Indiana’s highest court unanimously rejected death row inmate Jeffrey Weisheit’s request Thursday to postpone his execution for brain scans, saying the governor’s administration can arrange the testing without a court order, should it choose to do so.
“If the board or the governor finds the medical evidence relevant, the executive branch maintains its own authority to transport him without a court order,” the justices wrote.
Weisheit’s attorneys sought to move his execution to Nov. 19 and postpone clemency proceedings so experts could assess brain injuries they contend affected his behavior before the 2010 murders of 8-year-old Alyssa Lynch and her 5-year-old brother, Caleb.
Weisheit was sentenced to death in 2013 for killing the children in a fire at his home near Evansville while their mother, his girlfriend, worked an overnight shift. His execution is scheduled to take place before sunrise Nov. 5 at Indiana State Prison in Michigan City.
No clemency decision had been announced Thursday. Board members said one was not expected before Friday at the earliest, however.
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Braun will make the final decision after receiving a nonbinding recommendation from the Indiana Parole Board, which heard testimony Oct. 16 and 19.
The state’s high court said Weisheit cited no authority allowing it to control clemency proceedings.
The justices noted, too, that Weisheit’s attorneys had identified two other potential grounds for seeking an execution stay: a challenge to Indiana’s execution method and a request for permission to reopen post-conviction proceedings. Neither had been filed as of Thursday’s order, and the court said Weisheit had not initiated a proceeding that would give it authority to order his transportation for brain scans.
U.S. District Judge Sarah Evans Barker previously approved funding for potential brain scans but ruled Oct. 7 that she lacked authority to compel state officials to transport him for evidence gathering in a state clemency case.
The attorney general’s office opposed both emergency motions. A defense reply received Monday exceeded filing limits and lacked a motion seeking permission for the additional length, according to the docket.
During clemency hearings, Weisheit’s attorneys and family urged a sentence of life without parole. The children’s father also supported clemency. Their mother, though, urged officials to uphold the death sentence.
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