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Behind the debate

Listening to 84 witnesses, members of the commission on capital punishment found their eyes opened to aspects of the death penalty that surprised and sobered them.

Benjamin R. Civiletti

Chairman Benjamin R. Civiletti oversaw Maryland's Capital Punishment Commission as it heard testimony on the complexities and perplexities of the death penalty. (Baltimore Sun photo by Patrick Smith / August 19, 2008)

When the New Jersey legislature voted late last year to repeal the death penalty, it did so on the heels of a near-unanimous recommendation from a state commission that said capital punishment was too costly, too arbitrary and too tough on victims' families to justify the risk of an irreversible mistake.

So when Maryland lawmakers created a panel to study the issue, death penalty opponents hoped it would produce a similar recommendation and provide the boost needed to repeal the death penalty law.

Last week, they got that recommendation - but on a much closer vote than in New Jersey, where the margin was 12-1.

The Maryland Commission on Capital Punishment found, by 13-7 vote, that the state should abolish the death penalty because it carries the "real possibility" of executing innocent people and may be biased against blacks.

Once the 23-member commission issues its final report in mid-December, the focus will shift to the General Assembly, where previous repeal efforts have narrowly failed despite a high-profile campaign by Gov. Martin O'Malley.

A look back at the commission's work highlights the divisions among members - and pinpoints issues likely to resurface in General Assembly debates.

Like members of New Jersey's panel, the Maryland commissioners have bemoaned the long appeals process in death penalty cases. Relatives of murder victims testified that it drags family members through painful delays without delivering the justice promised by the system.

But panel members - law enforcement officers, attorneys, religious leaders, lawmakers and victims' relatives - also debated whether sentencing convicted killers to life without parole would provide fewer appeals or greater finality. And with an exonerated death row inmate sitting on the commission, many have expressed concern that accelerating the process and narrowing legal appeals could increase the risk that an innocent person is executed.

"The question in my mind is can we afford to make a mistake? ... I don't think we can," Noel L. Godfrey, a correctional officer who works at a Jessup prison, said at a meeting. Referring to a fellow panel member - Kirk N. Bloodsworth, who spent nine years in prison, including two on death row, before DNA evidence cleared him in the murder and rape of a little girl - he added, "Bloodsworth's testimony was so compelling. What if the circumstances were different? Then he would not be here today."

Under Maryland law, prosecutors can generally pursue a death sentence for a convicted killer - not an accomplice - in cases with a so-called aggravating factor, such as the killing of a police officer or multiple victims, a killing by a prisoner, or a killing committed during a robbery, kidnapping or rape. Five men have been executed since Maryland's death penalty law was reinstated in 1978, and five men remain on death row.

But the state has effectively been under a moratorium on executions since December 2006, when Maryland's highest court ruled that lethal injection procedures must be rewritten. O'Malley, a death penalty opponent, reluctantly ordered the drafting of those protocols in May. Gary D. Maynard, secretary of the Department of Public Safety and Correctional Services, is reviewing a draft before releasing the procedures for public comment, a department spokesman says.

Led by former U.S. Attorney General Benjamin R. Civiletti, Maryland's death penalty commission held five public hearings with 84 witnesses offering more than 24 hours of testimony - mostly in favor of abolishing capital punishment. Among the panel findings issued Wednesday: Racial and geographic disparities exist in how the death penalty is applied. Capital cases are more costly than non-death penalty cases and take a greater toll on the survivors of murder victims. And the unavailability of DNA evidence in some cases opens the "real possibility" of wrongly executing an innocent person

The dynamic among commissioners has often been fascinating. On one side of the room sits Baltimore County State's Attorney Scott D. Shellenberger, the panel's most vocal death penalty supporter and top prosecutor of the county that has sent more men to death row than any other locality in the state. One of those men - Bloodsworth, wrongly convicted twice in a case prosecuted by attorneys who now work for Shellenberger - sits across the room, beside Katy O'Donnell, who leads the capital defense division of the public defender's office.

Nearby is Rick N. Prothero, whose brother - a Baltimore County police officer - was killed in 2000 while working as an off-duty security guard at a Pikesville jewelry store. The four men involved in the robbery and shooting were prosecuted by Baltimore County and received life sentences; the killer died in prison this year.

And several members are current or former attorneys and law professors who take every available opportunity to cross-examine expert witnesses.

"I think that dynamic has enriched the discussion," said Matthew Campbell, a former prosecutor and a litigator for the Financial Industry Regulatory Authority. "These are important questions - questions about which people can reasonably disagree."

For Oliver Smith, serving on the commission has been an education and an opportunity to give voice to the victims' families who often feel pushed aside by a legal process that focuses on the defendant's rights. Smith's son, a Washington, D.C., police officer, was shot and killed in a robbery attempt in 1997

"There are religious reasons why we should be very careful and all the technical and legal issues," he said. "The only education I'd had before this about the legal system was watching television. And I can tell you it ain't like that in real life. It's very intense."

Bernadette DiPino, a fourth-generation police officer and chief of the Ocean City Police Department, has also learned some things by representing the Maryland Chiefs of Police on the commission. "You think in your mind that a victim's family would want the death penalty, if possible. But several people came in and told us, no, from the religious perspective to the time it takes, they don't want that. It's enlightening to hear that."

Shellenberger, who was elected Baltimore County's top prosecutor in 2006, said the panel has not changed his ardent support of the death penalty. But it has opened his eyes to aspects of capital punishment that he had not considered as much as the issues of justice so central to his support.

"One of the most compelling is the effect of a death sentence on a victim's family," he said. "I know that intellectually, and I knew from watching them in the [capital] cases I've handled. But to hear it time and time again, it does make you think. Are you doing a disservice to a family when you put them through that?

"But what I come back to is: Doesn't a family have a right to decide they want to go through that? If we're honest with them and tell them what they'll be facing for the next 10 or 15 years, who are we to say we know better than them, who lost a loved one?"

The commission is scheduled to hold its final public meeting Thursday from 3 p.m. to 8 p.m. in Annapolis.

Related topic galleries: Murder, Lawyers, Prosecution, Prisons, Witnesses, Law Enforcement, Rape

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