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In the

Indiana Supreme Court
Norman TIMBERLAKE, Petitioner, v. STATE of Indiana, Respondent. ) ) ) ) ) ) Supreme Court Cause No. 49S00-0606-SD-235 Marion Superior Court Case No. 49G02-9302-CF-014191

ORDER STAYING EXECUTION OF DEATH SENTENCE Norman Timberlake was sentenced to death for murdering Master Trooper Michael Greene, a law enforcement officer acting in the line of duty. We affirmed the conviction and sentence and subsequently affirmed the denial of post-conviction relief. His execution date is set for January 19, 2007. For the reasons explained below, Timberlake's request for a stay of the execution is granted. On December 15, 2006, this Court denied Timberlake's request to file a successive petition for post-conviction relief. Timberlake v. State, 858 N.E.2d 625 (Ind. 2006) (hereinafter Timberlake V). In his request, Timberlake claimed that the execution of his death sentence "will violate the Eighth and Fourteenth Amendments to the United States Constitution and Article 1, Sections 13, 16 and 18 of the Indiana Constitution because he is severely mentally ill, insane and incompetent to be executed." Id. at 627-28 (internal quotation marks omitted) (footnotes omitted). We agreed that the Eighth Amendment prohibits a state from executing persons who are insane at the time of execution, but applied the standard for insanity adopted by Justice Powell's concurring opinion in Ford v. Wainwright, 477 U.S. 399 (1986); Id. at 628: persons are insane if they are "unaware of the punishment they are about to suffer and why they are to suffer it." Ford, 477 U.S. at 422 (Powell, J., concurring). We requested evaluation of Timberlake by George Parker, M.D., an independent psychiatrist. Dr. Parker reported that Timberlake suffered from "an active and severe form of a serious mental disease" and believed that a "machine" spoke to and tortured him. Dr. Parker noted that "Timberlake's thought content was significant for multiple paranoid delusional beliefs, centered on his conviction that he was being tortured by a computer-driven machine at the behest of prison officials," and that he "has essentially no insight into his mental illness, as he is absolutely convinced that he is not insane, that the machine is real and that he does not have any form of mental illness." Dr. Parker concluded that Timberlake was not malingering in his claims. Timberlake V, 858 N.E.2d at 629-30. Dr. Parker found that Timberlake understood that he is to be executed and why. Accordingly, Timberlake did not meet the Ford formulation of insanity and thus, in the view of a majority of this Court, was not entitled to file a successive petition for post-conviction relief. Id. at 630. The Ford standard for insanity has never been squarely adopted by the U.S. Supreme Court. Justice O'Connor, speaking for a majority in Penry v. Lynaugh, 492 U.S. 302, 333 (1989), quoted Justice Powell's standard for insanity with approval, and most state and federal

courts have taken this as a definitive endorsement of the Powell insanity formulation by the majority of the Supreme Court. But it is clear that Justice O'Connor's statement in Penry was dicta. Penry dealt with mental retardation, not insanity. Penry held that executions of mentally retarded persons were permissible, and Penry has since been overruled by Atkins v. Virginia, 536 U.S. 304 (2002). A recent development suggests that the Supreme Court of the United States may soon revisit and address the application of the Eighth Amendment to claims that mental illness bars execution. On January 5, 2007, the Supreme Court of the United States granted certiorari to the Court of Appeals for the Fifth Circuit in Panetti v. Dretke, 448 F.3d 815 (5th Cir. 2006). Panetti v. Quarterman, 2007 WL 30552 (U.S. Jan 05, 2007). The question presented to the United States Supreme Court in the petition for certiorari in Panetti is: Does the Eighth Amendment permit the execution of a death row inmate who has a factual awareness of the reason for his execution but who, because of a severe mental illness, has a delusional belief as to why the State is executing him, and thus does not appreciate that his execution is intended to seek retribution for his crime? Panetti was convicted of murdering his wife's parents and was sentenced to death in a Texas state court. He sought federal habeas corpus relief, contending that he was insane, and therefore could not be executed consistent with the Eighth Amendment to the Federal Constitution. The district court found that Panetti believed that the State was "in league with the forces of evil to prevent him from preaching his Gospel" and that he is being "persecuted for his religious activities and beliefs." Panetti v. Dretke, 401 F. Supp. 2d 702, 707, 709 (W.D. Tex 2004). The district court, nevertheless found Panetti competent to be executed because he knew he was to be executed for these murders under the Powell/Ford test. Panetti appealed to the Fifth Circuit, arguing that "the Eighth Amendment forbids the execution of a prisoner who lacks a rational understanding of the State's reason for execution." Panetti, 448 F.3d at 817-18. He contended "his understanding is lacking in his case because he believes that, although the State's purported reason for the execution is his past crimes, the State's real motivation is to punish him for preaching the Gospel." Id. at 818. The Fifth Circuit affirmed the denial of habeas relief, holding that "`awareness,' as that term is used in Ford, is not necessarily synonymous with `rational understanding.'" Id. at 821. The United States Supreme Court has now agreed to review that decision. Its opinion may reconfirm or depart from the approach of Justice Powell in Ford. Presumably we may have a decision before the end of this Term of the Court in late June 2007. Timberlake's situation is sufficiently similar to Panetti's that a stay of Timberlake's impending execution is appropriate. As noted above, Timberlake has an understanding that he is being executed for killing Trooper Greene. His is in many respects a more blameworthy crime than Panetti's. Nonetheless, Dr. Parker reports that Timberlake suffers from a severe mental disease. If the Supreme Court interprets the Eighth Amendment in a manner significantly different from Justice Powell's concurrence in Ford, Timberlake's execution may prove to be prohibited by the Eighth Amendment. We grant a stay to prevent learning the answer to that question after it is too late.

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The decision whether to grant a stay of Timberlake's execution pending the Supreme Court's decision in Panetti is a responsibility of this Court, not the federal courts. Timberlake's successive petition for federal habeas relief was filed before the Supreme Court granted certiorari in Panetti. Shortly after the grant of certiorari, the United States District Court for the Southern District of Indiana denied Timberlake relief. Under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), if a state court adjudicated a constitutional claim on the merits, a federal court may grant habeas relief only if (1) the state court decision was contrary to, or involved an unreasonable application of, Supreme Court precedent; (2) the state court decision was based on an unreasonable application of Supreme Court precedent; or (3) the state-court decision was based on an unreasonable determination of the facts in light of the evidence presented in the state proceeding. 28 U.S.C.

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