MSBA Public Awareness Committee
Hosts Death Penalty Forum
By Patrick Tandy

Maryland’s death penalty was the focus of a public law forum sponsored by the MSBA’s Public Awareness Committee (PAC) February 12 at the University of Maryland School of Law in downtown Baltimore. In a second-floor classroom wired to the teeth with the latest technology, a sizeable audience – including numerous attorneys – turned out to discuss the ever-controversial subject, one on which the Maryland State Bar Association holds no official position.

Guest speakers Gary Christopher, Chief Assistant Federal Public Defender for the Federal Public Defender of Maryland, and Annabelle Lisic, Senior Counsel, Capital Litigation, for the Criminal Appeals Division of the Office of the Attorney General, prefaced the open forum with informative lectures ranging from the history of capital punishment to modern views and legislation before fielding questions from the audience.

 “The sole purpose [of the forum] is to educate and inform the public,” said PAC Co-Chair Adam Sean Cohen. “This is not going to be a situation where, when you walk out of the room, you say, ‘Gary Christopher won’ or ‘Annabelle Lisic won.’ That is not what this is about. This is to educate you so that you can walk out of here saying, ‘I didn’t know that about this [or that] side of the issue.’”

Lisic opened the forum with “some very objective information about how the death penalty in Maryland works,” briefly outlining the history of the state’s use of capital punishment as well as providing a break-down of the jury-selection, sentencing and appellate procedures. She placed particular emphasis on Maryland’s death penalty statute and the criteria by which candidates are selected for death.

“What that statute did was to limit the individuals eligible for the death penalty to those found guilty of first-degree murder, and then added some other factors that had come into play in order to make that individual eligible for the death penalty,” Lisic said of the 1978 statute, drafted in response to the Supreme Court’s landmark Gregg v. Georgia decision of two years earlier, which introduced the use of aggravating and mitigating factors in the consideration of a death sentence. “They set up a process for consideration at sentencing where a defendant could offer any kind of reliable information that would perhaps mitigate the death penalty.”

Christopher’s take on the matter, however, was infinitely more subjective. “Thinking as a lawyer should think, I hope, and putting to one side emotion on a matter that is always emotional,” he said, “I’m here to tell you today that Maryland’s 25-year experiment with this component [of our criminal justice system] is a complete and utter disaster.”

“We come to law school to learn to think like lawyers,” Christopher noted, “and not too many people out there right now are thinking about the death penalty as lawyers.” He cited “the obscenity of the number of people [5,978] who have been sentenced [to die] within the last 20 years.”

“What are lawyers going to do about that number?” he posited. “This should be among the highest of our social concerns, as lawyers.”

Maryland has put three people to death since drafting its death penalty statute, the most-recent in 1998. Upon taking office in January, Governor Robert L. Ehrlich, Jr., lifted the death penalty moratorium imposed by his predecessor, Governor Parris Glendening.

Both Lisic and Christopher acknowledged the indelible impact of a recent University of Maryland study that substantiates long-held claims that race and geography factor heavily in the decision to seek the death penalty for eligible crimes.

“It’s entirely discretionary with the state’s attorney’s office in each jurisdiction as to whether they will file that notice [of intent to seek the death penalty], and different jurisdictions have different ways of looking at it,” Lisic explained.

Christopher was less clinical. “The proposition that it is alright on a statewide basis to value white lives more highly than we value the lives of people of color – that it’s okay, as long as that valuation is a product of geography and where people are shot, of where they commit their crime – is balderdash,” he said. “I just can’t believe that the system is being defended on that basis.”

But Christopher apologizes for neither the criminal nor their crime. “We can’t shy away from using an effective component [of our criminal justice system] merely because it’s distasteful,” he said. “If it is effective, if it can really help us reduce the total violence in our state – if it can accomplish that, then we ought to use that component, even if its name is the death penalty.”

“Obviously we can’t do it perfectly,” he added, “but we’d better do it pretty close to perfect, if we’re going to feel good about the system of criminal justice that we have.”

The forum was nothing if not timely, coming only one day after the Court of Appeals of Maryland granted convicted killer Steven Oken a stay of execution. Oken had been sentenced to die the week of March 17 for the 1987 rape and murder of a 20-year-old White Marsh woman. The stay was granted on the basis of the Supreme Court’s June 2002 Ring v. Arizona decision, in which the Court effectively ruled the practice of having judges rather than juries determine the aggravating factors in a death penalty case unconstitutional. According to the Death Penalty Information Center (www.deathpenaltyinfo.org), “the Court held that a death sentence where the necessary aggravating factors are determined by a judge violates a defendant’s constitutional right to a trial by jury.” The Ring decision affects as many as 800 of the approximately 3,700 inmates currently sitting on death row in America, and has prompted several states to overhaul their death penalty statutes.

Recent developments in forensic technology and resultant death-row exonerations – too late, in some cases – have called into questioning the accuracy of the criminal justice system and the irreversibility of a death sentence. Skeptics argue that the rate of error is greatly exaggerated, but some believe capital punishment to be unworthy of any cost.

“It’s clearly drained resources that could have been put to more creative and meaningful uses,” Christopher said. “It’s allowed politicians to say they’re doing something when they’re doing nothing, and it’s distracted us from pursuing real solutions.”

“I’m glad to have lawyers in the audience because the people in this room are the ones who are the criminal justice system,” he added. “It’s our business. We make it work. We screw it up. We fix it if it’s broken. It’s ours to succeed with or fail.”

This was not the first of the series of public law forums; last year, the PAC sponsored a program on cyber safety.

“The Committee makes every effort to select timely topics that will have the biggest impact on the enlightenment of the general public,” Cohen said. The decision to host a program on this topic was obvious, he explained, “in light of the targeted issuance date of the University of Maryland’s study on the death penalty.”

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Publications : Bar Bulletin: March, 2003