Is the Death Penalty a Lottery? You Bet

By Joan Jacobson

May 26, 2002

It's death penalty day at the Baltimore County Courthouse in Towson. Scores of potential jurors cram a large courtroom on the third floor, where defense attorneys and prosecutors settle in for a three-day marathon that will net 12 people and a few alternates who may ultimately have to decide whether to send a killer to Maryland's death row.

 This scene has played out dozens of times at the county courthouse over the past 22 years, so often that the proceedings no longer draw the curious or even the attention of most of the state's news organizations. But, oddly enough, it's not a scene that you will see in Prince George's County or Baltimore City, where the majority of Maryland's homicides occur.

 That's because in Maryland, geography is the factor in determining whether a first-degree murder defendant eligible for the death penalty will actually face it. The Baltimore County state's attorney uses her discretion as a local prosecutor to bring capital cases in nearly every instance where the law allows, arguing that this is the fairest way to apply the state's most punitive statute. Her counterparts in Baltimore City and Prince George's, where capital punishment is unpopular with voters, use their discretion to pick and choose -- and they almost always choose to stay away from the death penalty route.

 Which is fairer? Gov. Parris N. Glendening, in announcing a moratorium on executions earlier this month, seemed to have cast his vote. "The use of the death penalty ought not to be a lottery of jurisdiction," he said on May 9. But he is stating the obvious. It has been a lottery since the state's death penalty law was revived in 1978, after the Supreme Court issued guidelines on how the states could execute murderers without running afoul of the Constitution's prohibition against cruel and unusual punishment.

 No one has yet to resolve an inherent conflict that is more than 200 years old: The death penalty is a statewide law that is administered by locally elected prosecutors. Short of removing first-degree murder cases from the hands of Maryland's 24 state's attorneys and creating a single office to handle all such homicides, there is no way to eliminate geographical bias from the criminal justice equation.

 Glendening didn't fault the system in calling for a moratorium. His remarks clearly suggested, however, that there is something wrong with the way Baltimore County prosecutor Sandra A. O'Connor has applied the law. He noted that nine of the 13 men on Maryland's death row are from her county, and that eight of the nine are African American.

 It isn't quite clear why the lame duck governor, who has always said he supports the death penalty, acted now. There was an execution scheduled for this month, but there was no dramatic triggering event like that in Illinois, where Gov. George Ryan suspended all executions two years ago after a group of journalism students discovered an innocent man was about to be executed. The issue of geographic "bias" is one that death penalty opponents have raised for years, while Glendening has allowed two other executions (in 1997 and 1998, by lethal injection) to take place.

 But the governor said he has worried for some time about the inequities of Maryland's system. He now awaits the results of a two-year study by a University of Maryland criminology professor, Raymond Paternoster, who is supervising a team of seven criminology doctoral students in a review of the 5,000 to 6,000 homicides that have occurred since August 1978, when Maryland's current death penalty law took effect.

 Paternoster's team will look at the geographic issues in examining who does -- and doesn't -- face a capital punishment trial, as well as the question of whether the race of the defendant or the victim played a role in the application of the law. Their work is expected to be completed in September.

 Regular visitors to the Towson courthouse -- whether they oppose or support the death penalty -- know that O'Connor's approach is, if nothing else, the clearest and most straightforward of any prosecutor in Maryland.

 O'Connor, a Republican, says she seeks the death penalty in every first degree homicide case that qualifies under state law. That means the murder also involved one or more "aggravating" circumstances, such as robbery or rape or other additional crimes. She makes an exception only when the victim's family states its opposition to capital punishment, or when the only evidence is the testimony of a co-defendant, she said in an interview last week. She developed this approach in 1980, she said, specifically to avoid accusations of racial prejudice. She brings the case, if the criteria call for it, and then it's up to the judge and jury to decide whether there are mitigating factors (laid out in the state's death penalty law) that would prevent execution.

 Though no one has kept statistics on county death penalty trials to verify O'Connor's claims, I watched her approach in action as a Baltimore Sun reporter covering Baltimore County courts during the 1990s. O'Connor's prosecutors sought the death penalty in cases against both black and white defendants, including low-profile murder cases that barely made the news. She issued no news releases and held no news conferences. It was just business as usual in the Towson courthouse. If the state is going to have a death penalty, it could be argued that in its lack of ambiguity, O'Connor's system is the fairest of all.

 There's no easy way to reconcile the differing approaches of Maryland's local prosecutors. It would be political suicide for any of Maryland's gubernatorial candidates this year to favor diminishing the prosecutorial power of Sandy O'Connor. Who would be foolish enough to challenge someone who has held office in one of Maryland's largest counties for more than a quarter-century, and who has run unopposed since 1986?

 But the legal and historical issues are equally daunting. As O'Connor says, "Crime is a local issue." She questions the constitutionality of limiting the discretion of local prosecutors, and she doubtsthe legality of a system in which a statewide authority would tell a state's attorney, "You must try this as a death penalty case."

 That, she says, would be an unprecedented change in prosecution.

 O'Connor says she is certain that the U-Md. study will show no evidence of racial bias on her part. Even if racial bias occurs once a case is out of a prosecutor's hands and goes to a jury or a judge, she noted, those decisions can't necessarily be blamed on Baltimore County. Six of the nine Baltimore County death row inmates, she said, were tried and sentenced outside Baltimore County -- because the defendants sought a change of venue.

 Race is an inevitable issue in debating the death penalty and that, too, is geographic. O'Connor's home county, a horseshoe-shaped suburb that surrounds Baltimore City, is three-quarters white. It has averaged 31 homicides annually since 1990, according to the Baltimore Sun. It's where many city residents -- black and white -- have moved, some expressly to escape city crime; its population (760,000) now exceeds the city's (635,000). In contrast, the city is 65 percent black. It has the highest homicide rate in the state (an average of 310 a year since 1990).

 Ten miles separate the city and county courthouses. But when it comes to the death penalty, they might as well be in different countries. In Baltimore City, juries tend to be more skeptical of police, and it is harder for prosecutors to win convictions, even in murder cases. The state's attorney for the city, Patricia Jessamy, says she and her deputies weigh each homicide case that might qualify for the death penalty by reviewing both "aggravators" (additional charges that put a murder case in the death penalty category, such as rape, theft and the killing of a police officer) and "mitigators" (extenuating factors, such as whether the defendant was the victim of abuse). And like O'Connor, Jessamy considers the opinion of the victim's family.

 Only once since the prosecutor took office in 1995 has she sought execution. "We decided the death penalty should be used in the most heinous cases," said Jessamy, a Democrat whose two immediate predecessors had similar records on capital punishment. "There is no case that cried out more for the death penalty than Joe Metheny's."

 Joseph R. Metheny was charged in 1997 with strangling a prostitute named Cathy Ann Magaziner three years earlier. He had also confessed to killing several other people and showed no remorse. Jessamy believed that he might kill again -- even in prison.

 Jessamy and her deputies pursued the death penalty because they believed Metheny also stole his victim's purse and clothing. With the added charge of robbery, prosecutors had the legal right to seek execution.

 Ironically, though, Metheny's case never tested a city jury's willingness to approve an execution. After pleading guilty in 1998, Metheny invoked his right to have his sentencing moved out of the city, where there had been an abundance of publicity about the crime.

 And where did he and his lawyers end up? Of all places, Baltimore County.

 At his sentencing in Towson, he begged the jury to send him to hell in a profane, self-loathing speech. He refused to apologize for his crime, proclaiming, "I just enjoyed it."Metheny's lawyers pleaded for the jurors to spare Metheny's life, describing him as a friendless, neglected child with an absent, alcoholic father. But the jury granted the huge, menacing man's request, deliberating a little more than two hours over court-ordered pizza before sentencing him to die.

 But as is often the case when the death penalty is involved, that wasn't the end of the matter. Two years later, Maryland's highest court ruled that Metheny's case didn't qualify for the death penalty in the first place. The court questioned whether Metheny had taken the victim's purse and clothing, pointing out that the items were left behind after her murder.

 So Joe Metheny no longer lives on death row. His sentence has been reduced to life in prison.

 And that's just one story of the twists and turns that occur in the administration of the Maryland death penalty. It's a lottery, all right. We don't need a scientific study to tell us that.

 Joan Jacobson, a former reporter for the Baltimore Sun and Evening Sun, frequently wrote about criminal justice matters during her 27-year newspaper career. She is now a freelance writer in Baltimore.

The Baltimore Sun

Death and certainty

May 28, 2002

GOV. PARRIS N. Glendening halted all Maryland executions this month, saying no one should be put to death before a study he commissioned determines whether racial bias pollutes the capital system. 

But the governor's not the only person with misgivings. Over the past few years, the courts that hear Maryland death penalty cases on appeal have been weighing in with serious doubts about how fairly this state seeks to take life -- and their concerns go far beyond matters of race. 

Judges have questioned whether the state has adequately proved death row inmates' guilt. They've been critical of defense lawyers whose cases on behalf of death row inmates they found to be lacking. 

And in an astonishing opinion issued this month, J. Harvie Wilkinson III, chief judge of the U.S. Court of Appeals for the 4th Circuit (which includes Maryland), even suggested that Mr. Glendening consider clemency for one death row inmate because the judge could not affirm his guilt with certainty.

 Interestingly, even as the courts suggest something may be wrong with the system, they don't always overturn convictions or sentences. In particular, the 4th Circuit (one of the nation's most conservative benches) has been loath to take prisoners off Maryland's death row. 

But the courts' concerns about fairness have become consistent reminders that something may be wrong with the state's capital system. Five judges suggested that Eugene Colvin-el was the victim of bad legal representation before the governor finally commuted his sentence two years ago. Kevin Wiggins had his death sentence vacated by a federal district judge who said no reasonable juror could have found him guilty. 

The 4th Circuit reversed that decision because it found that Mr. Wiggins' journey through the courts violated no rule of law -- but Judge Wilkinson expressed his doubts about the case and issued his plea to the governor along with that decision. 

And the evidence against Wesley Baker, who three weeks ago faced imminent execution, was described in an opinion upholding his conviction as "not overwhelming." All of this points to a desperate need for a comprehensive look at the Maryland capital system, and perhaps comprehensive changes to go along with it. Certainty -- of both legal and moral propriety -- must accompany any decision by the state to take a life. 

And it has become clear through the courts that certainty too often evades Maryland death penalty cases. The courts cannot fix this problem; that responsibility falls to the state's political leaders. 

Governor Glendening took an important step in the right direction with his race study and the moratorium, but the next chief executive will need to go further. The legislature, too, should embrace a wide-ranging inquiry into the death penalty's fairness. This must be done before Maryland takes another life in the name of justice.