Does killer fathom his execution?

Nearly 15 years have passed since Michael Dean Overstreet was sentenced to death for the rape and murder of Franklin College freshman Kelly Eckart.

After a series of state and federal appeals, including an unsuccessful attempt to get the U.S. Supreme Court to intervene, Overstreet is facing what could be his final chance to escape death by lethal injection. The current challenge focuses on whether Overstreet, 47, is able to understand his fate and why the state wants to execute him.

The long and twisted legal case is coming to a head as support for the death penalty is at a 40-year low and there are growing concerns about the use of lethal injections. That concern was highlighted by an execution Jan. 16 in Ohio where the condemned man gasped and appeared to suffer for several minutes before dying.

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It also comes as Eckart's family is saying enough is enough.

"I just think it needs to be done," said the victim's mother, Connie Sutton, "so we can move on with our lives and Kelly can finally rest in peace."

Sutton may get her wish for a final resolution to the legal wrangling that has been part of her life since 2000, but the outcome may not provide the ultimate justice she desires.

"Generally speaking, the chances for reversing a death penalty case diminish with each proceeding," said Joel Schumm, a law professor at the Indiana University Robert H. McKinney School of Law in Indianapolis. "Here, though, the claim is new and different. Competence to be executed is not a claim that is ripe until near the time of the execution."

It also is possible that Overstreet's attorneys may challenge the lethal injection protocol, Schumm added, "in light of the recent problems on Ohio."

But as the case grinds toward a final resolution, it is an agonizing time for all involved.

Case back before trial judge

Overstreet's fate is back in the hands of Johnson Superior Court Judge Cynthia S. Emkes, the same judge who sentenced him to death 14 years ago.

His prior appeals focused on issues such as the effectiveness of his trial attorneys, his mental state at the time of the crime and procedural decisions at his trial. The new competency challenge, according to at least one medical expert, is one that Overstreet is unable to grasp.

The Indiana Supreme Court, in an order issued Sept. 3, sent the case back to Emkes to decide claims by Overstreet's lawyers that he "is not currently competent to be executed."

The Eighth Amendment to the U.S. Constitution prohibits states from executing a person who is incompetent. The U.S. Supreme Court has said that "encompasses persons 'who are unaware of the punishment that they are about to suffer and why they are to suffer it,'" the state Supreme Court order notes.

The state Supreme Court directed Emkes to issue judgment in the case no later than March 3. But that deadline was extended, and no new end-date has been set. A hearing, which could last a week or more, should be scheduled soon.

Criminal defendants often raise incompetence or insanity defenses at the time of determining guilt, but it is less common at time of sentencing.

Public defender Steven Schutte, who has represented Overstreet in state appeals since 2005, called the competency challenge "pretty rare." The standard for proof, he explained, "is very exacting and precise."

"I've been doing these cases for 20 years, and it is not normal for competency to be raised," Schutte said. "Dean is the first guy, in my experience, that I thought was not able to understand what's going on."

'He's not malingering'

Overstreet is not, Schutte said, faking his mental problems.

The Supreme Court sent the case back to Emkes based on a report from forensic psychiatrist Dr. Rahn K. Bailey, who examined Overstreet twice in 2013. He concluded "Overstreet does not have, and does not have the ability to produce, a rational understanding of why the state of Indiana plans to execute him."

"There's no doubt that he's not malingering," Schutte said. "There's no doubt that he's not exaggerating."

Overstreet did not pursue an insanity defense in his trial, claiming innocence instead. But his mental problems were raised during the penalty phase that resulted in him receiving the death penalty.

The state is being represented in the appeals case by staff from the Indiana attorney general's office.

"The state's legal position," spokesman Bryan Corbin said, "continues to be that the underlying sentence should remain intact and not be overturned."

Emkes' ruling in the case may not be the final word, legal experts said, because it can be appealed to the state Supreme Court.

But unless a new challenge is mounted over issues related to the lethal injection process, the long legal fight should finally end with a the state's high court ruling on Overstreet's competency.

The challenge before Overstreet's attorneys is not a simple one.

Competency a tricky issue

The issue of competency is "one of the most disturbing aspects of the death penalty," said Diann Rust-Tierney, executive director of the National Coalition to Abolish the Death Penalty.

The U.S. Supreme Court has left the process for determining competency to the states, she said. The result: prisoners she and others believe were incompetent have been executed in other states.

"We are concerned that states do not have adequate procedures to make that determination," she said. "I am hoping that the Indiana officials and courts take a close look at that issue."

Schumm, the IU law professor, said the prosecution will likely present testimony from other doctors who disagree with the opinion the forensic psychiatrist presented to the state Supreme Court.

"The trial judge will ultimately need to weigh the conflicting evidence, and the Indiana Supreme Court will give deference to her determination," he said.

To prevail, Schumm said Overstreet's attorneys will need to convince the judge of three things: Overstreet suffers from a severe, documented mental illness; that mental illness is the source of gross delusions; and those gross delusions place the "link between a crime and its punishment in a context so far removed from reality" that it prevents him from "comprehending the meaning and purpose of the punishment to which he has been sentenced."

Schumm said Overstreet's long-standing diagnosis as paranoid schizophrenic likely satisfies the first requirement.

"The third requirement," he added, "may be the most challenging to meet."

Indiana's Death Row

Overstreet is one of 13 inmates on Death Row in Indiana.

He was convicted and sentenced in 2000, three years after Eckart was abducted while heading home from her night shift job at a Wal-Mart. Authorities said he didn't know Eckart but somehow tricked the 18-year-old into stopping her car at an intersection on the outskirts of Franklin where it was found abandoned, with the headlights on and keys in the ignition.

Eckart's body was discovered four days later in a ravine in Brown County. Acting on information provided by Overstreet's brother, investigators found a hand-drawn map of the location of her body at Overstreet's home several days later, and DNA testing tied him to sperm found in her underwear.

None of Indiana's other Death Row inmates has an execution date set, according to Department of Correction spokesman Douglas S. Garrison. If Overstreet loses the competency challenge, he could be next in line to be executed.

Indiana's last execution was Dec. 11, 2009, when Matthew Wrinkles, 49, was put to death by lethal injection for the 1994 killings of his wife, her brother and sister-in-law in Evansville.

Wrinkles was among 14 inmates executed in the first decade of the millennium, the most since the 1930s when 32 were executed in Indiana's electric chair. The executions from 2000 to 2009 included five in 2005, the most in a year since 1938, when the state executed eight.

Since 1900, Indiana has executed 90 men, including 20 after the death penalty was reinstated in 1977. Indiana has never executed a woman, but one female — Debra Denise Brown, who was sentenced to death in 1986 — is being held in Ohio on another murder charge.

Indiana law since 1996 has called for executions by "intravenous injection of a lethal substance or substances ... in a quantity sufficient to cause the death of the convicted person." The substances used, however, is left to the Department of Correction.

Indiana has used a three-drug combination that first renders the person unconscious, then stops breathing and, finally, stops the heart. But the manufacturer of sodium thiopental, which Indiana and many other states had used in the first phase, has stopped making it available in the U.S. due to opposition to its use in executions.

Garrison said Indiana plans to continue with the same protocol, replacing sodium thiopental with another drug from the same class.

"It is not," he stressed, "the way they did it in Ohio."

Garrison was referring to the Jan. 16 execution of Dennis McGuire. Ohio officials used a new drug mix, and witnesses reported it took more than 10 minutes for McGuire to die. During that time he gasped loudly for air, "making snorting and choking sounds ... with his chest heaving and his fist clenched," The Columbus Dispatch newspaper reported.

The horror of this incident added to the chorus of people who say the death penalty is barbaric.

Their opinion, however, appears to be in the minority.

Majority support death penalty

A majority of Americans support the death penalty, according to Gallup polling in October. But the 60 percent approval rating is the lowest since 1972. Support peaked at 80 percent in 1994.

"Most people in this country think it is the only appropriate punishment for the worst murders and that any alternative is not appropriate justice," said Michael Rushford, president of the Criminal Justice Foundation in Sacramento, Calif.

While the deterrent value remains hotly debated, Rushford said, "if it saves one life, it seems worth it to me."

Indiana is among 32 states that have a death penalty. Since 2006, six states — including Illinois — have stopped executing criminals. Those decisions have been driven by several factors, including moral opposition, the chance of an innocent person being executed and costs associated with the lengthy trial and appeals process.

The clock on Overstreet's case has ticked on now for almost 15 years, less than the 16-year average from sentence to execution in Indiana since the state reinstated the death penalty in 1977.

It's far too long for Eckart's mother and family.

Sutton says she "didn't really think about the death penalty" until her daughter was killed. And she said her her support for the prosecutor's push to seek death for Overstreet was not a fast or easy decision.

"We prayed about it and talked to our minster about it," she said. "It wasn't something we took lightly."

Now, she said, it's time to bring the case to a close.

"Kelly," she said, "didn't get 14 years to plead for her life."

Call Star reporter Tim Evans at (317) 444-6204. Follow him on Twitter: @starwatchtim.