When the Washington-area sniper trial begins today in Virginia, prosecutors in Maryland - where 10 of the 13 shootings occurred - will be sitting on the sidelines.
A major reason is what some view as an ambiguity in Maryland's death penalty statute regarding serial murderers, and its prohibition on executing people convicted of crimes committed when they were younger than 18, which would have shielded one of the two sniper defendants.
As a result, prosecutors in Virginia won a behind-the-scenes tug-of-war to try the suspects first. The state, which executes for offenses committed by people as young as 16, is second only to Texas in the number of death penalties carried out since 1976 when the Supreme Court reinstated capital punishment. Maryland, which was observing a moratorium on executions at the time of the sniper killings, is ranked 22nd.
Some Maryland lawmakers are still angry about the decision to move the trials and want to change the law so it won't happen again.
"It should have been tried here," said Sen. Nancy Jacobs, a Harford and Cecil County Republican.
Other lawmakers also have concerns about Maryland's death penalty statutes, but for different reasons. Some want to close loopholes to make it easier for killers to be executed. Others worry about racial disparities in its application - such as those revealed in a study released this year by a researcher at the University of Maryland - as well as ensuring that defendants have access to evidence that could prove their innocence.
"My view is that the death penalty here in Maryland, at a minimum, needs an overhaul - a complete overhaul," said Sen. Brian E. Frosh, a Montgomery County Democrat and chairman of the Senate Judicial Proceedings Committee. "Whether it's constitutional or not, it's a mess."
Sen. Ralph M. Hughes, a West Baltimore Democrat, agrees: He is considering writing a bill that would create a commission to look at Maryland's death penalty statute. Hughes is chiefly concerned that defendants have proper access to DNA analysis and other technology. "We have people on death row who should not be there," Hughes said.
Jacobs, who was co-sponsor of legislation that failed in this year's General Assembly session, said she is speaking with other senators about drafting a bill that would make defendants eligible for the death penalty if they commit more than one first-degree murder within a three-year period.
In the sniper case, the shooter or shooters killed five people in the span of 16 hours in Montgomery County before going on to shoot eight more people during the next three weeks, killing five of them. Residents in the Washington area were gripped with fear until the shooting spree ended with the arrests of John Allen Muhammad, 42, and Lee Boyd Malvo, 18, at a Maryland rest stop.
To secure the death penalty in Maryland, prosecutors must prove one of 10 "aggravating factors," one of which is multiple homicides resulting from the "same incident." Legal experts said the sniper attacks, which occurred at different times and different locations, did not appear to fit that definition and that a death penalty verdict based on that logic could be overturned.
Montgomery County State's Attorney Douglas F. Gansler said he believes the case would have met the requirements of the state law in imposing the death penalty, at least against Muhammad. "There's no question that under the current death penalty statute ... we could have gotten the death penalty here."
But federal authorities, who sent the trial to Virginia, disagreed or were not so sure. U.S. Attorney General John Ashcroft said two Virginia counties were picked to lead the prosecution because they provided the best legal framework, best evidence - and the best chance to secure death sentences.
The decision fueled a new debate about the death penalty in Annapolis, where more than a dozen bills were submitted, some pushing for a moratorium on executions, others seeking amendments to the law to ensure that such serial killers as the sniper shooters could be executed.
But none of them passed, in part because of an unusually charged atmosphere in Annapolis.
A study released in January found that those who kill whites were more often sentenced to death in Maryland than the killers of nonwhites.
A few weeks later, Attorney General J. Joseph Curran Jr. called for the abolishment of the death penalty for fear that the state might one day execute an innocent person - as it almost did in the case of Kirk Bloodsworth. The conviction against Bloodsworth, who was sentenced to die for the rape and murder of a 9-year-old Rosedale girl, was overturned in 1993 after DNA evidence determined he was innocent.
Instead, Gov. Robert L. Ehrlich Jr., a Republican, lifted the moratorium on the death penalty imposed by his predecessor, Democrat Parris N. Glendening.
People on both sides of the issue agree that it would be difficult to craft a law that resolves all of the disparities and meets every peculiar circumstance that might arise - such as the sniper shootings.
"This area of the law is never settled because it draws a line between who lives and who dies," said Richard Dieter, executive director of the Death Penalty Information Center, a Washington-based organization. Dieter said he does not believe it will ever be resolved "unless you say everyone who commits murder gets the death penalty, ... which the Supreme Court has ruled unconstitutional."
Ehrlich does not intend to push for any death penalty legislation in the next General Assembly session, said Henry Fawell, a spokesman. He declined to comment on legislation others might propose.
Kent S. Scheidegger, legal director for the Criminal Justice Legal Foundation in California, which generally supports the use of the death penalty, said, "It certainly is worth looking at how Maryland defines a death-eligible case ... [but] I don't think you have a problem with meeting Supreme Court standards."
In the end, it doesn't matter whether Virginia or Maryland tries the sniper case first, Scheidegger said. If Maryland tried the case first, convicted the defendants and sentenced them to life in prison, Virginia could still sentence them to death and execute them, he said.
Maryland has 10 inmates on death row. Three are near the end of the appeals process and could face execution at any time, according to the state attorney general's office.
Those three are: Steven H. Oken, a convicted rapist and murderer whose case is under review by the Maryland Court of Appeals; Wesley Baker, who was convicted of murdering a 49-year-old woman in front of her children during a 1991 robbery that netted $10; and Heath William Burch, convicted of a 1995 murder in Prince George's County.
Jacobs and others said they hope there will be a bipartisan look at the issue in the coming session that will lead to a solid death penalty statute in the near future.
"I'm real hopeful that ... we can correct and clean up the death penalty law," Jacobs said. "It needs to be revised."Copyright © 2015, The Baltimore Sun