Panel weighs death penalty report
Prosecutor says glitches exist in other states, but not Maryland
Chris Rossi/The Gazette
ANNAPOLIS — To a prosecutor, many of the problems with capital punishment have to do with how it is applied in other states. But to a death penalty opponent, Maryland is far from perfect.
"Just look at the numbers: Four hundred fourteen executions in Texas, five in Maryland. Six hundred sixteen are on death row in California, five in Maryland. Just those numbers alone prove how careful and judicious we are," Baltimore County State's Attorney Scott D. Shellenberger told a state commission looking at capital punishment Tuesday.
But Jane Henderson, executive director of Maryland Citizens Against State Executions, believes the state's record doesn't support his conclusion.
"I was a little stunned to hear Mr. Shellenberger make this assertion that he agrees death is different but in Maryland we always get it right," Henderson said in an interview. "I don't think the record bears that out."
The commission has held five public hearings over three months gauging the state's sentiment on capital punishment. And many of the 85 people who testified referred to reforms in other states, Shellenberger said. New Jersey, for example, abolished the death penalty last year.
"Well guess what, we've had [reforms] here and we've had them for some time," said Shellenberger (D), who was the final person to testify before the panel began deliberating over its recommendations to Gov. Martin O'Malley (D).
But Sen. Jamie B. Raskin (D-Dist. 20) of Takoma Park countered that 63 of the people to testify were from Maryland.
"So three out of four were from Maryland," he said. That included 13 current or former law enforcement officials, two of whom were for the death penalty and 12 members of victims' families, two of whom were for the death penalty.
"If the people who testified at the hearings reflect the sentiment of the state of Maryland, it's time to bag it," said Richard J. Dowling, executive director of the Maryland Catholic Conference, in an interview.
O'Malley convened the 23-member panel in July to study the racial, jurisdictional and socioeconomic disparities in administering the death penalty in Maryland, and the risk of innocent people being executed.
The commission's recommendations are due Dec. 15. It next meets Oct. 24, when it will discuss two outlines for its report. One, prepared by Shellenberger, will advocate for maintaining the death penalty. The other will argue for its repeal.
Benjamin R. Civiletti, former U.S. attorney general and commission chairman, has said that the panel will submit as many minority reports as there are differing opinions.
Henderson said she believes the majority of the panel favors repealing the state's death penalty law.
"They've got 25 hours of testimony addressing all the issues they were asked to address, and it says, Well, you know, you can't really fix this'," she said.
Statistics show that prosecutors in Baltimore County are 13 times more likely to seek the death penalty than those in Baltimore city and five times more likely than those in Montgomery County. But Shellenberger said the numbers are colored by the policy of the county's former state's attorney, Sandra A. O'Connor, who filed for the death penalty in every eligible case.
The office is now more selective in which cases it files as capital offenses, Shellenberger said.
He suggested that the state develop protocols for all state's attorneys to consider in death penalty-eligible cases.
"Certainly you can't mandate as a legislature what someone in Harford County or Montgomery County does, but certainly you can provide them with some guidelines as to what they should consider before they pursue the death penalty or not," he said.
Del. William J. Frank (R-Dist. 42) of Lutherville said guidelines are "a very good idea."
But Matthew Campbell, a panel member who has served in the state's attorney offices in Howard and Montgomery counties, said the discretion over when to seek the death penalty has led to "24 separate administrators of policies in Maryland."
"It can't be fixed," Campbell said. "I just don't know how we as a commission can embrace or countenance or allow to go unaddressed the kind of struck-by-lightning, fortuitous circumstance … about whether someone gets a death notice or does not."
Large portions of Shellenberger's testimony resembled a trial, with Baltimore County's top attorney grilled by fellow attorneys on the commission.
Much of that grilling came from Katy C. O'Donnell, who is chief attorney of the Maryland Office of the Public Defender's Capital Defense Division.
O'Donnell asked Shellenberger about testimony the panel heard concerning the misrepresentation of evidence by a Baltimore County crime lab serologist and by Joseph Kopera, the head of the Maryland State Police firearms unit who committed suicide last year after it was found that he lied about his credentials.
"All of those things are local issues," O'Donnell said. "Do those things disturb you?"
"It is troubling, which is why I launched an investigation in every case he [Kopera] testified," Shellenberger said.
Civiletti, the panel's chairman, asked Shellenberger about the risk of executing innocent people.
The chances of such errors are "substantially diminished because of the nature of DNA evidence now," Shellenberger said.
Civiletti pressed, asking how slim the chance of an error occurring is.
"I would say slim because of DNA technology and slimmer because of Maryland's careful review process," Shellenberger said.
Kirk Bloodsworth, a panel member who was the first person in the United States exonerated by DNA evidence, asked Shellenberger how he could be sure that errors would not occur, as they had in his case, which sent him to Maryland's death row for two years and prison for another seven.
Bloodsworth used a moment in the meeting when Shellenberger cited an incorrect page number in a book about Bloodsworth's case to highlight the fact that mistakes can happen.
"When we're talking about a person's life, there should be no mistakes," said Bloodsworth, who got choked up while talking about his case.