Attorneys for the state are pushing for an execution date for convicted murderer Joseph Corcoran. Photo by Joe Raedle of Newsmakers.

By Casey Smith
Indiana Capital Chronicle

INDIANA — After death row inmate Joseph Corcoran challenged the state’s motion for an execution date to be set, counsel at the attorney general’s office are attempting to poke holes in Corcoran’s legal arguments and pressing for the Indiana Supreme Court to grant the execution request.

Earlier this month, Corcoran’s lawyers said in court filing that he is “unquestionably seriously mentally ill” and therefore should not be subject to the death penalty.

But in court documents filed last week, the state attorney general’s office maintains that Corcoran “long ago exhausted his legal challenges to his convictions and sentence.”

To attack his sentence and ultimately avoid the death penalty, Corcoran would have to gain permission from the Indiana Supreme Court to seek postconviction relief and prove new evidence warrants additional litigation. Because Corcoran has not submitted such a petition, the state argued that Indiana’s high court must assign an execution date.

“ … in his response, (Corcoran) asks this Court to proclaim new bounds on the constitutionality of the death penalty in this State, and to declare his sentence inappropriate. He claims this extraordinary reversal is warranted by intervening changes in the law and an allegedly significant decline in his mental health. But he provides no evidence of these changed circumstances and does not seek the opportunity to prove these allegations in a trial court,” the state said in the July 19 filing.

“Corcoran provides no evidence to support his claim that his present mental condition has severely deteriorated and does not seek permission to pursue the process that would permit him to provide the Court that information if it exists,” state attorneys continued.

Corcoran, who was convicted of murdering four people in Fort Wayne in 1997, filed his response with the Indiana Supreme Court shortly after Indiana Gov. Eric Holcomb and Attorney General Todd Rokita announced that the state’s Department of Correction has obtained the drug necessary to carry out the death penalty.

It remains up to the state’s high court justices how to proceed.

Debate Continues Over Execution Date

State and federal public defenders said in their challenge that Corcoran has long been diagnosed as mentally ill and continues to suffer from paranoid schizophrenia that causes him to experience “persistent hallucinations and delusions.”

As such, they said the state supreme court should deny the motion to set an execution date and hear oral arguments on whether executing Corcoran would be permitted under the Indiana and United States constitutions.

Rokita’s office outlined, though, that Corcoran can only dispute his sentence through a petition for postconviction relief or a challenge based on new evidence — including a claim that his present mental condition “makes it unconstitutional to execute him.”

“But even assuming that is the case (which the State does not concede), both this Court and the U.S. Supreme Court have declined to find that the existence of mental illness alone precludes execution,” state attorneys wrote, adding that Corcoran “makes no effort to address the likelihood that he would prevail” on postconviction claims.

The state emphasized that Corcoran also has not argued that he’s ineligible to be executed under existing legal standards, such as a claim that his mental illness “is so severe that it prevents him from currently understanding the punishment he will suffer and why.”

“Corcoran provides no evidence to support his claim that his present mental condition has severely deteriorated and does not seek permission to pursue the process that would permit him to provide the Court that information if it exists,” the attorney general’s office continued.

State Rejects Questions About Execution Drug

Corcoran’s legal counsel have additionally called into question the execution drug, pentobarbital, recently acquired by the state but largely shrouded in secrecy by state officials.

The death row inmate’s attorneys argued that an execution date should not be set until the state releases an updated execution protocol and “affirms no state or federal laws were broken in obtaining the drugs.” They’re also seeking information about the amount of pentobarbital in the state’s possession and whether the drug has expired.

Rokita’s office noted that Corcoran has a legal process available to address concerns about the use of pentobarbital “but has not availed himself of it.” If Corcoran wants to challenge the method of execution — he must file a lawsuit, the office claims.

“Corcoran asks this Court to indefinitely delay scheduling execution until he receives an amorphous list of information related to the execution process,” the attorney general’s office said in the legal filing. “… he seems to believe he can make a bare request for some time to do some investigation. That is not the case.”

When asked last month by the Indiana Capital Chronicle where DOC acquired the drug and how much the state paid, Holcomb said he “can’t go into those details, by law.”

Lawmakers made information about the source of the drugs confidential on the last day of the 2017 legislative session.

The Capital Chronicle has filed an official records request seeking the cost of the drugs.

So far, the DOC said it’s currently evaluating “what, if any, information regarding its lawful procurement” of pentobarbital it can disclose “without contravening Indiana law.”

“As recent reporting on events outside of Indiana has underscored, information that is disclosed about the lawful procurement of lethal substances is being used to publicly identify suppliers and deter them from participating in the process,” IDOC officials said in response to the Capital Chronicle’s request. “Accordingly, the agency must balance the rights afforded under Indiana’s Access to Public Records Act with its legal duty to carry out the lawful orders of Indiana’s courts by obtaining lethal substances and to comply with the aforementioned confidentiality statute.”

Advocates have additionally said it’s critical for the public to know who will be administering the drug — and how — as well as what training those individuals will receive.

The one-drug method is a departure from the state’s protocol used since 1995, involving a series of three chemicals.

Although no state-level executions in Indiana have used pentobarbital before, 13 federal executions carried out at the Federal Correctional Complex in Terre Haute have been carried out with the drug. Fourteen states have used pentobarbital in executions, too.

After Indiana’s last execution in 2009, the state was effectively forced to pause. Increased scrutiny of lethal injection drugs led pharmaceutical companies to refuse to sell their products for use in executions. Holcomb said that made acquiring the necessary drugs “harder to get.”

There are currently eight men on Indiana’s death row, including Corcoran. No one has been added to the state’s death row since 2014.