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In the Indiana Supreme Court
Arthur Paul BAIRD, Petitioner, v. STATE of Indiana, Respondent. ) ) ) ) ) ) ) Supreme Court Cause No. 54S00-0505-SD-240 Montgomery Circuit Court Cause No. CR85-66

ORDER CONCERNING SECOND SUCCESSIVE POST-CONVICTION PETITION IN CAPITAL CASE Having completed the judicial review to which he is entitled as a matter of right, Petitioner Arthur Baird remains convicted of three counts of murder and sentenced to death. Execution of the death sentence is set for August 31, 2005 "before sunrise." Baird has now filed numerous papers, the core of which is a claim that he is "presently incompetent to be executed" under Ford v. Wainwright, 477 U.S. 399, 106 S.Ct. 2595 (1986). The State opposes Baird's request for relief. 1 We have jurisdiction because Baird is sentenced to death. See Ind. Appellate Rule 4(A)(1)(a). Ford v. Wainwright holds that the Eighth Amendment prohibits a state from executing persons who are insane at the time of execution. 477 U.S. at 409-10, 106 S.Ct. at 2601-02. In this context, persons are insane if they are "unaware of the punishment they are about to suffer and why they are to suffer it." See, e.g., Penry v. Lynaugh, 492 U.S. 302, 333, 109 S.Ct. 2934, 2954 (1989) (effectively adopting Justice Powell's definition of insane from his concurring opinion in Ford), abrogated in part on other grounds in Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242 (2002); accord Order, Fleenor v. State, No. 41S00-9910-MS-625 (Ind. Dec. 6, 1999) (unpublished; applying Ford standard of insanity to prisoner's successive post-conviction claim). At this stage of the proceedings, there is a presumption that the prisoner is sane. Ford, 477 U.S. at 426 (Powell, J., concurring) (when prisoner was competent to stand trial, "[t]he State . . . may properly presume that petitioner remains sane at the time sentence is to be carried out, and may
Baird filed: "Verified Motion For Psychiatric Evaluation;" "Petitioner's Verified Request Regarding Competency To Be Executed And Petitioner's Motion For Immediate Stay Of Execution;" "Motion For Order To Notify;" "Proposed Successive Petition For Post-Conviction Relief;" "Reply On Second Successor Request And Other Related Pleadings;" "Tender Of Supplemental Authorities" filed August 5, 2005; "Request For Funding And Hearing;" "Notice Of Tender" with affidavits filed August 5, 2005; "Tender Of Supplemental Authority" filed August 10, 2005; "Notice Of Tender" with Psychiatric Evaluation filed August 22, 2005; and "Baird's Response To Respondent's Tender And Reply To Respondent's `Response To Petitioner's Tender Of Additional Materials"" filed August 25, 2005. The State filed: "Response To Verified Request Regarding Competency, Motion For Immediate Stay, And Verified Motion For Psychiatric Evaluation;" Response To Petitioner's Tender Of Additional Materials" filed August 22, 2005; and "Submission Of Videotaped Interview Of Petitioner" filed August 22, 2005.
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require a substantial threshold showing of insanity to trigger the hearing process." (footnote omitted)); see also Coe v. Bell, 209 F.3d 815, 820 (6th Cir); accord Order, Fleenor, at 1-2. A claim such as Baird's is among those that our post-conviction rule on successive postconviction petitions was designed to address. See Ind. Post-Conviction Rule 1(12); Order, Fleenor, at 2. Under our rule, a person who has been convicted of a crime may be permitted additional post-conviction review even after the conclusion of review to which the person is entitled as a matter of right, i.e., direct appeal and a first post-conviction proceeding. A Ford claim is one that by its nature arises after the usual channels of appeal have been exhausted. See, e.g., Stewart v. Martinez-Villareal, 523 U.S. 637, 645, 118 S.Ct. 1618, 1622 (1998). Baird exhausted those appeals in April when the United States Supreme Court denied his petition for a writ of certiorari in his federal habeas appeal. Baird could have raised his Ford claim in the first successive post-conviction petition he presented to us the next month because an order from this Court setting an execution date was imminent. Nonetheless, we consider Baird's claim that he may not be executed consistent with Ford. Because Baird has completed the review to which he is entitled as a matter of right, 2 he needs our permission to litigate the Ford successive post-conviction claim. We will authorize such a proceeding to go forward "if the petitioner establishes a reasonable possibility that the petitioner is entitled to post-conviction relief." P-C.R. 1 (12)(b). In deciding whether Baird has made the required showing, we consider the applicable law, the petition, materials from his prior appeals and post-conviction proceedings including the record, briefs and court decisions, and any other material we deem relevant. See id. If we authorize the proceeding to go forward, the case returns to the trial court for further proceedings in accordance with Post-Conviction Rule 1. We turn to Baird's claim that he is "presently not competent for execution." As just indicated, we apply the Ford standard: persons are insane if they are unaware of the punishment they are about to suffer and why they are to suffer it. In support of the claim, Baird submitted affidavits from two attorneys and an affidavit of Howard Wooden, Ph.D., a mental health professional who examined Baird some ten years ago. See Notice of Tender filed August 5, 2005. Later, Baird submitted a report from Philip M. Coons, M.D., a psychiatrist who examined Baird on August 18, 2005. See Notice of Tender filed August 22, 2005. These materials do not support the conclusion that Baird is insane under the Ford standard, and, indeed, suggest the opposite. Presently, according to the papers Baird has filed, he "knows that he is sentenced to die for killing his wife and parents, only because he has been told such by the jury, judge, and society," but "[h]e does not know intellectually or emotionally why he is to suffer the death
We affirmed Baird's convictions and sentence on direct appeal in Baird v. State, 604 N.E.2d 1170 (Ind. 1992), reh'g denied (1993), cert. denied, 510 U.S. 893 (1993). We affirmed the trial court's judgment denying collateral state post-conviction relief in Baird v. State, 688 N.E.2d 911 (Ind. 1997), reh'g denied (1998), cert. denied 525 U.S. 849 (1998). The federal district court denied his petition for writ of habeas corpus in Baird v. Davis, No. TH 98-70C-M/F (S.D. Ind. Jul. 17, 2003) (unpublished order), which denial was affirmed by the Court of Appeals for the Seventh Circuit in Baird v. Davis, 388 F.3d. 1110 (7th Cir. 2004), cert. denied, 125 S.Ct. 1849 (Apr. 18, 2005). In addition, we recently denied Baird's first successive post-conviction petition in Baird v. State, 831 N.E.2d 109 (Ind. Jul. 19, 2005).
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penalty." Request for Stay at 3,

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