Yesterday the Court of Appeals scheduled one of my appeals for an oral argument at the Andrean High School in Merrillville, Indiana. My client was convicted of murder after the State alleged he battered his child, resulting in a fatal head injury. I raised three issues for the Court’s consideration. First, whether fundamental error occurred when the prosecutor argued to the jury that one can commit “knowing” murder merely by knowing that the person was engaging in particular conduct that led to the victim’s death (in this case, a battery). The prosecutor’s arguments could be understood to mean that the State need not prove that the defendant knew the conduct could lead to the victim’s death.

Second, whether the State presented sufficient evidence to prove the defendant did indeed possess that knowledge. And finally, whether the maximum sentence of 65 years was inappropriate.

Indiana, unlike other states, treats “knowing” murder and “intentional” murder the same. In other words, one who commits a murder knowingly is punished as harshly as one who intended to kill another. Yet what must be proven to establish a knowing killing is much different. To commit a killing “knowingly,” the State must prove beyond a reasonable doubt that the defendant himself was aware of a high probability that the conduct he was engaged in a killing.

Studies have shown that juries struggle with discerning between “knowing” conduct and “reckless” conduct. In fact, many describe the “knowing” element as “reckless-plus.” To do something knowingly necessarily requires more than simply doing something recklessly (which Indiana punishes at a less serious felony level and a lower sentencing range). In Indiana, one engages in conduct “recklessly” when he does so in “plain, conscious, and unjustifiable disregard” of the harm that might result. One can see how drawing a distinction between plainly disregarding a potential harm and being subjectively aware that harm is highly likely to occur would be difficult.

The argument is scheduled for March 16th.