Two weeks ago, the Seventh Circuit Court of Appeals reversed the death sentence of Frederick Michael Baer, who was found guilty of killing a young mother and her daughter in Madison County, Indiana. The court held that Madison County’s elected District Attorney, Rodney Cummings, made improper comments throughout the trial, and the defense lawyer’s failure to object to them compromised Mr. Baer’s right to a fair determination of his sentence. The reversal not only calls into question Mr. Cummings’s conduct in what may be the most high-profile case he ever prosecuted, but it also highlights a fundamental lesson we emphasize often at The Open File: a prosecutor’s misconduct in one case may not be an isolated occurrence. Journalists, lawyers, and members of the public seeking accountability should dig deeper and find out whether a pattern exists. Mr. Cummings, like all people, is complicated and has redeeming qualities, but he also has displayed a tendency to take his constitutional duties for granted.
The Seventh Circuit left no doubt that Mr. Cummings ran roughshod over Mr. Baer’s individual rights at several stages of the trial. It began during jury selection, where “[i]n front of jurors and prospective jurors, the prosecutor persistently began stating the incorrect standard for a GBMI [Guilty But Mentally Ill] conviction.” More than that, he “encouraged jurors to recite this incorrect standard in response to his questioning.” By conflating the standard for a GBMI verdict with that of an insanity defense, Mr. Cummings was both raising the defense’s burden and undercutting the potential mitigating impact of their client’s mental health problems. (The defense team sought a GBMI verdict, which would have still resulted in a conviction and potential death sentence, but would also entail a recognition of Baer’s mental illness at the time of the offense.) The prosecutor also tilted the scales towards a death verdict, making false “statements suggesting that life without parole may be abolished and incorrectly suggested that a GBMI conviction might not permit a death sentence.” Perhaps most disturbingly—despite clear caselaw holding that the Constitution does not allow members of the victims’ family to request the jury to return a specific verdict in a capital prosecution—“[t]he prosecutor also told jurors that the victims’ family wanted Baer to be put to death.” The “story of prosecutorial misconduct found in the transcript” was so “troubling” to the court that it wrote an opinion addressing the issue even though it had decided to overturn the defendant’s death sentence on other grounds.
The question of whether there was misconduct did not turn out to be a close call at all. The court found “a pattern of prosecutorial misbehavior.” In addition to the misleading and problematic comments he made during jury selection, Mr. Cummings dug the constitutional hole even deeper during his closing arguments. At one point, in attempting to diminish the defendant’s mitigation, “Cummings . . . told the jury . . . that Cummings’s childhood was worse than Baer’s childhood.” He shoveled harder, “urg[ing] the jury to vote for the death penalty to justify the money that was being spent on the trial.” Although the DA prevailed in state courts and the lower federal district court, the Seventh Circuit finally called the prosecution’s bluff, overturning the death penalty nearly 13 years after it was ill-gotten at trial.
So-called “tough-on-crime” prosecutors often trumpet their credentials in their online biographies. One has to ask: does Rodney Cummings need to update his bio? Right now, its reference to “one successful death penalty prosecution” is disconcerting in light of the Seventh Circuit’s decision.
While it was downright inappropriate for Mr. Cummings to discuss his own childhood in the middle of a death penalty prosecution, there is no denying that he had a difficult upbringing. He was able to turn things around with the help of some generous local police officers that took him under their wings and a gubernatorial pardon in 1979 that cleared up his felony criminal record and enabled him to pursue professional opportunities in law enforcement. He first served on the local police force, and, after completing his law degree, he became the Madison County DA.
Mr. Cummings has referred to his past and explained that he believes in giving young, non-violent, first-time offenders a second chance. Yet, if a defendant is not all of those things, the DA professes a commitment to being “tough.” Does he take it too far? It turns out that the Baer case is not the only one in which a court has identified prosecutorial misbehavior by Madison County’s DA.
In another murder prosecution, Marcum v. State, the Supreme Court of Indiana observed that although Mr. Cummings’s aggressive comments did not cross the constitutional line, they did cross the professional ethical line. In its words: “many of Cummings’ comments, which often belittled and ridiculed defense counsel, were inconsistent with the requirement that lawyers ‘demonstrate respect for the legal system and for those who serve it, including . . . other lawyers.’” It frowned upon his “demeaning remarks directed at defense counsel” and wrote that “many of Cummings’ comments were improper, and some appear to be direct violations of the Rules of Professional Conduct.” The Court nonetheless denied the defendant’s constitutional claim for relief. It’s not difficult for a prosecutor to sidestep a court’s huffing and puffing, particularly when it leaves the conviction intact and the state disciplinary commission takes no action.
DA Cummings was involved in a more public ethical battle when the murder conviction of Walter Goudy eventually unraveled. As a detective in the Anderson Police Department in 1993, Cummings investigated the shooting of Marvin McCloud. Cummings obtained a pretty shaky eyewitness identification of Goudy. The then-DA later dismissed charges after a boatload of witnesses put Goudy of town at the time of the crime. But, when Cummings ascended to become the DA, he re-filed charges. Mr. Cummings recused himself from the ultimate prosecution, but Goudy was convicted nonetheless. In 2010, the Seventh Circuit threw out the conviction because law enforcement had failed to disclose to the defense team several pieces of information that pointed to a different suspect and contradicted testimony given by key State witnesses. Two years later, a special prosecutor dismissed the charges against Goudy. Mr. Goudy recently sued Mr. Cummings and other law enforcement officers for their roles in his wrongful conviction; astoundingly, the lawyers representing Cummings were sanctioned because they had improperly withheld evidence from Goudy in the civil case.
Mr. Cummings professes a belief in second chances, at least for a limited group of criminal offenders. But, what of repeat offenders? Prosecutors who breach their ethical and constitutional obligations—whether once or multiple times—pretty much escape punishment universally. Nevertheless, when those transgressions come to light, the question of whether those individuals in positions of mind-blowing power deserve second, third, and fourth chances needs to be asked, and it needs to be answered. Meanwhile, Mr. Cummings is in his fifth term in office.