court affirmed the exclusion of Aiken’s testimony because
Aiken’s proposed opinion concerned Weisheit’s future adjustment to
prison, and counsel neither established Aiken’s qualifications to predict
future behavior, nor did he make an offer of proof as to Aiken’s specific
predictions of Weisheit’s potential future classification in prison. See
Weisheit, 26 N.E.3d at 10.

   Weisheit now argues that counsel was ineffective for failing to point the
trial court to the correct rule of evidence—702(a)—under which Aiken
would have qualified as an expert.1 The post-conviction court agreed that
the trial court erred in excluding Aiken’s testimony under 702(b), and
found Aiken was qualified under 702(a). It further found that “[h]ad the
jury heard this mitigating evidence, there is a reasonable likelihood the
jury would have given Weisheit’s case for mitigation greater weight and
returned a verdict for something less than death.” (PCR Order at 14.)
Nevertheless, despite making such a strong statement, the court found




1 A witness who is qualified as an expert by knowledge, skill, experience, training, or
education may testify in the form of an opinion or otherwise if the expert's scientific,
technical, or other specialized knowledge will help the trier of fact to understand the evidence
or to determine a fact in issue. Ind. R. Evid. 702(a).




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that Weisheit did not demonstrate prejudice and denied his ineffective
assistance claim.

  Despite contradictory statements in its order, the post-conviction court
came to the correct conclusion. As the State points out, even assuming
Aiken could qualify under 702(a), it is not clear that he actually would
have been allowed to testify. The trial court is not required to accept the
opinion of experts. Wilkes v. State, 917 N.E.2d 675, 690 (Ind. 2009) (citing
Thompson v. State, 804 N.E.2d 1146, 1149 (Ind. 2004)).

    In this case, with regard to his preparation to serve as an expert
witness, Aiken testified that he spent just 30 to 45 minutes with Weisheit
the night prior to appearing in court and that he reviewed Weisheit’s
prison records provided by counsel and some annual reports online. He
did not use any structure or assessment tool when evaluating Weisheit.
He struggled to answer the trial court’s questions about his training and
experience. He admitted he had not reviewed anything regarding how an
Indiana prison would house an inmate convicted of murdering children.
It is speculative to say Aiken’s testimony would have been admissible.

   Further, even if Aiken had testified, the prior prison records of Weisheit
undercut Aiken’s claims and demonstrate Weisheit’s propensity for
violence and odd behavior. Thus, Aiken would not have aided his
mitigation cause. For instance, 35 incident reports were filed regarding
Weisheit from April 2010 to May 2011. Incidents include Weisheit
threatening to kill an EMT who was dispensing medication, threatening
officers and challenging them to fight him, threatening other inmates,
destroying several pieces of jail property, urinating in the hallway and
concealing “multiple, sharp chicken bones” in his mouth during a search.
(PCR Exhibit L.) Accordingly, it is not clear that Aiken’s testimony would
have been given great weight and that there’s a reasonable probability
that the outcome would have been different had Aiken testified.




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3. Failure to appropriately question jurors


   Indiana Code Section 35-50-2-9(e) states that the jury in a capital case
“shall recommend to the court whether the death penalty or life
imprisonment without parole, or neither, should be imposed.” See
Wrinkles v. State, 749 N.E.2d 1179, 1198 (Ind. 2001) (statute requires that
the jury be instructed as to all three possible penalties). Qualified jurors
must be willing to consider all of the possible penalties. Burris v. State,
465 N.E.2d 171, 177 (Ind. 1984). This principle flows from United States
Supreme Court jurisprudence, which requires that jurors in capital cases
must be willing to follow the law (including instructions indicating all of
the possible penalties) and must be excused if their personal views of the
death penalty (whether pro or con) "would prevent or substantially
impair" their ability to follow their oath and the law. Ritchie v. State, 875
N.E.2d 706, 726-27 (Ind. 2007) (quoting Wainwright v. Witt, 469 U.S. 412,
420 (1985)); see also Greene v. Georgia, 519 U.S. 145, 146 (1996) ("Witt is the
controlling authority as to the death-penalty qualification of prospective
jurors.") (internal quotation and citation omitted); Adams v. Texas, 448 U.S.
38, 45 (1980) (Jurors must be excused if their views on the death penalty
"would prevent or substantially impair the performance of his duties as a
juror in accordance with his instructions and his oath."); Witherspoon v.
Illinois, 391 U.S. 510, 522 (1968).

   It is presumed that jurors follow their instructions. Richardson v. Marsh,
481 U.S. 200, 206-07 (1987). Here, the jury was instructed on death, life
imprisonment without parole, and a term of years as the three sentencing
options. Nevertheless, Weisheit alleges that counsel’s performance was
deficient when, during voir dire, counsel did not ask five jurors if they
would be willing to consider a term of years as a sentencing option if they
found Weisheit guilty.

   Jurors or potential jurors were asked in their questionnaires about their
thoughts about a sentence of a term of years for a person convicted of
intentionally murdering children. The responses for the five jurors at
issue were as follows:




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        Juror 7: "I would feel justice was not truly served and a dangerous
        person could be set free."

        Juror 15: "He should never get out."

        Juror 75: "Should include 'without the possibility of parole.’”

        Juror 160: "Is not appropriate for crime."

        Juror 167: "I don’t think this is a fair sentence especially if they are
        guilty of murder."

(PCR Ex. 9- Exhibit Supp. 1 & 2.)

    Weisheit alleges that trial counsel did not follow up and ask the jurors
if they would follow the law and consider one of the three possible
sentencing options and that he was prejudiced by this because jurors went
into the trial rejecting a term of years as a possible sentence.

   Relying on this Court’s decision in Wilkes v. State, 984 N.E.2d 1236, 1240
(Ind. 2013), the post-conviction court determined it was reasonable for
counsel’s strategy to focus on identifying and screening those jurors that
would automatically vote for the death penalty. The court found answers
on the preliminary jury questionnaire did not establish prejudice by
showing a reasonable likelihood of a different outcome in the penalty
phase, and Weisheit presented no evidence that any juror indicated he or
she would not fully consider a term of years sentence.

   We agree. First, Weisheit has not identified any duty or requirement
that trial counsel had to ask specific questions of jurors for them to be
qualified. Additionally, despite their responses on the questionnaires,
several of these jurors said that they would look at all the evidence and
mitigators when determining punishment, that they would have an open
mind, etc. Juror 7 agreed that the death penalty is not always the right
thing to do and that such a sentence depends on the facts and
circumstances of an individual case. Juror 15 stated she would consider
mitigation evidence including mental health status when deciding an
appropriate sentence. Juror 75 was instructed about the different


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sentencing options and was told “death is different.” (Tr. 646.) He was
told about the State’s burden to prove aggravating circumstances to
support a death sentence. He did not say much about his view of the
death penalty; however, he said nothing that would indicate he would not
consider a term of years. Juror 160 stated she would weigh the evidence
and that she couldn’t say she had any particular feelings about the death
penalty one way or the other. She would weigh the evidence presented.
She also stated she would not take the decision lightly. Finally, Juror 167
stated twice that she would keep an open mind.

   Counsel was not deficient for not further questioning the five jurors at
issue because they are presumed to follow the law, counsel was not
required to ask certain questions, the jurors were in fact instructed and
asked about the three sentencing options, and none of them said anything
during voir dire to indicate they would not consider a term of years. The
term of years option was repeatedly mentioned throughout trial.

  Further, the jury’s verdict was unanimous and of course, a child
murderer would not engender much sympathy from a jury, despite
defense counsel asking about sentencing options. Accordingly, Weisheit
cannot demonstrate prejudice. His ineffective assistance of counsel claims
related to the questioning of the jurors fail.


4. Failure to adequately present evidence in support of
suppressing pretrial statement


   Weisheit suffered injuries, including a concussion, during his arrest and
was hospitalized. During that time, he was interviewed by police and
gave a statement indicating that he was the last person to see the children
alive. That is, he stated that he left the children in the home because he
did not want them with him, and just started driving. He did not know if
he set the fire or how the fire started. Before giving the statement, the
officer read Weisheit his Miranda rights and he indicated he understood
them. The officer did not ask if Weisheit was waiving his rights, and
though she had a waiver of rights form, Weisheit “[d]idn’t seem to




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acknowledge it as far as [ ] wanting to sign it.” (PCR Ex. Vol. III at 52.)
The police then questioned Weisheit until he asked for a lawyer.

   Trial counsel moved to suppress the statement on the basis that
Weisheit did not knowingly, intelligently, and voluntarily waive his
Miranda rights. At the hearing on the motion to suppress, trial counsel
focused on Weisheit’s medical condition at the time of the interview. The
trial court denied the motion to suppress, and this Court affirmed on
direct appeal. See Weisheit, 26 N.E.3d at 18. Weisheit now argues that
failure to introduce the officer’s testimony about his response (or lack of
response) to the waiver form was deficient performance.

   The post-conviction court agreed that the officer’s testimony would
have supported an argument that Weisheit’s Miranda waiver was invalid,
which trial counsel (and appellate counsel) did not make. But the court
credited trial counsel’s testimony at the post-conviction hearing that this
omission was strategic, because counsel knew that a waiver could not be
invalid solely based on lack of a written waiver. (PCR Order at 32-34
(citing, e.g., Berghuis v. Thompkins, 560 U.S. 370, 384-86 (2010)). The court
also found Weisheit had not shown a reasonable likelihood of a different
outcome had counsel made the argument below.

   Weisheit argues the post-conviction court’s conclusions were
erroneous. Citing to Mendoza-Vargas v. State, 974 N.E.2d 590, 595 (Ind. Ct.
App. 2012), he argues that his not wanting to sign the acknowledgement
form was akin to his refusal to waive his rights. However, the validity of
a waiver is judged by the totality of the circumstances. Berghuis, 560 U.S.
at 384. In Mendoza-Vargas, a defendant who spoke Spanish shook his head
no when he was asked if he wanted to answer questions after being given
his Miranda rights. Mendoza-Vargas, 974 N.E.2d at 593. Nevertheless,
police continued to question him. Id. In contrast, here, while Weisheit did
not seem to want to sign the form, his conduct indicated that he wanted to
answer police questions. As we noted on direct appeal, he selectively
feigned sleep based on the subject matter of the questions but was
otherwise responsive and the interview, which was brief in duration,
ceased when Weisheit asked for an attorney. Weisheit 26 N.E.3d at 18.
Thus, counsel was not deficient for not raising the issue of Weisheit



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seeming to not want to sign the waiver form because it is not clear that
such a challenge would have been successful in light of the totality of the
circumstances which showed Weisheit’s willingness to speak with police
initially.

   Further, as the State notes, at the time police spoke to Weisheit, they
did not know where at least one of the child victims was. Thus, police
were authorized to speak to Weisheit and his statements would have been
admitted into evidence pursuant to the public safety exception.

   Finally, in light of the overwhelming evidence of Weisheit’s guilt,
Weisheit has failed to show a reasonable likelihood that the outcome of
trial would have been different had the statement not been admitted.


5. Failure to object to opinion testimony about the nature and
origin of the fire


  At trial, the State offered three witnesses who testified about the nature
and origin of the fire. The assistant chief of the local fire department, who
was at the scene, opined the fire was intentionally set. The state fire
marshal who investigated the fire opined the fire was intentionally set.
The lead detective on the case testified it was her opinion the fire was
intentionally set by Weisheit.

   The post-conviction court found these opinions were inadmissible and
would have been excluded had an objection been made. (PCR Order at
36.) (citing Ind. Evid. R. 704(b), “Witnesses may not testify to opinions
concerning intent, guilt or innocence in a criminal case . . . or legal
conclusions.”)) The court found counsel’s failure to object was deficient
performance because no strategy supported it, counsel did not object
because he was not the questioning attorney, and he thought co-counsel
should have objected. But the post-conviction court ultimately found no
prejudice, because substantial other evidence—like Weisheit’s flight after
the fire and one child’s condition of being bound and gagged—supported
the conclusion Weisheit intentionally started the fire.




Indiana Supreme Court | Cause No. 10S00-1507-PD-413 | November 7, 2018   Page 16 of 22
   The State argues that the post-conviction court erred because the
assistant fire chief’s and the fire marshal’s opinions were properly
admitted. The State is correct that expert testimony regarding the cause of
a fire (that does not tie the defendant to the fire) does not run afoul of
Evidence Rule 704(b). See Julian v. State, 811 N.E.2d 392, 399-400 (Ind. Ct.
App. 2004), trans. denied. (state fire marshal’s opinion that fire was
intentionally set was admissible where testimony did not reference
defendant). Accordingly, counsel was not deficient for not objecting to the
admission of the fire chief and fire marshal’s statements.

   As for the lead detective’s testimony, as the State notes, this testimony
was elicited on cross by the State in response to the defense’s direct
wherein the defense questioned the thoroughness of the detective’s
investigation. While defense counsel arguably could have objected, it is
not clear such an objection would be sustained because defense counsel
may have opened the door. Weisheit does not challenge the
appropriateness of his trial counsel’s strategy to challenge the detective’s
thoroughness.

  In any case, even if counsel was deficient for not objecting to and/or
opening the door to the detective’s testimony, Weisheit has not
demonstrated prejudice. As the post-conviction court aptly noted, this
expert testimony was “not nearly as persuasive as Weisheit’s actions
before, during, and after the crime.” (PCR Order at 37.)


6. Cumulative errors


   Generally, trial errors that do not justify reversal when taken separately
also do not justify reversal when taken together. Smith, 547 N.E.2d at 819.
However, in the context of ineffective assistance of counsel, a reviewing
court also assesses whether “the cumulative prejudice accruing to the
accused” as a result of counsel’s errors has “rendered the result unreliable,
necessitating reversal under Strickland’s second prong.” Id. at 819-20
(internal citations omitted).




Indiana Supreme Court | Cause No. 10S00-1507-PD-413 | November 7, 2018   Page 17 of 22
   Weisheit faults trial counsel on many grounds as discussed above.
Also, this Court notes that in the post-conviction court’s findings of fact, it
was critical of trial counsel in several ways. For instance, it was critical of
counsel’s failure to: adequately prepare witnesses, undertake better efforts
to get Aiken’s testimony admitted, investigate Weisheit’s alleged
traumatic brain injuries and their effects, and object to testimony about the
ultimate cause of the fire, among other things. However, despite these
findings, the post-conviction court’s conclusions of law were that there
was no ineffective assistance of counsel.

   We agree that counsel made errors and could have done things
differently or better. Nevertheless, as discussed above, these errors do not
rise to the level of deficient under Strickland. Further, even assuming
counsel was deficient, Weisheit has not demonstrated prejudice. Indeed,
he has not shown that he would be given a different sentence even if
counsel had committed none of the alleged errors in light of the nature of
this particular crime— the murder of two small children—and the
overwhelming evidence of his guilt.


B.      Appellate Counsel

Counsel’s failure to identify objectionable jurors on appeal
   The standard for gauging appellate counsel’s performance is the same
as that for trial counsel. Ward, 969 N.E.2d at 75. “Claims of inadequate
presentation of certain issues . . . are the most difficult for convicts to
advance and reviewing tribunals to support.” Biegler v. State, 690 N.E.2d
188, 195 (Ind. 1997). Here, Weisheit contends his appellate counsel
performed deficiently “when he did not cite in the Brief of Appellant the
clearest expression that Juror 7 would automatically vote for the death
penalty.” (Appellant’s Br. at 71.) That is, during voir dire, Juror 7 was
presented with the following scenario:

      Murder of two children, eight and five, and an arson. No
      defenses, no mental illness that would excuse it, no retardation



Indiana Supreme Court | Cause No. 10S00-1507-PD-413 | November 7, 2018   Page 18 of 22
      that would excuse it, no drugs, no alcohol defenses that you
      would consider, just kind of stone cold-blooded killer of two
      innocent children. Is the death penalty the only appropriate
      penalty for that kind of guilty murder?


(Tr. 141.) And Juror 7 responded: “In that hypothetical situation, yes, I
believe so.” (Id.) Appellate counsel did not cite this portion of the
transcript. Instead he quoted the following interaction between trial
counsel and Juror 7:


      MR. McDANIEL: And I think in your – again, going back to
      the magic questionnaires here. You indicated you thought the
      death penalty was appropriate if it was premeditated, multiple
      murderer, particularly gruesome, and the victims suffered or
      were tortured. That would be, I think, what you wrote down.


      JUROR NO. 7: Yes, sir.


      MR. McDANIEL: And that would still be your opinion today;
      is that right?


      JUROR NO. 7: Yes, sir.


      MR. McDANIEL: And does that sound like the hypothetical
      facts that we were talking about here?


      JUROR NO. 7: Very similar, yes.


      MR. McDANIEL: All right. And I think that you indicated that
      you somewhat agree with eye for an eye. And even though
      that’s a very common saying, let me ask what’s that mean to
      you, the eye for the eye?


      JUROR NO. 7: Well, it means that if you take someone else’s
      life, you shouldn’t be allowed the privileges of continuing your
      own.


Indiana Supreme Court | Cause No. 10S00-1507-PD-413 | November 7, 2018   Page 19 of 22
(Tr. 141-42.)


   While Weisheit now prefers a different quotation than the one cited in
his appellate brief, it is not clear that there is a significant difference
between the two. In each passage, Juror 7 states a strong preference for
the death penalty under facts like the one of this case. But the
hypotheticals discussed by counsel during voir dire, are just that,
hypotheticals. As discussed above, Juror 7 also stated during voir dire
that the death penalty is not always the right thing to do and that such a
sentence depends on the facts and circumstances of an individual case.
Juror 7 was not presented with all the facts at the time the quoted
statements were made.

   Had appellate counsel not cited either quotation, perhaps we would be
in a different situation. But as it stands, counsel provided significant
relevant information about Juror 7’s views that appears on the same page
as the quote Weisheit prefers. In any case, this Court in reaching its
decision is not limited to only what the parties discuss and cite in their
briefs. Instead, we “review relevant portions of the record” thoroughly
and “often decide cases based on legal arguments and reasoning not
advanced by either party.” See Bieghler v. State, 690 N.E.2d 188, 195 (Ind.
1997.) The language quoted by the parties is only the starting place for
our review and decision-making. Thus, we cannot say that counsel was
deficient for not choosing a particular quotation that appears on the same
page of the transcript as language that was in fact quoted, nor can
Weisheit claim prejudice as a result of counsel’s decision to include
different language in the brief. Accordingly, Weisheit’s ineffective
assistance of counsel claim as to his appellate counsel fails.


Conclusion
   While Weisheit’s trial counsel made mistakes and could have done
things better, counsel’s performance was not deficient. In any case,
Weisheit has not demonstrated that there is a reasonable probability that,
but for counsel’s unprofessional errors, the result of the proceeding would




Indiana Supreme Court | Cause No. 10S00-1507-PD-413 | November 7, 2018   Page 20 of 22
have been different. Accordingly, Weisheit’s ineffective assistance of trial
counsel claims fail.

   Weisheit’s ineffective assistance of appellate counsel claim also fails
because appellate counsel’s performance was not deficient. Counsel made
a reasonable decision to quote certain language from the transcript
although it is not Weisheit’s preferred quotation. Further, given the
similarities between the language chosen and the language not chosen and
this Court’s thorough review of relevant portions of the record, Weisheit
has not demonstrated prejudice.

   Finally, we note that in the post-conviction court’s 81-page order, some
of its findings seem to contradict its ultimate conclusions. However, after
an exhaustive review of the record and in light of our standard of review
that requires us to affirm the post-conviction court unless there’s no way
within the law it could have come to the result it did (Stevens, 770 N.E.2d
at 745), we believe the post-conviction court came to the right conclusion
on all issues. Thus, we affirm the post-conviction court.


Massa and Goff, JJ., concur.
Slaughter, J. concurs in part and in the judgment with separate
opinion.
Rush, C.J. concurs in part and dissents in part with separate opinion.




Indiana Supreme Court | Cause No. 10S00-1507-PD-413 | November 7, 2018   Page 21 of 22
A TT O RN E YS FO R A P PELL A N T

Stephen T. Owens
Public Defender of Indiana

Kathleen Cleary
John Pinnow
Anne Murray Burgess
Deputy Public Defenders
Indianapolis, Indiana


A TT O RN E YS FO R A P PELL EE

Curtis T. Hill, Jr.
Attorney General of Indiana

Kelly A. Loy
Tyler G. Banks
Deputy Attorneys General
Indianapolis, Indiana




Indiana Supreme Court | Cause No. 10S00-1507-PD-413 | November 7, 2018   Page 22 of 22
Slaughter, J., concurring in part and in the judgment.

   I agree with the Court that Weisheit is not entitled to post-conviction
relief, and that the trial court’s judgment upholding his convictions and
death sentence should be affirmed. But I reach that result for different
reasons. Unlike the Court, I conclude that trial counsel’s performance
during the penalty phase was deficient, but that Weisheit failed to show
prejudice.

  On the performance issue, I share the dissent’s view that Weisheit’s trial
counsel were deficient during sentencing for all the reasons the Chief
Justice outlines in her thoughtful and thorough opinion. Counsel’s
performance was indeed substandard and not the product of reasonable
professional judgment or strategic choice in three respects: failure to
pursue the Boys School records, failure to call Dr. Harvey about testifying
for Weisheit, and failure to lay a proper foundation and make a clear offer
of proof for Aiken’s testimony.

   On the issue of prejudice, the dissent concludes—and I agree—that
none of counsel’s “omissions, in isolation, is prejudicial enough to warrant
relief”. But where the dissent and I part company is the Chief Justice’s
view that Weisheit was prejudiced by counsel’s cumulative deficiencies.
She believes these deficiencies collectively undermine confidence in the
legality of Weisheit’s death sentence. I respectfully disagree. In my view,
Weisheit did not sustain his burden under Strickland. He failed to show a
“reasonable probability” that, had counsel performed competently, “the
result of the proceeding would have been different.” Strickland v.
Washington, 466 U.S. 668, 694 (1984).

   The dissent correctly observes that the post-conviction court botched
the governing legal standard under Strickland. Under the correct standard,
Indiana’s death-penalty statute required Weisheit to show a reasonable
probability that, were it not for counsel’s deficient performance during the
penalty phase, at least one juror would not have voted for the death
penalty, and the trial judge would not have imposed that sentence; or,
alternatively, that the jury would have voted unanimously not to impose
the death penalty. This standard follows from our statute’s mandate that a
unanimous jury recommendation for or against death requires the trial
judge to impose that sentence. Ind. Code § 35-50-2-9(e). And if even one
juror disagrees, then the court alone decides the sentence. Id. § 35-50-2-
9(f).

  Based on this standard, the Chief Justice concludes that Weisheit is
entitled to a new penalty phase. She finds that because Strickland’s
prejudice inquiry depends on the balance of aggravators and mitigators,
“adding enough weight to the mitigating side of the scale—or lifting
enough weight from the aggravating side—makes all the difference.”
Although this proposition is true in the abstract, trial counsel’s
deficiencies here do not diminish Weisheit’s aggravating circumstances;
they affect only the mitigation side of the scale. While the omitted
mitigating evidence in theory could have made a difference, Weisheit
failed to show a reasonable probability on this record that the evidence
would have made a difference—for two reasons. First, the aggravating
evidence associated with Weisheit’s multiple crimes was overwhelming.
Second, the mitigating evidence trial counsel overlooked paled in
comparison.

   I’ll begin with the overwhelming aggravating evidence supporting the
death penalty. For two years Weisheit’s girlfriend and her two young
children had been living with him at his home in Evansville. After the
girlfriend became pregnant, Weisheit reportedly doubted the unborn child
was his. While the girlfriend was at work, Weisheit torched the house and
left the two children in the house to die—eight-year-old Alyssa and five-
year-old Caleb. Alyssa was found in a closet with over ninety percent of
her body charred black. She either had been trapped inside the closet or
had sought refuge there from the fire. The pathologist said she
experienced a drowning-like sensation in her final moments. Caleb also
was charred beyond recognition. He was found on a mattress in the
bedroom, hog-tied with duct tape, with a washcloth stuffed in his mouth
and secured by duct tape. A railroad flare had been placed in his
underwear and another under his body. The flare in his underwear
burned his left thigh while he was still alive and conscious. He died in



Indiana Supreme Court | Case No. 10S00-1507-PD-413 | November 7, 2018   Page 2 of 4
agony suffocating from soot and smoke inhalation. See Weisheit v. State, 26
N.E.3d 3, 6-8 (Ind.), cert. denied, 136 S. Ct. 901 (2015).

   It is worth recounting some of these grisly aspects of Weisheit’s crimes
because they show how heavily the balance tipped in favor of the jury’s
unanimous recommendation to impose the death penalty and the high
burden Weisheit faced on post-conviction review of proving that the
omitted evidence stood a reasonable probability of changing that result.
To be clear, someone who commits these or other monstrous acts does not
forfeit his Sixth Amendment right to effective counsel. But the problem
with Weisheit’s ineffectiveness claim is that the circumstances
surrounding the proven statutory aggravators were heinous. In a less-
horrific case, perhaps the same omitted evidence would have tipped the
scales and led to a sentence other than death. But here Weisheit failed to
establish that the omitted evidence probably would have made a
difference.

   That is especially true because the omitted evidence was partially
cumulative of other evidence the jury already heard and was only
partially mitigating. As the Court points out, the jury heard a “rather
complete picture of Weisheit’s mental health at trial”, including his
significant history of mental-health problems, his suicide attempts, and his
possible manic episode while carrying out the two murders. The Boys
School records would have provided some additional detail of the extent
of Weisheit’s mental-health problems and his troubled childhood. And
had Dr. Harvey testified, the jury would have heard his firsthand account
of Weisheit’s bipolar disorder during a manic phase. But Weisheit did not
establish that this limited additional mitigating evidence, on top of what
the jury already heard, probably would have persuaded at least one juror
and the trial judge (or, alternatively, all the jurors) to spare his life.

   In addition, the overlooked evidence was not uniformly mitigating. The
school records, for example, included multiple references to Weisheit’s
lack of remorse after his prior crimes and his cruelty to animals over the
years. Also of dubious mitigating value was Aiken’s proposed testimony
that Weisheit could have adjusted to prison life and would not pose a
danger to others if he were incarcerated and not executed. There was



Indiana Supreme Court | Case No. 10S00-1507-PD-413 | November 7, 2018   Page 3 of 4
ample countervailing evidence that Weisheit was a troublemaker who
would pose a danger to others within the prison setting. As the Court
emphasizes, Weisheit’s prison records revealed a propensity for violence
and antisocial behavior, including threats to kill an EMT who was
dispensing medication; threatening correctional officials and other
inmates; hiding sharp chicken bones in his mouth during a search; and
urinating in a hallway.

   Weisheit’s guilt is clear, and so is the horrific nature of his crimes. He
didn’t just kill these young children; he left them to die in a house fire he
started, and he ensured they would suffer unimaginable pain before
succumbing. As we held on direct appeal, the State proved the existence
of aggravating circumstances beyond a reasonable doubt, and the jury
was entitled to conclude the aggravating circumstances outweighed the
mitigating circumstances. 26 N.E.3d at 20. The fact that trial counsel
should have presented some additional mitigating evidence at Weisheit’s
penalty phase does not establish a reasonable probability on this record
that the outcome would have been different if they had. For these reasons,
I agree that trial counsel were not constitutionally ineffective during the
penalty phase. The post-conviction court was right to deny Weisheit relief.
I join the Court’s opinion affirming his convictions, and I concur in its
judgment affirming his sentence.




Indiana Supreme Court | Case No. 10S00-1507-PD-413 | November 7, 2018   Page 4 of 4
Rush, C.J., concurring in part and dissenting in part.

   There is no question that the murders of Alyssa and Caleb were
unequivocally horrific. And Weisheit’s guilt for those disturbingly
reprehensible crimes is clear. I thus agree with my colleagues that
Weisheit has no right to a new trial on his guilt. His convictions should
stand.

   I also agree that Weisheit’s many claims of ineffective assistance at the
penalty phase of trial fail individually. But in my view, Weisheit has met
his burden on his cumulative-effect claim.

   “[D]eath is different,” Ring v. Arizona, 536 U.S. 584, 606 (2002), and the
“qualitative difference between death and other penalties calls for a
greater degree of reliability when the death sentence is imposed,”
Lowenfield v. Phelps, 484 U.S. 231, 238–39 (1988) (quoting Lockett v. Ohio, 438
U.S. 586, 604 (1978) (plurality opinion)). See Monge v. California, 524 U.S.
721, 732 (1998). Here, the evidence and the post-conviction court’s
findings compel the conclusion that counsel’s penalty-phase performance
suffered multiple deficiencies. While none of those deficiencies, in
isolation, is prejudicial enough to warrant relief, in the aggregate, they
deprived the jury of enough essential information about Weisheit’s
background and mental health that his death sentence is not as reliable as
the constitution requires.

  “[T]here are certain immutable principles of justice which inhere in the
very idea of free government which no member of the Union may
disregard.” Powell v. Alabama, 287 U.S. 45, 71–72 (1932) (quoting Holden v.
Hardy, 169 U.S. 366, 389 (1898)). Among them is the constitutional right to
due process, which secures another constitutional right: to effective
assistance of counsel. Id.; see Strickland v. Washington, 466 U.S. 668, 684–85
(1984).

  To uphold these constitutional pillars of justice, when a defendant’s life
is at stake—no matter how reprehensible the defendant—there is “an
acute need for reliability,” Monge, 524 U.S. at 732, which calls courts to be
“particularly sensitive to insure that every safeguard is observed,” Gregg
v. Georgia, 428 U.S. 153, 187 (1976) (plurality opinion). This includes
verifying that the jury was properly presented with mitigating evidence to
consider at the sentencing phase. See Williams v. Taylor, 529 U.S. 362, 395–
98 (2000); Eddings v. Oklahoma, 455 U.S. 104, 116–17 (1982).

   We conduct this review with “painstaking care,” Burger v. Kemp, 483
U.S. 776, 785 (1987), in part because the death penalty is “profoundly
different from all other penalties,” Eddings, 455 U.S. at 110 (quoting
Lockett, 438 U.S. at 605 (plurality opinion)), and “unique ‘in both its
severity and its finality,’” Monge, 524 U.S. at 732 (quoting Gardner v.
Florida, 430 U.S. 349, 357 (1977) (plurality opinion)). Our careful review is
to confirm that the state’s imposition of the death penalty stands soundly
on the fundamental principles of justice that our federal constitution
guarantees. An execution tainted by constitutional error corrodes the
integrity of the justice system and of the state that imposed it. I believe
Weisheit’s death sentence suffers that taint of constitutional error.

   It is entirely possible that without counsel’s performance deficiencies
Weisheit would still have received a death sentence—again, these
murders were brutal. But there is also a reasonable probability that he
wouldn’t have. So the outcome of his penalty phase does not meet the
required level of reliability. See Strickland, 466 U.S. at 694. Weisheit was
thus denied his Sixth Amendment right to effective assistance at the
penalty phase—though not at the guilt phase—of trial.

   The post-conviction court reached the opposite conclusion and relied
on improper legal standards. For these reasons, I would remand for a new
penalty phase untainted by constitutional error before this case undergoes
further review. Cf. Baer v. Neal, 879 F.3d 769, 773 (7th Cir. 2018) (finding
that this Court unreasonably applied Strickland in denying the defendant
relief on claims of ineffective assistance at the penalty phase of trial),
petition for cert. filed, (U.S. Aug. 31, 2018) (No. 18-287).

   I therefore respectfully dissent in part.




Indiana Supreme Court | Case No. 10S00-1507-PD-413 | November 7, 2018   Page 2 of 40
I. The evidence and the post-conviction court’s
   findings contradict its cumulative-effect
   conclusion.
   It is true that Weisheit must convince this Court that there is no way
within the law that the post-conviction court could have arrived at the
conclusion it did. See Stevens v. State, 770 N.E.2d 739, 745 (Ind. 2002). And
“[s]urmounting Strickland’s high bar is never an easy task.” Padilla v.
Kentucky, 559 U.S. 356, 371 (2010).

   But the bar is not unreachable. The post-conviction court here was
required to “make specific findings of fact, and conclusions of law on all
issues presented.” Ind. Post–Conviction Rule 1(6). Under this requirement,
the evidence must support the findings, and the findings must support the
conclusions. Bivins v. State, 735 N.E.2d 1116, 1121 (Ind. 2000). We do not
defer to the court’s legal conclusions, but we do defer to its factual
determinations, reviewing them only for clear error. See, e.g., Wilkes v.
State, 984 N.E.2d 1236, 1240 (Ind. 2013).

  The post-conviction court’s findings 1 and the evidence as a whole lead
only to the conclusion that counsel’s deficiencies collectively prejudiced




1I agree with my colleagues that these findings are, in fact, the court’s findings. The State at
oral argument asserted that the order’s numbered paragraphs are merely paraphrased
restatements of Weisheit’s arguments, but the post-conviction court explicitly foreclosed that
interpretation in its order’s introduction:
       To the extent that any part of these findings of fact and conclusions of law
       appear to have been adopted from a party’s proposed findings of fact and
       conclusions of law, the Court represents that such has been reviewed by the
       Court and constitutes the Court’s own finding[s] or conclusions.
Although some of the court’s findings do observe Weisheit’s arguments—with sentences
starting “Weisheit alleges . . .” or “Weisheit claims . . .”—nothing indicates that those
qualifiers extend beyond the sentences they begin. Nor is this a case in which the court
essentially adopted wholesale and verbatim Weisheit’s allegations as the court’s findings of
fact and conclusions of law. Even if the court had done so, we would take the findings and
conclusions as the court’s own while approaching them with cautious appellate scrutiny. See
Stevens, 770 N.E.2d at 762.



Indiana Supreme Court | Case No. 10S00-1507-PD-413 | November 7, 2018                Page 3 of 40
Weisheit at the penalty stage. The post-conviction court erred in
concluding otherwise.

  I’ll begin with counsel’s performance deficiencies and then turn to their
cumulative effect.


    A. Multiple deficiencies marred counsel’s penalty-phase
       performance.
   The Sixth Amendment guarantees Weisheit “the Assistance of
Counsel,” U.S. Const. amend. VI, which carries a performance standard of
“reasonableness under prevailing professional norms,” Strickland, 466 U.S.
at 688.

   In measuring attorney performance, courts are mindful that counsel’s
function is to make the adversarial testing process work in each case. Id. at
688–90. In death penalty cases, counsel should make “extraordinary
efforts on behalf of the accused,” whose life is at stake. Woolley v. Rednour,
702 F.3d 411, 425 (7th Cir. 2012) (quoting ABA Standards for Criminal Justice
Prosecution Function and Def. Function 120 (3d ed. 1993) [hereinafter ABA
Standards]); ABA Guidelines for the Appointment and Performance of Def.
Counsel in Death Penalty Cases, Introduction (2003) [hereinafter ABA
Guidelines].2 At the sentencing phase, “defense counsel’s job is to counter
the State’s evidence of aggravated culpability with evidence in
mitigation.” Rompilla v. Beard, 545 U.S. 374, 380–81 (2005).

   Since during the penalty phase Weisheit’s counsel acknowledged
Weisheit’s guilt and presented a case in mitigation, counsel had “every
reason to develop the most powerful mitigation case possible.” Wiggins v.
Smith, 539 U.S. 510, 526 (2003). Counsel’s obligation to find mitigating
evidence included conducting “a thorough investigation” of Weisheit’s




2The Supreme Court of the United States has “long referred” to American Bar Association
standards and guidelines “as guides to determining what is reasonable.” Wiggins v. Smith, 539
U.S. 510, 524 (2003) (quoting Strickland, 466 U.S. at 688). I likewise refer to them not as setting
out rigid, detailed rules but as guideposts for determining reasonableness under professional
norms at the time counsel represented Weisheit.



Indiana Supreme Court | Case No. 10S00-1507-PD-413 | November 7, 2018                  Page 4 of 40
background. Porter v. McCollum, 558 U.S. 30, 39 (2009) (per curiam)
(quoting Williams, 529 U.S. at 396). Interviewing witnesses and requesting
records were the first steps. Id. Then counsel should have left “no stone
unturned,” ABA Standards at 4-1.2 Commentary, “to discover all
reasonably available mitigating evidence,” Wiggins, 539 U.S. at 524
(quoting ABA Guidelines for the Appointment and Performance of Counsel in
Death Penalty Cases, 11.4.1(C) (1989)). See also ABA Standards at 4-4.1(a)
(“Defense counsel should . . . explore all avenues leading to facts relevant
to the merits of the case and the penalty . . . .”).

  Limitations on the investigation must be supported by “reasonable
professional judgments” under the circumstances; they must not result
from inattention. Wiggins, 539 U.S. at 533 (quoting Strickland, 466 U.S. at
691). Compare Bobby v. Van Hook, 558 U.S. 4, 11–13 (2009) (per curiam), with
Williams, 529 U.S. at 395–96. Presenting some mitigating evidence is not
enough if counsel failed to pursue sources that counsel should have been
aware of, that were reasonably available, and that promised more
powerful evidence than counsel actually obtained. See Wiggins, 539 U.S. at
533; Porter, 558 U.S. at 39–40; Rompilla, 545 U.S. at 381–90. Finally, greater
effort is required when the absent evidence is “particularly pressing” for
the defendant’s case. Rompilla, 545 U.S. at 386. In other words, the amount
of effort that is reasonable rises with the evidence’s importance.

   In Weisheit’s case, counsel countered the aggravating circumstances—
two murders of children under the age of twelve, see Ind. Code § 35-50-2-
9(b)(8), (12) (2008)—with four statutory mitigating factors. First, Weisheit
had no significant history of prior criminal conduct. See I.C. § 35-50-2-
9(c)(1). Second, Weisheit was under the influence of extreme mental or
emotional disturbance when he committed the murders. See I.C. § 35-50-2-
9(c)(2). Third, Weisheit’s capacity to appreciate the criminality of his
conduct or to conform that conduct to the law was substantially impaired




Indiana Supreme Court | Case No. 10S00-1507-PD-413 | November 7, 2018   Page 5 of 40
because of mental disease or defect. 3 See I.C. § 35-50-2-9(c)(6). And
finally—in a catchall for any other circumstances appropriate for
consideration—Weisheit could be securely housed in the Department of
Correction for the remainder of his life, and his troubled childhood and
mental health issues reduce his culpability. See I.C. § 35-50-2-9(c)(8); Porter,
558 U.S. at 43–44; Rompilla, 545 U.S. at 390–91; Williams, 529 U.S. at 395–96;
Skipper v. South Carolina, 476 U.S. 1, 4–5 (1985).

   Within this framework, counsel’s penalty-phase performance suffered
multiple deficiencies: failure to ask Dr. Philip Harvey if he would testify;
failure to pursue the Boys School records; and—for Aiken’s testimony—
failure to point the trial court to the proper foundational requirements and
to make an adequate offer of proof.


         1. Failure to ask Dr. Harvey if he would testify, after
            receiving an email from him indicating he could
            testify about his past evaluation of Weisheit.
   Defense counsel did not attempt to secure Dr. Harvey as a witness for
the penalty phase of trial. As the post-conviction court found, Dr. Harvey
was an expert on bipolar disorder who personally observed Weisheit
exhibit signs of a manic episode during an in-person evaluation. He
emailed the defense team that, while he was unable to perform a future
assessment of Weisheit, he was able and willing to testify about his past
observations of Weisheit. After receiving this email and despite Dr.
Harvey’s willingness, Weisheit’s counsel never contacted the doctor to see




3This statutory mitigating factor differs from the insanity defense. Whereas insanity is a
defense when the defendant, “as a result of mental disease or defect . . . was unable to
appreciate the wrongfulness of the conduct at the time of the offense,” I.C. § 35-41-3-6(a)
(emphasis added), the statutory mitigating factor applies when the defendant’s “capacity to
appreciate the criminality of the defendant’s conduct or to conform that conduct to the
requirements of law was substantially impaired as a result of mental disease or defect or of
intoxication,” I.C. § 35-50-2-9(c)(6) (emphases added). Because of these differences, a person
may be legally sane but nevertheless qualify for the mitigating factor, depending on the
degree of the defendant’s mental illness. See, e.g., Matheney v. State, 688 N.E.2d 883, 898 (Ind.
1997); Lowery v. State, 547 N.E.2d 1046, 1059 (Ind. 1989).



Indiana Supreme Court | Case No. 10S00-1507-PD-413 | November 7, 2018                  Page 6 of 40
if he would testify. The post-conviction court—after taking evidence—
properly found that this failure was a “mistake” and “not a strategic
decision,” yet concluded that trial counsel’s performance was not
deficient. As I explain below, the post-conviction court’s findings and the
evidence as a whole do not support this conclusion.


            a. The evidence supports the post-conviction court’s
               findings that counsel’s communication failure was
               a “mistake” and “not a strategic decision,” so we
               are bound by them.

   At the post-conviction hearing, Dr. Harvey testified about his extensive
background studying bipolar disorder since 1979, including a clinical
research study involving more than 4,500 people with bipolar disorder.
Dr. Harvey then explained his involvement with Weisheit’s case,
beginning with lead counsel Tim Dodd contacting him:

      . . . [Dodd] had me go to Evansville and perform an evaluation.
      Our plan was to perform an initial mental health evaluation . . .
      [t]o be followed up by other assessments as needed. . . .


      . . . What was clear when I was talking to Mr. Weisheit was that
      he was showing the signs of having a manic episode. . . .


      . . . This interview was performed on the 19th of September,
      2010.


      . . . [T]hen Mr. Dodd showed me a video that had been taken at
      the time of Mr. Weisheit’s arrest . . . .


      . . . Mr. Weisheit was very agitated when he got out of the car.
      He was yelling at the officers that were there. He threw – he
      actually threw a knife at the officers immediately prior to being
      struck by the taser.




Indiana Supreme Court | Case No. 10S00-1507-PD-413 | November 7, 2018   Page 7 of 40
   Following this meeting, in May 2011, Dodd sent Dr. Harvey a letter,
forecasting Dr. Harvey’s further involvement with the case and telling
him to expect some health records on Weisheit’s family members. But
Dodd died the following month. Dr. Harvey wanted to do at least one
repeat examination, and Weisheit’s “second chair” counsel, Stephen
Owens, testified that he was aware of that fact. Nevertheless, after
receiving the records Dodd had mentioned in his letter, Dr. Harvey “never
received a repeat invite to come back and see Mr. Weisheit after that for a
considerable period of time.”

  Then, in January of 2012, Dr. Harvey sent an email to the mitigation
specialist, Mike Dennis. Dr. Harvey testified that he had sent the email
“based on my being informed by my medical group that effective the 1st of
January, 2012 we could no longer be paid for doing personal assessments
on individuals.” He also testified that in the email, “I told him . . . I’d be
happy to help you find someone else to perform an assessment on Mr.
Weisheit, but I also made it very clear in [the email that] this does not
preclude testimony on previously seen cases. . . . I will have to restrict my
testimony to the data that I have previously collected prior to this rule.”

  Dr. Harvey’s email matches his testimony. It was dated January 17,
2012, and provided,


      We have just been informed that as of the first of this year, we
      can no longer be paid as individuals for the assessment of any
      forensic cases that involve direct contact with clients. . . . This
      does not preclude testimony on previously seen cases. Let me
      try to find you someone else who could do an assessment for
      you, but I can’t. I will have to restrict my testimony to the data
      that I previously collected prior to this rule.


   Dr. Harvey testified about what happened next:

      . . . Then I discovered in 2012 that Mr. Weisheit’s initial counsel
      had died. And I wrote a summary of my assessment and
      provided it at that point in 2012 to the mitigation specialist.




Indiana Supreme Court | Case No. 10S00-1507-PD-413 | November 7, 2018   Page 8 of 40
      ....

      . . . It was a very abbreviated report just summarizing the
      results of my three hour – two and half, three hour visit with
      Mr. Weisheit and some of the minimal medical records that I’ve
      been sent since then . . . .

   Dr. Harvey explained that he could have testified at Weisheit’s trial in
2013, but that he was not asked by counsel to do so and in fact “heard
nothing else about this proceeding.” He also testified that “[b]ipolar
disorder would meet the criteria for extreme emotional disturbance,” a
mitigating factor under Indiana Code section 35-50-2-9(c)(2), and that
“[c]learly if someone was experiencing a major depressive or manic
episode at the time of committing the crime it would meet th[e] criteria”
for the mitigating factor under Section 35-50-2-9(c)(6) (substantial
impairment from mental disease or defect).

   Counsel Owens testified at the post-conviction hearing that “[i]nitially
the lead counsel was Tim Dodd. Tim came in in April of 2010 and then he
passed in June of 2011,” and Mike McDaniel, who replaced Dodd, died
before the post-conviction hearing. Owens explained the attorneys’
involvement in the mitigation aspect of the case:

      I think initially when Tim was in the case, Tim was having
      more contact with Mike [Dennis, the mitigation investigator]
      than I was. Sort of gave Mike the job of going out and locating
      as much mitigation evidence and witnesses as we could. So, I
      don’t think either one of us, either Tim or I, had much input
      into the mitigation at that point. When Mike McDaniel came
      into the case, we pretty much left it up to Mike and Dennis.

   When asked if Owens considered contacting Dr. Harvey at the time of
trial to see if he was available as a potential mitigation witness, Owens
responded,

      I had received information from Mike Dennis and Mike
      McDaniel that Dr. Harvey was no longer able to participate. . . .


Indiana Supreme Court | Case No. 10S00-1507-PD-413 | November 7, 2018   Page 9 of 40
      My understanding was, basically, he was not going to be able
      to be a witness and he was not going to be able to continue to
      evaluate.

      ....

      . . . [O]ur understanding was th[at] Dr. Harvey was not going
      to be able to continue as an expert, because his employment
      had changed and he was not going to be able to return to
      Indiana. . . . We moved to continue th[e] trial date as a result of
      Dr. Harvey sort of bailing out on us and that we needed
      some[]time to obtain an expert witness.

Owens confirmed that neither he nor Mike McDaniel contacted Dr.
Harvey when the trial came in 2013, to see if he was available to testify.

  After weighing this evidence, the post-conviction court’s findings for
counsel’s failure to contact Dr. Harvey included the following:

  3. Dr. Harvey is a licensed psychologist. . . . Dr. Harvey has been studying
     Bipolar Disorder since 1979.

  4. Dr. Harvey was involved in a very large and significant study of veterans
     diagnosed with Bipolar Disorder as the Clinical Chair. . . . Dr. Harvey
     personally reviewed [thousands of] individual results in the study.

      ....

  6. Dr. Harvey testified to the importance of a clinical interview. . . . Dr.
     Harvey finds a structured interview like the SCID is the most informative
     aspect of a clinical evaluation. . . .

  7. Dr. Harvey was originally contacted by prior counsel, Timothy Dodd. Dr.
     Harvey performed an evaluation of Weisheit on September 19, 2010. . . .
     During the evaluation, Dr. Harvey administered the SCID. Dr. Harvey felt
     Weisheit was showing signs of a manic episode when he performed
     Weisheit’s evaluation. Following the evaluation, Dr. Harvey met with trial
     counsel and . . . [c]ounsel showed Dr. Harvey the video of Weisheit being
     stopped [by police] and his behavior prior to being hit with a taser. Dr.
     Harvey informed trial counsel Weisheit’s behavior was consistent with the
     behavior he observed when he performed the evaluation of Weisheit. At
     the time, Dr. Harvey expected he would perform another psychological



Indiana Supreme Court | Case No. 10S00-1507-PD-413 | November 7, 2018   Page 10 of 40
      evaluation [of Weisheit]. He was provided the family mental health records
      in 2011, but had no other contact with the trial team regarding the
      additional evaluation until January of 2012. In an e-mail to the defense
      team, Dr. Harvey notified them of his recent change of conditions of
      employment. . . . [H]e [could] no longer have direct contact with
      individuals in forensic cases. . . . He would have to restrict his testimony to
      the evaluation he had performed. . . . He could have testified at the 2013
      trial, but was not asked to do so.

      ....

  11. The failure to call Dr. Harvey was not a strategic decision. Counsel
      mistakenly believed Dr. Harvey was not able to continue on the case. The e-
      mail contradicts this belief . . . . Dr. Harvey clearly conveyed he was
      available to testify to the results obtained during his evaluation of Weisheit.
      Counsel did not contact Dr. Harvey to learn whether he could or could not
      testify. Dr. Harvey was willing to do so. Due to counsel’s mistake, Dr.
      Harvey was not provided the necessary documentation of evidence
      supporting the episodic nature of Bipolar Disorder and the Boys School
      records reflecting the long term treatment for Major Depression. A Major
      Depressive Episode is the first observed symptom for the majority of those
      identified later in life with Bipolar Disorder. Weisheit’s presentation, a late
      onset single manic episode, is consistent with 40% of those diagnosed with
      Bipolar Disorder.


  12. Dr. Price’s testimony reflected some of Dr. Harvey’s observations.
      However, he could not testify to Dr. Harvey’s opinion and therefore had to
      dilute the information collected by Dr. Harvey . . . .


  13. Dr. Harvey’s testimony could have been used to rebut the State’s expert,
      Dr. Allen. . . .


  14. . . . Dr. Harvey’s opinion would have supported two statutory mitigators
      and would have effectively rebutted Dr. Allen’s testimony. The State
      exploited counsel’s failure and argued there was no evidence of these two
      statutory mitigators (Tr. 2568-2569). By failing to contact Dr. Harvey, the
      defense was left with one expert to testify to the cognitive disorder and
      Bipolar Disorder. Trial counsel’s own assessment of the credibility of Dr.
      Price’s testimony reflects the magnitude of this error.




Indiana Supreme Court | Case No. 10S00-1507-PD-413 | November 7, 2018     Page 11 of 40
   Ultimately, the evidence supports the post-conviction court’s findings.
Dr. Harvey made clear in his email that he was able to testify to his
previously collected data. That data was critical to Weisheit’s mitigation
case, which largely relied on the effect of Weisheit’s mental health on his
behavior and culpability.

   Although the email clearly informed counsel that Dr. Harvey could
testify to his past evaluation, if the email had created any doubt about his
ability to testify, diligence would have required a phone call or some other
contact for clarification. See generally Ind. Professional Conduct Rule 1.3
(requiring “reasonable diligence”). Instead, counsel did nothing.

    Failing to contact Dr. Harvey after he emailed the defense team
“resulted from inattention, not reasoned strategic judgment.” Wiggins, 539
U.S. at 526; see Strickland, 466 U.S. at 689. So the post-conviction court
properly found that “not contact[ing] Dr. Harvey to learn whether he
could or could not testify” was a “mistake” and “not a strategic decision.”
It was also not a minor, innocuous mistake, see Strickland, 466 U.S. at 695–
96; Timberlake v. State, 753 N.E.2d 591, 603 (Ind. 2001), because Dr.
Harvey’s hours-long, in-person encounter with Weisheit was vitally
important to the defense’s case. As the post-conviction court found, “[t]he
State exploited counsel’s failure” by arguing that no evidence showed the
two statutory mitigators that “Dr. Harvey’s opinion would have
supported,” revealing a breakdown in the adversarial process, see
Strickland, 466 U.S. at 688–90. Given the evidence in support, these and
other related findings were not clearly erroneous.


            b. The evidence and the post-conviction court’s
               findings, however, do not support its conclusion
               that trial counsel was not deficient.
   Although the post-conviction court’s findings are supported by the
evidence, neither those findings nor the evidence as a whole support its
conclusion that “Weisheit has failed to show that trial counsel[’s]
performance fell below prevailing professional norms where counsel
failed to call Dr. Philip Harvey at the penalty phase of Weisheit’s trial.”



Indiana Supreme Court | Case No. 10S00-1507-PD-413 | November 7, 2018   Page 12 of 40
The court reasoned that “Weisheit never established when the [new
employment rule] . . . went into effect” and “[i]t was reasonable for trial
counsel to decide to hire another qualified expert.” This reasoning—and
the conclusion that stands on it—is faulty, for multiple reasons.

   First, as the post-conviction court found, Dr. Harvey’s email—dated
January 17, 2012—specified that the rule went into effect “as of the first of
this year.” So Weisheit did establish when the rule went into effect. Even
more importantly, though, Weisheit did not need to establish the rule’s
effectuation date. This is because the rule did not bar Dr. Harvey from
testifying to his past evaluation of Weisheit. As the post-conviction court
found, “Dr. Harvey clearly conveyed he was available to testify to the
results obtained during his evaluation of Weisheit.”

   Second, the post-conviction court—and similarly the majority today—
excuses counsel for dropping Dr. Harvey’s involvement because counsel
later hired Dr. Price, who incorporated Dr. Harvey’s two-page summary
memorandum into his own assessment and testimony. But hiring Dr.
Price does not erase the deficiency from counsel’s performance. This is
because the choice to employ Dr. Price was based entirely on counsel’s
false impression that Dr. Harvey could not testify—a false impression
formed by inattention rather than by “reasoned strategic judgment.”
Wiggins, 539 U.S. at 526. Thus, although calling Dr. Price to testify may
have been a reasonable decision by itself, it proceeded from inattention
that did not reflect reasonable professional judgment. Cf. id. at 533
(“‘[S]trategic choices made after less than complete investigation are
reasonable’ only to the extent that ‘reasonable professional judgments
support the limitations on investigation.’” (quoting Strickland, 466 U.S. at
690–91)).

   And although hiring Dr. Price might have shielded Weisheit from
prejudice caused by counsel’s deficient performance, that goes to
Strickland’s second prong. See Timberlake, 753 N.E.2d at 603 (“The two
prongs of the Strickland test are separate and independent inquiries.”).
Regardless of prejudice, the post-conviction court’s findings and the
evidence as a whole lead only to the conclusion that failing to contact Dr.
Harvey after he emailed the defense team was an inexcusable,



Indiana Supreme Court | Case No. 10S00-1507-PD-413 | November 7, 2018   Page 13 of 40
unprofessional error—one that amounted to deficient performance under
Strickland’s first prong. See Williams, 529 U.S. at 396 (chiding counsel for
failing to return a phone call of someone who had visited the defendant in
prison and had offered to testify); Hall v. Washington, 106 F.3d 742, 749–50
(7th Cir. 1997). The post-conviction court’s opposite conclusion—that
counsel was not deficient—is thus contrary to law.


        2. Failure to pursue the Boys School records.
   Early in their investigation, defense counsel learned that records of
Weisheit’s time at the Boys School likely contained valuable mitigating
evidence. Counsel were aware that while Weisheit was at the Boys School,
he attempted suicide and received treatment at Methodist Hospital. Tim
Dodd accordingly sent initial records requests to the Department of
Correction and to the hospital, but neither entity could fill the request.

  Despite both the importance of the records to Weisheit’s case and the
Department’s invitation to contact its Director of Operational Support,
defense counsel made no other efforts to find the Boys School records.
Post-conviction counsel obtained the records from the state archives,
which had received the records from the Boys School “in accordance with
the records retention schedule for the Indiana Department of Correction.”

   After reviewing the evidence, the post-conviction court rightly found
that the mitigation case would have been stronger “but for counsel’s
deficiencies,” and even likened counsel’s limited investigation to the
deficient performance found in Wiggins, 539 U.S. at 525. Yet the post-
conviction court concluded that counsel’s aborted efforts were not
deficient performance. The court’s findings and the evidence as a whole
do not support this conclusion.




Indiana Supreme Court | Case No. 10S00-1507-PD-413 | November 7, 2018   Page 14 of 40
            a. The evidence supports, so we are bound by, the
               post-conviction court’s findings that counsel’s
               limited investigation amounted to “deficiencies”
               that weakened the defense’s case in mitigation.
  Counsel had limited records indicating that Weisheit attempted suicide
while at the Boys School and received treatment at Methodist Hospital.
Those records did not provide specific details about the suicide attempt or
Weisheit’s behavior and health at that time. With this important
documentation missing, Dodd sent initial records requests to the hospital
and to the Department of Correction. His letter to the Department said,


      It is our understanding that [Weisheit] was a[n] inmate at the
      Indiana Boys School. The enclosed Subpoena is issued in order
      to obtain such records you may have concerning his
      incarceration, in 1992-1993. We believe he attempted suicide
      while at Boy’s School and was taken to Methodist Hospital
      where he spent 5-6 weeks. We hope your file contains records
      from that Methodist Hospital stay and if so the subpoena is
      intended to include those records. Our subpoena to Methodist
      Hospital was returned by them indicating their files had been
      purged.


   The Department responded that “we have no match” for the requested
records and that “[a]fter 10 years if an offender doesn’t return to our
facility we destroy the file.” The Department’s letter also gave the name
and phone number of the Director of Operational Support and invited,
“please feel free to contact” that person with “[a]ny further questions.”

   At the post-conviction hearing, Mike Dennis testified about the defense
team’s efforts to obtain the records:

      After we knew that [Weisheit] had been in the Boy[s] School
      Tim and I talked about it and I said – I don’t think I initially
      called them. I said we ought to just write a letter, send a release
      and he did that. At some point several weeks later, I’m not sure


Indiana Supreme Court | Case No. 10S00-1507-PD-413 | November 7, 2018   Page 15 of 40
      how long, he received a letter back saying that the records were
      unavailable.


  When asked about follow-up efforts, Dennis revealed that there were
none:

      Q    And to your knowledge, were any other efforts made to
           seek those records?

      A    Not to my knowledge.

           ....

      Q    Mr. Dodd never asked you to do anything else to get those
           records?

      A    No.

      Q    And Mr. McDaniel, he did not ask you to do anything to
           get those records?

      A    No.

      Q    And Mr. Owens, did he ask you to do anything to get those
           records?

      A    No.

   Dennis also testified that he knew of the Indiana State Archives. But, as
Owens testified, no one from the defense team went to the state archives
to attempt to obtain the Boys School records.

   Weisheit’s post-conviction counsel retrieved the Boys School records
from the state archives. The custodian of those records confirmed that
“[t]he records, consisting of 403 pages, were received from the Indiana
Boys School in accordance with the records retention schedule for the
Indiana Department of Correction (Record Series 86-368),” and supplied
the records retention policy. The policy provides that before the
Department of Correction destroys an offender packet “ten (10) years after
discharge, expiration of the sentence[,] or closing of the Department’s
interest in the case,” the records are first transferred “to the designated


Indiana Supreme Court | Case No. 10S00-1507-PD-413 | November 7, 2018   Page 16 of 40
departmental collection center” and must undergo “SAMPLING by the
STATE ARCHIVES DIVISION, ARCHIVES AND RECORDS
ADMINISTRATION.”

  After being presented with this evidence, the post-conviction court
made findings on counsel’s limited investigation, including the following:

  2. Mike Dennis was the defense team’s mitigation investigator. Owens
     testified the mitigation aspect of the case was “pretty much left to Mike
     Dennis.”

  3. The defense team was aware Weisheit had spent some time in the Boys
     School. Tim Dodd sent a letter to the Department of Correction requesting
     copies of the Boys School records. Dodd received a response that they no
     longer had the records (PCR Ex. C). Dennis was never asked by any other
     counsel to do anything else to look for the Boys School records. They
     received a few records from Weisheit’s parents, but did not get everything
     they wanted.

  4. The defense team was aware that while Weisheit was at the Boys School, he
     was sent to Methodist Hospital. A report from the Boys School . . .
     indicated that while Weisheit was in the psychiatric unit of Methodist
     Hospital after attempting suicide at the Boys School, he suffered a
     psychotic break (PCR Ex. 5). Owens testified if there was evidence Weisheit
     had a psychotic break while at Methodist Hospital, that would have been
     important to provide to the defense team’s experts.

      ....

  13. . . . [H]ad counsel been armed with the Boys School records, he would
      have been able to present to the jury information about the school’s
      resources and the rarity of Weisheit’s placement at Methodist. [Deborah
      Eccles-]Skidmore could have been a much more compelling witness for the
      defense but for counsel’s deficiencies.

Under a “conclusion” heading, the post-conviction court’s order included
additional findings on counsel’s limited investigation and likened those
findings to the deficient performance in Wiggins:

      The investigation the defense team conducted unearthed leads to
      persuasive mitigating evidence. They knew that Weisheit was in the Boys
      School yet failed to find the records. . . . The records that were provided to



Indiana Supreme Court | Case No. 10S00-1507-PD-413 | November 7, 2018     Page 17 of 40
      the jury reflected very little of the compelling evidence of Weisheit’s mental
      illness or the role his family played in failing to follow through with
      treatment. . . . The Boys School records document lengthy treatment for a
      major mental illness, one which included that Weisheit suffered a psychotic
      break. . . . In Wiggins, the Supreme Court found counsel’s performance
      deficient where they failed to continue investigating once this type of lead
      had been found. “The scope of the[ir] investigation was also unreasonable
      in light of what counsel actually discovered [in the . . . records].” Wiggins,
      539 U.S. at 525. The Court explained counsel uncovered no evidence to
      suggest “further investigation would have been fruitless.” Id.


   Ultimately, the evidence supports the post-conviction court’s findings.
Indeed, counsel was aware that the Boys School records promised
persuasive mitigating evidence of Weisheit’s troubled youth and mental
health issues. Counsel also had no reasonable substitute for the Boys
School records, making those records of Weisheit’s time at the Boys
School—when he attempted suicide—particularly pressing for the
strength of the defense’s case. See Rompilla, 545 U.S. at 385–86.

   With Weisheit’s life on the line, and considering the records’
importance to the mitigation case, reasonable efforts certainly required at
least some follow-up action. This is especially true since the Department
of Correction invited counsel to contact the Director of Operational
Support for more information, and counsel did not even take that small
step. In light of the evidence, the post-conviction court’s findings about
the defense team discontinuing their investigation of the Boys School
records after “unearth[ing] leads to persuasive mitigating evidence” are
not clearly erroneous.


            b. The evidence and the post-conviction court’s
               findings do not support its conclusion that
               counsel’s limited investigation was not deficient
               performance.

   Although the evidence supports the findings above, those findings and
the evidence do not support the court’s conclusion that “[t]rial counsel’s




Indiana Supreme Court | Case No. 10S00-1507-PD-413 | November 7, 2018    Page 18 of 40
efforts to gain information regarding Weisheit’s Indiana Boys’ School
records was more than sufficient under the dictates of Strickland.”

   For this conclusion, the post-conviction court reasoned that counsel
“was informed that the records did not exist and that the documents were
older than their retention policy.” It further reasoned that “[h]ad IDOC
referred trial counsel to the State Archives and trial counsel failed to
exhaust this lead, Weisheit would have had a much closer case for
deficiency.” This reasoning is inaccurate and ignores counsel’s failure to
take the step that the Department did set out for counsel.

   The Department’s letter did not make the broad statement that the
records did not exist. Rather, it informed counsel that the Department did
not have the file, and it recited part of their record-retention practices.
Specifically, it explained that they had “no match” for the requested
records and possessed only an offender card on Weisheit, and that “[a]fter
10 years if an offender doesn’t return to our facility we destroy the file.”

   The Department invited counsel’s further questions, and counsel failed
to act on that invitation. It was not the Department’s responsibility to
provide counsel with other next steps for their investigation, such as
referring counsel to the state archives. It was counsel’s responsibility to
follow the leads that they had and to be thorough in uncovering the
defendant’s background. See Porter, 558 U.S. at 39–40; ABA Supplementary
Guidelines for the Mitigation Function of Def. Teams in Death Penalty Cases,
Introduction, 10.4 (2008) (recognizing that the “ultimate responsibility for
the investigation . . . rests irrevocably with counsel”).

   As the post-conviction court observed in comparing this case to
Wiggins, the evidence does not suggest that it would have been fruitless to
contact the Department’s Director of Operational Support for more
information about what happened to the records. Quite the opposite:
counsel might have learned that destruction-after-ten-years was not the
entirety of the Department’s record-retention policy. The policy included
in the post-conviction evidence called for destruction of offender files ten
years after “discharge, expiration of the sentence[,] or closing of the
Department’s interest in the case,” but only after the records are



Indiana Supreme Court | Case No. 10S00-1507-PD-413 | November 7, 2018   Page 19 of 40
transferred and undergo “SAMPLING by the STATE ARCHIVES
DIVISION, ARCHIVES AND RECORDS ADMINISTRATION.”

  Similar to the post-conviction court, the majority asserts that “it does
not seem that counsel was deficient” 4 for discontinuing pursuit of the
Boys School records because “counsel was told by the Boys School that
there was no match for the records and that records over 10 years old
were destroyed, and counsel did obtain other mental health records from
other sources.”

  True, this is not a case where counsel completely ignored their
obligation to find mitigating evidence. See Rompilla, 545 U.S. at 381.
Counsel did obtain some records. But those records made counsel aware
that the Boys School records promised more powerful mitigating
evidence, and counsel had an obligation to follow that lead. See Porter, 558
U.S. at 39–40; Rompilla, 545 U.S. at 381–89; Wiggins, 539 U.S. at 533–34.
Counsel didn’t need to “scour the globe” for the Boys School records.
Rompilla, 545 U.S. at 383. But counsel’s aborted pursuit of critical
mitigating evidence is a far cry from both counsel’s “overriding mission of
vigorous advocacy,” Strickland, 466 U.S. at 689 and the “extraordinary
efforts” demanded when a client’s life is at stake, ABA Guidelines,
Introduction. Particularly because counsel knew the importance of
Weisheit’s mental-health history to his mitigation case, doing nothing to
follow up on the records was unreasonable.

   Augmenting the unreasonableness of counsel’s inaction are that the
sentencing phase was “the main event” of Weisheit’s trial since acquittal
was unlikely, Brewer v. Aiken, 935 F.2d 850, 860 (7th Cir. 1991)
(Easterbrook, J., concurring), and that reasonable efforts would have been
enough to locate and obtain the records at the state archives, see Rompilla,
545 U.S. at 389–90. Counsel’s inaction and lack of effort in pursuing




4Whether the majority has imposed a heightened burden on Weisheit—to show clearly
ineffective assistance—is another issue. Weisheit bears the burden of establishing grounds for
relief by a preponderance of the evidence. See P–C.R. 1(5); Wilkes, 984 N.E.2d at 1240. In my
view, Weisheit has carried his burden to establish deficient performance and cumulative
prejudice.



Indiana Supreme Court | Case No. 10S00-1507-PD-413 | November 7, 2018             Page 20 of 40
valuable mitigating evidence was unreasonable and put their client’s life
at greater risk. Cf. Baer, 879 F.3d at 783–84. These failures amounted to
deficient performance.


        3. Failure to identify proper foundational requirements
           and to make a clear offer of proof for Aiken’s
           testimony.

   Laying a proper foundation for testimony is an “evidentiary
requirement that every trial attorney should understand.” Hernandez v.
State, 638 N.E.2d 460, 462 (Ind. Ct. App. 1994), trans. denied. It includes
pointing the trial court to the governing foundational rule when necessary
to prevent a “breakdown in the adversarial process,” Strickland, 466 U.S. at
696.

   An equally basic skill is preserving a claim of error in the exclusion of
evidence—counsel must inform the court of the evidence’s substance by
an offer of proof, allowing for meaningful review on appeal. Ind. Evidence
Rule 103(a)(2); see State v. Richardson, 927 N.E.2d 379, 385 (Ind. 2010); Von
Almen v. State, 496 N.E.2d 55, 57 (Ind. 1986) (“The importance of
establishing a record as a prerequisite to appellate review cannot be
understated.”).

   Here, the evidence reveals that Weisheit’s trial counsel neither laid a
proper foundation for Aiken’s testimony nor provided an adequate offer
of proof. The evidence thus supports the post-conviction court’s findings
that counsel’s failure to point the trial court to the proper foundational
requirements was “error” and “not the result of poor strategy or bad
tactics,” and that counsel had not “made the proper offer of proof.”

  Despite these findings, the post-conviction court failed to draw the only
conclusion that flows from them: that counsel’s performance was
deficient.




Indiana Supreme Court | Case No. 10S00-1507-PD-413 | November 7, 2018   Page 21 of 40
            a. The evidence supports the post-conviction court’s
               findings that counsel’s failure to point the trial
               court to the proper foundational requirements was
               “error” and “not the result of poor strategy or bad
               tactics,” and that counsel did not make a “proper
               offer of proof.”

   At the penalty phase, counsel appropriately recognized that
“mitigation includes . . . whether or not this particular individual poses a
threat to the community, or to corrections officers, or to other inmates.”
For mitigation evidence on this front, counsel called and relied on James
Aiken for expert testimony about Weisheit’s ability to be incarcerated in
the Department of Correction, including on a long-term basis, without
undue risk of harm to others.

   Aiken is a former Commissioner of the Indiana Department of
Correction and has approximately forty-five years of experience with
corrections, including developing and implementing inmate classification
systems across the United States.

   At the penalty phase, Aiken began to describe his background to the
jury, but before his testimony filled two transcript pages, the State
objected. The trial court then dismissed the jury and prompted Owens,
“Tell me what [Aiken’s] likely testimony’s going to be, or maybe we want
to get that from him . . . .” Owens tried to summarize Aiken’s testimony,
but the court remained uncertain about the evidence’s substance. Rather
than Owens providing clarity by questioning Aiken, Owens suggested the
trial court do so:


       THE COURT: . . . Are you asking -- are you proposing that his
      testimony is going to be in the nature of projecting or offering
      an opinion as to whether or not the Defendant will be, and I’m
      -- these are my words, a disruptive influence in the prison
      system?


      MR. OWENS: Why don’t you just ask Mr. Aiken.



Indiana Supreme Court | Case No. 10S00-1507-PD-413 | November 7, 2018   Page 22 of 40
      THE COURT: No, I want to know what you’re proposing to
      offer here, because I’m still not satisfied that he’s got the
      qualifications to do that in a futuristic sort of way.


The trial court did eventually ask Aiken questions, gearing them toward
the foundational requirements for expert scientific testimony under
Indiana Evidence Rule 702(b). Counsel did not point the court to Rule
702(a), which spells out the less-stringent requirements for non-scientific
expert testimony. The court ultimately excluded Aiken’s testimony on
Weisheit’s future inmate classification because it did not meet Rule
702(b)’s requirements, but the court said that Aiken could testify on
classification generally.

   Counsel then asked if the court would also permit Aiken to “testify as
to his review of Mr. Weisheit’s records,” which included jail records
following Weisheit’s arrest. The court responded, “Yes”—yet counsel
withdrew Aiken as a witness without having Aiken testify about his
review of those records concerning Weisheit’s past adjustment to
imprisonment.

   Apart from Aiken’s description of his own background, which he
supplied before the State’s objection, the jury heard nothing from Aiken.
In the offer of proof, counsel did not clearly set out Aiken’s review of
Weisheit’s past adjustment to imprisonment and other characteristics
relevant to sentencing. So that information was not part of the foundation
for Aiken’s testimony on Weisheit’s future inmate classification.

    When Aiken testified at the post-conviction hearing, he provided his
qualifications and extensive experience with prison classification. He
listed some of the factors he considers in classifying inmates, including a
diagnostic evaluation, age, medical and mental health, gang involvement,
escape history, institutional violence or potential for violence within the
facility, relationship with law enforcement, the nature of the offense, and
the length of the sentence. He also confirmed that he applied these factors
to Weisheit to form his opinion of Weisheit’s ability to be secured,
supervised, and managed in the Department of Correction. Then Aiken




Indiana Supreme Court | Case No. 10S00-1507-PD-413 | November 7, 2018   Page 23 of 40
provided his opinion on Weisheit’s past adjustment to imprisonment and
his individualized prediction for Weisheit’s inmate classification.

   For Weisheit’s past adjustment, Aiken concluded:

      . . . I did not find anything that would give me an indication
      that his criminal history would cause an[y] issues . . . the
      Department of Correction[] could not anticipate or manage.

      ....

      . . . [F]rom the stand point of managing him for a long term
      basis, he did not present an unusual risk . . . . There were
      incident reports, disciplinary hearings and so forth in
      relationship to his behavior and I made assessments of each
      one . . . . And those type of misconduct reports were at the
      lower end of the spectrum as it relates to managing inmate
      population.


Aiken also explained that Weisheit had “stabilized very well” after
moving from the Vanderburgh County Jail to the Clark County Jail, and
that his opinion about Weisheit’s adjustment to imprisonment was
“further validated” by Weisheit’s institutional history since the time of the
penalty phase.

  For his particularized prediction of Weisheit’s inmate classification,
Aiken concluded:


      [t]hat [Weisheit] could be adequately managed for the
      remainder of his life in a high security setting and that he could
      be . . . [a]dequately secured, supervised and managed within
      the Indiana Department of Correction without causing an
      undue risk of harm to staff, himself, other inmates, as well as
      the general community.


  Also at the post-conviction hearing, Owens testified that he had not met
with or spoken to Aiken until the morning of his testimony and that he
was surprised by the State’s objection.


Indiana Supreme Court | Case No. 10S00-1507-PD-413 | November 7, 2018   Page 24 of 40
   After reviewing this evidence, the post-conviction court made the
following findings on counsel’s performance:

  7. The jury learned Aiken’s occupation was in corrections and prisons (Tr.
     2357). He outlined his experience with various jurisdictions’ prison
     systems. Aiken was cut off by a State’s objection before the jury heard of his
     experience in Indiana. The jury heard nothing else from this witness.

      ....

  9[a]. . . . The court ruled it would allow Aiken to testify generally about
      classification, but not render any opinions as to how the State of Indiana
      would classify Weisheit if he received life without parole or a term of years.
      . . . Owens never corrected the court about its use of 702(b) foundational
      requirements.

  9[b]. Owens withdrew Aiken without any further offer of proof. . . .

  10. Owens testified at the post-conviction hearing he did not know until the
      morning of Aiken’s testimony that he would be questioning Aiken. Aiken
      met briefly with counsel before he testified. . . .

  11. Aiken has an undergraduate and graduate degree in criminal justice. He
      has worked for 45 years in the corrections industry. He has experience
      implementing techniques and protocols related to classification. He has
      participated in training programs related to classification. Aiken has been
      employed by various correctional facilities throughout the country and the
      Virgin Islands (PCR Ex. 23). He was the commissioner of the Indiana
      Department of Correction. . . . Aiken has helped design and implement
      classification systems throughout the country. . . . He has testified in several
      Indiana death penalty cases as to the ability of the Indiana Department of
      Correction to safely house an inmate without undue risk of harm to others.

      ....

  13. Prior to his testimony in 2013, Aiken reviewed Weisheit’s criminal history,
      all institutional records from the Vanderburgh County Jail and the facts
      surrounding this crime (Tr. 2366). He also interviewed Weisheit (Tr. 2367).
      At post-conviction, Aiken testified he found the following information from
      those records relevant to his conclusion Weisheit posed a lower risk of
      violence in the Department of Correction: Weisheit’s age of being in his
      late-30’s because inmates’ behavior tends to calm down in this age range;
      Weisheit had no previous history with gang activity which contributes to
      systemic violence in a prison; Weisheit had displayed very little


Indiana Supreme Court | Case No. 10S00-1507-PD-413 | November 7, 2018     Page 25 of 40
      institutional violence; Weisheit maintained a relationship with his family
      which generally reduces the incentive for violence; and the nature of his
      crime being a crime against children would require a higher level of
      security for his safety. With regard to the behavior issues Weisheit had
      during the months after being arrested, Aiken testified that was not
      unusual given the stress of being incarcerated for the first time in a jail.
      Once moved to the Clark County Jail, Weisheit adjusted quite well. During
      his interview of Weisheit, Aiken observed his demeanor and how he
      appeared to be handling the stress of incarceration and the trial. Aiken did
      not find Weisheit to be cool, detached or aggressive.

  14. Aiken testified that given all the circumstances, Weisheit would be
      incarcerated in a maximum security facility . . . . Aiken offered the opinion
      if Weisheit received a term of years or life without parole, he could be
      securely housed in a high security setting by the Department of Correction
      without undue risk of harm to prison staff or the other inmates.

  15. Before the post-conviction hearing, Aiken reviewed Weisheit’s Department
      of Correction history since his convictions. Aiken testified the records
      demonstrated Weisheit had made adequate adjustment to being
      incarcerated. Aiken noted two minor violations in three years. He did not
      see any evidence of random or systemic violence. These records validated
      his original opinion.

      ....

  17. . . . The [Indiana Supreme] Court opined [on direct appeal] that if counsel
      had made a more precise offer of proof detailing Weisheit’s adjustment to
      imprisonment leading up to trial, it “could have possibly resulted in
      reversal of his death sentence.” [Weisheit, 26 N.E.3d at 10.]

  18. When deciding whether to impose a death sentence, the trier of fact may
      consider any appropriate mitigating circumstances. Ind. Code 35-50-2-9(c).
      It is a violation of the U.S. Constitution to fail to consider evidence of a
      defendant’s adjustment to incarceration leading up to trial as mitigating
      evidence to weigh against the aggravating circumstances. Skipper, 476 U.S.
      at 3–5; Wilkes v. State, 917 N.E.2d 675, 690 (Ind. 2009).

      ....

  20. The trial court’s use of foundational requirement[s] of Ind. Evid. R. 702(b)
      was error. Aiken’s testimony was admissible under Ind. Evid. R. 702(a) . . . .




Indiana Supreme Court | Case No. 10S00-1507-PD-413 | November 7, 2018    Page 26 of 40
  21. The subject matter here, whether the Department of Correction can
      adequately house Weisheit given his particular circumstances, is not a
      subject known to the average person. Aiken was qualified as an expert in
      classification and had specialized knowledge to assist the jury in
      determining a mitigating factor, the ability of Weisheit to be safely
      incarcerated without undue risk of harm to others, in weighing the decision
      between the death penalty, life without parole or a term of years. . . .

  22. . . . Counsel’s error was not the result of poor strategy or bad
      tactics. . . .

  23. . . . Counsel was not prepared to handle any objections from the State. . . .

      ....

  26. . . . The jury did not hear . . . about any of the factors that weighed in favor
       of his imprisonment without undue risk to others. . . . The defendant must
       show there is a reasonable probability the result of the proceeding would
       have been different absent the deficient performance. [Strickland,] 466 U.S.
       at 693. The [Indiana] Supreme Court’s own words demonstrate there is a
       reasonable probability of a different outcome had counsel made the proper
       offer of proof. . . .

   The evidence supports the post-conviction court’s findings. Counsel
did not steer the trial court to Rule 702(a) when laying the foundation for
Aiken’s testimony. This failure ultimately led to the exclusion of
mitigating expert testimony during Weisheit’s penalty phase. Thus, the
post-conviction court’s finding that the failure was “error” and “not the
result of poor strategy or bad tactics” is not clearly erroneous.

    Similarly, counsel did not set out how Aiken’s review of Weisheit’s past
jail records and other characteristics helped qualify Aiken to testify to
Weisheit’s future inmate classification. And counsel withdrew Aiken as a
witness before Aiken was able to testify about Weisheit’s past adjustment
to imprisonment. This supports the post-conviction court’s finding that
counsel did not make a “proper offer of proof.”

   Long before Weisheit’s penalty phase, the Supreme Court of the United
States established the mitigating potential of testimony about a
defendant’s promising adjustment to prison. See Skipper, 476 U.S. at 4–5.
Counsel was thus deficient in failing to present the jury with that



Indiana Supreme Court | Case No. 10S00-1507-PD-413 | November 7, 2018      Page 27 of 40
testimony when Aiken was prepared—and permitted by the court—to
provide it at Weisheit’s penalty phase.


            b. In evaluating whether counsel was deficient, the
               post-conviction court failed to measure counsel’s
               performance using prevailing professional norms.

  In rejecting Weisheit’s Aiken-testimony claim, the post-conviction court
concluded that “Weisheit has failed to show trial counsel’s performance
was to a level of deficiency that he was prejudiced . . . .”

  Below, I address prejudice and elaborate on how this statement in the
post-conviction court’s order conflates Strickland’s performance and
prejudice demands. But as far as the deficiency inquiry is concerned,
counsel’s performance should be measured by reasonableness under
prevailing professional norms, see Strickland, 466 U.S. at 687–88, not by
whether the performance “was to a level of deficiency that he was
prejudiced.”

   Also undercutting the post-conviction court’s no-deficiency assertion is
this Court’s suggestion on direct appeal that counsel’s performance
surrounding Aiken’s testimony was deficient. As the post-conviction court
recognized in its findings, we had already observed on direct appeal that:

      To be sure, had Aiken (or another expert) been prepared to
      testify as to Weisheit’s adjustment to imprisonment throughout
      the time leading up to the penalty phase, then the trial court’s
      exclusion of such testimony . . . would have been problematic
      and could have possibly resulted in reversal of his death
      sentence. . . .

      Further, we note that Weisheit did not help his case by failing
      to make a more precise offer of proof regarding Aiken’s
      prediction of his specific future classification . . . . At no time
      during th[e] discussion [with the court] did Weisheit’s counsel
      make a clear offer of proof by requesting permission from the




Indiana Supreme Court | Case No. 10S00-1507-PD-413 | November 7, 2018   Page 28 of 40
      trial court to ask Aiken a series of questions that counsel
      intended to ask at trial.

Weisheit v. State, 26 N.E.3d 3, 10 (Ind. 2015).

   In other words, defense counsel’s performance surrounding Aiken’s
testimony both prevented the jury from hearing valuable and admissible
mitigating evidence and precluded the record from reflecting a clear offer
of proof. Under the correct standard to evaluate deficiency—
reasonableness under prevailing professional norms—the evidence and
findings lead to only one conclusion: counsel’s performance concerning
Aiken’s testimony was deficient.

  In sum, the post-conviction court’s own findings and the evidence as a
whole compel the conclusion that three deficiencies marred counsel’s
penalty-phase performance.

  I turn now to those deficiencies’ cumulative impact on Weisheit’s
penalty-phase outcome.


    B. Counsel’s performance deficiencies collectively
       prejudiced Weisheit.
   A defendant overcomes the burden for Strickland’s prejudice prong by
showing “a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different.” Strickland,
466 U.S. at 694. The defendant is not required to “show that counsel’s
deficient conduct more likely than not altered the outcome in the case.” Id.
at 693. Rather, “[a] reasonable probability is a probability sufficient to
undermine confidence in the outcome.” Id. at 694.

   Weisheit’s burden, then, was to show a reasonable probability that
without counsel’s penalty-phase performance deficiencies, at least one
juror would not have voted for the death penalty, and the trial judge
would not have imposed that sentence. See I.C. § 35-50-2-9(e); Wilkes v.
State, 917 N.E.2d 675, 693 (Ind. 2009).

  In determining prejudice, reviewing courts consider “the totality of the
available mitigation evidence”—presented both at trial and at the post-


Indiana Supreme Court | Case No. 10S00-1507-PD-413 | November 7, 2018   Page 29 of 40
conviction hearing—and “reweig[h] it against the evidence in
aggravation.” Porter, 558 U.S. at 41 (alteration in original) (quoting
Williams, 529 U.S. at 397–98).

   The majority does not recognize any deficiencies in counsel’s
performance, so it does not engage in “the type of probing and fact-
specific analysis” required to evaluate cumulative prejudice. Sears v.
Upton, 561 U.S. 945, 955 (2010) (per curiam) (disapproving “the type of
truncated prejudice inquiry undertaken by the state court”); Baer, 879 F.3d
at 788 (finding that this Court’s “pithy analysis on prejudice” for the
defendant’s cumulative-effect claim did not support our conclusion).

  The post-conviction court likewise conducted no analysis of cumulative
prejudice. Its explanation was a single sentence: “As discussed herein, the
Court finds no errors, cumulatively or otherwise, that resulted in deficient
performance of trial counsel or that were prejudicial to Weisheit.”

   Yet the post-conviction court’s perfunctory conclusion does not square
with its detailed findings on Weisheit’s individualized claims—evidence-
supported findings that point only to prejudice for Weisheit’s cumulative-
effect claim.

   To start, the post-conviction evidence showed that the mitigation case
would have been stronger had counsel contacted Dr. Harvey to testify. Dr.
Harvey would have told the jury about his first-hand encounter with
Weisheit while Weisheit was “in the middle of” a manic phase. His
testimony would have countered the State’s rebuttal witness, and his
opinion would not have been diluted or abbreviated by Dr. Price.

   Similarly, had counsel obtained the Boys School records and provided
them to witnesses, the defense would have presented stronger mitigating
testimony from Dr. Henderson-Galligan, Dr. Harvey, and Eccles-
Skidmore. The Boys School records gave a more accurate picture of the
extent of Weisheit’s mental health issues, enmeshed family, and childhood
troubles, and would have made Dr. Harvey’s bipolar diagnosis
“definitive.”

 Finally, had counsel more clearly offered Aiken’s testimony about
Weisheit’s past adjustment to imprisonment and future inmate


Indiana Supreme Court | Case No. 10S00-1507-PD-413 | November 7, 2018   Page 30 of 40
classification, the jury would have heard evidence that Weisheit would
not pose a danger if spared but incarcerated. Skipper, 476 U.S. at 5. Even if
Aiken weren’t permitted to testify to Weisheit’s future classification, he
could have testified to Weisheit’s past adjustment to imprisonment. This is
important because “the sentencer may not refuse to consider or be
precluded from considering ‘any relevant mitigating evidence.’” Id. at 4
(quoting Eddings, 455 U.S. at 114). And “there is no question,” id., that
favorable inferences jurors might have drawn from Aiken’s testimony
about Weisheit’s past adjustment to imprisonment “would be ‘mitigating’
in the sense that they might serve ‘as a basis for a sentence less than
death,’” id. at 4–5 (quoting Lockett, 438 U.S. at 604 (plurality opinion)).

   The evidence thus supports the post-conviction court’s corresponding
findings in Weisheit’s individualized claims, which include the following:

  7. The jury learned Aiken’s occupation was in corrections and prisons (Tr.
     2357). He outlined his experience with various jurisdictions’ prison
     systems. . . . The jury heard nothing else from this witness.

      ....

  9[a]. . . . The court ruled it would allow Aiken to testify generally about
      classification, but not render any opinions as to how the State of Indiana
      would classify Weisheit if he received life without parole or a term of years
      (Tr. 2381-2383). . . . The court did not change his ruling. Owens never
      corrected the court about its use of 702(b) foundational requirements.

  9[b]. Owens withdrew Aiken without any further offer of proof. . . .

      ....

  13. Prior to his testimony in 2013, Aiken reviewed Weisheit’s criminal
      history, all institutional records from the Vanderburgh County Jail and the
      facts surrounding this crime (Tr. 2366). He also interviewed Weisheit (Tr.
      2367). . . .

  14. Aiken testified that given all the circumstances, Weisheit would be
      incarcerated in a maximum security facility . . . . Aiken offered the opinion
      if Weisheit received a term o[f] years or life without parole, he could be
      securely housed in a high security setting by the Department of Correction
      without undue risk of harm to prison staff or the other inmates.

      ....


Indiana Supreme Court | Case No. 10S00-1507-PD-413 | November 7, 2018    Page 31 of 40
  17. . . . The [Indiana Supreme] Court opined [on direct appeal] that if counsel
      had made a more precise offer of proof detailing Weisheit’s adjustment to
      imprisonment leading up to trial, it “could have possibly resulted in
      reversal of his death sentence.” [Weisheit, 26 N.E.3d at 10.]

  18. . . . It is a violation of the U.S. Constitution to fail to consider evidence of a
      defendant’s adjustment to incarceration leading up to trial as mitigating
      evidence to weigh against the aggravating circumstances. . . .

      ....

  20. . . . Aiken’s testimony was admissible under Ind. Evid. R. 702(a) . . . .

  21. . . . Aiken was qualified as an expert in classification and had specialized
      knowledge to assist the jury in determining a mitigating factor, the ability
      of Weisheit to be safely incarcerated without undue risk of harm to others,
      in weighing the decision between the death penalty, life without parole or a
      term of years. . . .

      ....

  26. . . . The jury did not hear how Weisheit adjusted to incarceration nor did
      they hear about any of the factors that weighed in favor of his
      imprisonment without undue risk to others. Further, the Indiana Supreme
      Court said on direct appeal that if Aiken had been prepared to testify to
      Weisheit’s adjustment leading up to [the] penalty phase, exclusion of his
      testimony “would have been problematic and could have possibly resulted
      in reversal of his death sentence.” . . . The Supreme Court’s own words
      demonstrate there is a reasonable probability of a different outcome had
      counsel made the proper offer of proof. Had the jury heard this mitigating
      evidence, there is a reasonable likelihood the jury would have given
      Weisheit’s case for mitigation greater weight and returned a verdict for
      something less than death.

      ....

  4. . . . A report from the Boys School records . . . indicated that while Weisheit
     was in the psychiatric unit of Methodist Hospital after attempting suicide at
     the Boys School, he suffered a psychotic break (PCR Ex. 5). Owens testified
     if there was evidence Weisheit had a psychotic break while at Methodist
     Hospital, that would have been important to provide to the defense team’s
     experts.

  5. Dr. Henderson-Galligan and Dr. Harvey both relied on information found
     in the Boys School records in forming their opinions about Weisheit’s


Indiana Supreme Court | Case No. 10S00-1507-PD-413 | November 7, 2018         Page 32 of 40
      Bipolar diagnosis. Dr. Henderson-Galligan testified the Boys School records
      showed Weisheit was prone to downplay his struggles during his teen
      years. She noted Weisheit’s extent of suicidal ideation was important in
      demonstrating the severity of Weisheit’s mental health issues. Psychiatric
      records found in the Boys School records described Weisheit’s family as
      “deeply chaotically enmeshed.” This information was important in
      understanding Weisheit’s mental health issues. . . . The records showed
      Weisheit had been prescribed three different anti-depressants over the
      course of a year. This showed a significant, ongoing issue with treating
      Weisheit’s depression.

  6. Dr. Harvey testified . . . [that the Boys School] records established an
     extended period of depression and mania. With those records, Dr. Harvey
     testified he could have made a definitive diagnosis.

  7. . . . In contrast to her brief testimony at the penalty phase, Skidmore
     provided significantly more detailed information about the Boys School
     and Weisheit’s access to care. This was in part because she was able to
     review documents from the Boys School records which were prepared by
     her.

      ....

  13. . . . [H]ad counsel been armed with the Boys School records, he would have
      been able to present to the jury information about the school’s resources
      and the rarity of Weisheit’s placement at Methodist. Skidmore could have
      been a much more compelling witness for the defense but for counsel’s
      deficiencies.

      ....

  22. A comprehensive evaluation [in the Boys School records showed that
      Weisheit’s parents] . . . allowed [his] prescription to run out and did not
      refill it. Dr. Henderson-Galligan noted the importance of this information
      because it supports the conclusion that this is an enmeshed family. The
      failure to monitor and continue the medication reflects a poor choice within
      the family unit. The evaluation revealed that because Weisheit spent an
      extensive period of time in Methodist, it was likely the symptoms were
      genuine and not malingered and the primary cause of Weisheit’s
      difficulties was a mental illness. The documents also reflect Weisheit
      suffered a psychotic break while being treated at Methodist. It was noted
      this may reoccur under stress. Dr. Henderson-Galligan testified that once
      one suffers a psychotic break it is more likely to happen again.



Indiana Supreme Court | Case No. 10S00-1507-PD-413 | November 7, 2018   Page 33 of 40
      ....

      [under the heading of CONCLUSION] . . . Valuable information was not
      presented because [counsel] had not located the [Boys School] records and
      counsel did not interview Skidmore. The records that were provided to the
      jury reflected very little of the compelling evidence of Weisheit’s mental
      illness or the role his family played in failing to follow through with
      treatment. Dr. Harvey and Dr. Henderson-Galligan testified at the Post-
      Conviction hearing to the importance of these records in reaching an
      accurate and complete diagnosis. The Boys School records document
      lengthy treatment for a major mental illness, one which included that
      Weisheit suffered a psychotic break. . . . The evidence presented at trial,
      taken together with the post-conviction evidence, is the type of “evidence
      about the defendant’s background and character (that) is relevant because
      of the belief, long held by [this] society, that defendants who commit
      criminal acts that are attributable to a disadvantaged background[,] or to
      emotional and mental problems, may be less culpable than defendants who
      have no such excuse.” Abdul-Kabir v. Quarterman, 550 U.S. 233, 251–52
      (2007) (internal citations omitted).

      ....

  10. Dr. Harvey reviewed Ind. Code 35-50-2-9 and determined Bipolar
      Disorder is considered an extreme mental or emotional disturbance
      under Ind. Code 35-50-2-9(c)(2) and also could be a mental disease or
      defect under Ind. Code 35-50-2-9(c)(6).

  11. . . . Due to counsel’s mistake, Dr. Harvey was not provided the necessary
      documentation of evidence supporting the episodic nature of Bipolar
      Disorder and the Boys School records reflecting the long term treatment for
      Major Depression. . . .

  12. Dr. Price’s testimony reflected some of Dr. Harvey’s observations.
      However, he could not testify to Dr. Harvey’s opinion and therefore had to
      dilute the information collected by Dr. Harvey and incorporate it in his
      opinion finding that Dr. Harvey’s observations were “consistent with
      Bipolar Disorder.” (Tr. 2430).

  13. Dr. Harvey’s testimony could have been used to rebut the State’s expert,
      Dr. Allen. Dr. Allen testified Weisheit had been incarcerated for three years
      and never had a manic episode during that time (Tr. 2504). Dr. Harvey
      observed a manic phase during this time. Dr. Allen also testified Bipolar
      was not likely in Weisheit’s case because Bipolar is progressive and the



Indiana Supreme Court | Case No. 10S00-1507-PD-413 | November 7, 2018   Page 34 of 40
      episodes become more frequent (Tr. 2504, 2516). Dr. Harvey testified that
      Weisheit’s symptomology was consistent with 40% of the cases.

  14. . . . Dr. Harvey’s opinion would have supported two statutory mitigators
      and would have effectively rebutted Dr. Allen’s testimony. The State
      exploited counsel’s failure and argued there was no evidence of these two
      statutory mitigators (Tr. 2568-2569). By failing to contact Dr. Harvey, the
      defense was left with one expert to testify to the cognitive disorder and
      Bipolar Disorder. Trial counsel’s own assessment of the credibility of Dr.
      Price’s testimony reflects the magnitude of this error.

   The conclusion that flows from these findings and the evidence as a
whole is to me inescapable: Weisheit suffered prejudice from the
cumulative effect of counsel’s performance deficiencies. Even if no single
deficiency, standing alone, renders Weisheit’s death sentence unreliable,
together they certainly “undermine confidence in the outcome.” Strickland,
466 U.S. at 694.

   The majority discounts the effect of Dr. Harvey’s absence, reasoning
that Dr. Price incorporated Dr. Harvey’s two-page summary report into
his testimony. But Dr. Price’s presence did not make up for Dr. Harvey’s
absence. Dr. Harvey saw Weisheit for two to three hours “in the middle
of” a manic episode; he could have described to the jury his in-person
observations, which directly opposed the testimony of the State’s rebuttal
witness. Dr. Price, on the other hand, did not see Weisheit in the middle of
a manic episode, had trouble remembering who Dr. Harvey was, and
abridged Dr. Harvey’s written observations into 175 words for the jury.

  As the post-conviction court determined, Dr. Price “dilute[d]” Dr.
Harvey’s opinion. Especially since the jury’s questions to Dr. Price and to
Dr. Allen demonstrated particular interest in how bipolar disorder might
have affected Weisheit, I believe that Dr. Harvey’s testimony would have
materially strengthened the mitigation case.

    The majority similarly understates the effect of the Boys School records,
citing the records’ references to Weisheit’s lack of remorse and poor
behavior. Even those references, however, show the extent of Weisheit’s
troubled youth and mental illness. The records are therefore relevant and
mitigating “because of the belief, long held by this society, that defendants



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who commit criminal acts that are attributable to a disadvantaged
background, or to emotional and mental problems, may be less culpable
than defendants who have no such excuse.” Abdul-Kabir v. Quarterman,
550 U.S. 233, 251–52 (2007) (quoting Franklin v. Lynaugh, 487 U.S. 164, 184
(1988) (O’Connor, J., concurring in judgment)). And as the post-conviction
court found, the Boys School records revealed that “the primary cause of
Weisheit’s difficulties was a mental illness.”

  The majority also discounts (as the post-conviction court did) the
importance of the Boys School records because they did not conflict with
Dr. Henderson-Galligan’s opinion at trial. True, they did not conflict with
her opinion or those of Dr. Harvey and Eccles-Skidmore; they made those
mitigating opinions stronger. Because the prejudice inquiry depends on
the balance of aggravators and mitigators, adding enough weight to the
mitigating side of the scale—or lifting enough weight from the
aggravating side—makes all the difference. See Porter, 558 U.S. at 41–42;
Rompilla, 545 U.S. at 386 n.5, 390–93; Wiggins, 539 U.S. at 537–38.

   As for Aiken’s testimony, I disagree with the majority that the
admissibility of Aiken’s testimony is speculative. The post-conviction
testimony shows Aiken’s qualifications to make an individualized
prediction for Weisheit’s inmate classification, and the post-conviction
court determined that “Aiken’s testimony was admissible.”

   Even if Aiken could not have opined on Weisheit’s future classification,
he could have testified about Weisheit’s past adjustment to imprisonment.
The trial court specifically told defense counsel that Aiken could testify to
his review of Weisheit’s records, which included those from the
Vanderburgh County Jail where Weisheit was housed after his arrest.
And—as the post-conviction court found—Aiken had interviewed
Weisheit; reviewed his criminal history, all institutional records from the
Vanderburgh County Jail, and the facts surrounding the crimes; and “had
specialized knowledge to assist the jury in determining a mitigating
factor, the ability of Weisheit to be safely incarcerated without undue risk
of harm to others.”

 In short, Aiken was prepared at Weisheit’s penalty phase to testify to
Weisheit’s past adjustment to imprisonment. Yet counsel withdrew Aiken,


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keeping the jury from learning not only that Aiken “did not find anything
that would . . . indicat[e] that his criminal history would cause an[y] issues
. . . the Department of Correction[] could not anticipate or manage,” but
also that Aiken believed Weisheit’s misconduct in jail was “at the lower
end of the spectrum.”

   This Court recognized on direct appeal that Weisheit’s case suffered
from counsel’s failure to provide a precise offer of proof, particularly
because the offer of proof that counsel supplied omitted Aiken’s
evaluation of Weisheit’s past adjustment to prison:

      To be sure, had Aiken (or another expert) been prepared to
      testify as to Weisheit’s adjustment to imprisonment throughout
      the time leading up to the penalty phase, then the trial court’s
      exclusion of such testimony—assuming the proper foundation
      had been laid and it was otherwise admissible—would have
      been problematic and could have possibly resulted in reversal
      of his death sentence. . . .

      Further, we note that Weisheit did not help his case by failing
      to make a more precise offer of proof regarding Aiken’s
      prediction of his specific future classification . . . . Perhaps if
      Aiken had made a detailed prediction as to Weisheit’s potential
      classification, and if Weisheit had established that Aiken had
      adequate qualifications and experience in predicting inmates’
      future behavior (beyond the prediction inherent in classifying
      inmates), then we may not have agreed with the trial court that
      Aiken’s potential testimony was speculative and thus
      inadmissible.

Weisheit, 26 N.E.3d at 10.

   In light of the post-conviction evidence and the post-conviction court’s
findings, I believe that Weisheit has met his burden to show a reasonable
probability that at least one juror and the sentencing judge “would have
struck a different balance” without counsel’s collective deficiencies.
Wiggins, 539 U.S. at 537. This is not a case where the new evidence


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presented at the post-conviction proceeding “would barely have altered
the sentencing profile presented” at Weisheit’s penalty phase. Porter, 558
U.S. at 41 (quoting Strickland, 466 U.S. at 700). Rather, the jurors were
denied an accurate picture of Weisheit’s mental health issues and troubled
youth. Nor did they encounter any expert testimony about Weisheit’s past
adjustment to imprisonment, which might have served as a basis for a
sentence less than death. Perhaps that information would have swayed
the jurors’ judgment, or perhaps not—but it is significant enough to
“undermine confidence in the outcome,” which is all that Strickland
requires. 466 U.S. at 694.

   Weisheit’s crimes are undeniably horrific—at the far end of the
spectrum. The defendant’s culpability for crimes, though, is not the only
factor that jurors may—and must, if presented with mitigating evidence—
consider in deciding whether to sentence someone to death. See I.C. § 35-
50-2-9(c), (l); Skipper, 476 U.S. at 4–5; Eddings, 455 U.S. at 116–17. If it were,
counsel’s obligation to thoroughly investigate the defendant’s background
would not attach in every death penalty case. See Porter, 558 U.S. at 39–40;
Stevens v. McBride, 489 F.3d 883, 887, 896–98 (7th Cir. 2007). This
requirement exists in part because evidence may be mitigating even if
inferences from it “would not relate specifically to [the defendant’s]
culpability for the crime he committed,” Skipper, 476 U.S. at 4.

    The post-conviction court’s conclusion for Weisheit’s cumulative-effect
claim opposes the court’s own findings and the evidence as a whole. That
is reason enough to reverse the post-conviction court’s cumulative-effect
holding and allow a new penalty phase.

  But there is another problem with the post-conviction court’s
cumulative-effect conclusion: it is built on improper legal standards.


II. The post-conviction court’s conclusion rests on
    improper legal standards.
   Even if we could ignore the conflict between the post-conviction court’s
evidence-backed findings and its cumulative-effect conclusion, that
conclusion rests on improper legal standards.


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   As explained above, the post-conviction court did not conduct a
separate analysis for the cumulative-effect claim. Rather, it relied entirely
on its decisions for Weisheit’s more individualized claims of ineffective
assistance. The court’s decisions on those individualized claims harbor
two legal errors that ultimately corrode the court’s derivative cumulative-
effect conclusion.

  First, the post-conviction court conflated Strickland’s deficiency and
prejudice prongs, reasoning that “Weisheit has failed to show trial
counsel’s performance was to a level of deficiency that he was prejudiced
and that but for trial counsel[’s] performance the results of the
proceedings would have been different.”

   Whether counsel’s performance was deficient does not depend on
prejudice—rather, deficiency is measured against prevailing professional
norms. See Strickland, 466 U.S. at 687–90. And although the severity of a
deficiency may affect whether the defendant suffered prejudice, under
Strickland, deficiency and prejudice are distinct inquiries, id. at 687–96;
Timberlake, 753 N.E.2d at 603. Because the post-conviction court
commingled the two, its cumulative-effect conclusion rests on a
misdirected analysis.

   Second, the court applied a heightened prejudice standard, concluding
that “there is no reasonable likelihood the jury would have unanimously
voted against death.” Weisheit did not need to show a reasonable
likelihood that the jury would have unanimously voted against death.
Unanimity in the jury’s sentencing recommendation binds the trial court
to impose the recommended sentence. See I.C. § 35-50-2-9(e). And, here,
following Weisheit’s penalty phase, the jury unanimously recommended
death, so the judge was required to impose that sentence.

   But if even one juror had voted against death, the trial court’s
responsibilities would have been different. See I.C. § 35-50-2-9(f). The court
would have had discretion in sentencing Weisheit, id., and thus would
have borne the “truly awesome responsibility” to decide whether to
impose the death penalty, Caldwell v. Mississippi, 472 U.S. 320, 341 (1985).
In making that decision, the lack of unanimity among the jurors would
have been a relevant consideration, since a conflicted jury “demonstrate[s]


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a level of uncertainty among the citizens” as to the appropriate penalty.
Wilkes, 917 N.E.2d at 693. And in imposing the death penalty—which
“calls for a greater degree of reliability,” Lowenfield, 484 U.S. at 239
(quoting Lockett, 438 U.S. at 604 (plurality opinion))—courts should be
“particularly sensitive to insure that every safeguard is observed,” Gregg,
428 U.S. at 187 (plurality opinion).

   So, Weisheit’s burden under Strickland’s prejudice prong was to show a
reasonable probability that without counsel’s errors, at least one juror
would not have voted for the death penalty and the trial court would not
have imposed that sentence. Given the mitigation evidence that would
have been presented but for counsel’s deficient performance, I believe
there is a reasonable probability that the jury would have been conflicted
and that the judge would not have sentenced Weisheit to death.

   In concluding otherwise, the post-conviction court relied on improper
legal analysis.


Conclusion
   The post-conviction court’s cumulative-effect conclusion contravenes
both the evidence and the court’s own findings, and it stands on improper
legal standards. The majority affirms the post-conviction court’s
cumulative-effect decision by dismissing contradictions between the post-
conviction court’s findings and its conclusion and by asserting that
Weisheit has failed to carry his burden under Strickland.

   I believe that the majority’s cumulative-effect holding misapplies
Strickland and deviates from our standard of review. In my view, Weisheit
was denied his Sixth Amendment right to effective assistance of counsel at
the penalty phase of trial. And he has carried his burden to show that
there is no way within the law that the post-conviction court could have
arrived at its cumulative-effect conclusion. Though Weisheit’s offenses
were horrific and his guilt is clear, he should be afforded a penalty phase
untainted by constitutional error.

   I therefore respectfully dissent in part.



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