By Ian Duncan and Yvonne Wenger, The Baltimore Sun
9:34 PM EDT, July 10, 2013
Thirteen inmates convicted of murder have been released from prison — and dozens more could be freed — after Maryland's highest court ruled that jurors had been given improper instructions in the decades-old cases.
The Court of Appeals ruling effectively entitled as many as 200 prisoners convicted before 1980 of crimes including murder, attempted murder and rape to demand new trials. The difficulty of retrying the old cases has prosecutors throughout the state fighting to keep violent offenders behind bars.
Faced with several setbacks as it attempted to block new trials, the Baltimore state's attorney's office has released 14 inmates it believes do not pose a threat to public safety — 13 murderers and one man convicted of attempted murder. Prosecutors in Anne Arundel, Baltimore, Harford and Howard counties say they are dealing with a smaller number of cases and hope to contest them all.
"It's really sad that this is reopening wounds for these loved ones, but we're really working hard to achieve just outcomes," said Mark Cheshire, spokesman for the Baltimore prosecutor's office, which is handling close to half of the affected cases. "If there's any violence [in an inmate's prison record] we're going to go to trial."
The releases have left victims' families struggling to understand how the 2012 ruling, which received little public attention until now, undid convictions that seemed long settled.
On Wednesday, Shirley Rubin, 89, pulled a picture of her murdered husband, Benjamin, from a wall lined with photos of their children's and grandchildren's weddings and portraits of the family over the decades since his death.
"He missed all of this," Rubin said.
Rubin said she was sick to her stomach when she received a call in December with news that the convicted gunman, Welford Monroe, now 59, was eligible for release.
Monroe was one of three young men who robbed the Rubins' Southwest Baltimore grocery store on April 19, 1972. Monroe, then 17, was sentenced to life plus 35 years for murder, assault with intent to murder and armed robbery.
Benjamin Rubin, 49, was lying on the floor when he was shot. Another bullet hit Shirley Rubin, traveling through her arm and lodging in her hip, where it remains today.
Rubin said facing Monroe at his release hearing last month made her feel like "someone had a dagger in my heart. I looked right at him.
"He's gone free. He has ruined my life," Rubin said. "The only thing that kept me going in these last 41 years was the fact that [Monroe] was in prison."
Neither Monroe nor his attorney could be reached for comment.
Rubin praised the work of the state's attorney's office, but relatives of other victims said they thought city prosecutors could have done more to keep convicted killers under lock and key.
Cheshire said each case was reviewed carefully and plans laid for inmates' lives on the outside before the decision to release them. In exchange for not demanding new trials, prosecutors agreed to reduce their sentences so they could be released.
Michael Millemann, a University of Maryland law professor who is working on securing the release of some inmates, said the state is doing the right thing because the jury instruction system in place before 1980 was fundamentally unfair to defendants.
"These were lawless trials," he said. "There is absolutely no reason to trust the results in these cases."
Like other prosecutors throughout the state, Cheshire said, Baltimore State's Attorney Gregg L. Bernstein is looking to try some cases again, locating old witnesses and trial transcripts.
Baltimore County State's Attorney Scott D. Shellenberger's office is handling six cases, and expects more to arise.
"If you killed someone in the '70s and a judge saw fit to give you a life sentence ... that sentence should be carried out," Shellenberger said.
Prosecutors in Anne Arundel and Howard counties say judges have been blocking inmates' attempts to reopen their cases, so they have not had to contemplate retrying them. Harford County prosecutors are also trying to prevent inmates from getting new trials.
The 14 inmates who have been released in Baltimore so far range in age from 55 to 75 and had served 33 to 45 years in prison. One of them was transferred to federal custody.
Seven more inmates convicted in Baltimore are expected to be released later this month. The inmates will be on supervised probation after they get out and violations would send them back to prison.
Some of the freed prisoners use wheelchairs or canes and have serious health problems, according to attorneys involved in the cases. One of them, Yusuf Rasheed, 72, died of a heart attack within 24 hours of getting out of prison. He had served 37 years and four months.
Karen Wilson's father, Joseph Eugene Wilson, was stabbed to death in 1969 when she was 13. Craig Fellows, the man convicted in his killing, was among those released last month. Knowing he's on the street again has left Wilson, 57, feeling "a little paranoid."
"Every time I go into a store or out in public I think I might see him," she said. "Who knows where he's going to turn up?
"I've considered [for] the first time in my life getting a handgun."
But Fellows' attorney, Roland Brown, said his client is an old man — he's 65 — and not likely to be a threat to anyone.
"He just wants to enjoy his grandkids and his family," he said. "He's in the twilight of his life."
Nancy Forster, a former Maryland public defender now in private practice, called the ruling and its fallout "highly unusual."
"It's not often that the Court of Appeals overturns cases… after 20-some years," said Forster, who represented one of the men released under the ruling.
Relying on an unusual practice from colonial times, judges typically told jurors before 1980 that they should consider both the facts of the case and what the law meant — inviting them to throw out the concept of reasonable doubt if they chose.
The appeal that opened the door to the new trials was brought by Merle Unger, who was convicted in 1976 of killing an off-duty Hagerstown police officer. He had successfully escaped from prison numerous times over the years.
Unger was retried and convicted again this June, court records show, and is awaiting sentencing. His attorney could not be reached for comment.
But the court ruling that enabled that trial unleashed a wave of petitions to courts across the state. The Office of the Public Defender and a University of Maryland legal clinic are identifying inmates eligible for new trials.
Andrew D. Levy, a Baltimore defense attorney who also teaches at the University of Maryland law school, said there are rulings that come along every few years that create nightmares for prosecutors.
"I wouldn't say this happens a lot, but it happens enough that you can imagine the difficulty a prosecutor has trying a case that's 25 years old," Levy said, adding that witnesses often are dead, missing or unreliable.
"Who can testify about an event that happened 25 years ago in enough detail that a jury can find beyond a reasonable doubt?" Levy said.
Cheshire said that in some instances, "we simply cannot go forward because of the absence of evidence and witnesses."
Despite her fears about Fellows' release, Wilson said she testified at his final court hearing that she had forgiven him and hoped he might use his second chance to turn his life around.
"I didn't understand forgiveness for a long time because I thought it meant telling the person it's OK what you did," Wilson said. "I'm not going to let the anger of that control me. They might not deserve a second chance, but they've got it."
The Maryland Court of Appeals ruled last year that standard jury instructions before 1980 led to unfair trials. Judges had told jurors they were supposed to consider what the law means, rather than simply the facts of a case. The high court decided in 1980 that such directions were defective because they robbed defendants of their right to be proven guilty beyond a reasonable doubt. But it was not until last year that the court said the concern was significant enough to warrant new trials.
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