                             In the
 United States Court of Appeals
               For the Seventh Circuit
                          ____________

No. 03-3170
ARTHUR P. BAIRD, II,
                                               Petitioner-Appellant,
                                 v.


CECIL DAVIS, Superintendent,
                                              Respondent-Appellee.

                          ____________
         Appeal from the United States District Court for the
         Southern District of Indiana, Terre Haute Division.
           No. 98 C 70—Larry J. McKinney, Chief Judge.
                          ____________
     ARGUED JUNE 16, 2004—DECIDED NOVEMBER 12, 2004
                          ____________



  Before POSNER, RIPPLE, and WOOD, Circuit Judges.
  POSNER, Circuit Judge. Arthur Baird was convicted by a
jury in an Indiana state court of murder and was sentenced
to death by the judge on the jury’s recommendation. After
exhausting his state judicial remedies in Baird v. State, 604
N.E.2d 1170 (Ind. 1992); id., 688 N.E.2d 911 (Ind. 1997), Baird
sought federal habeas corpus. The district court denied him
relief, and he appeals. His only challenge is to the sentence,
and specifically to what he contends was the failure of the
Indiana Supreme Court, in affirming the sentence, to give
proper consideration to his mental state as a mitigating
2                                                No. 03-3170

factor. He does devote a portion of his brief to contending
that his confession should not have been admitted into evi-
dence. But at argument his lawyer conceded that, since there
is no challenge to the conviction and no suggestion that the
confession played a role in the sentence, the objection to the
admission of the confession is academic. Baird also does not
challenge the Indiana courts’ decision to deny him
postconviction relief.
  When he committed the murders in 1985, Baird was a man
in his late 30s with an exemplary record as a law-abiding
citizen, church deacon, and Navy veteran. He lived with his
wife Nadine, who was six months pregnant, on a farm that
he owned jointly with his parents. At about 5 o’clock one
afternoon, he strangled her. Later, in a phone conversation
with Nadine’s mother, Baird told her that he and Nadine
wouldn’t be visiting her parents that evening because she
was sick. Baird spent the night watching television, writing
notes, and periodically lying down next to Nadine’s body
and holding it. The next morning he went to his parents’
house on the farm at about 7 a.m. He fed the chickens,
brought the newspaper to his father, and received a haircut
from his mother. When his mother had finished cutting his
hair and returned to the kitchen sink to continue making
pickles, Baird picked up a butcher knife and stabbed her to
death. He then went to the back door, where his father was
just entering the house, told his father that there had been a
disturbance, and then stabbed him to death with the butcher
knife.
  Baird returned to his own house and wrote another series
of notes, some expressing remorse (e.g., “I am sick at heart
for having done such a terrible act. . . . The police do not
have to come after me. I will turn myself in”) and others
containing instructions for feeding the chickens—and bury-
ing them after the food ran out if no one wanted to butcher
No. 03-3170                                                  3

them for his or her own use—and for completing the pickl-
ing that his mother had left unfinished when he killed her.
He loaded up his parents’ car with food, newspapers, paper
towels, and other items. At some point his mother-in-law
called to inquire how her daughter was and he told her that
Nadine was still in bed but that the two of them were going
to leave soon for their real estate agent’s office to close a
deal on a 253-acre farm that he had an option to buy. He
had thought that the government was going to give him a
million dollars in exchange for his ideas about how to solve
the nation’s economic problems. This was a complete
delusion, in conformity with which he had announced, in the
bulletin of his church and elsewhere, that he was going to
buy the farm for $575,000. He had boxed most of his
possessions in preparation for the move and had scheduled
the closing in the real estate agent’s office, at which he was
to make a down payment on the farm with a $50,000
certified check. In fact he had many debts and no money,
having been recently laid off from his modest-paying
factory job. As the date of the closing drew near, Baird was
observed by neighbors to have become nervous and with-
drawn.
   Having loaded the car he drove to a different town, where
the next day the police (who had found the bodies and the
notes) arrested him as he was watching a softball game. The
previous evening (the evening of the day on which he had
murdered his parents) he had been observed sitting in the
car in the parking lot of a bar, reading a book by the dome
light. The owner had been concerned about this odd
behavior and called the police, who questioned Baird but
didn’t arrest him.
  There is no indication that Baird had any financial motive
in committing the murders, or that he had hostile or even
strained relations with either his wife or his parents. Despite
4                                                 No. 03-3170

the bizarre circumstances of the murders, two psychiatrists
testified that he was sane, at least when he murdered his
parents. Two other psychiatrists, plus a clinical psycholo-
gist, while agreeing that Baird knew the difference between
right and wrong when he committed the murders, thought
that he suffered from an obsessive-compulsive disorder that
had prevented him from conforming his behavior to his
moral perception. Baird himself described the murders to the
psychiatrists as motiveless and ascribed them to the pres-
sure of the impending purchase of the farm; he thought the
pressure had caused him to crack. He told them that he had
resisted the compulsion to kill but had been unable to
overcome it. The jury found him guilty of first-degree murder
(and feticide) without qualification, refusing to find him
either not responsible by reason of insanity or guilty but
mentally ill. The correctness of this judgment is not in issue.
  During the penalty phase of the case, the jury recommended
that Baird be sentenced to death for the murder of his par-
ents but not for the murder of his wife (and fetus). As
required by Indiana law, the trial judge made an independ-
ent determination of whether to impose the death sentence,
but came to the same conclusion as the jury. (Indiana’s
death-penalty statute has since been amended, in light of
Ring v. Arizona, 536 U.S. 584 (2002), to make the jury’s deci-
sion definitive. Ind. Code § 35-50-2-9(e) (1998), amended by
2002 Ind. Acts 117, § 2; Ritchie v. State, 809 N.E.2d 258, 263-
64 and n. 1 (Ind. 2004). But this change has no bearing on
the present case, given the concordance of judge and jury.)
The judge didn’t think Baird’s mental condition should be
given any weight in mitigation of the heinousness of the
murder of his parents. The Indiana Supreme Court dis-
agreed and conducted its own, independent analysis of the
mitigating and aggravating circumstances and concluded
that the death sentence was proper. The court did not doubt
that Baird had known the difference between right and
No. 03-3170                                                5

wrong and had known when he committed the murders
that he was doing wrong, but the court acknowledged that
he had been acting under the influence of a serious mental
disorder (604 N.E.2d at 1182):
     The [sentencing] judge also declared in his findings
   that the several mitigating circumstances he found to
   exist were outweighed by the single aggravating circum-
   stance. The court considered all categories of mitigating
   factors, finding that appellant had no history of prior
   criminal conduct, was of a law abiding nature, was an
   active participant in his church, held employment and
   provided for his family as best he could, served his coun-
   try in military service and was honorably discharged,
   and was generally held to be a person of good character
   in his community. With respect to the murder of Nadine
   Baird, the court also found that appellant may have been
   under the influence of extreme mental or emotional dis-
   turbance at the time of the murder, and that this same
   mental condition may have substantially impaired
   appellant’s capacity to conform his conduct to the
   requirements of the law.
      The court specifically found that there were no miti-
   gating circumstances springing from appellant’s mental
   condition at the time of the murder of his parents. After
   review of the record including the psychiatric testimony,
   however, we are inclined to find that appellant’s mental
   condition at the time of the murders of his parents is en-
   titled to some mitigating value. The psychiatric evi-
   dence supports a determination that appellant has an
   obsessive-compulsive disorder. The testimony was un-
   contradicted that appellant sincerely believed that the
   federal government was going to give him one million
   dollars for his ideas on how to solve the country’s
   economic problems, and that he and Nadine would use
6                                                No. 03-3170

    the money to purchase and equip a 253 acre farm. There
    was no basis in experience for this belief. At this time
    appellant had no income, was in debt, and Nadine was
    pregnant. Appellant was so obsessed with the idea of
    buying this farm that he set a closing date at which time
    he was to tender a $50,000 certified check, and as he
    finally realized that his grandiose plans would be ex-
    posed as a mere fantasy to the persons whose derision
    would be most destructive to him he was compelled to
    protect himself from them. We find that appellant was
    under the influence of extreme mental or emotional dis-
    turbance when the murders were committed, but find
    this mitigating factor to be in the low range. We also
    find that the mitigating circumstances of appellant’s
    regular employment, church participation, military
    service, law abiding nature, and good character in the
    community each to be in the low range. Appellant’s lack
    of prior criminal history is a mitigating factor in the me-
    dium range. Upon review, we find that these mitigating
    circumstances as we have determined and evaluated
    them are outweighed by the sole aggravating circum-
    stance, namely, the murders of Kathryn and Arthur Paul
    Baird, I, having already committed the murder of Nadine
    Baird, an aggravating circumstance in the highest range.
    Appellant’s sentence is not arbitrary or capricious and
    is not manifestly unreasonable.
  The principal arguments that Baird’s lawyer makes against
the constitutionality of the sentence are ones addressed to
the wrong court. The first (made only at the oral argument
in this court, which was too late) is that it is cruel and un-
usual punishment to put to death a person who murders
under an irresistible impulse. The second is that the Indiana
courts should have found that the principal mitigating
circumstance of Baird’s crimes, namely his mental disorder,
outweighed the aggravating circumstance, namely the
No. 03-3170                                                      7

additional murders. These arguments have yet to prevail in
the U.S. Supreme Court, and are therefore beyond our
authority to accept in this habeas corpus appeal. The Court
has ruled out the death penalty for the retarded and for
minors under the age of 16. Atkins v. Virginia, 536 U.S. 304
(2002); Stanford v. Kentucky, 492 U.S. 361, 380 (1989) (plural-
ity); id. at 381-82 (concurring opinion); Thompson v. Oklahoma,
487 U.S. 815, 838 (1988) (plurality). But it has not yet ruled
out the execution of persons who kill under an irresistible
impulse. And it has made clear that a sentencing court in
balancing aggravating and mitigating circumstances bearing
on the imposition of the death penalty is not required to give
any fixed weight to any particular mitigating circumstance.
Harris v. Alabama, 513 U.S. 504, 512 (1995); Eddings v.
Oklahoma, 455 U.S. 104, 112-115 (1982); cf. Wallace v. Davis,
362 F.3d 914, 916-19 (7th Cir. 2004). Ordinarily of course a
litigant can ask a lower federal court for an innovative con-
stitutional interpretation, such as a new immunity from the
death penalty. But that path is closed when the case before
the court is an application for habeas corpus relief. 28 U.S.C.
§ 2254(d)(1); Yarborough v. Alvarado, 124 S. Ct. 2140, 2147-
50 (2004); Lockyer v. Andrade, 538 U.S. 63, 71-72 (2003);
Williams v. Taylor, 529 U.S. 362, 412-13 (2000).
  Baird’s lawyer also argues, however, that the analysis of
mitigation by the Indiana Supreme Court in the passage that
we quoted is fatally inadequate, and this is an argument
that is within the remit of a federal court asked in a habeas
corpus case to set aside a state court’s death sentence. State
courts may not refuse to consider mitigating circumstances
in capital cases. Hitchcock v. Dugger, 481 U.S. 393, 398-99 (1987);
Skipper v. South Carolina, 476 U.S. 1, 4-5 (1986); Eddings v.
Oklahoma, supra, 455 U.S. at 110, quoting Lockett v. Ohio, 438
U.S. 586, 604 (1978) (plurality) (“any aspect of a defendant’s
character or record and any of the circumstances of the
offense that the defendant proffers as a basis for a sentence
8                                                    No. 03-3170

less than death”). Baird contends that the Indiana Supreme
Court committed both a legal oversight and a factual error
in its discussion of the bearing of his mental illness on the
propriety of the sentence. We must evaluate this contention
with due regard for the fact that under the current regime of
federal habeas corpus we can set aside a state court’s crim-
inal judgment only if (so far as is pertinent to this case) the
state court’s application of federal law as declared by the
U.S. Supreme Court is “unreasonable”—and “an unreason-
able application is different from an incorrect one.” Bell v.
Cone, 535 U.S 685, 694 (2002).
   The claimed legal oversight committed by the Indiana
Supreme Court arises from the fact that the Indiana death-
penalty statute lists two mitigating factors to which mental
illness can be relevant, and Baird contends that the Indiana
court failed to consider one of them. The one that he con-
cedes the court considered is that “the defendant was under
the influence of extreme mental or emotional disturbance
when the murder was committed.” Ind. Code § 35-50-2-9(c)(2).
The long passage we quoted from the court’s opinion con-
forms to the language of this provision in stating that Baird
“was under the influence of extreme mental or emotional
disturbance when the murders were committed.” The other
mitigating factor, the one Baird claims the court overlooked,
is that “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.” § 35-50-2-9(c)(6).
The court discussed at length Baird’s capacity to appreciate
the criminality of his conduct, and that capacity, as we said,
is not at issue. The contention is that the court overlooked
the other part of subsection (c)(6)—that “the defendant’s ca-
pacity . . . to conform that conduct to the requirements of law
was substantially impaired as a result of mental dis-
ease. . . .”
No. 03-3170                                                   9

  This ground for reversal was proposed at the oral argu-
ment in this court, but not in either of Baird’s briefs. The
opening brief quoted subsection (c)(6) as well as (c)(2), and
said that “the evidence presented at Baird’s trial and at his
sentencing hearing clearly established the existence of both
statutory mitigators.” But the brief did not suggest that the
Indiana court had failed to consider any part of (c)(6). It ar-
gued that the Indiana Supreme Court had assigned too little
weight to Baird’s mental condition as a mitigating circum-
stance, but it did not say or imply that the court had
disregarded (c)(6) evidence.
  Ordinarily it is too late to present a ground for reversal for
the first time at the oral argument. But we would be re-
luctant in a capital case to declare a ground forfeited merely
because the defendant had failed to present it in his briefs in
this court. For we could easily order the submission of sup-
plemental briefs on the question, to give the state an
opportunity to rebut, and then the state would not have
been prejudiced by the oversight. But the (c)(6) ground was
not presented in the district court either. There Baird argued,
much as in this court, that “in reaching its conclusion that
[his] mental condition was a mitigating factor in the ‘low
range’ the Indiana Supreme Court did not accurately review
or adequately consider the evidence below,” and he urged
that the case be returned to that court so that the court might
“re-weigh the aggravating and mitigating factors.” He said
that “evidence as to his mental condition at the time of the
murders supported the existence of a mitigating circum-
stance under I.C. 35-50-2-9(c)(2) and (c)(6),” but in so saying
he was criticizing just the sentencing judge’s—not the Indiana
Supreme Court’s—refusal to deem Baird’s mental disorder
a mitigating circumstance. He acknowledged that the Indiana
Supreme Court had held that “the trial court erred in finding
that Baird’s mental condition was entitled to no weight”
(emphasis added). He argued that the Indiana Supreme
10                                                  No. 03-3170

Court should have given it more weight, but not that it had
given it no weight or that it had ignored (c)(6). And likewise
in his reply to the state’s response to the district court’s order
to show cause he argued only that if the court “correctly
interpreted” the mental health evidence it would appreciate
Baird’s volitional impairments more fully and thus deem his
mental condition to be in the high range of mitigating
factors rather than in the low range.
   What is much more serious than the oversights in Baird’s
submissions to the district court and to this court—what
creates, indeed, an insuperable obstacle to our accepting the
argument—is Baird’s failure to argue to the Indiana Supreme
Court that (c)(6) had been overlooked. Baird appealed to
that court twice, first from his conviction and sentence and
second from the denial of his application for state postcon-
viction relief. On neither appeal did he argue that (c)(6), so
far as it might bear on this case, is different from (c)(2). His
briefs in his first, the direct, appeal treated (c)(2) and (c)(6)
as completely interchangeable in their application to this
case, so it is no surprise that the Indiana Supreme Court in
upholding his sentence did not discuss them separately. His
briefs in his second, the postconviction, appeal likewise did
not complain about the court’s failure, in deciding on his
first appeal that the mitigating circumstances of the murders
were outweighed by the aggravating circumstances, to
discuss the two subsections separately. In fact, the briefs in
the second appeal did not cite either subsection. The opening
brief did say that “the fact that the evidence strongly suggests
Baird’s inability to conform his actions to the law as a result
of a mental disease or defect is a mitigating circumstance
and one which is entitled to substantial weight.” But it is
apparent from the surrounding discussion that the argument
is not that the Indiana Supreme Court had overlooked this
mitigating circumstance (nowhere, to repeat, does the brief
distinguish between (c)(2) and (c)(6)) but that the court should
No. 03-3170                                                  11

have given it more weight than it gave the aggravating
circumstance. Similarly, when he said that “it is unreason-
able to ascribe less than ‘substantial’ weight to the mitigating
circumstance of his mental health” (emphasis added), he
was complaining not that his (c)(6) evidence had been given
no weight but that it had been given too little weight.
  Even in a capital case we cannot grant habeas corpus relief
on a ground that the state’s highest court was not asked to
consider. 28 U.S.C. §§ 2254(b)(1)(A), (c); Strickler v. Greene,
527 U.S. 263 (1999); Breard v. Greene, 523 U.S. 371, 375 (1998)
(per curiam); Mahaffey v. Schomig, 294 F.3d 907, 914-19 (7th
Cir. 2002); Elizalde v. Dretke, 362 F.3d 323, 328-31 (5th Cir.
2004). The ground appears, moreover, to have no merit, which
may be why it has been urged only as an afterthought and
which in any event provides an alternative ground for our
decision.
   The Indiana Supreme Court had in previous cases reg-
ularly treated “under the influence of extreme mental or
emotional disturbance” ((c)(2)) and “capacity . . . to conform
[his] conduct to the requirements of law was substantially
impaired as a result of mental disease” ((c)(6)) interchange-
ably. See Bivins v. State, 642 N.E.2d 928, 947 (Ind. 1994);
Benirschke v. State, 577 N.E.2d 576, 581-82 (Ind. 1991); Brown
v. State, 577 N.E.2d 221, 234 (Ind. 1991); Lowery v. State, 547
N.E.2d 1046, 1059 (Ind. 1989). This is not surprising (nor is
it surprising that Baird should have done the same thing
right up until the oral argument of his appeal in this court)
when we consider the wording of the two subsections. Their
coverage is not identical, because (c)(6) adds inability to
appreciate the criminality of the act to inability to conform
to the requirements of law, and adds mental defect and in-
toxication to mental disease, as possible mitigating circum-
stances, while (c)(2) adds severe emotional disturbance to
mental disease. But in a case such as this in which there is
12                                                  No. 03-3170

no suggestion of a mental defect, or intoxication, or a severe
emotional disturbance that is not produced by a mental dis-
ease (Baird’s emotional disturbance was produced by a
mental disease that the Indiana supreme court identified as
“an obsessive-compulsive disorder,” of which more shortly),
or an inability to understand the criminality of the act, the
subsections coincide. If there is a practical difference in such
a case, no Indiana court has identified it, and there is no
relevant legislative history to suggest that there is any
difference. It is not unusual for two statutes to overlap; this
case happens to fall in the area of overlap.
  In discussing mitigating circumstances in this case,
moreover, the Indiana Supreme Court, though like Baird’s
lawyers it did not refer to the (c)(2) or (c)(6) factors by sec-
tion number, in fact addressed both of them. For in the last
sentence of the court’s first paragraph (in the passage we
quoted earlier) we read that “with respect to the murder of
Nadine Baird, the [trial] court also found that appellant may
have been under the influence of extreme mental or emotional
disturbance at the time of the murder, and that this same men-
tal condition may have substantially impaired appellant’s capacity
to conform his conduct to the requirements of the law” (em-
phasis added). This is a paraphrase of both subsections. So
when in the next paragraph, in which the Indiana Supreme
Court presents its own evaluation of the significance of
Baird’s mental condition as a mitigating factor, the court
states that it is “inclined to find that appellant’s mental con-
dition at the time of the murders of his parents is entitled to
some mitigating value,” the implication is that the court is
going to consider the same concept of mitigation, embracing
both statutory factors, as the trial judge, and with respect to
all the murders, not just Nadine’s. It would be unreasonable
to impute to the court the weird idea that Baird’s mental con-
dition triggered both (c)(2) and (c)(6) with respect to her
murder but only (c)(2) with respect to the murder of his
No. 03-3170                                                13

parents. Nowhere does the court suggest that Baird’s mental
disorder might have changed between the murder of Nadine
and the murder of Baird’s parents. That would be inconsistent
with the court’s depiction of Baird’s mental condition in
terms of symptoms that had manifested themselves before
any of the murders had been committed.
   That the court in this critical paragraph was indeed cog-
nizant of both subsections of the mitigation statute becomes
clearer still when the court remarks that “appellant has an
obsessive-compulsive disorder” and “was compelled to
protect himself from them [his parents and wife, when they
discovered that his grandiose plans were a fantasy].” The
reference to “compulsive” and “compelled” behavior implies
that Baird’s mental disorder “substantially impaired” his ca-
pacity to refrain from murdering his parents. The psychiatric
literature describes the “Grandiose Type” of “Delusional
Disorder,” in which “the central theme of the delusion is the
conviction of having some great (but unrecognized) talent
or insight or having made some important discovery.”
American Psychiatric Association, Diagnostic and Statistical
Manual of Mental Disorders 297 (4th ed. 1994); see also id. at
421.
  The alleged factual error that is Baird’s remaining chal-
lenge to the sentence is found in the following statement in
the Indiana Supreme Court’s opinion (also in the quoted pas-
sage): “Appellant was so obsessed with the idea of buying
this farm that he set a closing date at which time he was to
tender a $50,000 certified check, and as he finally realized
that his grandiose plans would be exposed as a mere fantasy
to the persons whose derision would be most destructive to
him he was compelled to protect himself from them.” Baird
argues that there is absolutely no evidence that he killed his
wife and parents because the exposure of his delusion for
what it was would bring their derision upon him. But there
14                                               No. 03-3170

was evidence of this. One of the psychiatrists asked Baird
whether he thought it would be a rational theory of the
motivation for his seemingly motiveless killing of his wife
that he feared exposure of his fantasy about buying the
$575,000 farm. Baird answered that it would be a rational
theory, but that it was not his actual motive. The fact that
the hypothesis was proposed was, however, some evidence
that it was a plausible explanation for an otherwise inexpli-
cable spate of killings. And while Baird denied that the hy-
pothesis was correct, his only explanation of his ac-
tions—that anxiety about the farm deal made him
snap—was consistent with it. Another psychiatrist, more-
over, thought the hypothesis an “excellent” one; “it fits very
well.”
  This was admissible testimony. If a hypothesis is pro-
pounded to a witness and he accepts it, it is no longer
hypothetical; it is evidence. But the strength of the evidence
hardly matters, since the court did not use it to undermine
Baird’s claim to have been acting under the influence of a
mental disorder. It is not as if the court had believed that
the “hypothesis” indicated that Baird had been lucid when he
committed the murders, or as if the court had bought into
the trial judge’s conclusion that the murders had been “done
in a fairly cold and calculating sort of way.” The court re-
jected a lucidity theory of Baird’s actions, as is apparent
from its references to his obsessive-compulsive disorder,
his delusions and obsessions, and the fact that his behavior
was “compelled,” that is, committed “under the influence of
extreme mental or emotional disturbance.”
  Insane people do not act without cognition. Their prob-
lem is that their cognition is profoundly distorted. To
“reason” that one must “protect” oneself from exposure of
one’s fantasies by murdering the people one loves is
insane—as the Indiana Supreme Court recognized. The
“grandiose plans” passage appears in the Indiana Supreme
No. 03-3170                                                 15

Court’s opinion as evidence not that Baird was sane but
that he was acting under compulsion.
  Baird himself accepted a variant of the “grandiose plans”
hypothesis in the opening brief in his direct appeal to the
Indiana Supreme Court. On pages 149-150 of that 244-page
brief (prepared by counsel), we read, after the trial court is
quoted as having found “that the murders were triggered by
[Baird’s] deep seated sense of concern about being found
out to be living in a fantasy world,” that
    since Art [Baird] was living in fantasy world, as the
    court found he was, and if Art was willing to kill the
    parents that he deeply loved to keep that fantasy from
    being exposed, then there is absolutely no need to re-
    sort to the opinions of any mental health experts because
    the kind of thinking which the trial court claims Art en-
    gaged in can be recognized by anyone as being clearly
    crazy, insane, mentally disturbed and totally irrational
    thinking. A person who is not under the influence of an
    extreme mental or emotional disturbance or whose
    capacity to appreciate the criminality of his conduct or
    to conform his conduct to the requirements of law is
    not substantially impaired as a result of mental disease
    or defect simply does not kill his parents to protect his
    fantasy world from being exposed.
That is similar to what the Indiana Supreme Court said in
the passage that Baird now challenges. Like Baird’s lawyer,
the court was trying to explain how Baird’s mental disorder
had played a causal role in the murders, rather than
suggesting a “rational” motive for his actions or treating fear
of exposure as an aggravating circumstance. The opinion is
emphatic that there was only one aggravating circum-
stance, and that was the number of murders.
16                                                 No. 03-3170

  The court noted that the trial judge had “specifically found
that there were no mitigating circumstances springing from
appellant’s mental condition at the time of the murder of
his parents.” The judge had thought that while Baird might
have killed his wife under the influence of a severe mental
or emotional disturbance, the fact that he had more than 12
hours to calm down, as it were, yet still killed his parents,
made it implausible that when he killed them he was in a
disturbed mental state. The Indiana Supreme Court dis-
agreed. But given the trial judge’s doubts, the jury’s refusal
to qualify Baird’s guilt by reference to his mental condition
(“guilty but mentally ill” was, as we noted, one of the op-
tions the jury could have selected, but did not), and the
conflicting psychiatric evidence, which suggested that the
nature of Baird’s mental condition could not be pinned down
precisely (it combined delusional with obsessive features),
the court was unwilling to weight his mental disorder
heavily enough to outweigh the gravity of Baird’s crime in
the calculus of punishment.
  No doubt had Baird been sane he would not have killed
his wife and parents, if only because he would not have
believed that the government was going to pay him a
million dollars for his ideas about how to solve the nation’s
problems; the delusion seems somehow to have precipi-
tated these rationally motiveless crimes. But he knew he
was committing murders and knew it was wrong to do so,
and no one can assign a precise weight to the delusion, or
the obsessive-compulsive disorder to which the delusion
was in some way related, in the mental process that led to
his killing his parents. Clearly, his volition, his self-control,
was impaired by a mental disease—but how much, in
relation to other unknown factors at work in his mind
during the period in which the murders occurred, we shall
never know.
No. 03-3170                                                   17

  Judgment in a case such as this is committed to the dis-
cretion of the state courts. It is for them, not us, to determine
in each individual case what weight to give mental disease
that does not obliterate consciousness of wrongdoing in
deciding whether to impose the death penalty for murder.
Harris v. Alabama, supra, 513 U.S. at 512; Eddings v. Oklahoma,
supra, 455 U.S. at 113-15; Simmons v. Bowersox, 235 F.3d 1124,
1137 (8th Cir. 2001); Ortiz v. Stewart, 149 F.3d 923, 943 (9th
Cir. 1998); Ceja v. Stewart, 97 F.3d 1246, 1251 (9th Cir. 1996);
Raulerson v. Wainwright, 732 F.2d 803, 806-07 (11th Cir. 1984).
As an original matter we might think it inappropriate to
sentence to death a man as seemingly insane as Baird at the
time of the murders. But it is not our judgment to make and
we cannot say that the exercise of judgment by the Indiana
courts was vitiated by legal or factual errors that are within
our authority to correct. The judgment dismissing the ap-
plication for habeas corpus is therefore
                                                     AFFIRMED.




  RIPPLE, Circuit Judge, dissenting. It is well-established
that imposition of the death penalty requires an individual-
ized determination “based on the facts and circumstances
of the defendant, his background, and his crime.” Clemons
v. Mississippi, 494 U.S. 738, 748 (1990) (citing Spaziano v.
Florida, 468 U.S. 447, 460 (1984); Zant v. Stephens, 462 U.S.
862, 879 (1983); Eddings v. Oklahoma, 455 U.S. 104, 110-12
(1982); Lockett v. Ohio, 438 U.S. 586, 601-05 (1978) (plurality
opinion); Gregg v. Georgia, 428 U.S. 153, 197 (1976) (joint
opinion of Stewart, Powell and Stevens, JJ.)). In Clemons, the
18                                                  No. 03-3170

Supreme Court approved the practice of “careful appellate
weighing” of aggravating and mitigating evidence in light
of error at the trial court level in making the individualized
determination. See id.
   In this case, the district court granted a certificate of ap-
pealability on the issue of “Baird’s claim that the Supreme
Court of Indiana failed to independently and adequately
weigh the relevant mitigating evidence. This relates to the
Indiana Supreme Court’s decision both to re-weigh the
mitigators and the manner in which it did so.” R.59, ¶ 1. On
appeal, Mr. Baird did not challenge the Supreme Court of
Indiana’s decision to re-weigh the mitigating and aggravat-
ing factors, and it is not necessary to address that issue. We
are confronted with the question, however, of whether the
manner in which the Supreme Court of Indiana conducted its
reweighing involved an unreasonable application of
Clemons. Because that reweighing both excludes relevant
mitigating evidence as to Mr. Baird’s volitional control and
is based upon an unreasonable factual determination as to
Mr. Baird’s delusional state, I am unable to conclude that
the appellate reweighing involves a reasonable application
of Clemons.
  I first turn to the issue of whether the state court excluded
relevant mitigating evidence. In Lockett v. Ohio, 438 U.S. 586,
604 (1978), Chief Justice Burger, writing for the plurality, noted
that “the Eighth and Fourteenth Amendments require that
the sentencer . . . not be precluded from considering, as a
mitigating factor, any aspect of a defendant’s character or
record and any of the circumstances of the offense that the
defendant proffers as a basis for a sentence less than
death.” In Eddings v. Oklahoma, 455 U.S. 104 (1982), the
Supreme Court applied and elaborated upon the rule of
Lockett. In Eddings, the trial court had indicated that “in fol-
lowing the law” it could not consider mitigating evidence
of the defendant’s family background. Id. at 112-13 (internal
No. 03-3170                                                 19

citations omitted). Similarly, the state appellate court had
indicated that the mitigating evidence was irrelevant because
it “did not tend to provide a legal excuse from criminal
responsibility.” Id. at 113. The Court held in response: “Just
as the State may not by statute preclude the sentencer from
considering any mitigating factor, neither may the sentencer
refuse to consider, as a matter of law, any relevant mitigating
evidence.” Id. at 113-14. The Court further made clear that,
in making the individualized determination regarding im-
position of the death penalty, the sentencer “may determine
the weight to be given relevant mitigating evidence.” Eddings,
455 U.S. at 115. However, the sentencer and reviewing court
“may not give [relevant mitigating evidence] no weight by
excluding such evidence from their consideration.” Id.
  Relevant mitigating evidence is “any aspect of a defen-
dant’s character or record and any of the circumstances of
the offense that the defendant proffers as a basis for a sen-
tence less than death.” Lockett, 438 U.S. at 604. In its death
penalty statute, Indiana specifies several statutory mitigat-
ing factors, two of which are relevant here:
    (2) The defendant was under the influence of extreme
    mental or emotional disturbance when the murder was
    committed.
    ....
    (6) The defendant’s capacity to appreciate the criminal-
    ity of the defendant’s conduct or to conform that con-
    duct to the requirements of law was substantially
    impaired as a result of mental disease or defect or of
    intoxication.
Ind. Code § 35-50-2-9(c)(2), (6).
  In this case, it appears that the Supreme Court of Indiana
excluded relevant mitigating evidence from consideration.
After determining that the trial court improperly failed to
20                                                    No. 03-3170

give mitigating weight to Mr. Baird’s mental condition, the
Supreme Court of Indiana engaged in an appellate reweigh-
ing of the aggravating and mitigating factors. See id. In this
reweighing, the court considered only that the “appellant
was under the influence of extreme mental or emotional
disturbance when the murders were committed,” Baird v.
Indiana, 604 N.E.2d 1170, 1182 (Ind. 1992); it gave no con-
sideration to the substantial evidence that Mr. Baird lacked
volitional control, see id. This omission occurred even though
the appellate court’s discussion immediately followed a ref-
erence to the trial court’s finding in connection with Nadine’s
murder “that appellant may have been under the influence
of extreme mental or emotional disturbance at the time of
the murder, and that this same mental condition may have sub-
stantially impaired appellant’s capacity to conform his conduct
to the requirements of the law.” Id. (emphasis added).
  It is beyond dispute that the record contains evidence of
Mr. Baird’s inability to conform his conduct to the require-
ments of law at the time of his parents’ murders. Four of
the five experts who presented psychiatric testimony in the
state court determined that Mr. Baird lacked or may have
lacked the ability to control his actions as a result of his
mental condition. Furthermore, Mr. Baird clearly argued to
the Supreme Court of Indiana on direct appeal that the trial
court’s death sentence was inappropriate because the trial
court improperly failed to give mitigating weight to evi-
dence supporting the existence of both Indiana Code § 35-50-
                                                   1
2-9(c)(2) and (c)(6) statutory mitigating factors.


1
   See, e.g., R.26, Ex.B at 142 (“In the written Findings and the
Judgment, the trial court made many findings of fact to attempt
to support its conclusion that neither the (c)(2) or the (c)(6) miti-
gators existed and did not have to be weighed in deciding
whether to impose the Death Sentence for the murders of Art’s
                                                      (continued...)
No. 03-3170                                                    21

   Nonetheless, the Supreme Court characterized the miti-
gating evidence in terms of only § 35-50-2-9(c)(2): “We find
that appellant was under the influence of extreme mental
or emotional disturbance when the murders were commit-
ted.” Baird, 604 N.E.2d at 1182. There is no basis upon
which to conclude that the court considered the mitigating
weight springing from evidence that Mr. Baird’s “capacity . . .
to conform [his] conduct to the requirements of law was
substantially impaired as a result of mental disease or de-
fect.” Ind. Code § 35-50-2-9(c)(6). Under Eddings, the court
had a constitutional obligation to consider that evidence.
See Wright v. Walls, 288 F.3d 937, 942-45 (7th Cir. 2002) (re-
jecting as unreasonable Illinois Supreme Court’s determina-
tion that the sentencing judge considered mitigating evidence
of the petitioner’s traumatic history when sentencing court
used language of exclusion in rejecting that evidence); cf.
Todd v. Schomig, 283 F.3d 842, 855 (7th Cir. 2002) (accepting
as reasonable Illinois Supreme Court’s determination that
the sentencing court considered nonstatutory mitigating
factors when sentencing court stated that “ ‘those other



1
   (...continued)
parents. The trial court’s Findings of Fact are not only factually
incorrect, but more importantly they demonstrate that the trial
court arbitrarily and capriciously gave absolutely no weight to
relevant mitigating circumstances which it acknowledged ex-
isted.”); id. at 150 (“The trial court further refused to give any
weight to uncontradicted evidence from all of the mental health
experts who testified that Art suffered from substantial mental
impairment at the time of the murders.”); id. at 159 (questioning
whether death sentence should be imposed “where the defen-
dant’s acts were clearly the result of mental and emotional
problems which were out of the defendant’s ability to voluntarily
control”).
22                                                          No. 03-3170

nonstatutory factors do have [sic] a bearing on the Courts
[sic] ability to weigh the issues I raised previously’ ”).
  Moreover, relevant mitigating evidence that Mr. Baird
lacked volitional control could not be subsumed, and there-
by disregarded, under the mere finding that Mr. Baird was
under the influence of extreme mental or emotional dis-
turbance. It is true that both Indiana Code § 35-50-2-9(c)(2)
and (c)(6) statutory mitigating factors share a mental health
component. However, the two factors reflect distinct in-
quiries into the circumstances surrounding the defendant.
Substantial impairment of one’s capacity to conform conduct
to the requirements of law as a result of mental disease or
defect is qualitatively different from the mere status of being
“under the influence” of extreme mental or emotional dis-
           2
turbance.
  Under Supreme Court precedent, balancing of individual
mitigating and aggravating circumstances is left to the sen-
tencer. See Eddings, 455 U.S. at 114. Thus, the Supreme Court
of Indiana constitutionally could have assigned low weight
to mitigating evidence of Mr. Baird’s impaired capacity to
conform his conduct to the requirements of law. Constitu-
tionally, it could not, however, as it apparently did, exclude


2
  Indeed, prior to a 1984 amendment, the Indiana Insanity
Defense statute provided a defense to individuals who were
unable to conform their conduct to the requirements of law by
reason of mental disease or defect:
     A person is not responsible for having engaged in prohibited con-
     duct if, as a result of mental disease or defect, he lacked substantial
     capacity either to appreciate the wrongfulness of the conduct
     or to conform his conduct to the requirements of law.
Ind. Code § 35-41-3-6, Pub. L. No. 340, § 11 (1977) (amended 1984)
(emphasis added). The murders occurred in 1985, one year after
the amendment eliminating the “irresistible impulse” defense.
No. 03-3170                                                       23

that relevant mitigating evidence from its consideration in
                          3
the appellate reweighing.


3
  A question of waiver on this issue has been raised on the
ground that Mr. Baird presented the argument for the first time
at oral argument. Waiver is not appropriate here.
  Before the district court, counsel for Mr. Baird argued in the
Petition for Writ of Habeas Corpus that “Baird’s evidence as to
his mental condition at the time of the murders supported the
existence of a mitigating circumstance under I.C. 35-50-2-9(c)(2)
and (c)(6).” R.16 at 31. Further, in “Petitioner’s Reply to
Respondent’s Return to Order To Show Cause,” counsel for Mr.
Baird argued:
    Had the Indiana Supreme Court in Baird’s case correctly in-
    terpreted the testimony of the mental health experts, it would
    have concluded that Baird’s behavior at the time he killed his
    parents was volitionally impaired to the extent that he could
    not control it, a fact constituting mitigation in the high
    range . . . .
R.33 at 10. In the opening brief to this court, counsel continued to
argue that the evidence presented at trial supported the existence
of both the (c)(2) and (c)(6) statutory mitigating factors, citing and
quoting both factors. See Petitioner’s Br. at 19-20. Counsel then
argued that when an appellate court reweighs, it must “identify
all of the relevant mitigating factors and then assign appropriate
weight to each.” Id. at 24 (emphasis added). Counsel concluded
the argument by contending that the Supreme Court of Indiana
made a clearly erroneous factual finding that Mr. Baird acted
volitionally, which caused the court to “unreasonably assign[ ] too
little weight to a substantial mitigating circumstance.” Id. A review
of the Supreme Court of Indiana’s reweighing leads to the
conclusion that the court gave no weight to (c)(6) mitigating
evidence that Mr. Baird lacked volitional control because of
mental disease or defect. No weight is certainly “too little” under
the directive of Eddings.
                                                       (continued...)
24                                                      No. 03-3170

  The Supreme Court of Indiana’s reweighing presents a
second concern. In reference to Mr. Baird’s obsession in
purchasing the farm, the court determined: “[A]s he finally
realized that his grandiose plans would be exposed as a
mere fantasy to the persons whose derision would be most
destructive to him he was compelled to protect himself from
them.” Baird, 604 N.E.2d at 1182. There is no basis in the
record for a factual determination that Mr. Baird “realized”
the delusional nature of his fantasy would be exposed or that
                                           4
he consciously acted to “protect himself.” The evidence cited
by the State as providing a record basis for this proposition
does not establish any conscious awareness by Mr. Baird at
the time of the killings that his belief in the impending re-
ceipt of one million dollars was delusional. Indeed, one



3
  (...continued)
  Thus, counsel sufficiently oriented this court to the issue of
whether the Indiana Supreme Court improperly failed to give
mitigating weight to evidence that Mr. Baird lacked volitional
control because of mental illness.
4
   The court’s characterization of the evidence apparently was
drawn from the trial court’s comments at sentencing:
     I believe that the—that the murders were triggered by his
     deep seated sense of concern about being found out to be liv-
     ing in a fantasy world, which he knew and that the people
     who would harm him the most by finding out about it were—
     was his wife and his parents and that he could stand almost
     anything else but being found out by them to protect himself
     from them, and I believe it was, based on the evidence, that
     it was done in a fairly cold and calculating sort of way.
St. Ct. Rec., Vol. 10 at 10. The trial court’s belief as to Mr. Baird’s
conscious awareness of “living in a fantasy world” similarly has
no factual support in the record. Furthermore, that suggestion
contradicts the trial court’s own conclusion that the murders
“may not have been entirely conscious.” Id.
No. 03-3170                                                25

expert testified that Mr. Baird likely remained under the
delusion at the time of trial.
  The level of deference given state court factual findings on
habeas review is exceptionally high. See Lindh v. Murphy,
521 U.S. 320, 333 n.7 (1997) (describing AEDPA as creating
a “highly deferential standard for evaluating state-court
rulings”). Indeed, under AEDPA, a state court’s factual find-
ing is subject to a presumption of correctness. 28 U.S.C.
§ 2254(e)(1). The petitioner bears the burden of rebutting
that presumption by clear and convincing evidence. Id. How-
ever, “[e]ven in the context of federal habeas, deference
does not imply abandonment or abdication of judicial review.
Deference does not by definition preclude relief.” Miller-El
v. Cockrell, 537 U.S. 322, 340 (2003). Rather, under AEDPA
standards, a federal court can disagree with a state court’s
factual determination and “conclude the decision was un-
reasonable or that the factual premise was incorrect by clear
and convincing evidence.” Id.
  Mr. Baird has met his burden here. There is scant evidence
in the record that Mr. Baird ever consciously realized the
delusional nature of his plans. Indeed, the sum of the evi-
dence on this point is recounted by the majority on page 14
of its opinion. This evidence was that, when questioned by
one psychiatrist, Mr. Baird agreed that the “feared exposure
of his fantasy” would be a rational theory as to his motive
for the murders, “but that it was not his actual motive.” Slip
op. at 14. Another psychiatrist thought this “hypothesis an
‘excellent’ one.” Id. (emphasis added). I simply cannot ac-
cept, as my colleagues do, that the denial by Mr. Baird and
the characterization of a hypothesis, without more, support
the state court’s conclusion that Mr. Baird “finally realized
26                                                    No. 03-3170
                                                                    5
that his grandiose plans would be exposed as mere fantasy.”
Instead, this dearth of evidence, I believe, suggests that the
state court’s conclusion is incorrect by clear and convincing
evidence. There is simply no evidence in the record that sup-
ports such a “hypothesis.” It is pure surmise, and a man
should not be sent to his death on such a groundless hypo-
thetical. Moreover, the erroneous factual premise appears
to have borne heavily on the reweighing process. Imme-
diately following the erroneous factual determination, the
Supreme Court of Indiana determined that Mr. Baird’s
mental disturbance was entitled only to low mitigating weight.
The structural interrelation between the erroneous factual


5
   The majority opinion interprets this conclusion of the Supreme
Court of Indiana as “evidence not that Baird was sane but that he
was acting under compulsion.” Slip op. at 15. This characteriza-
tion parses too thinly, and therefore inaccurately, the conclusion
of the state supreme court. That court concluded that Mr. Baird
was “compelled” to murder his parents, not because he still was
operating under his delusion but because “he finally realized that
his grandiose plans would be exposed as a mere fantasy,” Baird,
604 N.E.2d at 1182 (emphasis added); that is, Mr. Baird’s new-
found lucidity with respect to his “grandiose plans” motivated
the crimes. The court’s statement, read as a whole, suggests that the
Supreme Court of Indiana did accept, at some level, the premise
that Mr. Baird, at the time he killed his parents, acted in a mental
state substantially different from, and substantially better than,
the condition that governed his actions when he killed his wife. As
I have noted earlier, that premise is not supported by the record.
Moreover, as I note later in the text, the Supreme Court of
Indiana compounded its erroneous assumption when it failed to
realize during post-conviction review that the diagnosis of
delusional disorder presented by Dr. Wooden clarified the earlier
psychiatric evidence and demonstrated that Mr. Baird’s delusional
state was far more serious than the court had assumed in its earlier
examination.
No. 03-3170                                                      27

premise and the weight assigned to Mr. Baird’s mental con-
dition (as well as the apparent failure to consider evidence
that Mr. Baird lacked the ability to conform his conduct to
the requirements of law) give rise to a conclusion that the
state court’s decision was “based on an unreasonable deter-
mination of the facts.” 28 U.S.C. § 2254(d)(2). Thus, the
erroneous factual finding not only invalidates the appellate
court’s reweighing under Clemons, but alone independently
                                                       6
warrants habeas relief under 28 U.S.C. § 2254(d)(2). The


6
  There is a related but independent concern that centers on the
Supreme Court of Indiana’s treatment of the issue of volitional
capacity during its review of the post-conviction proceedings. My
colleagues take the view that Mr. Baird has forfeited the argument
that the Supreme Court of Indiana improperly disregarded
mitigating evidence of lack of volitional control by failing to pre-
sent that issue to the Supreme Court of Indiana in state post-con-
viction proceedings. My colleagues take the view that, although
the brief mentioned the strong evidence of inability to conform
conduct, Mr. Baird’s complaint to the court was not that the court
overlooked that evidence but that it should have given it more
weight than that given to the aggravating circumstance. I cannot
agree with this determination.
  I believe that Mr. Baird’s post-conviction brief to the Supreme
Court of Indiana fairly presented the mitigating factor of his
volitional impairment to the court. First, Mr. Baird specifically
references this consideration in his argument headings. See St. Ct.
Rec., Vol. 10 at 34 (“The Post-Conviction Court Erred in Finding
No Evidence That Baird’s Death Sentence Was Excessive,
Disproportionate or Inappropriate Given the Fact That, at the
Time He Committed the Charged Offenses, Baird Was Volitionally
Impaired As a Result of a Serious Mental Illness to the Extent
That He Could Not Conform His Actions to the Law . . . .”). He
also argues that the facts “strongly suggest[ ] Baird’s inability to
conform his actions to the law as a result of a mental disease or
                                                     (continued...)
28                                                   No. 03-3170

most accurate characterization of Mr. Baird’s post-convic-
tion argument is that the diagnosis of the nature of his men-
tal disorder was unclear at the time of trial and that Dr.
Wooden’s diagnosis of delusional disorder during the evi-
dentiary hearing in the post-conviction proceedings consti-
tuted new evidence that warranted resentencing or retrial.
  When all is said and done, the Supreme Court of Indiana
never came to grips with the reality that there was substan-
tial evidence that Mr. Baird suffered from a substantially
more significant impairment than an obsessive compulsive
disorder. He was delusional and was thinking and acting
in a distorted world of his own. Nor did the state supreme
court ever critically evaluate the issue of whether Mr. Baird
ever came out of his private world and made a rational and
voluntary decision to murder his parents. If it had, it would
have concluded that the record was devoid of any factual
basis for such a determination.
  When a state appellate court independently makes the
individualized sentencing determination by reweighing the
aggravating and mitigating evidence, Clemons requires a
“careful appellate weighing” consistent with constitutional


6
   (...continued)
defect is a mitigating circumstance and one which is entitled to
substantial weight.” Id. at 59 (emphasis added). Finally, Mr. Baird
cites the fact that “all of the mental health experts admit of the
possibility that Baird was unable to conform his conduct to the
law at the time of the commission of the charged offenses as a
result of [his] mental illness” in support of reweighing the aggra-
vating and mitigating factors. See id. at 63. These statements were
more than sufficient to apprise the Supreme Court of Indiana of
Mr. Baird’s contention that the mitigating factor of lack of voli-
tional control was at play and that it should have been weighed
in the sentencing analysis.
No. 03-3170                                                29

requirements. Clemons, 494 U.S. at 748-49. Indeed, in Clemons
itself, the Court remanded for further proceedings because
it was unclear as to whether the Supreme Court of Missis-
sippi reliably performed the reweighing or “fully heeded
[Supreme Court] cases emphasizing the importance of the
sentencer’s consideration of a defendant’s mitigating
evidence.” Id. at 752. In this case, the Supreme Court of
Indiana appears to have excluded relevant mitigating
evidence and to have relied upon a factually erroneous
determination. Consequently, a careful appellate reweighing
consistent with constitutional requirements has not taken
place. For this reason, habeas relief is warranted, and I
must respectfully dissent from the judgment of the court.


A true Copy:
       Teste:

                          _____________________________
                           Clerk of the United States Court of
                             Appeals for the Seventh Circuit




                   USCA-02-C-0072—11-12-04
