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 evidence. 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 burying 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 pickling 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 withdrawn.

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 psychologist, 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 pressure 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 parents but not for the murder of his wife (and fetus). As

required by Indiana law, the trial judge made an independent 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 decision 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 disagreed 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 circumstance. 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 country 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 disturbance 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 mitigating 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 entitled to some mitigating value. The psychiatric evidence supports a determination that appellant has an

obsessive-compulsive disorder. The testimony was uncontradicted 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 exposed 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 disturbance 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 medium range. Upon review, we find that these mitigating

circumstances as we have determined and evaluated

them are outweighed by the sole aggravating circumstance, 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 unusual 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) (plurality); 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 constitutional 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 criminal 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 unreasonable 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 deathpenalty 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 concedes 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 conforms 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 capacity . . . to conform that conduct to the requirements of law

was substantially impaired as a result of mental disease. . . .”
No. 03-3170 9

This ground for reversal was proposed at the oral argument 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 argued that the Indiana Supreme Court had assigned too little

weight to Baird’s mental condition as a mitigating circumstance, 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 reluctant 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 supplemental 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 circumstance 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 postconviction 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 unreasonable 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 regularly 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)) interchangeably. 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 intoxication to mental disease, as possible mitigating circumstances, 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 disease (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 section 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 mental condition may have substantially impaired appellant’s capacity

to conform his conduct to the requirements of the law” (emphasis 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 condition 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 condition 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 cognizant 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 capacity 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 challenge to the sentence is found in the following statement in

the Indiana Supreme Court’s opinion (also in the quoted passage): “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 inexplicable spate of killings. And while Baird denied that the hypothesis was correct, his only explanation of his actions—that anxiety about the farm deal made him

snap—was consistent with it. Another psychiatrist, moreover, thought the hypothesis an “excellent” one; “it fits very

well.”

This was admissible testimony. If a hypothesis is propounded 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 rejected 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 problem 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 resort to the opinions of any mental health experts because

the kind of thinking which the trial court claims Art engaged 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 circumstance, 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 disagreed. 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 options 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 precipitated 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 discretion 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 application for habeas corpus is therefore

AFFIRMED.

RIPPLE, Circuit Judge, dissenting. It is well-established

that imposition of the death penalty requires an individualized 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 appealability 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 aggravating 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 following 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 imposition 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 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.” Lockett, 438 U.S. at 604. In its death

penalty statute, Indiana specifies several statutory mitigating 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 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.

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

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) mitigators existed and did not have to be weighed in deciding

whether to impose the Death Sentence for the murders of Art’s

(continued...)

give mitigating weight to Mr. Baird’s mental condition, the

Supreme Court of Indiana engaged in an appellate reweighing 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 consideration 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 reference 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 substantially 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 requirements 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 evidence supporting the existence of both Indiana Code § 35-50-

2-9(c)(2) and (c)(6) statutory mitigating factors.1
No. 03-3170 21

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 existed.”); 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 defendant’s acts were clearly the result of mental and emotional

problems which were out of the defendant’s ability to voluntarily

control”).

Nonetheless, the Supreme Court characterized the mitigating 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 committed.” 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 defect.” 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) (rejecting as unreasonable Illinois Supreme Court’s determination 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
22 No. 03-3170

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 conduct 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.

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 thereby disregarded, under the mere finding that Mr. Baird was

under the influence of extreme mental or emotional disturbance. 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 inquiries 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 disturbance.2

Under Supreme Court precedent, balancing of individual

mitigating and aggravating circumstances is left to the sentencer. 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. Constitutionally, it could not, however, as it apparently did, exclude
No. 03-3170 23

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 interpreted 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...)

that relevant mitigating evidence from its consideration in

the appellate reweighing.3
24 No. 03-3170

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 living 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.

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

he consciously acted to “protect himself.”4

 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 receipt of one million dollars was delusional. Indeed, one
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 finding 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. However, “[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 unreasonable 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 evidence 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 accept, 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 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 characterization 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 newfound 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.

that his grandiose plans would be exposed as mere fantasy.”5

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 supports such a “hypothesis.” It is pure surmise, and a man

should not be sent to his death on such a groundless hypothetical. Moreover, the erroneous factual premise appears

to have borne heavily on the reweighing process. Immediately 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
No. 03-3170 27

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 present that issue to the Supreme Court of Indiana in state post-conviction 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...)

premise and the weight assigned to Mr. Baird’s mental condition (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 determination 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

warrants habeas relief under 28 U.S.C. § 2254(d)(2).6

 The
28 No. 03-3170

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 aggravating 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 volitional control was at play and that it should have been weighed

in the sentencing analysis.

most accurate characterization of Mr. Baird’s post-conviction argument is that the diagnosis of the nature of his mental disorder was unclear at the time of trial and that Dr.

Wooden’s diagnosis of delusional disorder during the evidentiary hearing in the post-conviction proceedings constituted 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 substantial 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
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 Mississippi 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