There are two safeguards against prosecutorial misconduct during a criminal trial: a good defense attorney and an impartial trial judge.


Both failed Frederick Michael Baer during his capital murder trial for the brutal murder of a 24-year-old mother and her four-year-old daughter in February 2004. There was never any doubt about Baer’s guilt. He conceded his guilt shortly after his arrest, even telling investigators where the murder weapon could be located. He also conceded his guilt at his 2005 trial in Madison County, Indiana through a mental health defense, offering limited evidence that he lacked the mental capacity to form the requisite intent to commit the murders. The serial rapist and career petty thief tried to convince the jury that his habitual drug use of mostly methamphetamines had robbed him of the intellectual capacity to understand the wrongfulness of his conduct.


The case was prosecuted by Madison County’s Chief Prosecuting Attorney Rodney Cummings who told the jury that if there was one person in Indiana who deserved to be put to death, it was Michael Baer.


Eight years later while on death row Baer agreed with Cummings, saying in a letter to his attorneys that he deserved to die. He asked them to terminate his appeals—appeals that raised arguments that he had been denied effective assistance of counsel during the penalty phase of the trial and that prosecutors Cummings had engaged in a pattern of prosecutorial misconduct designed to secure a death penalty verdict.


The attorneys ignored the letter, pressing forward with his death penalty appeals.


Death Penalty Vacated: Ineffective Counsel, Prosecutorial Misconduct


On January 14, 2018, the Seventh Circuit Court of Appeals upheld Baer’s convictions but vacated his death sentence. The appeals court found that Baer’s trial attorney had ineffectively presented the diminished mental capacity defense with the sufficient prejudice necessary to undermine the jury’s death penalty verdict.


That normally would have ended the appellate inquiry in the case. But the Seventh Circuit chose to lay open the blatant misconduct Cummings had engaged in during the trial, from its start to finish. The appeals court chose this extraordinary review path because neither Baer’s defense attorney nor the trial judge made any real effort to reign in the prosecutor’s intentional misconduct.


This is a case where there was a horrible defendant, a horrific crime, and local social/political outrage sufficient to make the defense attorney neglect his duty to effectively represent the interests of his client and to cause the trial judge to abandon his duty to ensure that Baer received a fair and impartial trial.


Attorneys and Judge Allow Misconduct


Both parties allowed this egregious prosecutorial misconduct to take place during the trial, so much so that the Seventh Circuit could not let it go unaddressed. The appeals court’s initial concern was that the defense attorney failed to object to improper and confusing jury instructions given by the judge and compounded this error by failing to present mitigating evidence against the death penalty. But it was Cummings repeated prejudicial comments throughout the trial that caused the Seventh Circuit its greatest concern and was the reason why the court could not let the death sentence stand. The prosecutor’s comments included:


  • Misrepresentation of the law regarding the insanity defense and a guilty but mentally ill verdict;
  • False claim that no Indiana case authorizes the death penalty following a guilty but mentally ill verdict;
  • False claim that the state legislature was about to abolish the state’s life without parole sentence;
  • Improper references to the victim’s family’s entitlement to a death penalty verdict taken from their Victim Impact Statement;
  • Comments disparaging Baer, his attorney, and his experts; and
  • Introducing his personal opinions and facts that were not in evidence.


Prosecutors Prolific, Improper Comments Compounded by Defense Counsel’s Failure to Object


We agree with the Seventh Circuit: The most troubling aspect about this obvious misconduct was that neither Baer’s attorney nor the trial judge made any real effort to stop, much less prevent, it. They gave the prosecutor a free, unobstructed path to the death penalty. This prompted the appeals court to conclude:


“Cummings’s misstatements were prolific and harmful in Baer’s case, yet Baer’s trial counsel failed to object at every opportunity. Cummings’s comments began in voir dire where his comments conditioned jurors to believe Baer was a liar, that mental illness was a ‘copout’ and ‘defense,’ that Baer should not receive a [guilty but mentally ill] conviction because he appreciated the wrongfulness of his actions (improperly using the insanity defense standard), life without parole was at high risk of providing release, and the [victim’s] family wanted a death sentence. All these comments were made before the jury heard any evidence in Baer’s case. Then, at the close of the penalty phase, Cummings again injected inflammatory comments and facts not in evidence, including remarks about Cummings’s mother’s prostitution, people being laid off to afford the state’s pursuit of the death penalty, and Baer’s crime being worse than any of the prior 125 murders Cummings had heard of in his career in law enforcement. Each of these comments made by Cummings carried the weight and authority of the state.”


Blatant and Intentional Prosecutorial Misconduct


Cummings’s blatant, and intentional, misconduct prompted the Seventh Circuit to ask:


“Can we be certain that Baer would not have been sentenced to death if given a fair trial [by the judge] and effective counsel? No. But, it is ‘reasonably likely’ that without the prosecutor’s injection of impermissible statements and incorrect law [given by the judge] the jurors would not have recommended death … Our confidence in the outcome of Baer’s sentencing proceedings was undermined by the prejudicial prosecutorial comments throughout Baer’s trial. Because Baer’s counsel failed to object to these comments, and to the misleading jury instructions [by the judge], Baer was denied a fair trial and was prejudiced by his counsel’s unprofessional errors.”


Nation’s Criminal Justice System Requires Due Process, Fairness


The very strength of this nation’s adversarial trial system is that the very worst among us is entitled to the same due process fairness as the very best among us. Our trial system does not convict bad people just because they are bad. The prosecution has the burden to prove beyond a reasonable doubt that the bad person did in fact commit the bad act—and it is the trial court and defense counsel’s responsibility to make sure the prosecution carries this burden ethically, fairly, and constitutionally.


The Seventh Circuit found that both defense counsel and the trial judge failed in their duty to keep the prosecution honest in the Baer case.